1

A.F.R.

Court No. - 40

Case :- WRIT - A No. - 6334 of 2022

Petitioner :- Smt. Poonam Rani

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Chandra Jeet Yeadav

Counsel for Respondent :- C.S.C.

Hon'ble Vivek Kumar Birla,J.

Hon'ble Vikas Budhwar,J.

(Per: Hon’ble Vikas Budhwar, J.)

1.Heard Sri Chandra Jeet Yadav, learned counsel for the petitioner and Sri

Nand Lal Mourya, learned Standing Counsel, who appears for the

respondents.

FACTS

2.Factual matrix of the case as worded in the writ petition are that the

petitioner Smt. Poonam Rani claims herself to be the the wife of Sri Yogesh

Kumar, who was posted as Junior Engineer in Paschimanchal Vidyut Vitran

Nigam Limited, Victoria Park, Meerut. Records reveal that certain allegations

were levelled against his performance while discharging official duty which

occasioned laying of a trap pursuant whereto, he was found indulged in

corruption coupled with misconduct pursuant whereto a Criminal Case No.11

of 2018 was registered on 19.1.2018 purported to be under Sections 7, 13(1)

(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (In short

Act of 1988) Police Station Mainather, District Moradabad and thereafter a

first information report was also lodged and proceedings for prosecution was

also drawn and he was placed under suspension on 22.1.2018. Sanction was

also proceeded to be obtained under Section 17 of the Act of 1988 which was

accorded on 15.2.2018. Simultaneously, a charge sheet was also issued to the

petitioner by the Disciplinary Authority on 6.8.2019 and thereafter one Sri

Pramod Gogneya was appointed as the Enquiry Officer and regular

departmental enquiry was conducted by the Enquiry Officer, who in turn

tendered its enquiry report on 6.1.2021 holding the husband of the petitioner

2

guilty of the two charges which was sought to be levelled upon it. Ultimately,

on 7.7.2021 an order was passed whereby the husband of the petitioner was

dismissed from services.

3.Sri Yadav, learned counsel for the petitioner has made a statement at bar

that the order dated 7.7.2021 dismissing the husband of the petitioner has been

further carried in a departmental appeal before the appellate authority which is

stated to be pending.

4.The petitioner herein claiming herself to be the wife of Yogesh Kumar,

who had been dismissed by virtue of order dated 7.2.2021 has approached this

Court while filing the present petition seeking following reliefs:-

(I) Interpret the JUSTICE, Social, Economic and Political provided in

the preamble of the Constitution of India, Article 309 and 311 of the

Constitution of India, in the contest of the involved substantial

question of law as to interpretation of this Constitution framed as

follows:

(a) Does word "Dismissal" used under Article 311 of the

Constitution of India includes impression or sprit or means of

"Dismissal from the Service which disqualify from future

employment" or penalty provided under Rule 3-B-(iv) of the

Uttar Pradesh Government Servant (Discipline and Appeal)

Rule, 1999 stands repugnant/ inconsistent to the impression or

sprit or means to the word "Dismissal" used under Article 311

of the Constitution of India?

(b) Does in exercise of powers conferred by the proviso to

Article 309 of the Constitution of India, its permissible or

within jurisdiction to amend/modify/alter/identify or clarify the

word "Dismissal" used under Article 311 of the Constitution of

India as "Dismissal from the service which disqualify from

future employment” and "Dismissal from service which does

not disqualify from employment" as designed

amended/modified/altered/ identified and clarified vide Rule 3-

B-(iii) and (iv) of the Uttar Pradesh Government Servant

3

(Discipline and Appeal), Rules, future and 1999 or not?

(c) Does proviso of Article 309 of the Constitution of India

creates jurisdiction/authority to design "Rules" which may

regulate the future of the persons appointed to public services

and posts in connection with affairs of the union or of any

State, after dismissal of service or penalty provided under Rule

3-B-(iv) of the Uttar Pradesh Government Servant (Discipline

and Appeal), Rules, 1999 or Rule 3-B-(iv) of the Uttar Pradesh

Government Servant (Discipline and Appeal), Rules, 1999 is

repugnant/ inconsistent to the earlier/basic part of Article 309

of the Constitution of India specified as "Subject to the

provisions of this Constitution Acts of the appropriate

legislature may regulate the recruitment and conditions of

service of persons appointed to public services and posts in

connection with affairs of Union or of any State?

(d) Does Rule 3-B-(iv) framed under the Uttar Pradesh

Government Servant (Discipline and Appeal), Rules, 1999 in

exercise of the powers conferred by the proviso to Article 309 of

the Constitution of India and in suppression of the Civil Service

(Classification, Control and Appeal) Rules, 1930 and

Punishment and Appeal Rules for Subordinate Service Uttar

Pradesh, 1932 is in accordance with jurisdiction/authority/

limits prescribed as "Subject to the provisions of this

Constitution, Acts of the appropriate legislature may regulate

the condition of service of persons appointed to the public

services and posts in connection with affairs of the Union or of

any the State" under Article 309 of the Constitution of India?

(e) Does jurisdiction/authority of the proviso of Article 309 of

the Constitution of India framed/designed "Rules" like

"Dismissal from service which disqualify from the service from

future employment" for the purpose of regulate the recruitment

and conditions of services of persons appointed to the public

services and the posts in connection with the affairs of the

4

Union or of any State, which substantially and remotely

terminates the mandatory duty/ responsibility of a Government

Servant or Public Servant coupled with Section 125 of the Code

of Criminal Procedure, 1973 or Rule 3-B-(iv) of the Uttar

Pradesh Government Servant (Discipline and Appeal), Rules,

1999 is repugnant/inconsistent to the preamble of the

Constitution (JUSTICE, Social, economic and political) read

with Article 13, 14 and 21 of the Constitution of India along

with Article 5, 23(i) and 25(ii) of the Universal Declaration of

Human Rights read with Section 125 of the Code of Criminal

Procedure, 1973 guaranteed to the family members/dependents

of a Government Servant?

(f) Does designing of penalty and empowerment of the

appointing authority/ disciplinary authority with "Dismissal

from the service which disqualify from the future employment"

in exercise of the powers conferred by the proviso to Article 309

of the Constitution, substantially makes appointing

authority/disciplinary authority as supreme controller of life

and dignity of a Government servant and his family

members/dependents, even after dismissal from service and

consequence whereof a Government servant becomes life time

slaves of appointing authority/disciplinary authority after

dismissal of services?

(g) Does after making "Rules" in exercise of power conferred

by the proviso to Article 309 of the Constitution, the necessity of

making "Acts" of/by appropriate legislation may regulate the

recruitment and conditions of service of persons appointed to

the public services and posts in connection with the affairs of

the Union or of any State comes to an end or continuance of

such Rules is in conflict to the Article 85 to Article 111 and

Article 174 to Article 200 of the Constitution of India or not?

(II) Issue an order or direction in the nature of "Public Law

Litigation" to restrain appointing authorities/disciplinary

5

PALIEKAMARRAORTAROAK authorities or other competent

authorities from imposing and implementing penalty provided under

3-B-(iv) of the Uttar Pradesh Government Servant (Discipline and

Appeal), Rules, 1999 upon any Government servant.

(III) Issue an order or direction in the nature of "Public Law

Litigation" commanding to appointing or other competent

authorities/disciplinary authorities authorities, to protect the rights

guaranteed to the family members/ dependents of the Government

servants through preamble of the Constitution, Article 14 and 21 of

the Constitution of India, Article 5, 23(i) and 25(ii) of the Universal

Declaration of Human Rights and Section 125 of the Code of

Criminal Procedure, 1973 from despotism of Rule 3-B-(iv) of the

Uttar Pradesh Government Servant (Discipline and Appeal), Rules,

1999.

(IV)Issue an order or direction in the nature of "Public Law

terminate Litigation" to the relationship of supreme controller of life

and dignity of a Government servant and slaves arising out from

imposition of penalty provided under Rule 3-B-(iv) of the Uttar

Pradesh Government Servant (Discipline and Appeal), Rules, 1999

by the appointing authorities/ disciplinary authorities or other

competent authorities and maintain the relationship of employer and

employee.

(V) Issue an appropriate order or direction to declare the penalty

provided under Rule 3-B-(iv) of the Uttar Pradesh Government

Servant (Discipline and Appeal), Rules, 1999 as void ab initio/ultra

vires to preamble of the Constitution, Article 13, 14, 21 and 311 of

the Constitution of India.

(VI) Issue any suitable order or direction which this Hon'ble Court

may deem fit and proper in the fact and circumstances of the instant

case.

(VII) Award cost of the petition in favour of the petitioner.

5.Sri Yadav, learned counsel for the petitioner has made manifold

6

submissions namely:-

(a) The provisions contained under Rule 3-B-(iv) of the Uttar Pradesh

Government Servant (Discipline and Appeal) Rules, 1999 (In short of the

Rules, 1999) in so far as it provides that in case of dismissal from service then

it would disqualify from further employment is ultra-virus of Article 309 read

with 311 of the Constitution of India.

(b) Article 311 of the Constitution of India nowhere envisages any

differential treatment or differentiation with respect to disqualification from

future employment in the case of dismissal vis-a-vis penalty of removal where

there is no disqualification for future employment and thus Rule 3-B-(iv) of

the Rules, 1999 is ultra-virus.

(c) The petitioner herein though is the wife of a dismissed employee

(Yogesh Kumar) but in view of the doctrine so enunciated by the Hon’ble

Apex Court in the case of Raju Ramsingh Vasave Vs. Mahesh Deorao

Bhivapurkar and others (2008) 9 SCC 54, the writ petition so instituted by

the petitioner herein is maintainable as the petitioner has locus standi to

institute the present petition.

6.Elaborating the first submission, learned counsel for the petitioner has

argued that once Article 311 of the Constitution of India itself provides for

imposition of punishment of dismissal or removal or reduction in rank

without containing any fetters with respect to any disqualification so attached

thereto, then 1999 Rules which have been enacted under the proviso to Article

309 of the Constitution of India cannot provide for any disqualification in case

an officer or employee is visited with the punishment of dismissal while

putting a condition disqualifying him or her from future employment.

7.Sri Yadav, in order to buttress his submission with respect to locus

standi has invited the attention of the Court towards the judgment in the case

of Raju Ramsingh Vasave (Supra) while referring to paragraph 45 of the

judgment so as to further contend that the present case falls within the domain

of Public Law Litigation (PLL) as the same may not be a subject matter of

public interest litigation and as an issue relatable to public importance is being

raised then this Court can suo motu exercise its jurisdiction.

7

8.Sri Mourya, learned Standing Counsel has refuted the submissions of

Sri Yadav, who appears for the petitioner while arguing that the present writ

petition is nothing but a public interest litigation involving matters pertaining

to service issues and further the petitioner has no legal right to maintain the

present petition as even otherwise no cause of action has arisen.

9.According to Sri Mourya learned Standing Counsel once the dismissed

employee being the husband of the petitioner is not before this Court and he

has availed his remedy before appellate authority by filing appeal against the

dismissal order as stated by the learned counsel for the petitioner then this

petition need not further retain the board and the same is liable to be dismissed

with heavy cost.

POINTS OF DETERMINATION

(a)Locus standi of the petitioner to institute and maintain the proceeding

under Article 226 of the Constitution of India.

(b) The issue relating to constitutional validity of Rule 3-B-(iv) of the

Rules, 1999.

DISCUSSION

10.We have heard learned counsel for the parties and perused the record

and with the consent of the parties, the present petition is being decided

without seeking any response from the respondents.

11.A question arises as to whether the petitioner qualifies the definition of

an aggrieved person or not in order to not only institute but to maintain the

present petition. To answer the said question, the petitioner has to show herself

to be an aggrieved party so as to have some interest while putting into motion

the present proceedings.

12.The words “aggrieved person” have subject matter of judicial scrutiny

in empty number of judgments of Hon’ble Supreme Court. To start with

reference is being made to the case of Jasbhai Motibhai Desai Vs. Roshan

Kumar, Haji Bashir Ahmed and others (1976) 1 SCC 671 paragraphs 12,

13, 14, 15, 16, 30, 34 & 37 quoted hereunder:-

“12. According to most English decisions, in order to have the

8

locus standi to invoke certiorari jurisdiction, the petitioner

should be an "aggrieved person" and, in a case of defect of

jurisdiction, such a petitioner will be entitled to a writ of

certiorari as a matter of course, but if he does not fulfil that

character, and is a "stranger", the Court will, in its discretion,

deny him this extraordinary remedy, save in very special

circumstances.

13. This takes us to the further question: Who is an "aggrieved

per son" and what are the qualifications requisite for such a

status ? The expression "aggrieved person" denotes an elastic,

and, to an extent, an elusive concept. It cannot be confined

within the bounds of rigid, exact and comprehensive definition.

At best, its features can be described in a broad, tentative

manner. Its scope and meaning depends on diverse, variable

factors such as the content and intent of the statute of which

contravention is alleged, the specific circumstances of the case,

the nature and extent of the petitioner's interest, and the nature

and extent of the prejudice or injury suffered by him. English

Courts have sometimes put a restricted and sometimes a wide

construction on the expression "aggrieved person". However,

some general tests have been devised to ascertain whether an

applicant is eligible for this category so as to have the

necessary locus standi or 'standing' to invoke certiorari

jurisdiction.

14. We will first take up that line of cases in which an

"aggrieved person" has been held to be one who has a more

particular or peculiar interest of his own beyond that of the

general public, in seeing that the law is properly administered.

The leading case in this line in Queen v. Justices of Surrey(1)

decided as far back as 1870. There, on the application by the

highway board the Justices made certificates that certain

portions of three roads were unnecessary. As a result, it was

9

ordered that the roads should cease to be repaired by the

parishes.

15. E, an inhabitant of one of the parishes, and living in the

neighbourhood of the roads, obtained a rule for a certiorari to

bring up the orders and certificates for the purpose of quashing

them on the ground that they were void by reason of the notices

not having been affixed at the places required by law. On the

point of locus standi (following an earlier decision Hex v.

Taunton St. Mary(2), the Court held that though a certiorari is

not a writ of course, yet as the applicant had by reason of his

local situation a peculiar grievance of his own, and was not

merely applying as one of the public, he was entitled to the writ

ex debito justitiae.

16. It is to be noted that in this case was living in the

neighbourhood of the roads were to be abandoned as a result of

the certificates issued by the Justices. He would have suffered

special inconvenience by the abandonment. Thus had shown a

particular grievance of his own beyond some inconvenience

suffered by the general public. He had a right to object to the

grant of the Certificate. Non-publication of the notice at all the

places in accordance with law, had seriously prejudiced him in

the exercise of that legal right.

30. Typical of the cases in which a strict construction was put

on the expression "person aggrieved", is Buxton and ors. v.

Minister of Housing and Local Government(4). There, an

appeal by a Company against the refusal of the Local Planning

Authority of permission to develop land owned by the Company

by digging chalk, was allowed by the Minister. Owners of

adjacent property applied to the High Court under s. 31(1) of

the Town and Country Planning Act, 1959 to quash the decision

of the Minister on the ground that the proposed operations by

the company would injure their land, and that they were

'persons aggrieved' by the action of the Minister. It was held

10

that the expression 'person aggrieved' in a statute meant a

person who had suffered a legal grievance; anyone given the

right under Section 37 of the Act of 1959 to have his

representation considered by the Minister was a person

aggrieved, thus Section 31 applied, if those rights were

infringed; but the applicants had no right under the statute, and

no legal rights had been infringed and therefore they were not

entitled to challenge the Minister's decision. Salmon J. quoted

with approval these observations of James T. J. in In Re

Sidebothem:-

"The words 'person aggrieved' do not really means a man who is

disappointed of a benefit which he might have received if some other

order had been made. A 'person aggrieved' must be a man who has

suffered a legal grievance,`a man against whom a decision has been

pronounced which has wrongfully deprived him of something, or

wrong fully refused him something, or wrongfully affected his title to

something."

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 a personal or individual right in the subject

matter of the application, though (1) 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, in fringement of

some legal right or prejudice to some legal interest in hearing

the petitioner is necessary to give him a locus standi in the

matter.

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)

busybody 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

11

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 spoking the wheels of

administration. The High Court should do well to reject the

applications of such busybodies at the threshold.”

13.In Thammanna Vs. K Veera Reddy and others (1980) 4 SCC 62

paragraphs 15, 16 & 17 are quoted hereunder:-

“15. It was not obligatory for the Election-Petitioner to join the

appellant as a respondent. There were no allegations or claims

in the election-petition which would attract Section 82 of the

Act. From that point of view, the appellant was not a necessary

party to be impleaded. Of course, if the appellant had made an

application within the time prescribed, in compliance with

Section 86(4) of the Act, the Court would have been bound to

join him as a respondent. But the question of Section 86 (4)

coming into play never arose as the Election-Petitioner had

already impleaded the appellant as Respondent 5 in the

election- petition. Even so, Respondent 5 did not join the

controversy. He neither joined issue with the contesting

respondent 1, nor did he do anything tangible to show that he

had made a common cause with the Election-Petitioner against

Respondent 1. In fact, the only parties between whom the

matters in controversy were at issue, were the Election-

Petitioner and Respondent 1. The other respondents, including

the appellant, did not participate or side with either contestant

in that controversy.

16. Although the meaning of the expression "person aggrieved"

may vary according to the context of the statute and the facts of

12

the case, nevertheless, normally "a 'person aggrieved' must be

a man who has suffered a legal grievance, a man 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."

17. In the face of the stark facts of the case, detailed above, it is

not possible to say that the appellant was aggrieved or

prejudicially affected by the decision of the High Court,

dismissing the election-petition.

14.In Dr Duryodhan Sahu and others Vs. Jitendra Kumar Mishra and

others (1998) 7 SCC 273 paragraphs 16 & 17 are quoted hereunder:-

16. In Thammanna versus K. Veera Reddy and other (1980) 4

S.C.C. 62 it was held that although the meaning of the

expression 'person aggrieved' may vary according to the

context of the statute and the facts of the case, nevertheless

normally, a person aggrieved must be a man who has suffered a

legal grievance, a man 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.

17. In Jasbhai Motibhai Desai Versus Roshan Kumar Haji

Bashir Ahmed and others (1976) 1.S.C.C. 671 the Court held

that the expression 'aggrieved person' donotes an elastic, and to

an extent, an elusive concept. The Court observed:

"...It cannot be confined within the bounds of a rigid, exact,

and comprehensive definition. At best, its features can be

described in a broad tentative manner. Its scope and

meaning depends on diverse, variable factors such as the

content and intent of the statue of which contravention is

alleged, the specific circumstances of the case, the nature

and extent of the petitioner's interest, and the nature and

extent of the prejudice or injury suffered by him'.

13

15.In Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and

others (2013) 4 SCC 465 paragraphs 9, 10, 11, 12, 13, 14, 16, 17 are quoted

herein under:-

“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 226of 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. Infact,

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 & Anr.

v. State of U.P., AIR 1954 SC 728; Calcutta Gas Company

(Proprietary) v. State of West Bengal & others, AIR 1962 SC

1044; Rajendra Singh v. State of Madhya Pradesh, AIR 1996

SC 2736; and Tamilnad Mercantile Bank Shareholders Welfare

Association (2) v. S.C. Sekar & Ors., (2009) 2 SCC 784).

14

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 Co. of New York, AIR 1974 SC 1719;

and State of Rajasthan & Ors. v. Union of India & Ors., AIR

1977 SC 1361).

11. In Anand Sharadchandra Oka v. University of Mumbai, AIR

2008 SC 1289, a similar view was taken by this Court,

observing that, if a person claiming relief is not eligible as per

requirement, then he cannot be said to be a person aggrieved

regarding the election or the selection of other persons.

12. In A. Subhash Babu v. State of A. P. , AIR 2011 SC 3031,

this Court held:

“The expression ‘aggrieved person’ denotes an elastic and an

elusive concept. It cannot be confined within the bounds of a

rigid, exact and comprehensive definition. Its scope and

meaning depends on diverse, variable factors such as the

content and intent of the statute of which contravention is

alleged, the specific circumstances of the case, the nature and

extent of complainant's interest and the nature and the extent of

the prejudice or injury suffered by the complainant.”

13. This Court, even as regards the filing of a habeas corpus

petition, has explained that the expression, ‘next friend’ means

a person who is not a total stranger. Such a petition cannot be

filed by one who is a complete stranger to the person who is in

alleged illegal custody.

14. This Court has consistently cautioned the courts against

entertaining public interest litigation filed by unscrupulous

15

persons, as such meddlers do not hesitate to abuse the process

of the court. The right of effective access to justice, which has

emerged with the new social rights regime, must be used to

serve basic human rights, which purport to guarantee legal

rights and, therefore, a workable remedy within the framework

of the judicial system must be provided. Whenever any public

interest is invoked, the court must examine the case to ensure

that there is in fact, genuine public interest involved. The court

must maintain strict vigilance to ensure that there is no abuse of

the process of court and that, “ordinarily meddlesome

bystanders are not granted a Visa”. Many societal pollutants

create new problems of non-redressed grievances, and the court

should make an earnest endeavour to take up those cases,

where the subjective purpose of the lis justifies the need for it.

16. In Ghulam Qadir v. Special Tribunal & Ors., (2002) 1 SCC

33, this Court considered a 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

16

locus standi.”

(Emphasis added)

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.

16.Now another fact which needs to be examined is the fact as to whether

the present petition which is in fact in the guise of public interest litigation is

maintainable at the behest and instance of the petitioner.

17.Learned counsel for the petitioner has relied upon the judgment of the

Hon’ble Apex Court in the case of Raju Ramsingh Vasave (Supra) while

referring to paragraph 45.

45. We must now deal with the question of locus standi. A

special leave petition ordinarily would not have been

entertained at the instance of the appellant. Validity of

appointment or otherwise on the basis of a caste certificate

granted by a committee is ordinarily a matter between the

employer and the employee. This Court, however, when a

question is raised, can take cognizance of a matter of such

grave importance suo motu. It may not treat the special leave

petition as a public interest litigation, but, as a public law

litigation. It is, in a proceeding of that nature, permissible for

the court to make a detailed enquiry with regard to the broader

aspects of the matter although it was initiated at the instance of

a person having a private interest. A deeper scrutiny can be

made so as to enable the court to find out as Cate "Segy HOW

to whether a party to a lis is guilty of commission of fraud on

the Constitution. If such an enquiry subserves the greater

public interest and has a far-reaching effect on the society, in

our opinion, this Court will not shirk its responsibilities from

doing so.

17

18.According to Sri Yadav, the present proceedings cannot be said to be a

public interest litigation but it is Public Law Litigation and thus the same is

maintainable.

19.On the other hand, learned Standing Counsel has referred to certain

judgments of the Apex Court so as to contend that in service matter Public

Interest Litigation is not maintainable. Namely:-

20.In Dr. B. Singh Vs. Union of India and others (2004) 3 SCC 363

paragraph 16 is quoted hereunder:-

“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 large number of so called public interest litigations,

whereas only 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 large

number of cases, yet unmindful of the real intentions and

objectives, Courts at times are entertaining such petitions and

wasting valuable judicial time which, as noted above, could be

otherwise utilized for disposal of genuine cases. Though in Dr.

Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors.

(AIR 1999 SC 114), 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. This

tendency is being slowly permitted to percolate for setting in

motion criminal law jurisdiction, often unjustifiably just for

gaining publicity and giving adverse publicity to their

opponents. The other interesting aspect is that in the PILs,

official documents are being annexed without even indicating

as to how the petitioner came to possess them. In one case, it

was noticed that an interesting answer was given as to its

possession. It was stated that a packet was lying on the road

18

and when out of curiosity the petitioner opened it, he found

copies of the official documents. Apart from the sinister manner,

if any, of getting such copters, the real brain or force behind

such cases would get exposed to find out whether it was a bona

fide venture. Whenever such frivolous pleas are taken to explain

possession, the Court should do well not only to dismiss the

petitions but also to impose exemplary costs, as it prima facie

gives impression about oblique motives involved, and in most

cases show proxy litigation. Where the petitioner has not even a

remote link with the issues involved, it becomes imperative for

the Court to lift the veil and uncover the real purpose of the

petition and the real person behind it. It would be desirable for

the Courts to filter out the frivolous petitions and dismiss them

with costs as afore-stated so that the message goes in the right

direction that petitions filed with oblique motive do not have the

approval of the Courts.”

21.In Dattaraj Nathuji Thaware Vs. State of Maharashtra (2005) 1

SCC 590 paragraph 16 is quoted hereunder:-

“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 large number of so called public interest

litigations, whereas only 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 large number of cases, yet unmindful of the real

intentions and objectives, Courts at times are entertaining such

petitions and wasting valuable judicial time which, as noted

above, could be otherwise utilized for disposal of genuine

cases. Though in Dr. Duryodhan Sahu and Ors. v. Jitendra

Kumar Mishra and Ors. (AIR 1999 SC 114), this Court held

that in service matters PILs should not be entertained, the

inflow of so-called PILs involving service matters continues

19

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. This tendency is being slowly permitted to

percolate for setting in motion criminal law jurisdiction, often

unjustifiably just for gaining publicity and giving adverse

publicity to their opponents. The other interesting aspect is that

in the PILs, official documents are being annexed without even

indicating as to how the petitioner came to possess them. In one

case, it was noticed that an interesting answer was given as to

its possession. It was stated that a packet was lying on the road

and when out of curiosity the petitioner opened it, he found

copies of the official documents. Apart from the sinister manner,

if any, of getting such copters, the real brain or force behind

such cases would get exposed to find out whether it was a bona

fide venture. Whenever such frivolous pleas are taken to explain

possession, the Court should do well not only to dismiss the

petitions but also to impose exemplary costs, as it prima facie

gives impression about oblique motives involved, and in most

cases show proxy litigation. Where the petitioner has not even a

remote link with the issues involved, it becomes imperative for

the Court to lift the veil and uncover the real purpose of the

petition and the real person behind it. It would be desirable for

the Courts to filter out the frivolous petitions and dismiss them

with costs as afore-stated so that the message goes in the right

direction that petitions filed with oblique motive do not have the

approval of the Courts.”

22.In Neetu Vs. State of Punjab and others (2007) 10 SCC 614

paragraphs 7 and 8 are quoted hereunder:-

“(7) When a particular person is the object and target of a

petition styled as PIL, the court has to be careful to see whether

the attack in the guise of public interest is really intended to

unleash a private vendetta, personal grouse or some other mala

fide object.

20

(8) Therefore, as rightly submitted by learned counsel for the

appellant, writ petition itself was not maintainable, to that

extent the High Court's order cannot be maintained. But it

appears that the official respondents have already initiated

action as regards the caste certificate. Though PIL is not to be

entertained in service matters, that does not stand on the way of

the officials from examining the question in the right

perspective. In the present case admittedly the officials have

initiated action. What action will be taken in such proceedings

is not the subject matter of controversy in the present appeal.

However, it shall not be construed as if we have expressed any

opinion on the merits of the proceedings stated to be pending.

The only issue which has been examined relates to the locus

standi of the writ petitioner (respondent No.7) to file PIL.

23.Analysing the judgment meticulously, this Court finds that the judgment

so relied upon by the learned counsel for the petitioner being Raju Ramsingh

Vasave (Supra) is not applicable in the facts of the case as the present case

does not fall within the exceptions so culled out in the said judgment. The

present case also does not come within the parameters of Public Law

Litigation and further the issue so sought to be raised by the petitioner is not

of any public importance.

24.Nonetheless, the present case is nothing but the proceedings relating to

Public Interest Litigation in service matters which as per the law laid down by

the Hon’ble Apex Court is not maintainable.

25.There is another reason for not interfering in the present proceedings at

the instance of the petitioner particularly in view of the fact that the petitioner

happens to be the wife of Yogesh Kumar, who had been dismissed from

service and further he has also preferred departmental appeal which is stated

to be pending thus the present proceeding is nothing but collateral proceedings

just in order to obtain a benefit indirectly which cannot be granted by this

Court directly particularly when the dismissal order has not been challenged

by an aggrieved party being the dismissed employee itself.

21

26.Petitioner herein is not an aggrieved party and she happens to be a wife

of the dismissed employee, who has her own agenda of getting not only

monetary benefits but other benefits attached thereto which cannot be granted

by this Court in present proceeding. Nonetheless this Court could have taken a

pause on the issue of maintainability of present petition but this Court is also

examining the validity of Rule 3-B-(iv) of the 1999 Rules.

27.This Court before embarking any enquiry with respect to the

constitutional validity of the provisions contained under Rule 3-B-(iv) of the

Rules, 1999 has to bear in mind the relevant factors which need to be taken

into consideration for adjudicating the validity of the statutory enactment

while forming an opinion as to whether the same needs to be declared to be

ultra-virus.

28.It is the settled principal of law that in case any party asserts and assails

the validity of a provision on the ground that it is violative of Article 309 and

311 of the Constitution of India then it is for the said party to not only make

necessary pleadings but also adduce materials to show that the same is in

violation of Article 309 and 311 of the Constitution of India. Even otherwise

the presumption is always that legislature understands and correctly

appreciates the need of the people and in order to rebut the said presumption,

the onus is upon the party who alleges it to be unconstitutional.

29.The Hon'ble Supreme Court in the case of Chiranjit Lal Chaudhary

Vs. Union of India, AIR 1951 SC 41 in paragraph-10 has held as under: -

"..I consider to be well-founded on principle, that the

presumption is always in favour of the constitutionality of an

enactment, and the burden is upon him who attacks it to show

that there has been a clear transgression of the constitutional

principles…"

30.In the case of State of Bihar Vs. Sm. Charusila Dasi, AIR 1959 SC

1002, in paragraph 14, the Apex Court has held as under:-

"... It is now well settled that there is a general presumption

22

that the legislature does not intend to exceed its jurisdiction,

and it is a sound principle of construction that the Act of a

sovereign legislature should, if possible, receive such an

interpretation as will make it operative and not in- operative;.."

31.In AIR 1997 SC 1511, State of Bihar vs. Bihar Distillery Ltd., the

Supreme Court in paragraph 18 has held as under:-

"18. The Court should try to sustain its validity to the extent

possible. It should strike down the enactment only when it is not

possible to sustain it. The Court should not approach the

enactment with a view to pick holes or to search for defects of

drafting, much less inexactitude of language employed. Indeed,

any such defects of drafting should be ironed out as part of the

attempt to sustain the validity/constitutionality of the

enactment. After all, an Act made by the Legislature represents

the will of the people and that cannot be lightly interfered with.

The unconstitutionality must be plainly and clearly established

before an enactment is declared as void."

32.In Greater Bombay Coop. Bank Ltd. Vs. United Yarn Tex (P) Ltd,

2007(6) SCC 236, provides as under:-

"82. The constitutional validity of an Act can be challenged

only on two grounds, viz. (i) lack of legislative competence; and

(ii) violation of any of the Fundamental Rights guaranteed in

Part III of the Constitution or of any other constitutional

provision. In State of A. P. & Ors. v. McDowell & Co. & Ors.

[(1996) 3 SCC 709], this Court has opined that except the

above two grounds, there is no third ground on the basis of

which the law made by the competent legislature can be

invalidated and that the ground of invalidation must necessarily

fall within the four corners of the afore-mentioned two grounds.

23

(83) Power to enact a law is derived by the State Assembly from

List II of the Seventh Schedule of the Constitution. Entry 32

confers upon a State Legislature the power to constitute co-

operative societies. The State of Maharashtra and the State of

Andhra Pradesh both had enacted the MCS Act, 1960 and the

APCS Act, 1964 in exercise of the power vested in them by

Entry 32 of List II of the Seventh Schedule of the Constitution.

Power to enact would include the power to re-enact or validate

any provision of law in the State Legislature, provided the same

falls in an Entry of List II of the Seventh Schedule of the

Constitution with the restriction that such enactment should not

nullify a judgment of the competent court of law. In the appeals/

SLPs/petitions filed against the judgment of the Andhra

Pradesh High Court, the legislative competence of the State is

involved for consideration. Judicial system has an important

role to play in our body politic and has a solemn obligation to

fulfil. In such circumstances, it is imperative upon the Courts

while examining the scope of legislative action to be conscious

to start with the presumption regarding the constitutional

validity of the legislation. The burden of proof is upon the

shoulders of the incumbent who challenges it. It is true that it is

the duty of the constitutional courts under our Constitution to

declare a law enacted by the Parliament or the State

Legislature as unconstitutional when Parliament or the State

Legislature had assumed to enact a law which is void, either for

want of constitutional power to enact it or because the

constitutional forms or conditions have not been observed or

where the law infringes the Fundamental Rights enshrined and

guaranteed in Part III of the Constitution.

(84) As observed by this Court in CST v. Radhakrishnan in

considering the validity of a Statute the presumption is always

in favour of constitutionality and the burden is upon the person

who attacks it to show that there has been transgression of

24

constitutional principles. For sustaining the constitutionality of

an Act, a Court may take into consideration matters of common

knowledge, reports, preamble, history of the times, objection of

the legislation and all other facts which are relevant. It must

always be presumed that the legislature understands and

correctly appreciates the need of its own people and that

discrimination, if any, is based on adequate grounds and

considerations. It is also well- settled that the courts will be

justified in giving a liberal interpretation in order to avoid

constitutional invalidity. A provision conferring very wide and

expansive powers on authority can be construed in conformity

with legislative intent of exercise of power within constitutional

limitations. Where a Statute is silent or is inarticulate, the

Court would attempt to transmutate the inarticulate and adopt

a construction which would lean towards constitutionality

albeit without departing from the material of which the law is

woven. These principles have given rise to rule of "reading

down" the provisions if it becomes necessary to uphold the

validity of the law."

33.In Zaheer Ahmed Latifur Rehman Sheikh Vs. State of Maharashtra

and others, JT 2010(4) SCC 256 in paragraph 34 and 35, the Supreme Court

has held as under:-

"(34) It is a well-established rule of interpretation that the

entries in the List being fields of legislation must receive liberal

construction inspired by a broad and generous spirit and not a

narrow or pedantic approach. Each general word should

extend to all ancillary and subsidiary matters which can fairly

and reasonably be comprehended within it. [Reference in this

regard may be made to the decisions of this Court in

Navinchandra Mafatlal v. Commr. of I.T. [AIR 1955 SC 58],

State of Maharashtra v. Bharat Shanti lal Shah [(2008) 13 SCC

25

5]]. It is also a cardinal rule of interpretation that there shall

always be a presumption of constitutionality in favour of a

statute and while construing such statute every legally

permissible effort should be made to keep the statute within the

competence of the State Legislature [Reference may be made to

the cases of: Charanjit Lal Choudhary v. Union of India [AIR

1951 SC 41], T.M.A. Pai Foundation v. State of Karnataka

[(2002) 8 SCC 481], Karnataka Bank Ltd. State of AP [(2008)

2 SCC 254]]

(35) One of the proven methods of examining the legislative

competence of a legislature with regard to an enactment is by

the application of the doctrine of pith and substance. This

doctrine is applied when the legislative competence of the

legislature with regard to a particular enactment is challenged

with reference to the entries in various lists. If there is a

challenge to the legislative competence, the courts will try to

ascertain the pith and substance of such enactment on a

scrutiny of the Act in question. In this process, it is necessary

for the courts to go into and examine the true character of the

enactment, its object, its scope and effect to find out whether

the enactment in question is genuinely referable to a field of the

legislation allotted to the respective legislature under the

constitutional scheme. This doctrine is an established principle

of law in India recognized not only by this Court, but also by

various High Courts. Where a challenge is made to the

constitutional validity of a particular State Act with reference to

a subject mentioned in any entry in List I, the Court has to look

to the substance of the State Act and on such analysis and

examination, if it is found that in the pith and substance, it falls

under an entry in the State List but there is only an incidental

encroachment on any of the matters enumerated in the Union

List, the State Act would not become invalid merely because

there is incidental encroachment on any of the matters in the

26

Union List."

34.In Namit Sharma Vs. Union of India, 2013(1) SCC 745, in paragraph

51 and 61, the Supreme Court has held as under:-

"(51) Another most significant canon of determination of

constitutionality is that the courts would be reluctant to declare

a law invalid or ultra vires on account of unconstitutionality.

The courts would accept an interpretation which would be in

favour of the constitutionality, than an approach which would

render the law unconstitutional. Declaring the law

unconstitutional is one of the last resorts taken by the courts.

The courts would preferably put into service the principle of

''reading down' or ''reading into' the provision to make it

effective, workable and ensure the attainment of the object of

the Act. These are the principles which clearly emerge from the

consistent view taken by this court in its various

pronouncements.

(61) It is a settled principle of law, as stated earlier, that courts

would generally adopt an interpretation which is favourable to

and tilts towards the constitutionality of a statute, with the aid

of the principles like ''reading into' and/or ''reading down' the

relevant provisions, as opposed to declaring a provision

unconstitutional. The courts can also bridge the gaps that have

been left by the legislature inadvertently. We are of the

considered view that both these principles have to be applied

while interpreting Section 12(5). It is the application of these

principles that would render the provision constitutional and

not opposed to the doctrine of equality. Rather the application

of the provision would become more effective."

35.Another additional aspect needs to be further noticed at this juncture

that though the earlier law was to the effect that the Constitutional validity of

Act can be challenged only on two grounds namely (I), lack of legislative

27

competence and (ii) violation of any of the fundamental rights guaranteed in

Part-III of the Constitution. However, the exception to the said Rule has been

noticed in the case of Shayara Bano Vs. Union of India, 2017 (9) SCC 1,

wherein a third exception was carved out with regard to the fact that the

Courts of law can even hold the statutory enactment to be ultra vires, where

there is "manifest arbitrariness. The Hon'ble Apex Court in its majority

opinion 3:2 has held in paragraphs-87, 88, 89 and 101 as under: -

"(87) The thread of reasonableness runs through the entire

fundamental rights Chapter. What is manifestly arbitrary is

obviously unreasonable and being contrary to the rule of law,

would violate Article 14. Further, there is an apparent

contradiction in the three Judges' Bench decision in McDowell

(supra) when it is said that a constitutional challenge can

succeed on the ground that a law is "disproportionate,

excessive or unreasonable", yet such challenge would fail on

the very ground of the law being "unreasonable, unnecessary or

unwarranted". The arbitrariness doctrine when applied to

legislation obviously would not involve the latter challenge but

would only involve a law being disproportionate, excessive or

otherwise being manifestly unreasonable. All the aforesaid

grounds, therefore, do not seek to differentiate between State

action in its various forms, all of which are interdicted if they

fall foul of the fundamental rights guaranteed to persons and

citizens in Part III of the Constitution.

(88) We only need to point out that even after McDowell

(supra), this Court has in fact negated statutory law on the

ground of it being arbitrary and therefore violative of Article 14

of the Constitution of India. In Malpe Vishwanath Acharya v.

State of Maharashtra, (1998) 2 SCC 1, this Court held that

after passage of time, a law can become arbitrary, and,

therefore, the freezing of rents at a 1940 market value under the

Bombay Rent Act would be arbitrary and violative of Article 14

28

of the Constitution of India (see paragraphs 8 to 15 and 31).

(89) Similarly in Mardia Chemicals Ltd. & Ors. v. Union of

India & Ors. etc. etc., (2004) 4 SCC 311 at 354, this Court

struck down Section 17(2) of the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002, as follows:

"(64) The condition of pre-deposit in the present case is bad

rendering the remedy illusory on the grounds that: (i) it is

imposed while approaching the adjudicating authority of

the first instance, not in appeal, (ii) there is no

determination of the amount due as yet, (iii) the secured

assets or their management with transferable interest is

already taken over and under control of the secured

creditor, (iv) no special reason for double security in

respect of an amount yet to be determined and settled, (v)

75% of the amount claimed by no means would be a

meagre amount, and (vi) it will leave the borrower in a

position where it would not be possible for him to raise any

funds to make deposit of 75% of the undetermined demand.

Such conditions are not only onerous and oppressive but

also unreasonable and arbitrary. Therefore, in our view,

sub-section (2) of Section 17 of the Act is unreasonable,

arbitrary and violative of Article 14 of the Constitution.

(90) In two other fairly recent judgments namely State of

Tamil Nadu v. K. Shyam Sunder (2011) 8 SCC 737 at

paragraphs 50 to 53, and A.P. Dairy Development Corpn.

Federation v. B. Narasimha Reddy (2011) 9 SCC 286 at

paragraph 29, this Court reiterated the position of law that

a legislation can be struck down on the ground that it is

arbitrary and therefore violative of Article 14 of the

Constitution.

(101) It will be noticed that a Constitution Bench of this

29

Court in Indian Express Newspapers v. Union of India,

(1985) 1 SCC 641, stated that it was settled law that

subordinate legislation can be challenged on any of the

grounds available for challenge against plenary legislation.

This being the case, there is no rational distinction between

the two types of legislation when it comes to this ground of

challenge under Article 14. The test of manifest

arbitrariness, therefore, as laid down in the aforesaid

judgments would apply to invalidate legislation as well as

subordinate legislation under Article 14. Manifest

arbitrariness, therefore, must be something done by the

legislature capriciously, irrationally and/or without

adequate determining principle. Also, when something is

done which is excessive and disproportionate, such

legislation would be manifestly arbitrary. We are, therefore,

of the view that arbitrariness in the sense of manifest

arbitrariness as pointed out by us above would apply to

negate legislation as well under Article 14."

36.Recently, in one of the decisions in the case of K.S. Puttaswamy

(Aadhar) Vs. Union of India, reported in 2019 (1) SCC 1 in paragraphs

103, 104 and 105 has held as under:-

"103. In support of the aforesaid proposition that an Act of the

Parliament can be invalidated only on the aforesaid two

grounds, passages from various judgments were extracted 21.

The Court also noted the observations from State of A.P. & Ors.

v. MCDOWELL & Co. & Ors.22 wherein it was held that apart

from the aforesaid two grounds, no third ground is available to

validate any piece of legislation. In the process, it was further

noted that in Rajbala & Ors. v. State of Haryana & Ors.23

(which followed MCDOWELL & Co. case), the Court held that

a legislation cannot be declared unconstitutional on the ground

30

that it is ''arbitrary' inasmuch as examining as to whether a

particular Act is arbitrary or not implies a value judgment and

courts do not examine the wisdom of legislative choices, and,

therefore, cannot undertake this exercise.

104. The issue whether law can be declared unconstitutional on

the ground of arbitrariness has received the attention of this

Court in a Constitution Bench judgment in the case of Shayara

Bano v. Union of India & Ors.24. R.F. Nariman and U.U. Lalit,

JJ. 21 State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312; Ashoka

Kumar Thakur v. Union of India, (2008) 6 SCC 1 22 (1996) 3

SCC 709 23 (2016) 2 SCC 445 24 (2017) 9 SCC 1 discredited

the ratio of the aforesaid judgments wherein the Court had held

that a law cannot be declared unconstitutional on the ground

that it is arbitrary. The Judges pointed out the larger Bench

judgment in the case of Dr. K.R. Lakshmanan v. State of T.N. &

Anr.25 and Maneka Gandhi v. Union of India & Anr.26 where

''manifest arbitrariness' is recognised as the third ground on

which the legislative Act can be invalidated. Following

discussion in this behalf is worthy of note:

"87. The thread of reasonableness runs through the entire

fundamental rights chapter. What is manifestly arbitrary is

obviously unreasonable and being contrary to the rule of law,

would violate Article 14. Further, there is an apparent

contradiction in the three-Judge Bench decision in McDowell

[State of A.P. v. McDowell and Co., (1996) 3 SCC 709] when it

is said that a constitutional challenge can succeed on the

ground that a law is "disproportionate, excessive or

unreasonable", yet such challenge would fail on the very

ground of the law being "unreasonable, unnecessary or

unwarranted". The arbitrariness doctrine when applied to

legislation obviously would not involve the latter challenge but

31

would only involve a law being disproportionate, excessive or

otherwise being manifestly unreasonable. All the aforesaid

grounds, therefore, do not seek to differentiate between State

action in its various forms, all of which are interdicted if they

fall foul of the fundamental rights guaranteed to persons and

citizens in Part III of the Constitution.

88. We only need to point out that even after McDowell [State

of A.P. v. McDowell and Co., (1996) 3 SCC 709] , this Court

has in fact negated statutory law on the ground of it being

arbitrary and therefore violative of Article 14 of the

Constitution of India. In Malpe Vishwanath Acharya v. State of

Maharashtra [Malpe Vishwanath Acharya v. State of

Maharashtra, (1998) 2 SCC 1] , this Court held that after

passage of time, a law can become arbitrary, and, 25 (1996) 2

SCC 226 26 (1978) 1 SCC 248 therefore, the freezing of rents at

a 1940 market value under the Bombay Rent Act would be

arbitrary and violative of Article 14 of the Constitution of India

(see paras 8 to 15 and 31).

xx xx xx

99. However, in State of Bihar v. Bihar Distillery Ltd. [State of

Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453] , SCC at para

22, in State of M.P. v. Rakesh Kohli [State of M.P. v. Rakesh

Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ) 481], SCC at

paras 17 to 19, in Rajbala v. State of Haryana [Rajbala v. State

of Haryana, (2016) 2 SCC 445], SCC at paras 53 to 65 and in

Binoy Viswam v. Union of India [Binoy Viswam v. Union of

India, (2017) 7 SCC 59], SCC at paras 80 to 82, McDowell

[State of A.P. v. McDowell and Co., (1996) 3 SCC 709] was

read as being an absolute bar to the use of "arbitrariness" as a

tool to strike down legislation under Article 14. As has been

noted by us earlier in this judgment, McDowell [State of A.P. v.

McDowell and Co., (1996) 3 SCC 709] itself is per incuriam,

not having noticed several judgments of Benches of equal or

32

higher strength, its reasoning even otherwise being flawed. The

judgments, following McDowell [State of A.P. v. McDowell and

Co., (1996) 3 SCC 709] are, therefore, no longer good law."

105. The historical development of the doctrine of arbitrariness

has been noticed by the said Judges in Shayara Bano in detail.

It would be suffice to reproduce paragraphs 67 to 69 of the said

judgment as the discussion in these paras provide a sufficient

guide as to how a doctrine of arbitrariness is to be applied

while adjudging the constitutional validity of a legislation.

"67. We now come to the development of the doctrine of

arbitrariness and its application to State action as a distinct

doctrine on which State action may be struck down as being

violative of the rule of law contained in Article 14. In a

significant passage, Bhagwati, J., in E.P. Royappa v. State of

T.N. stated: (SCC p. 38, para 85) "85. The last two grounds of

challenge may be taken up together for consideration. Though

we have formulated the third ground of challenge as a distinct

and separate ground, it is really in substance and effect merely

an aspect of the second ground based on violation of Articles

14 and 16. Article 16 embodies the fundamental guarantee that

there shall be equality of opportunity for all citizens in matters

relating to employment or appointment to any office under the

State. Though enacted as a distinct and independent

fundamental right because of its great importance as a

principle ensuring equality of opportunity in public employment

which is so vital to the building up of the new classless

egalitarian society envisaged in the Constitution, Article 16 is

only an instance of the application of the concept of equality

enshrined in Article 14. In other words, Article 14 is the genus

while Article 16 is a species. Article 16 gives effect to the

doctrine of equality in all matters relating to public

employment. The basic principle which, therefore, informs both

33

Articles 14 and 16 is equality and inhibition against

discrimination. Now, what is the content and reach of this great

equalising principle? It is a founding faith, to use the words of

Bose, J., "a way of life", and it must not be subjected to a

narrow pedantic or lexicographic approach. We cannot

countenance any attempt to truncate its all- embracing scope

and meaning, for to do so would be to violate its activist

magnitude. Equality is a dynamic concept with many aspects

and dimensions and it cannot be "cribbed, cabined and

confined" within traditional and doctrinaire limits. From a

positivistic point of view, equality is antithetic to arbitrariness.

In fact equality and arbitrariness are sworn enemies; one

belongs to the rule of law in a republic while the other, to the

whim and caprice of an absolute monarch. Where an act is

arbitrary, it is implicit in it that it is unequal both according to

political logic and constitutional law and is therefore violative

of Article 14, and if it effects any matter relating to public

employment, it is also violative of Article 16. Articles 14 and 16

strike at arbitrariness in State action and ensure fairness and

equality of treatment. They require that State action must be

based on valid relevant principles applicable alike to all

similarly situate and it must not be guided by any extraneous or

irrelevant considerations because that would be denial of

equality. Where the operative reason for State action, as

distinguished from motive inducing from the antechamber of the

mind, is not legitimate and relevant but is extraneous and

outside the area of permissible considerations, it would amount

to mala fide exercise of power and that is hit by Articles 14 and

16. Mala fide exercise of power and arbitrariness are different

lethal radiations emanating from the same vice: in fact the

latter comprehends the former. Both are inhibited by Articles 14

and 16." (emphasis supplied)

68. This was further fleshed out in Maneka Gandhi v.

34

Union of India, where, after stating that various

fundamental rights must be read together and must overlap

and fertilise each other, Bhagwati, J., further amplified this

doctrine as follows: (SCC pp. 283-84, para 7) "The nature

and requirement of the procedure under Article 217. Now,

the question immediately arises as to what is the

requirement of Article 14: what is the content and reach of

the great equalising principle enunciated in this article?

There can be no doubt that it is a founding faith of the

Constitution. It is indeed the pillar on which rests securely

the foundation of our democratic republic. And, therefore,

it must not be subjected to a narrow, pedantic or

lexicographic approach. No attempt should be made to

truncate its all-embracing scope and meaning, for to do so

would be to violate its activist magnitude. Equality is a

dynamic concept with many aspects and dimensions and it

cannot be imprisoned within traditional and doctrinaire

limits. We must reiterate here what was pointed out by the

majority in E.P. Royappa v. State of T.N. , namely, that:

(SCC p. 38, para 85) ''85. ... From a positivistic point of

view, equality is antithetic to arbitrariness. In fact equality

and arbitrariness are sworn enemies; one belongs to the

rule of law in a republic, while the other, to the whim and

caprice of an absolute monarch. Where an act is arbitrary,

it is implicit in it that it is unequal both according to

political logic and constitutional law and is therefore

violative of Article 14....' Article 14 strikes at arbitrariness

in State action and ensures fairness and equality of

treatment. The principle of reasonableness, which legally

as well as philosophically, is an essential element of

equality or non-arbitrariness pervades Article 14 like a

brooding omnipresence and the procedure contemplated by

Article 21 must answer the test of reasonableness in order

35

to be in conformity with Article 14. It must be "right and

just and fair" and not arbitrary, fanciful or oppressive;

otherwise, it would be no procedure at all and the

requirement of Article 21 would not be satisfied."

(emphasis supplied)

37. This Court has also considered the validity of a statutory enactment after

following the judgments of Hon'ble Apex Court, while holding that the third

ground is also available with a party, who alleges that the statutory enactment

is unconstitutional, but it has been observed that the party, who alleges that an

enactment is unconstitutional, is possessed with a heavy burden to prove the

same and he cannot discharge its onus in a cavalier manner by merely stating

that the Amendment Act is unreasonable. In the case of Noida Employees

Association and others Vs. State of U.P, 2019(5) ADJ 602, this High Court

has held as under: -

"23. Coming to the exact challenge raised by the petitioners,

the learned Advocate General would submit, the challenge

being to the enactment of the State Legislature, the grounds of

challenge are limited i.e. two and strict, being either the Act be

shown to be beyond the legislative competence of the State

Legislature or in violation of any of the fundamental rights

guaranteed under Part-III of the Constitution of India or of any

other constitutional provision. There does not exist any third

ground to challenge the Amending Act. Relying on that

principle firmly emphasised by the Supreme Court in State of

A.P. & Ors Vs MCDOWELL & Co. & Ors., (1996) 3 SCC 709,

it has been submitted, the burden to establish

unconstitutionality of a Statute is a heavy burden that lies

strictly on the challenger/petitioners. It cannot be discharged in

a cavalier manner by merely stating that the Amending Act is

arbitrary or unreasonable. In absence of any challenge raised

to the legislative competence or any constitutional infirmity in

the Amending Act, it does not lie with the petitioners to set up a

36

loose plea of the Amending Act being contrary to the original

Act. Such a ground does not exist. According to him,

'arbitrariness' does not exist as a ground to challenge plenary

legislation."

38.Now let us examine the various provisions so engrafted in the

constitution as well as the statutory enactment which are occupying the field.

ARTICLES OF CONSTITUTION OF INDIA

309. Recruitment and conditions of service of persons serving

the Union or a State.—Subject to the provisions of this

Constitution, Acts of the appropriate Legislature may regulate

the recruitment, and conditions of service of persons appointed,

to public services and posts in connection with the affairs of the

Union or of any State: Provided that it shall be competent for

the President or such person as he may direct in the case of

services and posts in connection with the affairs of the Union,

and for the Governor 2*** of a State or such person as he may

direct in the case of services and posts in connection with the

affairs of the State, to make rules regulating the recruitment,

and the conditions of service of persons appointed, to such

services and posts until provision in that behalf is made by or

under an Act of the appropriate Legislature under this article,

and any rules so made shall have effect subject to the

provisions of any such Act.

311. Dismissal, removal or reduction in rank of persons

employed in civil capacities under the Union or a State.—(1)

No person who is a member of a civil service of the Union or an

all-India service or a civil service of a State or holds a civil

post under the Union or a State shall be dismissed or removed

by an authority subordinate to that by which he was appointed.

[(2) No such person as aforesaid shall be dismissed or removed

or reduced in rank except after an inquiry in which he has been

informed of the charges against him and given a reasonable

37

opportunity of being heard in respect of those charges

[Provided that where it is proposed after such inquiry, to

impose upon him any such penalty, such penalty may be

imposed on the basis of the evidence adduced during such

inquiry and it shall not be necessary to give such person any

opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply—]

(a) where a person is dismissed or removed or reduced in

rank on the ground of conduct which has led to his

conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a

person or to reduce him in rank is satisfied that for some

reason, to be recorded by that authority in writing, it is not

reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be,

is satisfied that in the interest of the security of the State it is

not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question

arises whether it is reasonably practicable to hold such inquiry

as is referred to in clause (2), the decision thereon of the

authority empowered to dismiss or remove such person or to

reduce him in rank shall be final.]

THE UTTAR PRADESH GOVERNMENT SERVANT

(DISCIPLINE AND APPEAL) RULES, 1999

In exercise of the powers conferred by the proviso to Article 309 of

the Constitution and in suppression of the Civil Service

(Classification, Control and Appeal) Rules, 1930 and Punishment and

Appeal Rules for Subordinate Service Uttar Pradesh, 1932, the

Governor is pleased to make the following rules :

1. Short title and commencement.-(1) These rules may be called

the Uttar Pradesh Government Servant (Discipline and Appeal)

38

Rules, 1999.

(2) They shall come into force at once.

(3) They shall apply to Government servants under the rule

making power of the Governor under the proviso to Article 309

of the Constitution except the Officers and the Servants of the

High Court of Judicature at Allahabad covered under Article

229 of the Constitution of India.

3. Penalties:-The following penalties may, for good and sufficient

reasons and as hereinafter provided, be imposed upon the

Government Servant:

A- Minor Penalties……….

B- Major Penalties

(i) Withholding of increments with cumulative effect;

(ii) Reduction to a lower post or grade or time scale or to a lower

stage in a time scale:

(iii) Removal from the service which does not disqualify from future

employment;

(iv) Dismissal from the service which disqualify from future

employment.

39.Article 309 of the Constitution of India itself provides that

subject to the provisions of the Constitution, Acts of the appropriate

legislature, they may regulate the recruitment and condition of service

of persons appointed to public services and post in connection with

the affairs of the Union or of any State.

40.Proviso has also been appended to Article 309 of the

Constitution of India envisaging that it shall be competent for

President or such persons as it may direct in the case of services and

post in connection with the affairs of Union and for the Governor of a

State or such person as it may direct in case of services and post in

connection with the affairs of the State to make Rules regulating the

recruitment and condition of service of persons appointed to such

39

services and post until provision in that behalf is made by or under an

Act of appropriate legislature.

41.Notably Article 311 of the Constitution of India puts an

obligation that no person who is a member of civil Services of Union

or All India Service or a Civil Service of State or holds Civil Post

under Union or a State shall be dismissed or removed by an authority

subordinate to that by which he/she was appointed.

42.Undisputedly, in the case in hand the Rules, 1999 have been

enacted in exercise of powers conferred by proviso to Article 309 of

the Constitution of India which itself explicitly depicts that the

enactment of the Rules is supported by statutory backing and the

source of power is referable to proviso to Article 309 of the

Constitution of India.

43.Now a question arises as to whether insertion of Rule 3-B-(iv)

of the Rules, 1999 in so far as it provides for a disqualification for

future employment in case of dismissal ultra-virus or not.

44.A bare reading of Article 311 of the Constitution of India itself

depicts that a safeguard has been provided to the persons holding civil

post either under Union or State that they should not be dismissed or

removed by the authority subordinate to that by which they have been

appointed and further the fact that before dismissing removing or

reducing in rank an enquiry is must while giving reasonable

opportunity to be heard.

45.It is not the case of the petitioner that there has been any

violation of Article 311 of the Constitution of India with respect to

dismissal or removal by an authority subordinate to appointing

authority or the dismissal, removal or reduction has been made

without giving reasonable opportunity. However, according to the

pleadings and the arguments so set forth by the counsel for the

petitioner, the words pertaining to disqualification from future

employment could not have been attached with the penalty of

dismissal.

40

46.This Court finds that the argument so sought to be raised by the

learned counsel for the petitioner is totally misconceived besides the

misplaced and also out of context particularly in view of the fact that

in the matter of service jurisprudence, there is a marked difference

between dismissal and removal. There is always disqualification

attached for future employment in former case and in the later case,

there is no such disqualification for future employment.

47.Proviso to Article 309 of the Constitution of India itself confers

the source of framing of the Rules and rightly so the Rules,1999 have

been framed and so far as Article 311 of the Constitution of India is

concerned it guarantees certain protection to the person holding civil

post either in the Union or State.

48.The petitioner herein cannot question the wisdom of the

employer to include or exclude any penalty but the Constitutional

guarantee so bestowed under Article 311 of the Constitution of India

remains alive with respect to necessary safeguard that the employer or

the officer working under Union or State cannot be dismissed or

removed by an authority below the appointing authority or without

affording reasonable opportunity in this regard. Hence the submissions

so raised by the learned counsel for the petitioner that Rule 3-B-(iv) of

the Rules 1999 is totally misplaced and misconceived and out of

context.

49.Hon’ble Apex Court in the recent judgment in Civil Appeal

No.2365 of 2020, Nisha Priya Bhatiya Vs. Union of India decided

on 24.4.2020 in paragraph 42 has observed as under:-

42. A conjoint reading of Articles 309 and 311 reveals that

Article 311 is confined to the cases wherein an inquiry has

been commenced against an employee and an action of penal

nature is sought to be taken. Whereas, Article 309 covers the

broad spectrum of conditions of service and holds a wider

ground as compared to Article 311. That would also include

conditions of service beyond mere dismissal, removal or

41

reduction in rank. It holds merit to state that this wide ground

contemplated under Article 309 also takes in its sweep the

conditions regarding termination of service including

compulsory retirement. In Pradyat Kumar Bose Vs. The

Hon’ble The Chief Justice of Calcutta High Court 12, this

Court touched upon the ambit and scope of Article 309 of the

Constitution and expounded that the expression “conditions of

service” takes within its sweep the cases of dismissal or

removal from service.

50.Applying the judgments the present facts of the case an irresistible

conclusion stands drawn that in view of the provisions contained under

Article 309 and 311 of the Constitution of India, the conditions of services

takes within its ambit, the cases of dismissal or removal from service.

51.Nevertheless the penalties of dismissal and removal is nowhere foreign

in service jurisprudence as the said penalties amongst others finds its presence

in almost all the disciplinary Rules through out the various services and there

difference is widely accepted.

52.The distinction between dismissal and removal had also been subject

matter of judicial scrutiny by the Hon’ble Apex Court in several judgments.

Namely:

In AIR 1954 S.C. 369 Shyamlal v. State of Uttar Pradesh and

another relevant para 15 is quoted hereunder:-

" The word "removal" which is used in the rules is also used in

this clause and it may safely be taken, for reasons stated above,

that under the Constitution removal and dismissal stand on the

same footing except as to future employment. In this sense

removal is but a species of dismissal. Indeed, in our recent

decision in 'Satischandra Anand v. Union of India', AIR 1953

SC 250 at p. 252 (D) it has been said that these terms have

been used in the same sense in Article 311.”

53.Following the said judgment the Hon’ble Apex Court in the case of Dr.

Dattatraya Mahadev Nadkarni Vs. Municipal Corporation of Greater

42

Bombay (1992) 2 SCC 547 in paragraph nos. 6, 7 & 8 have observed as

under:-

6. We find force in the contention raised by the appellant. In

Shyamlal v. State of U.P.¹ while dealing with the provisions of

Article 311 of the Constitution of India it was held that under

the Constitution removal and dismissal stand on the same

footing except as to future employment. In this sense removal is

but a species of dismissal. Removal, like dismissal, no doubt

brings about a termination of service but every termination of

service does not amount to dismissal or removal.

7. In S.R. Tiwari v. District Board, Agra² (SCR p. 69) it has

been observed:

"It is settled law that the form of the order under which the

employment of a servant is determined is not conclusive of

the true nature of the order. The form may be merely to

camouflage an order of dismissal for misconduct, and it is

always open to the court before which the order is

challenged to go behind the form and ascertain the true

character of the order. If the Court holds that the order

though in the form merely of determination of employment

is in reality a cloak for an order of dismissal as a matter of

punishment, the Court would not be debarred merely

because of the form of the order in giving effect to the rights

conferred by statutory rules upon the employee."

8. The only difference in the punishment of dismissal and

removal is that in case of dismissal the employee is disqualified

from future employment while in case of removal he is not

debarred from getting future employment. In the present case a

perusal of Section 83 clearly shows that the punishments

provided are: fine, reduction, suspension or dismissal from

service.

54.Net analysis of the above caption judgment itself mandates that though

43

the penalty of dismissal and removal stand on same footing except as to the

issue future employment. Mentioning thereby that by no stretch of

imagination it can be said that attachment of a disqualification of future

employment can where be said to be ultra-virus, arbitrary or discriminatory.

55Resultantly, in view of the foregoing discussions, the present writ

petition is wholly misconceived besides being not maintainable and is liable to

be dismissed.

56.Accordingly, it is dismissed.

57. No order as to costs.

Order Date :- 26.5.2022

piyush