JUDGMENT B.S. Chauhan and Bharati Sapru, JJ.
1. This writ petition has been filed seeking following reliefs:
(i) issue a writ, order or direction in the nature of certiorari quashing the impugned advertisement dated 22.12.2007 issued by U.P. Public Service Commission, Allahabad (Annexure-5 to the public interest petition);
(ii) issue a writ, order or direction in the nature of certiorari quashing the resolutions dated 30.04.2005, 27.08.2005 and 28.8.2005 passed in Full Court Meeting of this Hon'ble Court (Annexure Nos. 13, 14 and 15 of this public interest petition).
(iii) issue a writ, order or direction in the nature of mandamus directing the respondents to provide reservation quota for physically handicapped persons in all services including judicial services.
In fact the challenge in this petition is to the advertisement dated 22.12.2007 issued by the U.P. Public Service Commission to appoint Assistant Prosecution Officers and petitioners are seeking direction that the impugned advertisement be quashed and a fresh advertisement be issued providing reservation in favour of the handicapped persons. The question does arise as under what circumstances, the petitioners claim to be aggrieved by the aforesaid advertisement or by what means they are interested in the present recruitment of Assistant Prosecution Officers.
2. So far as the locus of the petitioners is concerned, it has been stated as under:
That this is the first public interest petition on behalf of the petitioner which is a registered society which works for the welfare and benefit of persons who have no means to approach this Hon'ble Court for redressal of their grievance and for the relief sought for in this public interest petition and no other public interest petition or appeal for the relief sought for in this public interest petition is pending before any court of law.
No other detail has been furnished except the aforesaid. It is not the case of the petitioners that either the Society or the petitioner No. 2, in person, has done anything till today to advance the cause of handicapped persons or they are running any institution to impart any kind of education to such handicapped persons. Merely a bald statement has been made that the petitioners work for the welfare of the petitioners who cannot seek the redressal of their grievances before the Court. We fail to understand as under what circumstances, such a noble cause has been taken by them unless they have indulged in any service to such handicapped persons. We are very much doubtful regarding the bona fides of the petitioners and the petition is merely a 'benami' litigation and amounts to abuse of process of the Court. More so, PIL is not maintainable in service matters.
3. It is settled law that a. person who suffers from legal injury only can challenge the act/action/order etc. Writ petition under Article 226 of the Constitution is maintainable for enforcing the statutory or legal right or when there is a complaint by the petitioner that there is a breach of the statutory duty on the part of the respondents. Therefore, there must be judicially enforceable right for the enforcement on which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction. (Vide Calcutta Gas Company (Proprietor Ltd.) v. State of West Bengal and Ors. ; Mani Subrat Jain and Ors. v. State of Haryana ; State of Kerala v. Smt A. Lakshmikutty and Ors. ; State of Kerala and Ors. v. K.G. Madhavan Pillai and Ors. ; Rajendra Singh v. State of Madhya Pradesh ; Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor and Ors. ; and Utkal University v. Dr. Nrusingha Charan Sarangi and Ors. ).
3.1. In Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed , the Apex Court has held that only a person who is aggrieved by an order, can maintain a writ petition. The expression "aggrieved person" has been explained by the Apex Court observing that such a person must show that he has more particular or peculiar interest on his own beyond that of general public in seeing that the law is properly administered.
3.2. In M.S. Jayaraj v. Commissioner of Excise, Kerala and Ors. , the Hon'ble Supreme Court considered the matter at length and placed reliance upon a large number of its earlier judgments including the Chairman, Railway Board v. Chandrimadas (2000) 7 SCC 465; and held that the Court must examine the issue of locus standi from all angles and the petitioner should be asked to disclose as what is the legal injury suffered by him.
3.3. In Ghulam Qadir v. Special Tribunal and Ors. , the Hon'ble Supreme Court considered the similar issue and observed as under:
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. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hyper-technical grounds. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi.
The party has to satisfy as what is the legal injury caused by that violation of law for the redressal of which the party has approached the Court.
4. However, need was felt to relax the rule of locus standi wherever person aggrieved could not have the resources to approach the Court. The Hon'ble Apex Court entertained the petition even of unregistered Association espousing the cause of over down-trodden or its members observing that the cause of "little Indians" can be espoused by any person having no interest in the matter. However, the said person should be bona fide, not a intermeddler or busy-body. (Vide Bandhua Mukti Morcha v. Union of India and Ors. ).
4.1. In Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and Ors. , the Hon'ble Supreme Court while dealing with the issue of locus standi observed as under:
Our current processual jurisprudence is not an individualistic Anglo-Indian mould. It is broad based and people-oriented, and envisions access to justice through 'class actions', 'Public Interest Litigation', and representative proceedings'. Indeed, little Indians in larger numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of 'cause of action' and 'person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions.
4.2. In Fertilizer Corporation Kamagar Union (Regd.), Sindri and Ors. v. Union of India and Ors. AIR 1981 SC 344, the Hon'ble Supreme Court held as under:
Public Interest Litigation is part of the process of participate justice and 'standing' in civil litigation of that pattern must have liberal reception at the judicial doorsteps.
Public Interest Litigation is not in the nature of adversary litigation. The purpose of PIL is to promote the public interest which mandates that violation of legal or constitutional rights of a large number of persons, poor, down-trodden, ignorant, socially or economically disadvantaged should not go un-redressed. The Court can take cognizance in PIL when there are complaints which shocks the judicial conscience. PIL is pro bono publico and should not smack of any ulterior motive and no person has a right to achieve any ulterior purpose through such litigations.
4.3. In S.P. Gupta and Ors. v. President of India and Ors. , the Hon'ble Apex Court has warned by saying that the Court must be careful that the members of the public who approach the court are acting bona fide and not in personal garb of private profit or political motivation or other oblique considerations. "The Court must not allow its process to be abused". Similar view has been taken in Kazi Lhendup Dorji v. Central Bureau of Investigation and Ors. 1994 (Supp) 2 SCC 116.
In Veena Sethi v. State of Bihar and Ors. , the Apex Court has observed that the role of law requires to be played for the poor and ignorant who constitute a large bulk of humanity in this country and the Court must uphold the basic human rights of weaker sections of the society.
4.4. In the case of State of Himachal Pradesh v. A Parent of a Student of Medical College , the Hon'ble Supreme Court held as under:
Where the Court finds, on being moved by an aggrieved party or by any public spirited individual or social action group, that the executive is remiss in discharging its obligation under the Constitution or the law, so that the poor and the under-privileged continued to be subjected to exploitation and injustice or are deprived of their social and economic entitlements or that social and economic entitlements or that social legislation enacted for their benefit is not being implemented thus depriving of their rights and benefits conferred upon them, the Courts certainly can be must intervene and compel the executive to carry out its constitutional and legal obligations and ensure that the deprived and vulnerable sections of the community are no longer subjected to exploitation or injustice and they are able to realise their social and economical rights.
In Sachidanand Pandey (Supra), the Apex Court observed that the Court should not take cognizance in such matters merely because of its attractive name. The petitioner must inspire the confidence of the Court and must be above suspicion.
4.1. In Ram Saran Ayotan Parasi v. Union of India , the 'Hon'ble Supreme Court observed that the P.I.L is for making basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social, economic and political justice.
In Giani Devender Singh Sant Sepoy Sikh v. Union of India and Ors. , the Hon'ble Supreme Court has held that the High Court, while entertaining a PIL must indicate how the public interest was involved in the case.
In R.K. Jain v. Union of India and Ors. , the Apex Court observed that it was for the aggrieved person to assail the illegality of the offending action and no third party has a locus standi to canvass the legality or correctness of the action. Similarly, in Mohmmed Anis v. Union of India and Ors. 1994 (Supp) 1 SCC 145, the Apex Court has held that a case should not be entertained unless the petitioner points out that his legal rights have been infringed.
4.6. In Jasbhai Motibhai Desai (Supra), the Hon'ble Supreme Court observed as under:
If a person wants a relief in a Court independent of a statutory remedy, he must show that he is injured or subjected to or threatened with a legal wrong. The Courts can interfere only where legal rights are involved. In fact legal wrong requires judicially enforceable right and 'the touchstone to justiciability is injury to a legally protected right'. A nominal or a highly speculative adverse effect on the interest of a person or right of a person is sufficient to give him the 'standing to sue'. Again, the 'adverse effect' and the requisite for 'standing to sue' must be an illegal effect... Such persons are merely busy body of meddlesome interloper.... They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the...judicial process...from improper motives The High Court should do well to reject the application of all such busybodies at the threshold.
In S.P. Anand (supra), the Hon'ble Supreme Court has observed that, "no person has a right to waiver of the locus standi rule and court should permit it only when it is satisfied that the carriage of proceedings is in the competent hands of a person, who is genuinely concerned in public interest and is not moved by other extraneous considerations, so also the Court must be careful to ensure that the process of the court is not sought to be abused...."
5. P.I.L. can also be filed by any person challenging the misuse or improper use of any public property, including the political party in power for the reason that interest of individuals cannot be placed above or preferred to a larger public interest. But such a petition can be entertained for the protection of the society. (Vide J. Jayaialitha v. Govt, of Tamil Nadu and Ors. ; L. Muthukumar and Anr. v. State of Tamil Nadu and Ors. ; and M.C Mehta v. Union of India and Ors. ; Guruvayoor Devaswom Managing Committee and Anr. v. C.K. Rajan and Ors. ; 5 M & T Consultants Secunderabad v. S.Y. Nawab and Anr. .
In Raunaq International Ltd. v. I.V.R. Construction Ltd. and Ors. , the Apex Court observed as under:
The Public Interest Litigation should not be merely a cloak for attaining private ends of a third party or of the party bringing the petition. The Court can examine the previous record of public service rendered by the organization bringing the Public Interest Litigation. Even when a Public Interest Litigation is entertained, the court must be careful to weigh conflicting public interests before intervening.
6. In BALCO Employees' Union (Regd.) v. Union of India and Ors. , 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 Court observed as under:
There is, in recent 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 wrongs. It is essentially meant to protect basic human rights of the weak and disadvantaged and was a procedure which was innovated where a public spirited person files 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.
Similarly, in Dattaraj Nathuji Thaware v. State of Maharastra and Ors. , the Hon'ble Supreme Court expressed its anguish on misuse of the forum of the Court under the garb of PIL observing as under:
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.
In R & M Trust v. Koramangala Residents Vigilance Group and Ors., (2005) 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 stands to suffer. The jurisdiction cannot be allowed to be invoked for the purpose of serving private ends and professional rivalry. The Court observed that the 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 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. This sacrosanct jurisdiction of public interest litigation should be invoked very sparingly and in favour of vigilant litigant and not for the persons who invoke this jurisdiction for the sake of publicity or for the purpose of serving their 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. This has become very handy to the developers and in matters of public contract. In order to serve their professional rivalry they utilise the service of the innocent people or organisation in filing public interest litigation. The courts are sometimes persuaded to issue certain directions without understanding the implications and giving a handle in the hands of the authorities to misuse it. Therefore, courts should not exercise this jurisdiction lightly but should exercise in very rare and few cases involving public interest of a large number of people who cannot afford litigation and are made to suffer at the hands of the authorities.
7. The Hon'ble Supreme Court has laid down parameters for entertaining public Interest litigations. In Seema Dhamdhere, Secretary, M.P.S.C. v. State of Maharashtra and Ors. , while touching upon the issue of Public Interest Litigations qua service matters relying on its earlier judgment in Gurpal Singh v. State of Punjab and Ors. , the Hon'ble Court has strongly criticised the public interest litigations instituted to assail the justifiable executive actions.
In T.N. Godavarman Thirumulpad v. Union of India and Ors. (2006) 5 SCC 28, relying upon its earlier judgments in S.P. Gupta (supra); and The Janata Dal v. H.S. Chowdhary and Ors. , after noticing that lakhs of rupees had been spent by the petitioner to prosecute the case, held as under:
It has been repeatedly held by this Court that none has a right to approach the court as a public interest litigant and that court must be careful to see that the member of the public who approaches the court in public interest, is acting bona fide and not for any personal gain or private profit or political motivation or other oblique considerations.
...While this Court has laid down a chain of notable decision with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow their process to be abused by a mere busybody, or a meddlesome interloper or wayfarer of officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration.
Thus, in view of the above, the ratio of all these judgements is that there must be a public injury and public wrong caused by wrongful or ultra vires acts or omission of the state or a public authority. It is for the enforcement of basic human rights of weaker sections of the community who are poor, downtrodden, ignorant, illiterates and whose fundamental rights and statutory rights have been violated. In fact, it is for compelling the executive to carry out its constitutional and legal obligations. It must not be frivolous litigation by persons having vested interest.
8. In Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra and Ors. the Hon'ble Supreme Court held that 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 the 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 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 consideration 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 buy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
8.1. In Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors. , 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.
In Dattaraj Natthuji Thaware v. State of Maharastra 2005 AIR SCW 46, the Hon'ble Supreme Court observed that the High Courts must throw the PILs in service matters merely by placing reliance on the judgment in Duryodhan Sahu (supra) at the threshold.
Similar view has been reiterated in Neetu v. State of Punjab and Ors. JT 2007 (1)SC 452.
9. In the present case, petitioners failed to disclose in the writ petition their contribution towards the cause of handicapped persons, either in the past or in the present. It appears that the petitioners are not the bona fide litigants.
In view of the above, it is evident that the petitioners are not bona fide litigants nor they can be held to be public spirited persons who have any right to abuse the process of the Court by filing this kind of petition. The petition is dismissed with the cost of Rs. 50,000/- (Rupees Fifty Thousand Only), which shall be recovered by the District Collector, Aligarh from the petitioners as arrears of land revenue and shall be deposited in the account of the Mediation and Conciliation Centre of the High Court, Allahabad.
A copy of this order be transmitted to the learned District Collector, Aligarh within a week for compliance.