w w w . L a w y e r S e r v i c e s . i n

K. Areef Hafeez & Another v/s Nazeer Ahmed Makbul Ahmad Nadaf & Others

Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    Writ Appeal Nos. 100376 & 100377 of 2017 (GM-CC)

    Decided On, 05 February 2019

    At, High Court of Karnataka Circuit Bench At Dharwad


    For the Appellants: M.S. Bhagwat, Advocate. For the Respondents: R2 - R3, Veena Hegde, Additional Government Advocate, R1, Served & Unrepresented.

Judgment Text

B.V. Nagarathna, J.

1. Though these writ appeals are listed for preliminary hearing, with consent of learned Counsel on both sides, they are heard finally.

2. Respondent No. 1 is served and unrepresented. Respondents nos. 2 and 3 are represented by learned Additional Government Advocate.

3. The legality and correctness of interim order dated 22-3-2017 passed in Writ Petition No. 108822/2016 (GM-CC) has been assailed in these appeals.

4. We have heard the learned Counsel for the appellants and learned Additional Government Advocate for respondents nos. 2 and 3. As already noted, respondent No. 1/writ petitioner is served and unrepresented.

5. The controversy in these appeals is in a very narrow compass. The appellants herein are respondents nos. 3 and 4 in the writ petition. They are aggrieved by the impleadment of the writ petitioner's sister in the writ petition as a party-respondent.

6. Learned Counsel for the appellants submits that when IA No. 1 of 2017 was filed by the writ petitioner, on 22-2-2017, learned Single Judge rejected the said IA. But, one month thereafter, on 22-3-2017, even in the absence of there being any other application and on rejecting the earlier application seeking impleadment, learned Single Judge permitted the impleadment of writ petitioner's sister as a party-respondent in the writ petition that too after opining that the petitioner had no locus standi to maintain the writ petition as no relief was sought by him for himself in the writ petition. Our attention has been drawn to paragraph 6 of the impugned order, which reads as under:

"6. Heard the learned Counsel for the parties. At this stage, this Court feels that the petitioner has no locus standi since there is no relief sought for himself, he also cannot seek such relief against his sister. Sister, though she is an aggrieved party, has not preferred any petition. By invoking Article 226 of the Constitution of India, any person, who proves that his/her constitutional or statutory rights have been infringed, deprived or denied, could approach this Court under the said extraordinary jurisdiction. Here the aggrieved person has not appeared and the petitioner is not an aggrieved person. He cannot seek such relief against a person, who has not been seen and who has not appeared before the Court or not paid any Court fee. A petition is to be supported by a verifying affidavit claiming that he has not suppressed any fact and has not withheld any materials. As long as that affidavit is not there, it is not appropriate for the petitioner to seek such relief. When this is the position of law and fact, this Court declines to exercise its extraordinary power conferred under Article 226 of the Constitution of India. As already stated, the petitioner is not a right person, since no relief is sought in his favour. The relief sought for in the petition is to set aside the order passed by the Tahsildar and the Assistant Commissioner. That itself is not a relief. Relief should have been to select himself or his sister, in case the selection of the respondents Nos. 3 and 4 is set aside. I find no such pleading is made to that effect in the petition and no materials are produced along with the petition papers. Though on this technical ground the petition could have been rejected, I feel that when some materials are produced before this Court and this Court is satisfied, the same is to be gone into in the ends of justice. I also find that since some constitutional issues are involved, it is this Court which has got competence to examine those issues. Under these circumstances, by invoking extraordinary power under Article 226 of the Constitution of India, this Court feels it fit to direct the petitioner to bring his sister on record as a party-respondent and after appearance of the party, further hearing is to be taken place.

In that view of the matter, petitioner is directed to implead his sister as party-respondent. Accordingly it is ordered.

Released from part heard."

7. Learned Counsel for the appellants submits that in the first instance, the writ petition itself is not maintainable because, the petitioner is not a person aggrieved by the issuance of the Caste Certificate stating that the appellants herein belong to Category 1 by the concerned authority. That the appellants and the sister of respondent No. 1 were aspirants for Group 'A' and 'B' posts and the recruitment was conducted by the Karnataka Public Service Commission (hereinafter referred to as 'KPSC' for the sake of brevity). On the basis of their merit, the appellants were considered and appellant 2 was appointed and he has been working as a Commercial Tax Officer. Appellant 1 has been selected as an I.P.S. Officer and serving the State of Andhra Pradesh. Respondent No. 1 herein was not an applicant to any post much less Group 'A' post in respect of which appellant 2 has been selected. His sister though was an aspirant, but not having the requisite merit, was not selected by the KPSC. Such being the state of affairs, respondent No. 1 herein filed a representation before the Tahsildar, challenging the Caste Certificates issued to the appellants herein. By the impugned order at Annexure-M, the Caste Certificates issued to the appellants herein were not cancelled and the representation of respondent No.1 herein was rejected. Being aggrieved by order at Annexure-M, dated 7-9-2015, respondent No. 1 herein filed the writ petition.

8. Of course, in the said writ petition, he sought for impleadment of his sister which was rejected by order dated 22-2-2017. Learned Counsel for the appellants submits that one month thereafter, on 22-3-2017, learned Single Judge, while on the one hand has held that the writ petitioner had no locus standi to maintain the writ petition, on the other hand permitted the sister of the writ petitioner to be impleaded when she also had no connection and has nothing to do with this case. Learned Counsel for the appellants contends that even if for a moment it has to be presumed that the appellants herein were not eligible to the posts in respect of which they had made their applications, then the sister of the writ petitioner would not be entitled to be appointed to the said post and that the impleadment of sister of the writ petitioner is also futile. He further submits that it is only a person who is aggrieved who can assail the Caste Certificate issued to any other person. That in the instant case, the writ petitioner was not a person aggrieved and thus could not challenge appellants' caste certificate.

9. In this regard, reliance placed on the judgment of the Hon'ble Supreme Court in the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Others AIR 2013 SC 58 : VIII(2012) SLT 428 : 2012(8) SCJ 601, (2013)4 SCC 465, wherein at paragraphs 9,10 and 17, it has been held as under:

"Person aggrieved:

9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a Court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the Courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide: State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad and Another v. State of Uttar Pradesh, AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Limited v. State of West Bengal and Others, AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 2736 and Tamil Nadu Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar and Others, (2009) 2 SCC 784).

10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Company of New York, AIR 1974 SC 1719; and State of Rajasthan and Others v. Union of India and Others, AIR 1977 SC 1361).

x x x

17. In view of the above, the law on the said point can be summarised to the effect that a person who raises a grievance, must show how he has suffered legal injury. Generally, a stranger having no right whatsoever to any post or property, cannot be permitted to intervene in the affairs of others."

In the circumstances, appellants' Counsel submits that the impugned order may be set aside and the writ petition itself may be dismissed.

10. Per contra, learned Additional Government Advocate submits that these writ appeals have been filed only against the order passed by the learned Single Judge impleading the writ petitioner's sister and that the writ petition is still pending adjudication. Therefore, appropriate orders may be made in these appeals.

11. Section 4-A of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments, etc.) Act, 1990 [Karnataka Act No. 7 of 1991] (hereinafter referred to as 'the Act' for the sake of convenience) deals with issuance of Caste Certificate and Income-cum-Caste Certificate. The said Act has been enacted by the Karnataka State Legislature to provide for the reservation of appointments or posts in favour of the members of the Scheduled Castes, Scheduled Tribes and Other Backward Classes in the State Civil Services and establishments in the Public sector and in admission to Universities and to the Educational Institutions established or maintained or aided by the State Government. Any person aggrieved by an order of the Tahsildar under Section 4-A of the Act may within thirty days from the date of receipt of the order prefer an appeal to the Assistant Commissioner of the Revenue sub-division.

12. In the instant case, the contention is that though no appeal was filed under Section 4-B of the Act to the Assistant Commissioner, a representation was made to the Tahsildar assailing the Caste Certificates issued in favour of the appellants herein. On inquiry, the Tahsildar concluded that the Caste Certificates issued were valid and rejected the representation made by the writ petitioner/respondent No. 1 herein. Being aggrieved, the writ petitioner challenged the order at Annexure-M passed by the Tahsildar in the writ petition.

13. Learned Counsel for the appellants submits that even to make a representation before the Tahsildar, the writ petitioner had no locus standi as he was not a person aggrieved by the issuance of certificates by the Tahsildar in favour of the appellants herein. The writ petitioner was not an aspirant to any post, much less the post to which the appellants were seeking to be appointed and therefore, he had no locus standi to challenge the validity of the caste certificates issued in favour of the appellants herein. It is also noticed that the learned Single Judge has also held in paragraph 6 extracted above that the writ petitioner had no locus standi to prefer writ petition as he had not sought any relief for himself and that he was not a person aggrieved. However, learned Single Judge after observing the same, has directed that the writ petitioner's sister be impleaded as a party-respondent and not even as a petitioner. We fail to understand as to how the impleadment of the writ petitioner's sister as a respondent would in anyway assist the writ petitioner to prosecute his writ petition.

14. That apart, if at all writ petitioner's sister was an aggrieved person, she could have independently maintain a writ petition against the appellants herein. That is not the position. More significantly, on 22-2-2017, an application filed by the writ petitioner seeking impleadment of his sister was rejected. But, one month later, even in the absence of any such application, a direction has been issued to implead petitioner's sister as a party-respondent and that too after observing that the petitioner has no locus standi to maintain the writ petition. While we are in agreement with the learned Single Judge in observing that the petitioner has no locus standi to file the writ petition, as he is not a person aggrieved, but is a stranger and interloper, we, however, fail to understand as to how in such a writ petition, a direction could have been issued to implead petitioner's sister as a respondent as she did not possess the requisite merit to be appointed to either of appellants' posts.

15. In this regard, we also rely upon the judgment of the Hon'ble Supreme Court in the case of Jasbhai Motibhai Desai v. Roshan Kumar and Others 1976 (3) SCR 58 : AIR 1976 SC 578, wherein at paragraphs 36, 37 and 38, it has been observed as under:

"36. In the United States of America, also, the law on the point is substantially the same:

"No matter how seriously infringement of the Constitution may be called into question,"

said Justice Frankfurter in Coleman v. Miller, (1939)307 US 433

"this is not the Tribunal for its challenge except by those who have some specialised interest of their own to vindicate apart from a political concern which belongs to all".

To have a "standing to sue", which means locus standi to ask for relief in a Court independently of a statutory remedy, the plaintiff must show that he is injured, that is, subjected to or threatened with a legal wrong. Courts can intervene only where legal rights are invaded (Chapman v. Sheridan-Wyoming Coal Company, 338 U.S. S. 621). "Legal wrong" requires a judicially enforceable right and the touchstone to justifiability is injury to a legally protected right. A nominal or a highly speculative adverse affect (American Jurisprudence Vol. 2 d ss. 575. p. 334 Joint Anti Fascist Refugee. Committee v. Me Garth, 341 U.S. 123) on the interest or right of a person has been held to be insufficient to give him the "standing to sue" for judicial review of administrative action (United States Cane Sugar Refiners. Association v. Me Nutt 138 F 2nd 116: 1518 A.L.R. 849). Again the "adverse affect" requisite for "standing to sue" must be an "illegal effect" (United States v. Storer Broadcasting Company, 351 US 192). Thus, in the undermentioned cases, it was held that injury resulting from lawful competition not being a legal wrong, cannot furnish a "standing to sue" for judicial relief (Kansas City Power and Light Company v. McKay, 350 US 884).

37. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybo

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dy or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. 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 pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spooking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold. 38. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer-circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be "persons aggrieved"." 16. In the circumstances, the direction to implead the writ petitioner's sister as a party-respondent in the writ petition is set aside. The appeal is allowed in the aforesaid terms. In view of the disposal of the appeal, pending applications stand disposed.