Dismissed

Dado Niania and Anr. v. The State of Ap and 7 Ors.

Gauhati HC7 Mar 2022WP(C)/85/2022

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the illegal promotion of Respondent No. 8. The Court held the petition was not maintainable as the petitioners were not the determinate class aggrieved by the promotion and lacked specific legal injury. Prayers regarding FIR registration were also rejected.

What did the court decide?

The writ petition was dismissed without issuance of notice; prayers regarding quo-warranto and FIR registration were rejected.

Dado Niania and Anr. Vs The State of Ap and 7 Ors. — Service and Employment | Gauhati HC (2022)

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Page No.# 1/7

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GAHC040002152022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)

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Case No. : WP(C) 85/2022

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1:Dado Niania and Anr. S/o Lt. Dado Tarang, R/o Near Police Check Gate, Chimpu, PO and PS Chimpu, Papum Pare District, Arunachal Pradesh. Contact No. 9436880202

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2: Dado Kagung S/o Lt. Dado Nike R/o Dado Village PO and PS Palin Kra Dadi District Arunachal Pradesh. Contact No. 690966538

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VERSUS

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1:The State of AP and 7 Ors. Represented through Chief Secretary, PO and PS. Itanagar, Govt. of Arunachal Pradesh.

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2:The Secretary (PR and RD) Civil Secretariat Itanagar PO and PS Itanagar PO and PS Itanagar Govt. of Arunachal Pradesh.

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3:The Director

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Department of Panchayati Raj

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Page No.# 2/7

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Itanagar PO and PS Itanagar Govt of Arunachal Pradesh

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4:The Director Department of Rural Development Itanagar PO and PS Itanagar Govt of Arunachal Pradesh

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5:The Director Department of Rural Development Itanagar PO and PS Itanagar Govt of Arunachal Pradesh

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6:Joint Director

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Department of Rural Development Itanagar PO and PS Itanagar Govt. of Arunachal Pradesh

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7:The Deputy Commissioner cum CEO DRDA Daporijo PO and PS Daporijo U/Subansiri DIstrict Govt of Arunachal Pradesh.

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8:Nabam Rajesh

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The Deputy Director (Rural Engineering)

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Panchayat Raj Department Itanagar PO and PS Itanagar Govt. of Arunachal Prades

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Advocate for the Petitioner : Tai Shiva

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Page No.# 3/7

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Advocate for the Respondent : GA (AP)

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BEFORE HONBLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 07.03.2022

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Heard Mr. Tai Shiva, learned counsel for the petitioner. Also heard Ms. R. Basar, learned Govt. advocate appearing for the respondent nos. 1, 3, 6 and 7 and Mr. B. Picha, learned standing counsel for the RD Department, representing respondent nos. 4 and 5.

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In view of the nature of order proposed to be passed, issuance of notice on the private respondent no.8 is dispensed with.

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This writ petition under Article 226 of the Constitution of India has been filed by two petitioners, who are citizens of India. The petitioner no. 1 is a resident of Papum Pare district and the petitioner no. 2 is a resident of Kra-Dadi district.

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It is projected in this writ petition that through RTI information, the petitioners have come to know that the private respondent no. 8 was illegally and fraudulently appointed on promotion to the post of Deputy Director, (Rural Engineering), Panchayat Raj Department, Itanagar. Accordingly, a representation dated 22.10.2021 was submitted before the respondent nos. 1 to 7, thereby seeking immediate termination/ removal of the respondent no.8 from the said post and to appoint a persons in the said post after due public advertisement for filling up the post. As the prayer of the petitioner was not responded to, an FIR

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dated 19.10.2021 was lodged before the Chief Secretary to the Govt. of Arunachal Pradesh (respondent no.1), containing allegation against respondent nos. 2 to 8. The learned counsel for the petitioner submits that in the FIR allegations were also made regarding possession of disproportionate property by the respondent no. 8, which is beyond his known source of income.

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Accordingly, as no action was taken, the petitioner has approached this Court. The nature of prayer made in the writ petition, inter alia, is to the following effect – (a) for a writ in the nature of quo-warranto, for setting aside and quashing of the appointment order of the private respondent no.8 as Deputy Director (RE), Panchayat Raj Department; (b) for a direction to promote the post of Deputy Director (RE), Panchayat Raj Department, Itanagar on the basis of seniory-cum-merit amongst the APCS Entry Grade Officer by constituting Departmental Promotion Committee; (c) for a direction to sanction/ approval for time bound registration and investigation of the FIR dated 19.10.2021.

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In the synopsis appended to the writ petition, it has been mentioned that the FIR dated 19.10.2021 was lodged before the respondent no. 1 i.e. the Chief Secretary of the State. On a query of the Court, the learned counsel for the petitioner has submitted that Chief Secretary of the State also holds the post of Chief Vigilance Officer of the State. It is submitted that as per the said FIR dated 19.10.2021 (Annexure-M), the copy of the said FIR was also sent to the Superintendent of Police, SIC (Vig.) as well as to the Officer-in-charge, SIC (Vig.).

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Be that as it may, if the petitioner is aggrieved by non-registration of the

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FIR, he has alternative remedy as provided for in the Code of Criminal Procedure. Accordingly, the said prayer no. (a) is not entertained by this Court. Insofar as the prayer no. (c) is concerned, it is best left to the discretion of the investigating agency or the Investigating Officer to take a call if any sanction for prosecution is required. Therefore, without any prayer by the investigating agency, it is not open to the Court to entertain such a prayer. Hence, prayer no. (c) is rejected.

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In respect of prayer no.(b), the Court finds that the petitioners are not members of the concerned service and therefore, their respective legal and fundamental rights have not been violated by appointment of respondent no. 2 as a Deputy Director (RE), Panchayat Raj Department. If any person would be aggrieved by such an appointment, it would only be the class of officers who would expect promotion to the said post. It is well settled that w here a legal wrong or a legal injury is caused to a person or to a determinate class of person by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the Court under Article 226 of the Constitution of India. If any authority is required on this point, one may refer to the decision of the Supreme Court of India in the case of S.P. Gupta Vs. Union of India and another 1981 (Supp) SCC 87: AIR 1982 SC 149.

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In the present case in hand, the Court finds it difficult to accept that the determinate class of persons, who would have been in the consideration zone for being promoted to the post of Deputy Director (RE), Panchayat Raj Department is unable to approach the Court for the aforesaid reasons. Moreover, this writ petition has not been filed in a representative capacity. Therefore, the Court is inclined to hold that the petitioners in the present case in hand who had moved this Court for legal redress are not acting bonafide with a view to vindicating the causes of justice. They are not claiming to be in the zone of consideration for being promoted to the said post of Deputy Director (RE), Panchayat Raj Department. In this regard, the Special Bench of the Supreme Court of India in the case of S.P. Gupta (supra) has observed as follows:

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“24. Before we part with this general discussion in regard to locus standi, there is one point we would like to emphasise and it is that cases may arise where there is undoubtedly public injury by the act or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want.”

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In view of the aforesaid observation of the Supreme Court of India, the Court is inclined to hold that by the promotion made to the respondent no. 8 to

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the post of Deputy Director (RE), Panchayat Raj Department, the petitioners have not been able to show that they had suffered any infringement of their legal or constitutional right and therefore, this writ petition would not be maintainable at their instance.

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Accordingly, this writ petition stands dismissed without issuance of notice on the respondents. However, before parting with the record, it is clarified that in respect of prayer nos. (a) and (b) made in this writ petition, the petitioners are at liberty to seek appropriate legal remedy, as they may be so advised.

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JUDGE

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Comparing Assistant

Dado Niania and Anr. v. The State of Ap and 7 Ors.

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Dado Niania and Anr. v. The State of Ap and 7 Ors.

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