# (State of U.P v. Kallu @ Nafees and

- **Citation:** (2008) 2 ILRA 491
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-04-29
- **Case number:** Civil Misc. Writ Petition No.2l692 of 2008
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-kallu-nafees-and-41142
- **Pages:** 14

## Headnote

Constitution
of
India
Art
226-
aggrieved
person
public
interest
litigation-petitioner a legal practitionerresiding in same village of Respondent
No. 6-who retired from the post of peon
in Junior High School-seeking direction
to hold enquiry against her appointment
alleged to be illegal-in services cases,
except the employee-an stranger has no
locus
standi-petition-held-not
maintainable-

Held: Para 10

From the aforestated legal position
enunciated by Hon'ble Apex Court, there
can be no scope for doubt to hold that
the petitioner is not an "aggrieved
person" entitled for seeking reliefs of
certiorari for quashing impugned order
dated 10.3.2008, which is also not on
record to enable the court to know the
actual order which is alleged to have
been
passed
by
the
concerned
respondent
and
reasons
therefore.
Therefore, the instant writ petition is
liable to be dismissed on the aforesaid
ground alone in view of law laid down by
Hon'ble Apex Court in Surinder Singh Vs.
Central Government and others

(B) Constitution of India Art 226-Public
interest litigation-petitioner a practicing
Advocate-unnecessary dragging the poor
widow in futile litigation-questioning her
appointment after retirement-conduct of
petitioner shocking to the conscience of
Court-a black spot on noble professionno locus standi to press the writ petitionpetition dismissed with exemplary cost
of Rs.25,000/-.
Case law discussed:
AIR 1975 SC 2092, AIR 1976 SC 578, 2002
Vol. (1) SCC 33=2001 AIR SCW 4022, AIR
1986 SC 2166, AIR 1993 SC 1769, AIR 1999
SC 114, AIR 2002 SC 350, (2005) 1 SCC 590,
(2005) 3 SCC 91.

## Text

_Characters 0–39,605 of 47,150. This is a partial read: ask again with offset=39605 for what follows._

2 All] Mohd. Shafi V. State of U.P.
491
The Registrar General is directed to send
a copy of this order within a week
through the District Judge concerned to
Sri Gopal Singh Chandel, the then
Additional Sessions Judge, Court No.2,
Fatehpur for his future guidance.

(Delivered by Hon'ble S.S. Kulshrestha, J.)

1. Heard Sri Raghu Bans Sahai,
learned counsel for the accused-appellant
and learned A.G.A. for the State and also
perused the materials on record.

2. Bail application on behalf of
accused-appellant Mohd. Shafi, convicted
for the offences under Sections 304- B
and 498-A I.P.C. in S.T. No. 664 of 2002
(State of U.P. vs. Kallu @ Nafees and
others) vide judgement and order dated
28.02.2008 passed by Sri Gopal Singh
Chandel, the then Additional Sessions
Judge, Court No.2, Fatehpur has been
pressed on the ground that he is the
father-in-law of the victim woman and
was residing separate from her at the
relevant time. General allegations have
been attributed against him.

3. Having regard to the facts and
circumstances of the case, the accused
appellant deserves bail.

4. Let the accused-appellant Mohd.
Shafi convicted for the offences indicated
above be released on bail during the
pendency of the appeal on his executing
personal bond and furnishing two sureties
each in the like amount to the satisfaction
of the Trial Court subject to deposit of
fine imposed for the offences under
Section 498-A I.P.C.

5. Realisation of the total amount of
fine imposed under Section 304-B I.P.C.
shall remain stayed, as no fine can be
imposed for the offence punishable under
Section 304- B I.P.C. It is very
unfortunate that the learned Trial Court
without going through Section 304-B
I.P.C. has imposed fine of Rs.5,000/- on
the appellant-accused under this Section,
where as no fine is prescribed in subSection (2) of Section 304-B I.P.C., which
reads thus:-

304-B. Dowry death.-
(1) .............
(2) Whoever commits dowry death shall
be punished with imprisonment for a term
which shall not be less than seven years
but which may extend to imprisonment for
life.

5.

Although
sentence
of
imprisonment can be extended up to life
imprisonment under Section 304-B (2)
I.P.C., but no fine can be imposed as the
legislature has not prescribed imposition
of fine under this Section.

6. The Registrar General is directed
to send a copy of this order within a week
through the District Judge concerned to
Sri Gopal Singh Chandel, the then
Additional Sessions Judge, Court No.2,
Fatehpur for his future guidance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.2l692 of 2008

Prem Shankar Mishra

...Petitioner
Versus
State of U.P. and others ...Respondents
492 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Counsel for the Petitioner:
Sri. Vishal Tandon

Counsel for the Respondents:
S.C.

(A)
Constitution
of
India
Art
226-
aggrieved
person
public
interest
litigation-petitioner a legal practitionerresiding in same village of Respondent
No. 6-who retired from the post of peon
in Junior High School-seeking direction
to hold enquiry against her appointment
alleged to be illegal-in services cases,
except the employee-an stranger has no
locus
standi-petition-held-not
maintainable-

Held: Para 10

From the aforestated legal position
enunciated by Hon'ble Apex Court, there
can be no scope for doubt to hold that
the petitioner is not an "aggrieved
person" entitled for seeking reliefs of
certiorari for quashing impugned order
dated 10.3.2008, which is also not on
record to enable the court to know the
actual order which is alleged to have
been
passed
by
the
concerned
respondent
and
reasons
therefore.
Therefore, the instant writ petition is
liable to be dismissed on the aforesaid
ground alone in view of law laid down by
Hon'ble Apex Court in Surinder Singh Vs.
Central Government and others

(B) Constitution of India Art 226-Public
interest litigation-petitioner a practicing
Advocate-unnecessary dragging the poor
widow in futile litigation-questioning her
appointment after retirement-conduct of
petitioner shocking to the conscience of
Court-a black spot on noble professionno locus standi to press the writ petitionpetition dismissed with exemplary cost
of Rs.25,000/-.
Case law discussed:
AIR 1975 SC 2092, AIR 1976 SC 578, 2002
Vol. (1) SCC 33=2001 AIR SCW 4022, AIR
1986 SC 2166, AIR 1993 SC 1769, AIR 1999
SC 114, AIR 2002 SC 350, (2005) 1 SCC 590,
(2005) 3 SCC 91.

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. By this petition the petitioner,
who is an Advocate in district court
Deoria claims himself to be social worker,
has dragged a poor widow lady Smt.
Gulabi Devi widow of Late Mohan Misra
of his own village up to this Court
pretending it to be in Public Interest
without describing the writ petition as
Public Interest Litigation and sought relief
of certiorari for quashing the order dated
10.3.2008 by which respondent no.4 has
alleged to have recalled his earlier order
dated 15.12.2007 and has directed the
Senior Treasury Officer to release all the
payments to Smt. Gulabi Devi. A further
writ in the nature of mandamus has also
been sought for directing the respondents
no.3 and 4 to complete the inquiry against
Smt. Gulabi Devi, who is respondent no.6
in the writ petition, within a specific time
and further commanding the respondent
no.5 not to release the payment due to the
respondent no.6.

2. The reliefs sought for in the writ
petition rest on the assertions that the
petitioner lodged a complaint vide letter
dated 3.7.2006 to the Secretary (Basic)
Education, Government of Uttar Pradesh
alleging therein that respondent no.6 who
was working on the post of Paricharika
(Class IV post) in Indira Gandhi Kanya
Junior High School, Deoria, at the time of
her appointment had submitted a forged
migration/transfer
certificate
dated
24.5.58 indicating her age as 10 years 10
months on the date of on the date of issue
of the said certificate, whereas on the
death of her husband she obtained a
succession certificate from the Collector,
2 All] Prem Shankar Mishra V. State of U.P. and others
493
Deoria on 14.2.1992 disclosing her age as
50 years. Thus, according to such
succession certificate the respondent no.6
ought to have been retired from service in
the year 2002 instead of 2007 as availed
by her on the strength of forged
migration/transfer certificate. It is stated
that on the said complaint Up Basic
Shiksha Adhikari was directed to enquire
into the matter and find out as to what is
the truth in the allegations made in the
complaint. Thereupon Up Basic Shiksha
Adhikari vide his letter dated 28.7.2006
directed the respondent no.6 to appear in
his office to defend the allegations made
in the complaint. A copy of letter of
petitioner dated 3.7.2006, a copy of
migration/transfer
certificate
of
respondent no.6, a copy of succession
certificate dated 14.2.1992 and a copy of
letter of Up Basic Shiksha Adhikari dated
28.7.2006 are on record as Annexures- 1
to 4 of the writ petition. Thereafter Up
Basic Shiksha Adhikari sent a copy of
alleged migration/transfer certificate to
the District Basic Education Officer,
Gorakhpur to verify the genuineness of
the same. Thereafter on 18.12.2006 the
petitioner sent a detail representation to
the Collector, Deoria to look into the
matter and get it enquired by District
Basic Education Officer, Deoria within a
week so that public interest at large may
be protected.

3. It is further stated that on
6.1.2007
the
Additional
District
Magistrate, Deoria sent a letter to the
Basic Shiksha Adhikari, Deoria requiring
certain documents in regard to the
appointment of respondent no.6. On
13/15.12.2007 the Additional District
Magistrate, Deoria again issued an official
letter to Basic Shiksha Adhikari, Deoria
to send the required documents to his
office within a week. On 15.12.2007 the
petitioner again personally served a letter
to
Prabhari
Zila
Adhikari
(Chief
Development Officer, Deoria) contending
that the appointment of respondent no.6
on the post, of Paricharika has been
obtained by committing fraud and proper
inquiry should be made in this connection
by the Chief Development Officer, Deoria
and the petitioner vide this letter also
requested the concerned officer to stop all
payments to the respondent no.6 till
completion of inquiry. In pursuance of
aforesaid letter of the petitioner, the
respondent
no.4
directed
the
Basic
Shiksha Adhikari, Deoria to stop all
payments due to the respondent no.6 till
the inquiry with regard to appointment of
respondent no.6 is completed. It is stated
that now vide order dated 10.3.2008 the
respondent no.4 has recalled his order
dated 15.12.2007 without completing the
inquiry. It is further submitted that despite
so many reminders sent by the petitioner
to all the authorities concerned, inquiry
against the respondent no.6 has not yet
been completed and now by order dated
10.3.2008
the
respondent
no.4
has
directed the Senior Treasury Officer to
release
the
payments
due
to
the
respondent no.6. It is also stated that
despite best effort the petitioner could not
obtain order dated 10.3.2008, hence
finding no alternative the petitioner
approached this Court through above
noted writ petition.

4. Heard learned counsel for the
petitioner and learned Standing Counsel
for the respondents no. 1 to 5. The order
which I propose to pass in the writ
petition, I need not to ask any counter
affidavit either from the respondents no.1
to 5 or from the respondent no.6, instead
thereof the writ petition is liable to be
494 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
disposed of as fresh on preliminary issue
of locus standi of the petitioner itself to
file instant writ petition.

5. At the very outset, it is necessary
to point out that in connection of locus
standi of the petitioner to move before
this Court in para 5 of this petition only
this much has been stated that the
petitioner is social worker and has
complained against the respondent no.6,
therefore, he has locus standi to file this
petition. Except the aforesaid statement he
has nowhere stated that as a social worker
what services he has rendered to the
downtrodden and weaker section of
society by now and how for and in what
manner he is ventilating their cause who
are not in a position to ventilate their
grievances by their own in the Courts of
law or at other appropriate forum. In
absence of necessary averments made in
the writ petition in this regard, it is very
difficult for this Court to make any
inquiry about his working as social
worker and assume his locus standi for
approaching this Court under Article 226
of the Constitution of India for seeking
writ of certiorari and mandamus.

6. Now the question which arises for
consideration is that as to whether the
petitioner can be said to be aggrieved
person so as to entitle him to approach
this Court for relief sought for or not? In
this connection, it would be useful to
examine some case law on the question of
locus standi for seeking relief under
Article 226 of the Constitution of India.

7. In Bar Council of Maharastra
Vs. M.V. Dabholkar AIR 1975 SC 2092,
the question for consideration before
Hon'ble Apex Court was that whether the
Bar Council of State of Maharashtra was
"a person aggrieved" to maintain an
appeal under Section 38 of the Advocate
Act 1961? A Seven Judges Constitution
Bench while answering the aforesaid
question in affirmative in para 28 of the
decision has observed as under:-

"28. Where a right of appeal to
Courts against an administrative or
judicial decision is created by statute, the
right is invariably confined to a person
aggrieved or a person who claims to be
aggrieved. The meaning of the words "a
person aggrieved" may vary according to
the context of the statute. One of the
meanings is that a person will be held to
be aggrieved by a decision if that decision
is materially adverse to him. Normally,
one is required to establish that one has
been denied or deprived or something to
which one is legally entitled in order to
make one "a person aggrieved". Again a
person is aggrieved if a legal burden is
imposed on him. the meaning of the words
"a person aggrieved" is sometimes given
a restricted meaning in certain statutes
which provide remedies for the protection
of private legal rights. The restricted
meaning requires denial or deprivation of
legal rights. A more liberal approach is
required in the background of statues
which do not deal with property rights but
deal with professional conduct and
morality. The role of the Bar Council
under the Advocates Act is comparable to
the role of guardian in professional
ethics. The words "person aggrieved" in
Section 37 and 38 of the act are of wide
import and should not be subjected to a
restricted interpretation of possession or
denial of legal rights or burdens or
financial interests. The test is whether the
words "person aggrieved" include "a
person who has a genuine grievance
because an order has been made which
2 All] Prem Shankar Mishra V. State of U.P. and others
495
prejudicially affects his interests." It has,
therefore, to be found out whether the Bar
Council has a grievance in respect of an
order
or
decision
affecting
the
professional conduct and etiquette. "

8. In Jasbhai Motibhai Desai Vs.
Roshan Kumar Haji Bashir Ahmed and
others A.I.R. 1976 SC 578, the question
in controversy was that whether the
proprietor of a Cinema Theatre holding a
license for exhibiting cinematography
films is entitled to invoke certiorari
jurisdiction
against
no
objection
certificate granted under Rule 6 of
Bombay Cinema Rules 1954 by District
Magistrate in favour of rival in the trade?
While answering the aforesaid question in
paras 34, 35 and 39 of the decision the
Hon'ble Apex Court has been pleased to
observe as under:-

"34. This Court has laid down in a
number of decisions that in order to have
the
locus
standi
to
invoke
the
extraordinary jurisdiction under Article
226, an applicant should ordinarily be
one who has personal or individual right
in the subject matter of the application,
though in the case of some of the writs
like habeas corpus or quo warranto this
rule is relaxed or modified. In other
words, as a general rule, infringement of
some legal right or prejudice to some
legal interest inhering in the petitioner is
necessary to give him a locus standi in
the matter. (see State of Orissa v. Madan
Gopal Rungta A. I. R. 1952 SC 12;
Calcutta Gax Co. v. State of W.B. A.I.R.
1962 SC 1044; Ram Umeshwari Suthoo v.
Member, Board of Revenue, Orissa
(1976) 1 SCA 413; Godde Venkateswara
Rao v. Government of A.P. A.I.R. 1966 SC
(AIR 1972 SC 2112) 828; State of Orissa
v.
Rajasaheb
Chandanmall.
Dr.
Satyanarayana Sinha v. M/s S. Lal & Co.)
(1973) 2 SCC 696 : (AIR 1973 SC 2720).

35. The expression "ordinarily"
indicates that this is not a cast-iron rule.
It is flexible enough to take in those cases
where
the
applicant
has
been
prejudicially affected by an act or
omission of an authority, even though he
has no proprietary or even a fiduciary
interest in the subject matter. That apart,
in exceptional cases even a stranger or a
person who was not a party to the
proceedings before the authority, but has
a substantial and genuine interest in the
subject-matter of the proceedings will be
covered by this rule. The principles
enunciated in the English cases noticed
above, are not .inconsistent with it.

39. To distinguish such applicants
from 'strangers'; among them, some
broad tests may be deduced from the
conspectus made above. These efficacy
varies according to the circumstances of
the case, including the statutory context in
which the matter falls to be considered.
These are whether the applicant is a
person whose legal right has been
infringed? Has he suffered a legal wrong
or injury, in the sense, that his interest,
recognised by law, has been prejudicially
and directly affected by the act or
omission of the authority, complained of ?
Is he a person who has suffered a legal
grievance, a person against whom a
decision has been pronounced which has
wrongfully deprived him of something or
wrongfully refused him something, or
wrongfully affected his title to something
? Has he a special and substantial
grievance of his own beyond some
grievance or inconvenience suffered by
him in common with the rest of the
public? Was he entitled to object and be
heard by the authority before it took the
impugned
action?
If
so,
was
he
496 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
prejudicially affected in the exercise of
that right by the act of usurpation of
jurisdiction on the part of the authority?
Is that statute, in the context of which the
scope of the words "person aggrieved" is
being
considered,
a
social
welfare
measure designed to lay down ethical or
professional standards of conduct for the
community? Or is it a statute dealing with
private rights of particular individuals?

9. In Ghulam Qadir v. Special
Tribunal and others 2002 Vol. (1) SCC
33 = 2001 AIR SCW 4022 in para 38 of
the decision the Apex Court has been
pleased to observe as under:

"38. There is no dispute regarding
the legal proposition that the rights under
Article 226 of the Constitution of India
can be enforced only by an aggrieved
person except in the case where the writ
prayed for is for habeas corpus or quo
warranto. Another exception in the
general rule is the filing of a writ petition
in public interest. The existence of the
legal right of the petitioner which is
alleged to have been violated is the
foundation for invoking the jurisdiction of
the High Court under the aforesaid
article."

10. From the aforestated legal
position enunciated by Hon'ble Apex
Court, there can be no scope for doubt to
hold that the petitioner is not an
"aggrieved person" entitled for seeking
reliefs
of
certiorari
for
quashing
impugned order dated 10.3.2008, which is
also not on record to enable the court to
know the actual order which is alleged to
have been passed by the concerned
respondent
and
reasons
therefore.
Therefore, the instant writ petition is
liable to be dismissed on the aforesaid
ground alone in view of law laid down by
Hon'ble Apex Court in Surinder Singh
Vs. Central Government and others AIR
1986 S.C. 2166 (para-9). The pertinent
observations made in para 9 of the
decision are as under:9-

9....... The respondents who had
challenged the order of Shri Rajni Kant
should have filed a copy of the order. In
the absence of the order under challenge
the High Court could not quash the same.
Normally whenever an order of Govt. or
some authority is impugned before the
High Court under Art. 226 of the
Constitution, the copy of the order must
be produced before it. In the absence of
the impugned order it would not be
possible to ascertain the reasons which
may have impelled the authority to pass
the order. It is therefore improper to
quash an order which is not produced
before the High Court in a proceeding
under Art. 226 of the Constitution. The
order of the High Court could be set aside
for this reason, but we think it necessary
to consider the merits also........."

11. Not only this, but the petitioner
did neither seek nor can seek relief of writ
of quo warranto against the respondent
no.6 as she has already been retired from
service some times seems to be in July
2007, therefore, it is necessary to examine
as to whether any other relief sought for
can be granted by this court? In this
connection, it is also noteworthy to point
out that once the relief of writ of certiorari
can not be granted for reasons that the
petitioner has not brought the impugned
order on record, other writ or order like
mandamus can also not be granted to him
so long as the impugned order is not
quashed. Therefore, there appears hardly
any scope for grant of any other relief
2 All] Prem Shankar Mishra V. State of U.P. and others
497
prayed by the petitioner for aforestated
reasons even then I propose to examine
the matter further. In this connection it is
necessary to point out that except the
statement made in para 5 of the writ
petition that the petitioner is social worker
and
has
complained
against
the
respondent no.6, thus has locus standi to
file this writ petition, nothing more has
been stated in the writ petition. In para 10
of the writ petition also only this much is
Stated that the authorities were called
upon by the petitioner through his letter
referred hereinbefore to look into public
interest at large, otherwise the public
interest would be suffered.

12. Now the question which arises
for consideration of this Court is that as to
whether this writ petition filed as service
matter without describing it as public
interest litigation can be entertained as
public
interest
litigation?
In
this
connection it would be useful to refer few
decisions of Hon'ble Apex Court having
material bearing on the question in
controversy
involved
in
the
case
hereinafter.

13. In R.K. Jain Vs. Union of India
AIR 1993 SC 1769, the appointment of
President of Custom, Excise and Gold
Control Appellate Tribunal was under
consideration before Hon'ble Apex Court.
In para 74 of the decision while dealing
with question of locus standi the Hon'ble
Apex Court has been pleased to observe
as under: .

"74. Sri Harish Chander, admittedly
was the Sr. Vice President at the relevant
time. The contention of Sri Thakur of the
need to evaluate the comparative merits
of
Mr.
Harish
Chander
and
Mr.
Kalyasundaram a senior most Member
for appointment as President would not
be gone into in a public interest litigation.
Only in a proceeding initiated by an
aggrieved person it may be open to be
considered. This writ petition is also not a
writ
of
quo
warranto.
In
service
jurisprudence it is settled law that it is for
the aggrieved person i.e. non-appointee to
assail the legality of the offending action.
Third party has no locus standi to canvass
the legality or correctness of the action.
Only public law declaration would be
made at the behest of the petitioner, a
public spirited person. "

14. In Dr. Duryodhan Sahu and
others v. Jitendra Kumar Mishra and
others, AIR 1999 SC 114, the Hon'ble
Supreme Court held that in service
matters, PILs should not be entertained. If
the inflow of so-called PILs involving
service matters continues unabated at the
instance of strangers and allowed to be
entertained, the very object of speedy
disposal of service matters would get
defeated.

15. In BALCO Employees' Union
(Regd.) v. Union of India and others,
AIR 2002 SC 350, the Hon'ble Supreme
Court held that the jurisdiction is being
abused by unscrupulous persons for their
personal gain. Therefore, the Court must
take care that the forum be not abused by
any person for personal gain. The Hon'ble
Apex Court observed as under:

"There is, in recently years, a feeling
which is not without any foundation that
Public Interest Litigation is now tending
to become publicity interest litigation or
private interest litigation as a tendency to
be counter productive PIL is not a pill or
a panacea for all wrong. It is essentially
meant to protect basic human rights of the
498 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
weak and disadvantaged and was a
procedure which was innovated where a
public spirited person flied a petition in
effect on behalf of such persons who, on
account of poverty, helplessness or
economic and social disabilities could not
approach the Court for relief There have
been in recent times, increasingly abuse
of PIL."

16. In Dattaraj Nathuji Thaware v.
State of Maharastra and others, (2005) 1
SCC 590, the petitioner was member of
the legal profession and had resorted to
blackmailing respondents no.6 and 7,
wherein
Hon'ble
Apex
Court
has
proceeded with the observation that this
case is sad reflection on the members of
legal profession and is almost back spot
on the noble profession. While approving
imposition of Rs.25,OOO/- (Twenty five
thousands) exemplary cost by the High
Court on the petitioner, sounded note of
caution that it is high time that Bar
Councils and Bar Associations ensure that
no member of Bar becomes party as
petitioner or in aiding and/or abetting files
frivolous petitions carrying the attractive
brand name of "public interest litigation".
That will be keeping in line, the high
traditions of the Bar. No one should be
permitted to bring disgrace to the noble
profession. In para 12 and 16 of the
decision the Hon'ble Apex Court observed
as under:-

"12. Public Interest Litigation is a
weapon which has to be used with great
care and circumspection and the judiciary
has to be extremely careful to see that
behind the beautiful veil of public interest,
an ugly private malice, vested interest
and/or publicity seeking is not lurking. It
is to be used as an effective weapon in the
armoury of law for delivering social
justice to citizens. The attractive brand
name of public interest litigation should
not be used for suspicious products of
mischief It should be aimed at redressal
of genuine public wrong or public injury
and not be publicity oriented or founded
on personal vendetta. As indicated above,
Court must be careful to see that a body
of persons or member of public, who
approaches the Court is acting bona fide
and not for personal gain or private
motive or political motivation or other
oblique considerations. The Court must
not allow its process to be abused for
oblique
considerations
by
masked
phantoms who monitor at times from
behind. Some persons with vested interest
indulge in the pastime of meddling with
judicial process either by force of habit or
from improper motives, and try to bargain
for a good deal as well to enrich
themselves. Often they are actuated by a
desire
to
win
notoriety
or
cheap
popularity.
The
petitions
of
such
busybodies deserve to be thrown out by
rejection at the threshold, and in
appropriate cases with exemplary costs.

16. As noted supra, a time has come
to weed out the petitions which though
titled as public interest litigations are in
essence something else. It is shocking to
note that courts are flooded with a large
number of so-called public interest
litigations where even a minuscule
percentage can legitimately be called as
public interest litigations. Though the
parameters of public interest litigation
have been indicated by this Court in a
large number of cases, yet unmindful of
the real intentions and objectives, courts
are entertaining such petitions and
wasting valuable judicial time which, as
noted above, could be otherwise utilised
for disposal of genuine cases. Though in
Duryodhan Sahu (Dr.) v. Jitendra
2 All] Prem Shankar Mishra V. State of U.P. and others
499
Kumar Mishra this Court held that in
service matters PILs should not be
entertained, the inflow of so-called PILs
involving
service
matters
continues
unabated in the courts and strangely are
entertained. The least the High Courts
could do is to throw them out on the
basis of the said decision...".

17. Similarly in R & M Trust v.
Koramangala Residents Vigilance Group
and others, (2005) 3 SCC 91, the Hon'ble
Supreme Court cautioned the Courts that
the Public Interest Litigation should be
entertained in rare cases where it is
satisfied that public at large stand to
suffer. The jurisdiction cannot be allowed
to be invoked for the purpose of serving
private ends and professional rivalry. This
jurisdiction is meant for the purpose of
coming to the rescue of the downtrodden.
It
has
now
become
common
for
unscrupulous people to serve their private
ends and jeopardise the rights of innocent
people so as to wreak vengeance for their
personal ends. The pertinent observations
made in para 24 of the decision are as
under:-

"24. Public interest litigation is no
doubt a very. useful handle for redressing
the
grievances
of
the
people
but
unfortunately lately it has been abused by
some interested persons and it has
brought a very bad name. Courts should
be very slow in entertaining petitions
involving public interest: in very rare
cases where the public at large stand to
suffer. This jurisdiction is meant for the
purpose of coming to the rescue of the
downtrodden and not for the purpose of
serving private ends. It has now become
common for unscrupulous people to serve
their private ends and jeopardise the
rights of innocent people so as to wreak
vengeance for their personal ends.... "

18. From the aforesaid decisions it is
clear that in R.K. Jain's case (supra)
Hon'ble Apex Court has observed that in
service jurisprudence it is well settled that
it is for the aggrieved person i.e. nonappointee to assail the legality of the
offending action. Third party has no locus
standi
to
canvass
the
legality
or
correctness of the action, only public law
declaration would be made at behest of
the petitioner a public spirited person. The
same principle has been reiterated by
Hon'ble Apex Court in Duryodhan
Sahu's case (supra) holding that in
service matter P.IL. should not be
entertained. If inflow of so called P.LL.s
involving
service
matters
continues
unabated at the instance of strangers and
allowed to be entertained, the very object
of speedy disposal of service matters
would
get
defeated.
In
BALCO
Employees Union's case (supra) it was
observed that PILs are essentially meant
to protect basic human rights of the weak
and disadvantaged and was innovated
where a public spirited person filed a
petition in effect on behalf of such
persons, who on account of poverty,
helplessness or economic and social
disabilities could not approach the court
for relief.

19. In Dattaray Nathuji Thaware's
case (supra) while reiterating the view of
Duryodhan Sahu's case Hon'ble Apex
Court held that in service matters PILs
should not be entertained, High Courts
should throw them out at very threshold
on the basis of said decision. While
approving
Rs.25,000/-(Rupees
twenty
five thousand) exemplary cost imposed by
the High Court upon the petitioner, who
500 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
was member of legal profession; and
involved in blackmailing of respondent
no.6 and 7 of that case speaking through
the Bench Hon'ble Mr. Justice Arjit
Pasayat observed that this case is sad
reflection on the members of legal
profession and is almost black spot on the
noble profession and cautioned High
Courts to throw such petitions at very
threshold by placing reliance upon
Duryodhan Sahu's case. If such frivolous
petitions would be entertained by the
Courts unmindfully, the precious time of
the courts would go waste which could be
utilised for disposal of genuine cases of
those who are in queue and waiting for
their turn, their interest would get
defeated. While explaining the nature and
purpose, His Lordship observed that
public interest litigation is weapon which
has to be used with great care and
circumspection and the judiciary has to be
extremely careful to see that behind the
beautiful veil of public interest, an ugly
private malice, vested interest and/or
publicity seeking is not lurking. The
attractive brand name of public interest
litigation
should
not
be
used
for
suspicious product of mischief. It would
be aimed at redressal of genuine public
wrong or public injury and not be
publicity oriented or founded on personal
vendetta. It has also been observed that a
writ petitioner who comes to the court for
relief in public interest must come not
only with clean hands like any other writ
petitioner but also with clean heart, clean
mind and clean objective by taking note
of earlier decisions. The court must be
careful to see that a body of persons or
member of public who approaches the
court is acting bonafide and not for
personal gain or private motive or
political motivations or other oblique
considerations. The court must not allow
its process to be abused for oblique
considerations at the instance of person
who approach the court with improper
motive and for personal gain or other
private ends. Similar view has also been
taken by Hon'ble Apex Court in R.M.
Trust's case (supra).

20. Now examining the facts of the
case from the point of view of afore stated
legal position, it is to be noted that from
the description of particulars and address
of the parties, it appears that the petitioner
and respondent no.6 are resident of the
same Village and Post Katarari District
Deoria. From perusal of Annexure- 3 of
the writ petition, it appears that it is copy
of alleged succession certificate appears
to have been issued from the office of
District Magistrate, Deoria on 14.2.1992,
It reveals that on death Sri Mohan Mishra
S/o Sri Deo Narayan Mishra of Village
and Post Katarari, Tehsil and District
Deoria
on
12.7.1973
the
aforesaid
certificate was issued and the respondent
no.6 was shown as widow of deceased
Mohan
Mishra
and
her
age
was
mentioned as 50 years at the time of issue
of said certificate. Annexure-2 of the writ
petition
is
copy
of
alleged
migration/transfer certificate appears to
have been issued on 24.5.1958 in which
the date of birth of Gulabi Devi-
respondent no.6 has been mentioned as
15.7.1947 and her age as 10 years, 10
months by that time. On that basis the
petitioner
has
complained
that
the
appointment of respondent no.6, is based
on forged migration certificate. But there
is nothing to indicate that when and how
the petitioner has obtained copy of
aforesaid migration certificate issued from
Primary School on 24.5.1958, and the
copy of aforesaid succession certificate
issued on 14.2.1992. It is also not clear
2 All] Prem Shankar Mishra V. State of U.P. and others
501
that
as
to
whether
the
aforesaid
documents were procured by him from
lawful custody in lawful manner or he
himself has manufactured the aforesaid
documents for the aforesaid purpose.

21. Although from the averments of
writ petition, there is nothing to indicate
that the aforesaid alleged succession
certificate sought to be utilised by the
petitioner against the respondent no.6 for
contradicting her age recorded in her
alleged migration certificate, has ever
been
admitted
document
by
the
respondent
no.6
either
before
any
authority or court of law, but assuming for
the sake of argument that the same cannot
be disputed by the respondent no.6, even
then, age of respondent no.6 mentioned
therein
cannot
be
assumed
to
be
absolutely correct as gospel truth for the
purpose
of
holding
any
disciplinary/departmental inquiry against
her at the instance of a stranger like the
petitioner. The reason behind it is that it
was quite possible that while making
application
for
issue
of
succession
certificate
due
to
some
sort
of
inadvertence of the counsel, the age of
respondent
no.6
would
have
been
mentioned more than that of her actual
age or it would have been written by the
counsel merely on the basis of her
physical appearance or it could be
mentioned some time on the basis of
entries made in the family register or
Voter list of the village which are
normally prepared by the officials, merely
by asking from some persons of the
village
without
actually
verifying
correctness from the person concerned,
therefore, the same cannot be taken as a
gospel truth without any proof in respect
of the entries made therein particularly for
dislodging the entry regarding the date of
birth of respondent no.6 made in
migration certificate.

22. Sometimes it so happens that in
the school register of students different
age at variance of other documents
regarding the age are mentioned. For
which some times guardians of students
while giving details of students at the time
of admission of their children give
notional date of birth and age which
might
be
lesser
than
actual
age.
Sometimes even teachers note notional
date of birth at the time of admission of
the students in scholar's Register of
schools, therefore, mere variance in the
age and date of birth of respondent no.6
recorded in various different documents
who is a villager merely educated upto
Primary level in Village school cannot be
a ground for holding any departmental
inquiry against her on account of
contradictions in her date of birth between
aforesaid documents, particularly when it
is not the case that she has manipulated
and changed her date of birth already
recorded in service book at the strength of
aforesaid
migration
certificate
subsequently and continued in service on
account of changed/ manipulated date of
birth for some longer time and that too at
the instance of stranger like petitioner.

23. That apart, it is also no where
pointed out in the writ petition that when
the respondent no.6 was appointed on the
post of Paricharika which was merely a
lowest class IV post in the institution. It is
also not stated that as to whether at the
time of her appointment any educational
qualification was essential for the said
post or not or as to whether her such
appointment was made on compassionate
ground under dying in harness Rules or it
was based on open market selection. After
502 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
her retirement, no service Rules has been
pointed out under which inquiry sought
for by the petitioner who is stranger can
be held at this stage. It is also not stated
that how the petitioner has any concern
with such inquiry sought for and what are
the past activities of the petitioner in
public interest. Except the statement that
he has written letter to the authorities on
3.7.2006 to enquire into the matter when
the respondent no.6 was likely to be
retired from service, nothing has been
indicated that as to whether he has ever
pointed out any such illegality in respect
of the appointment of the respondent no.6
to the concerned authorities, and how he
woke up all of a sudden when the
respondent no.6 was at the verge of her
retirement, particularly when the records
show that respondent no.6 is resident of
same village of the petitioner, why he was
sleeping for such long lapse of time?
These
suspicious
circumstances
undoubtedly created doubts about the
bonafide of filing of instant writ petition.

24. Not only this but another
suspicious
circumstance
is
that the
petitioner has also not filed impugned
order dated 10.3.2008 to enable the Court
to know the reasons for which the
concerned respondent allegedly declined
to hold such inquiry or dropped the same
as alleged by the petitioner without
concluding such inquiry or after holding
alleged inquiry they were satisfied about
no longer need of such inquiry. In the
wake of the provisions of Right to
Information Act, it is very difficult to
accept that despite his best effort, the
petitioner could not obtain copy of the
impugned order dated 10.3.2008. In given
facts and circumstances of the case the
aforesaid statement of the petitioner does
not appear to be true and fair, rather
appears to be mischievous and misleading
to the Court. As held earlier, the writ
petition is liable to be dismissed on this
ground alone in view of law laid down by
the Hon'ble Apex Court in Surinder
Singh's case (supra) that the petitioner
has not brought on record the copy of the
alleged order dated 10.3.2008 passed by
respondent no.4 sought to be quashed in
instant writ petition.

25.