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HIGH COURT OF ALLAHABAD (D.B.)

PRAKASH CHAND SRIVASTAV V/S STATE OF U P AND ORS
Date of Decision: 05 June 2014
Citation: 2014 LawSuit(All) 1831
Hon'ble Judges: Krishna Murari, Ram Surat Ram (Maurya)
Appeal Type: Public Interest Litigation
Appeal No: 31890 of 2014
Subject: Constitution, Criminal
Acts Referred:
Constitution Of India Art 16
Indian Penal Code, 1860 Sec 420, Sec 409, Sec 468, Sec 471, Sec 467, Sec 120B,
Sec 411
Final Decision: Petition dismissed
Advocates: Pankaj Kumar, Ashok Mehta
CASES REFERRED :
JANTA DAL VS. H.S. CHAOWDHARY, 1993 AIR(SC) 892
R.K. JAIN V. UNION OF INDIA, 1993 4 SCC 119
PEOPLE S UNION FOR DEMOCRATIC RIGHTS V. UNION OF INDIA, 1982 3 SCC 235
METROPOLITAN PROPERTIES LTD. V. LANNON, 1968 3 AllER 304
E.P. ROYAPPA VS. STATE OF T.N., 1974 4 SCC 3
VINEET NARAIN VS. UNION OF INDIA, 1998 AIR(SC) 889
M.C. MEHTA V. UNION OF INDIA, 2007 1 SCC 110
CENTRE FOR PUBLIC INTEREST LITIGATION V. UNION OF INDIA, 2005 8 SCC 202
RAJIV RANJAN SINGH "LALLAN" (VIII) V. UNION OF INDIA, 2006 6 SCC 613
B. SRINIVASA REDDY V. KARNATAKA URBAN WATER SUPPLY & DRAINAGE BOARD EMPLOYEES ASSN.,
2006 AIR(SC) 3106
SK. SALIM HAJI ABDUL KHAYUMSAB V. KUMAR, 2006 AIR(SC) 396
MEHAR SINGH SAINI, IN RE, 2010 13 SCC 586
M.C. MEHTA V. UNION OF INDIA, 2008 1 SCC 407
STATE OF UTTARANCHAL VS. BALWANT SINGH CHAUFAL, 2010 3 SCC 402
HAIBANSH LAL VS. SAHODAR PRASAD MAHTO, 2010 9 SCC 655
SABHAJEET SINGH VS. STATE OF U.P., 2012 3 ADJ 391
CENTRAL ELECTRICITY SUPPLY UTILITY OF ODISHA V. DHOBEI SAHOO, 2014 1 SCC 161
STATE OF PUNJAB V. SALIL SABHLOK AND OTHERS, 2013 5 SCC 1
Judgement Text:-
[1] Heard Sri Ashok Mehta, Senior Advocate, assisted by Sri Pankaj Kumar, for the
petitioner and Advocate General, assisted by Chief Standing Counsel, for State of U.P.
[2] This writ petition, in the nature of Public Interest Litigation, has been filed seeking
following reliefs:-.
"(i) a writ, order or direction in the nature of mandamus restraining the
respondent No.1, representing the Government of U.P., from appointing
respondent No.3 to the post of Chief Secretary to the Government of Uttar
Pradesh, pending trial of the case arising out of F.I.R. No.RCEOU-1-2007-
E-0002 dated 25.5.2010 U/S 409/411/420/467/ 468/471 & 120-B IPC
wherein charge sheet dated 29.5.2010 has been field before the Chief
Metropolitan Magistrate, Delhi and the F.I.R. No. RCBE/2006E 0007 dated
15.12.2008 U/S 409/411/420/467/468/471 & 120B IPC wherein charge sheet
dated 15.12.2008 has been filed before the Court of the Additional Chief
Metropolitan Magistrate, Esplanade, Mumbai;
(ii) a writ order or direction in the nature of mandamus, restraining the
respondent No.3 from functioning as the Agricultural Production
Commissioner of U.P. and Industrial Development Commissioner of U.P. or
from being posted to any Key Administrative Post in the State of U.P.,
involving administrative and financial functions until conclusion of the two
criminal trials pending before the said respondents before the Court at Delhi
and Mumbai;
(iii) a writ, order or direction in the nature of mandamus, directing the
respondent Government to initiate Departmental Proceedings and other
consequential proceedings against the respondent Nos. 3 and 4 in view of
the charges levelled against the respondent Nos. 3 and 4 in accordance with
law; and
(iv) any other writ, order or direction as this Hon'ble Court may deem fit and
proper considering the facts and circumstances of the case."
[3] When writ petition came for hearing as fresh case on 03.06.2014, the petitioner filed
an amendment application in the Court for amending the writ petition. Apart from other
proposed amendment, the petitioner sought to add prayer (v) in the writ petition as
follows:
"(v). Issue an appropriate writ, order or direction to remove/transfer the
respondent no. 3 from the post of Chief Secretary of State of U.P. and not to
post or appoint the respondent no. 3 to any sensitive and key post in
Government of Uttar Pradesh which involves administrative and financial
decision making process."
[4] In short, appointments of Sri Alok Ranjan (IAS) (respondent-3) on the posts of Chief
Secretary, Government of Uttar Pradesh and/or Agricultural Production Commissioner
of U.P. and Industrial Development Commissioner of U.P. are being challenged on the
ground that during his tenure as Managing Director of National Agricultural Co-operative
Marketing Federation of India (hereinafter referred to as the NAFED) an FIR no.
RCBE/2006-E-0007 dated 15.12.2008, under Section 409, 411, 420, 467, 468, 471 and
120-B of IPC was registered against him and various other persons in respect of
criminal conspiracy to cheat the NAFED and misappropriate the funds of the NAFED.
The FIR was investigated by CBI, Economic Offences Wing, New Delhi, wherein charge
sheet dated 15.12.2008 was submitted against respondent-3 also, in the Court of Chief
Metropolitan Magistrate Esplanade, Mumbai and criminal case against him is pending.
Another FIR no. RCEOU-1-2007-E-0002 dated 25.05.2010, under Section 409, 411,
420, 467, 468, 471 and 120-B of IPC was also registered against him again in respect of
criminal conspiracy to cheat the NAFED and misappropriate the funds of the NAFED.
The FIR was investigated by CBI, Economic Offences Wing, New Delhi, wherein charge
sheet dated 29.05.2010 was submitted against respondent-3 also in the Court of Chief
Metropolitan Magistrate, Delhi. Respondent-3 is facing criminal trail in the aforesaid
cases. Chief Secretary of State Government heads many committees established under
various Acts and discharges important role in decision making process in administrative,
financial, economic, industrial, infrastructure and other policy matters of the State.
Appointment of a person, who is facing criminal trail in economic offences will not be in
the interest of State.
[5] Chief Standing Counsel, on the basis of written instructions, informed that Sri Alok
Ranjan, was selected and appointed in Indian Administrative Services (for short IAS) on
12.07.1978. In the Gradation List of IAS Officers of Uttar Pradesh Cadre, as published
on 01.01.2014, he is at Serial no. 8. Officers from Serial no. 1 to 3 have retired, Officers
at Serial Nos. 4, 5 and 7 are now posted in Central Cadre and Sri Javed Usmani, earlier
Chief Secretary, Government of Uttar Pradesh has also now opted for Central Cadre.
Thus at present Sri Alok Ranjan is senior most. After completion of 30 years continuous
service, he was promoted in the Pay Scale of Chief Secretary in July, 2012. He was
also elected as President of IAS Officers Association of Uttar Pradesh Cadre. Thus he
has a good hold upon administrative wing of Uttar Pradesh and he is a most suitable
candidate. As such on the recommendation of Cabinet of Ministers, Uttar Pradesh
Government, Hon'ble Governor appointed him as Chief Secretary.
[6] Learned Advocate General raised following preliminary objections regarding
maintainability of the writ petitions;-
(i)The petitioner has not disclosed the facts as required under Chapter XXII
Rule 1 (3-A) of High Court Rules and the petition is liable to be dismissed on
this ground alone as held by this Court in Sabhajeet Singh Vs. State of U.P.,
2012 3 ADJ 391 and Public Interest Litigation (PIL) No. 25243 of 2014
Gaurav Upadhyay Vs. State of U.P. (decided on 05.05.2014).
(ii)Appointment as Chief Secretary is an incidence of service and Public
Interest Litigation is not maintainable in service matters as held by Supreme
Court in Haibansh Lal Vs. Sahodar Prasad Mahto, 2010 9 SCC 655.
[7] We take up the second preliminary objection first i.e as to whether Public Interest
Litigation is maintainable in service matters? The phrase 'Public Interest' is not defined
in any statue. However, Black's Law Dictionary (6th Edn.)) defines Public Interest
Litigation as under:
"Public interest.-- Something in which the public, the community at large, has
some pecuniary interest, or some interest by which their legal rights or
liabilities are affected. It does not mean anything so narrow as mere
curiosity, or as the interests of the particular localities, which may be affected
by the matters in question. Interest shared by citizens generally in affairs of
local, State or national Government."
Advanced Law Lexicon defines 'Public Interest Litigation' as under:
"...the expression 'PIL' means a legal action initiated in a court of law for the
enforcement of public interest or general interest in which the public or a
class of the community has pecuniary interest or some interest by which
their legal rights or liabilities are affected."
The Council for Public Interest Law set up by the Ford Foundation in USA
defined "public interest litigation" in its Report of Public Interest Law, USA,
1976 as follows:
"10....Public interest law is the name that has recently been given to efforts
providing legal representation to previously unrepresented groups and
interests. Such efforts have been undertaken in the recognition that ordinary
market place for legal services fails to provide such services to significant
segments of the population and to significant interests. Such groups and
interests include the proper environmentalists, consumers, racial and ethnic
minorities and others"
[8] The Apex Court in the case of People s Union for Democratic Rights v. Union of India,
1982 3 SCC 235 has observed that the public interest litigation is a cooperative or
collaborative effort by the petitioner, the State or public authority and the judiciary to
secure observance of constitutional or basic human rights, benefits and privileges upon
the poor, downtrodden and vulnerable sections of the society.
[9] Public Interest Litigation means a litigation to espouse Public Interest. Hon'ble
Supreme Court in Janta Dal Vs. H.S. Chaowdhary, 1993 AIR(SC) 892 held that 'Public
Interest' does not mean mere curiosity.
[10] Public Interest Litigation was initially evolved as a tool to take care of the
fundamental rights under Article 21 of the Constitution of the marginalised sections of
the society who because of their poverty and illiteracy could not approach the court. In
quintessence it was initially evolved to benefit the have-nots and the handicapped for
protection of their basic human rights and to see that the authorities carry out their
constitutional obligations towards the marginalised sections of people who cannot stand
up on their own and come to court to put forth their grievances. Constitutional Courts
gradually enhanced the scope of Public Interest Litigations. Supreme Court in State of
Uttaranchal Vs. Balwant Singh Chaufal, 2010 3 SCC 402 while dealing with the origin
and development of PILs broadly categorized development of Public Interest Litigation
in three phases:-
I.--Phase I deals with cases where directions and orders were passed
primarily to protect fundamental rights under Article 21 of the marginalised
groups and sections of the society who because of extreme poverty, illiteracy
and ignorance cannot approach this Court or the High Courts.
II.--Phase II deals with the cases relating to protection, preservation of
ecology, environment, forests, marine life, wildlife, mountains, rivers,
historical monuments, etc. etc.
III.--Phase III deals with cases where directions have been issued by the
Courts in maintaining the probity, transparency and integrity in governance.
[11] With the origin and evolution of public interest litigation in the country, by judicial
pronouncements, the ambit and scope of public interest litigation was expanded further
by the Supreme Court and the High Courts also under Article 226 following the
Supreme Court passed a number of judgements, orders, or directions to unearth
corruption and maintain probity and morality in the governance of the State. The probity
in governance is a sine qua non for an efficient system of administration and for the
development of the country. The absence of corruption is an important requirement for
ensuring probity in governance. The Courts took upon this burden to ensure
transparency and probity in the governance and entertained petitions to ensure that in
the governance by the State, there must be transparency and no extraneous
consideration be taken into consideration, except the public interest.
[12] Reference may be made to the case of Vineet Narain vs. Union of India, 1998
AIR(SC) 889 In the said case, the petitioner who as a Journalist, filed a public interest
litigation alleging that the premier investigating agencies like the Central Bureau of
Investigation and the Revenue Authorities failed to perform their legal obligations and
take appropriate action even when they discovered during investigation with a terrorist,
detailed accounts of vast payments, made to influential politicians and Bureaucrats. The
Apex Court observing that "....... It is trite that the holders of public offices are entrusted
with certain powers to be exercised in public interest alone and, therefore, the office is
held by them in trust of the people" issued various directions in the matter.
[13] Again in the case of Rajiv Ranjan Singh "Lallan" (VIII) v. Union of India, 2006 6 SCC
613 relating to the large scale-defalcation of public funds and forging of accounts
involving hundreds of crores of rupees in the Department of Animal Husbandry in the
State of Bihar, the Court finding that the respondents had interfered with the
appointment of Public Prosecutor, issued various directions. In yet another case of M.C.
Mehta v. Union of India, 2007 1 SCC 110, a project, popularly known as 'Taj Heritage
Corridor Project Case', filed on the allegations of misuse of 75 acres of land reclaimed
by diverting river Yamuna and misuse of the same for constructing Food Plazas, Shops
and amusement activities, which was investigated by the Central Bureau of
Investigation and on the basis of the report, the Court directed registration of an FIR and
to make further investigation in the matter. By the intervention of the Court, the said
project was stalled.
[14] Again, in M.C. Mehta v. Union of India, 2008 1 SCC 407, the Apex Court held that
the Judiciary can step in where it finds actions on the part of the legislature or the
executive to be illegal or unconstitutional.
[15] With the broadening of the scope of public interest litigations various litigations
started coming before Courts wherein by means of public interest litigation
appointments to high and important public and statutory offices, were being challenged
on various grounds, existent and non-existent. The issue which arose for consideration
before the Courts was whether a public interest litigation would be maintainable in
service matters. This question was considered by the Apex Court in the case of R.K.
Jain v. Union of India, 1993 4 SCC 119, wherein the appointment of President of
Custom, Excise and Gold Control Appellate Tribunal was challenged. The Apex Court
has observed that judicial review is concerned with whether the incumbent possessed of
qualification for appointment and manner in which the appointment came to be made or
the procedure adopted whether fair, just and reasonable. Exercise of judicial review is to
protect the citizen from the abuse of the power, etc. by an appropriate Government or
department, etc. In Court's considered view, granting the compliance of the above
power of appointment was conferred on the executive and confided to be exercised
wisely. When a candidate was found qualified and eligible and was accordingly
appointed by the executive to hold an office as a Member or Vice President or President
of a Tribunal, then the Court cannot sit over the choice of the selection, but it be left to
the executive to select the personnel as per law or procedure in this behalf. In service
jurisprudence, it is settled law that it is for the aggrieved person i.e.non-appointee to
assail the legality of the offending action, third party has no locus standi to canvas the
legality or correctness of the action. Only public law declaration would be made at the
behest of the petitioner, a public spirited person. Therefore, the contention that there
was need to evaluate the comparative merits of respondents and senior most Member
for appointment as President would not be gone into in a public interest litigation. Only
the proceedings initiated by an aggrieved person, it may be open to be considered.
[16] The issue involved in this petition, i.e. appointment of a Chief Secretary of any
State Government directly came up for consideration before the Apex Court in the case
of E.P. Royappa Vs. State of T.N., 1974 4 SCC 3, in which it was held that the post of
Chief Secretary is a highly sensitive post. It is a post of great confidence -- a lynchpin in
the administration -- and smooth functioning of the administration requires that there
should be complete rapport and understanding between the Chief Secretary and the
Chief Minister. The Chief Minister as the head of the Government is in ultimate charge
of the administration and it is he who is politically answerable to the people for the
achievements and failures of the Government. If, therefore, for any valid reason the
Chief Secretary forfeits the confidence of the Chief Minister, the Chief Minister may
legitimately, in the larger interests of administration, shift the Chief Secretary to another
post, provided of course that does not involve violation of any of his legal or
constitutional rights. There can be no question in such a case as to who is right and who
is wrong. With the vast multitudinous activities in which a modern State is engaged,
there are bound to be some posts which require for adequate discharge of their
functions, high degree of intellect and specialised experience. The Government has in
the circumstances to make the best possible choice it can, keeping in view the larger
interests of the administration.
[17] The issue with respect to the appointment on the post of Chief Secretary also came
up for consideration before the Hon'ble Supreme Court in the case of Centre for Public
Interest Litigation v. Union of India, 2005 8 SCC 202, relied upon by the counsel for the
petitioner. After noting down the facts involved therein the Apex Court has observed as
under:-
"The basic question is whether the appointment of respondent No.3 as Chief
Secretary is proper.
Learned counsel for respondent Nos. 2 and 3 have submitted that as back
as on 17.4.2004 the respondent No.3 was promoted to the Chief Secretary's
grade with a particular scale of pay. Since the respondent No.3 belonged to
the said cadre and grade, one of the posts on which she could be appointed
is the post of Chief Secretary. Therefore, there is nothing wrong in her
appointment. Though the post of Chief Secretary may belong to a particular
grade/cadre, it is certainly a key post. The importance of this post was noted
by this Court in E.P. Royyappa v. State of Tamil Nadu and Anr., 1974
AIR(SC) 555.
The argument presently advanced is that since respondent No.3 has been
continuing in the post for five months, no orders should be passed regarding
her appointment till the Commission gives its report. Had this consideration
weighed with the State Government when it made the appointment there
may not have been any difficulty. It could have, considering the importance
of the post, awaited the report of the Commission headed by Mr. Justice K.T.
Thomas. It is not the case of respondent No.2-the State of U.P. that no other
officer is suitable to hold that post or that the services of respondent No.3
are so indispensable that none but she should be appointed as the Chief
Secretary. This is purely a case of justifying an action. Linked with it is the
question of transparency in action. It is true that the allegations against
respondent No.3 have to be established. It is often said that justice should
not only be done but it should appear to have been done. Lord Denning in
Metropolitan Properties Ltd. v. Lannon, 1968 3 AllER 304 said "justice must
be rooted in confidence, and confidence is destroyed when right minded
people go away thinking "The Judge is biased". The logic is equally
applicable to Governmental action and Government. The State Government
could have avoided the washing of dirty linen which as contended by learned
counsel for respondent Nos. 2 and 3 is the sole object of the writ petition.
We do not think it necessary to delve into the question of maintainability of
the writ petition as the same, as noted at the threshold appears to be an
offshoot of the earlier petition."
Thus, the Apex Court did not lay down any binding precedent in this regard
and the issue was left open as matter was pending before the High Court
and Mr. Justice Thomas Commission.
[18] Supreme Court in Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, 2014
1 SCC 161, held that the whole thing has to be scrutinised from the point of view of
power. Suitability or eligibility of a candidate for appointment to a post is within the
domain of the appointing authority. The only thing that can be scrutinised by the Court is
whether the appointment is contrary to the statutory provisions/rules.
[19] In the case of B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage
Board Employees Assn., 2006 AIR(SC) 3106 wherein appointment of Chief Engineer as
Managing Director was challenged by Employees Union. It was held that it is settled law
by a catena of decisions that the court cannot sit in judgment over the wisdom of the
Government in the choice of the person to be appointed so long as the person chosen
possesses the prescribed qualification and is otherwise eligible for appointment. Similar
view has been taken in Haibansh Lal Vs. Sahodar Prasad Mahto, 2010 9 SCC 655.
[20] Thus the issue as to whether Public Interest Litigation would be maintainable in
service matters is no longer res integra and stands settled by a catena of decisions,
some of which, have been noted hereinabove. We may also observe that right to be
considered for promotion is the fundamental right of the public servant under Article 16
of the Constitution of India. As pointed out by the learned Chief Standing Counsel, on
the basis of instructions, that respondent no. 3 was already promoted in the pay scale of
Chief Secretary as long back as in July 2012 and only the Cabinet, in its wisdom, has
taken a decision to post him to function as Chief Secretary of the State of U.P. Thus, the
appointment as Chief Secretary is an incidence of service.
[21] The judicial review of an appointment can be made in a writ of quo warranto and
that too when the same has been made contrary to some statutory provisions or rules.
[22] During the course of his arguments, the learned counsel for the petitioner heavily
relied upon the judgment of the Apex Court in State of Punjab v. Salil Sabhlok and
Others, 2013 5 SCC 1. The issue therein was in respect of the appointment of
Chairperson of Public Service Commission. The reliance placed by learned counsel for
the petitioner to support his arguments is totally misfounded. The Apex Court in the said
case held that 'the appointment of the Chairperson of the Punjab Public Service
Commission is an appointment to a constitutional position and is not a "service matter."
A PIL challenging such an appointment is, therefore, maintainable both for the issuance
of a writ of quo warranto and for a writ of declaration, as the case may be. A clear
distinction has been drawn between Government servant and the constitutional
appointment. In paragraph 74, it was observed as under: -
"74. It cannot be said that Chairperson of the Public Service Commission
holds a post in connection with the affairs of the Union or the State. He or
she is not a government servant, in the sense of there being no master and
servant relationship between the Union or the State and the Chairperson. In
view of the constitutional provisions pertaining to the security of tenure and
the removal procedure of the Chairperson and Members of Public Service
Commission, it can only be concluded that he or she holds a constitutional
post."
[23] In Mehar Singh Saini, In re, 2010 13 SCC 586, while drawing a distinction between
service under the Government of India or a State Government and a Constitutional body
like a Public Service Commission, it was observed as under :-
"A clear distinction has been drawn by the Framers [of our Constitution]
between service under the Centre or the States and services in the
institutions which are creations of the Constitution itself. Article 315 of the
Constitution commands that there shall be a Union Service Commission for
the respective States. This is not, in any manner, linked with the All India
Services contemplated in Article 312 of the Constitution to which, in fact, the
selections are to be made by the Commission."
[24] In the case in hand, since respondent no. 3 holds a statutory post, there exists
relationship of servant and master between him and the Government and his placement
to function as Chief Secretary after being promoted in pay scale of Chief Secretary is
nothing but an incidence of service for which, no Public Interest Litigation is liable to be
entertained. The question though could be examined in a writ of quo warranto.
However, the learned counsel for the petitioner has conceded before us that this is not a
writ of quo warranto.
[25] Now we proceed to take up the first preliminary objection that the petitioner has not
disclosed the facts as required under Chapter XXII Rule 1 (3-A) of High Court Rules and
the petition is liable to be dismissed on this ground alone. Supreme Court in State of
Uttaranchal Vs. Balwant Singh Chaufal, 2010 3 SCC 402, noticed the filing of mass of
frivolous Public Interest Litigations and thereby ruining precious time of Constitutional
Court. In order to preserve the purity and sanctity of the PIL, Supreme Court issued the
following directions:-
(1)The Courts must encourage genuine and bona fide PIL and effectively
discourage and curb the PIL filed for extraneous considerations.
(2)Instead of every individual Judge devising his own procedure for dealing
with the public interest litigation, it would be appropriate for each High Court
to properly formulate rules for encouraging the genuine PIL and discouraging
the PIL filed with oblique motives. Consequently, we request that the High
Courts who have not yet framed the rules, should frame the rules within
three months. The Registrar General of each High Court is directed to
ensure that a copy of the rules prepared by the High Court is sent to the
Secretary General of this Court immediately thereafter.
(3)The Courts should prima facie verify the credentials of the petitioner
before entertaining a PIL.
(4) The Courts should be prima facie satisfied regarding the correctness of
the contents of the petition before entertaining a PIL.
(5) The Courts should be fully satisfied that substantial public interest is
involved before entertaining the petition.
(6) The Courts should ensure that the petition which involves larger public
interest, gravity and urgency must be given priority over other petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is
aimed at redressal of genuine public harm or public injury. The Court should
also ensure that there is no personal gain, private motive or oblique motive
behind filing the public interest litigation.
(8) The Courts should also ensure that the petitions filed by busybodies for
extraneous and ulterior motives must be discouraged by imposing exemplary
costs or by adopting similar novel methods to curb frivolous petitions and the
petitions filed for extraneous considerations.
[26] In view of directions of Supreme Court, High Court Rules was amended and sub-
rule 3-A was inserted in Chapter XXII Rule 1 as follows:-
"(3-A) In additions to satisfying the requirements of other rules in this
Chapter, the petitioner seeking to file a Public Interest Litigation should
precisely and specifically state, in the affidavit to be sworn by him giving his
credentials, the public cause, he is seeking to spouse; that he has no
personal or private interest in the matter; that there is no authoritative
pronouncement by Supreme Court or High Court on the question raised and
the result of litigation will not lead to any undue gain to himself or any one
associated with him or any undue loss to any other person, body of persons
or the State."
[27] The petitioner has disclosed his credentials, the public cause and facts regarding
authoritative pronouncement by Supreme Court or High Court on the question raised. It
may be observed that requirement of disclosing about pronouncements of the judgment
of Supreme Court or High Court on the question raised cannot be an Issue of
preliminary objection. Even if disclosure in this respect is not found to be correct, the
writ petition can be examined on merit. However the petitioner has not disclosed that "
the result of litigation will not lead to any undue gain to himself or any one associated
with him or any undue loss to any other person, body of persons or the State". Thus
there is a defect in this respect in the writ petition. But the writ petition cannot be
dismissed without giving an opportunity to the petitioner to remove defect in this respect.
[28] It must not be forgotten that procedure is but a handmaiden of justice and cause of
justice can never be allowed to be thwarted by any procedural technicalities. Procedural
requirement is directory and not mandatory. Supreme Court in Sk. Salim Haji Abdul
Khayumsab v. Kumar, 2006 AIR(SC) 396 held that a procedural law should not
ordinarily be construed as mandatory, the procedural law is always subservient to and is
in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is
not to be followed. Procedural law is not to be a tyrant but a servant, not an obstruction
but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice.
[29] Since in respect of the second preliminary objection raised with respect to
maintainability of this Public Interest Litigation, we are of the view that in service
matters, the Public Interest Litigation is not maintainable and the dispute relates to
incidence of service, therefore, there is hardly any reason or occasion to give
opportunity to the petitioner to remove defect.
[30] In view of the aforesaid facts and discussions, we are of the considered view that
this writ petition in the nature of a Public Interest Litigation, challenging appointment of
respondent no. 3 as Chief Secretary of State of U.P. and his functioning as Agricultural
Production Commissioner and Industrial Development Commissioner is not
maintainable.
[31] The second preliminary objection raised by the learned Advocate General is
upheld. The writ petition is, accordingly, dismissed.