Delhi High Court
Manish Kumar vs Union Of India & Ors. on 6 March, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~53
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 170/2025, CM APPL. 13062/2025, CM APPL.
13063/2025 & CM APPL. 13064/2025
MANISH KUMAR .....Appellant
Through: Mr. Moni Chinmoy, Mr. Rahul
Ranjan Verma and Mr. Abhishek,
Advocates.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. V.S.R. Krishna, Advocate
for DMRC.
Mr. Ankur Chibber, Adv. for R-4.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE AJAY DIGPAUL
JUDGMENT (ORAL)
% 06.03.2025
C. HARI SHANKAR, J.
1. The appellant is working as an Additional General Manager
(Legal) in the Delhi Metro Rail Corporation1.
2. He instituted OA 1360/2021 before the Central Administrative
Tribunal2, with the following prayer clause:
“a. Pass an order directing the Respondents to grant applicant
all the benefits which he is otherwise entitled to in terms of the
order dated 23.02.2018 and as defacto HOD since 23.05.2017 with
all consequential benefits in time a bound manner.
1 “DMRC”, hereinafter
2 “the Tribunal”, hereinafter
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b. Quash/Set aside the illegal appointment of the Respondent
No.4 inasmuch as admittedly, the advertisement for the post of GM
(Legal) was on direct recruitment basis but the appointment was
curiously made on deputation basis for reasons best known to the
Respondents. Moreover, the Respondent No.4 who was eventually
appointed to the said post did not even possess the requisite
qualification as prescribed by the service rule of DMRC.
c. Pass an order directing the Respondent Authorities to
consider the candidature of the Applicant who is otherwise
competent and well qualified to be appointed to the said post GM
(Legal).
d. Pass any order or further orders as this Hon’ble Court may
deem fit and proper in the interest of Justice.”
3. The Tribunal dismissed the OA by order dated 22 July 2021.
The concluding paragraph of the said decision, which also stands
reproduced in the impugned judgment of the learned Single Judge,
read thus:
“6. As regards the second aspect, the applicant was not a
contender for that post at all. It is not his case that he submitted any
application in response to the advertisement. Therefore, it should
not make any difference for him, whether the 4th respondent or
somebody else is appointed on that post. At any rate, the Tribunal
does not have jurisdiction to adjudicate upon the appointment of
persons unless the challenge is by another, who too competed for
that post.
7. We, therefore, dispose of the OA declining to interfere with
the order of appointment of the 4th respondent but directing that the
respondents shall examine the case of the applicant for payment of
amounts on his being kept in charge of the post of General
Manager (Legal) and in case any amount remained unpaid, it shall
be released within four weeks.
There shall be no order as to costs.”
4. Thereafter, it appears that the appellant filed two more writ
petitions, once again challenging the appointment of Respondent 4 as
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General Manager (Legal), on which notice stands issued and which
are pending before a Single Judge of this Court.
5. This is the third writ petition filed by the appellant once again
aggrieved by the continuance of Respondent 4 as General Manager
(Legal). Mr. Chinmoy, learned counsel for the appellant, submits that
this writ petition was necessitated in view of the extension in service
granted to Respondent 4.
6. Thus, the situation that emerges is that after having lost in OA
1360/2021, wherein the appellant chose to challenge the appointment
of Respondent 4 as General Manager, and never having elected to file
any writ petition challenging the said decision, the appellant has
instituted three separate writ petitions, all of which independently
challenge the appointment of Respondent 4 as General Manager
(Legal) on one ground or the other.
7. The present appeal is directed against order dated 22 January
2025 passed by the learned Single Judge in the third of the afore-noted
writ petitions, i.e. WP (C) 819/20253.
8. We deem it appropriate to reproduce paras 3 to 10 of the
impugned judgment:
“3. Learned counsel for the respondents, who appears on
advance notice, raises a preliminary objection that the disputes are
amenable to the jurisdiction of the Central Administrative Tribunal
[“CAT”] as DMRC is notified for the purposes of jurisdiction of
the Tribunal.
3 Manish Kumar v UOI
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4. Learned counsel for the petitioner submits that two writ
petitions filed by the petitioner are pending before this Court. The
first one is W.P.(C) 13738/2021, which seeks a writ of quo
warranto in respect of appointment of respondent No.4. The order
dated 03.12.2021, passed in the said writ petition, specifically notes
that the question of maintainability is left open. In the second
petition, i.e., W.P.(C) 3840/2024, the petitioner has challenged an
earlier extension granted to respondent No.4.
5. In neither of the aforesaid petitions has the question of
maintainability been finally decided.
6. In the present petition, the petitioner has stated that he
earlier filed proceedings before CAT challenging the original
appointment of respondent No.4 (OA No. 1360/2021), seeking the
following reliefs:
“a. Pass an order directing the Respondents to grant
applicant all the benefits which he is otherwise entitled to in
terms of the order dated 23.02.2018 and as defacto HOD
since 23.05.2017 with all consequential benefits in time a
bound manner.
b. Quash/Set aside the illegal appointment of the
Respondent No.4 inasmuch as admittedly, the
advertisement for the post of GM (Legal) was on direct
recruitment basis but the appointment was curiously made
on deputation basis for reasons best known to the
Respondents. Moreover, the Respondent No.4 who was
eventually appointed to the said post did not even possess
the requisite qualification as prescribed by the service rule
of DMRC.
c. Pass an order directing the Respondent Authorities
to consider the candidature of the Applicant who is
otherwise competent and well qualified to be appointed to
the said post GM (Legal).
d. Pass any order or further orders as this Hon’ble
Court may deem fit and proper in the interest of Justice.”
7. The proceedings were disposed of by CAT vide order dated
22.07.2021. On the question of challenge to the appointment of
respondent No.4., the Tribunal held as follows:
“6. As regards the second aspect, the applicant was not
a contender for that post at all. It is not his case that he
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submitted any application in response to the advertisement.
Therefore, it should not make any difference for him,
whether the respondent or somebody else is appointed on
that post. At any rate, the Tribunal does not have
jurisdiction to adjudicate upon the appointment of persons
unless the challenge is by another, who too competed for
that post.
7. We, therefore, dispose of the OA declining to
interfere with the order of appointment of the 4th
respondent but directing that the respondents shall examine
the case of the applicant for payment of amounts on his
being kept in charge of the post of General Manager
(Legal) and in case any amount remained unpaid, it shall be
released within four weeks.
There shall be no order as to costs.”
8. It is evident that the petitioner’s challenge before CAT was
not entertained on the grounds that he was not an applicant for the
post as on that date. Learned counsel for the petitioner states that
he is at present also not eligible for the post of General Manager
(Legal), but seeks to challenge the appointment of respondent No.4
on the grounds that the procedure for appointment of respondent
No.4 was illegal.
9. As far as those aspects are concerned, the petitioner’s
earlier writ petitions are still pending, and will be adjudicated on
the questions of maintainability and merits independently. The
filing of the present petition is not evidently premised on any new
grounds of challenge, and only contributes to multiplicity of
litigation. If the petitioner wishes to bring on record the fact of the
subsequent extension granted to respondent No.4, he may file an
appropriate application in those proceedings.
10. The present writ petition is disposed of, leaving it open to
the petitioner to take such alternative remedies as may be available
to him in accordance with law.”
9. Aggrieved by the aforesaid judgment, the petitioner before the
learned Single Judge has filed the present Letters Patent Appeal under
Clause X of the Letters Patent as applicable to this Court.
10. We have heard Mr. Chinmoy, learned counsel for the appellant
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and Mr. Krishna and Mr. Ankur Chhibber, learned counsel for the
respondents.
11. To our mind, WP (C) 819/2025, filed before the learned Single
Judge was a completely misguided attempt, ab initio.
12. We pointed out to Mr. Chinmoy that there is a complete
proscription on the High Court acting as a court of first instance in any
service matter concerning a Central Government employee. This
proscription, which is by now part of legal lore, is to be found in para
93 of the judgment of the seven-Judge Bench of the Supreme Court in
L Chandra Kumar v UOI4 :
“93. Before moving on to other aspects, we may summarise our
conclusions on the jurisdictional powers of these Tribunals. The
Tribunals are competent to hear matters where the vires of
statutory provisions are questioned. However, in discharging this
duty, they cannot act as substitutes for the High Courts and the
Supreme Court which have, under our constitutional set-up, been
specifically entrusted with such an obligation. Their function in
this respect is only supplementary and all such decisions of the
Tribunals will be subject to scrutiny before a Division Bench of the
respective High Courts. The Tribunals will consequently also have
the power to test the vires of subordinate legislations and rules.
However, this power of the Tribunals will be subject to one
important exception. The Tribunals shall not entertain any question
regarding the vires of their parent statutes following the settled
principle that a Tribunal which is a creature of an Act cannot
declare that very Act to be unconstitutional. In such cases alone,
the High Court concerned may be approached directly. All other
decisions of these Tribunals, rendered in cases that they are
specifically empowered to adjudicate upon by virtue of their parent
statutes, will also be subject to scrutiny before a Division Bench of
their respective High Courts. We may add that the Tribunals will,
however, continue to act as the only courts of first instance in
respect of the areas of law for which they have been constituted.
By this, we mean that it will not be open for litigants to directly4 (1997) 3 SCC 261
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approach the High Courts even in cases where they question the
vires of statutory legislations (except, as mentioned, where the
legislation which creates the particular Tribunal is challenged) by
overlooking the jurisdiction of the Tribunal concerned.”
(Emphasis supplied)
13. We have recently had an occasion to bemoan, in our judgment
in Parikshit Grewal v UOI5 the tendency of litigants, three decades
after L. Chandra Kumar was rendered, to continue to file writ
petitions before High Courts in clear breach of L. Chandra Kumar.
We deem it appropriate to reproduce the following passages, from our
decision:
1. It is a matter of some discomfiture to this Court that, nearly
three decades after seven Hon’ble Judges of the Supreme Court
clearly held, in the near iconic decision in L. Chandra
Kumar v. Union of India, that all matters which lay within the
province of the Central Administrative Tribunal by virtue of
Section 14 of the Administrative Tribunals Act, 1985 would have
to be agitated before the Tribunal and that the High Court could not
act as a court of first instance in such cases, petition after petition is
still preferred in the High Court, in clear violation of the judgment.
Every possible argument in the book is pressed into service, to
somehow avoid L. Chandra Kumar. Exceptions, not to be found
either in Section 14 of the AT Act or in the judgment in L.
Chandra Kumar, are sought to be read into it by implication. In the
process, both Articles 141 and 144 of the Constitution of India are
consigned to oblivion.
*****
L. Chandra Kumar, deconstructed
9. It would be appropriate, before proceeding further, to
understand what exactly the Supreme Court, in L. Chandra
Kumar, held. For this, we do not intend to advert to the sequence
of proceedings which led to the matter being placed before seven
Hon’ble Judges of the Supreme Court. They can easily be
understood by a reading of the decision in L. Chandra
Kumar itself, and the learned Single Judge has, in the impugned
judgment, also referred to it in some detail. We, therefore, intend
5 313 (2024) DLT 400 (DB)
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only to note what exactly has been held in the L. Chandra Kumar
decision, and the circumstances in which the Supreme Court has
done so.
10. The Supreme Court observed, at the outset, that the
Tribunal was created in terms of Article 323-A of the Constitution.
Thereafter, in para 49 of the report, the Supreme Court set out
some relevant provisions of the AT Act, adverted to certain
decisions rendered in the context of the said Act and distilled the
submissions of learned counsel before it. The analysis of the issues
involved, in the judgment, commenced from para 51. The first
issue addressed by the Supreme Court was whether judicial review
constitutes part of the basic structure of the Constitution, in which
case, applying the ratio in Kesavananda Bharati v. State of
Kerala6, any law, which compromised on the power of judicial
review, would be unconstitutional. Paras 78 and 79 of the report
addressed this issue :
“78. The legitimacy of the power of courts within
constitutional democracies to review legislative action has
been questioned since the time it was first conceived.
The Constitution of India, being alive to such criticism, has,
while conferring such power upon the higher judiciary,
incorporated important safeguards. An analysis of the
manner in which the framers of our Constitution
incorporated provisions relating to the judiciary would
indicate that they were very greatly concerned with
securing the independence of the judiciary. [See Chapter 7,
“The Judiciary and the Social Revolution” in Granville
Austin, The Indian Constitution : Cornerstone of a Nation,
Oxford University Press, 1972; the chapter includes
exhaustive references to the relevant preparatory works and
debates in the Constituent Assembly.] These attempts were
directed at ensuring that the judiciary would be capable of
effectively discharging its wide powers of judicial review.
While the Constitution confers the power to strike down
laws upon the High Courts and the Supreme Court, it also
contains elaborate provisions dealing with the tenure,
salaries, allowances, retirement age of Judges as well as the
mechanism for selecting Judges to the superior courts. The
inclusion of such elaborate provisions appears to have been
occasioned by the belief that, armed by such provisions, the
superior courts would be insulated from any executive or
legislative attempts to interfere with the making of their
decisions. The Judges of the superior courts have been
entrusted with the task of upholding the Constitution and to6 (1973) 4 SCC 225
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this end, have been conferred the power to interpret it. It is
they who have to ensure that the balance of power
envisaged by the Constitution is maintained and that the
legislature and the executive do not, in the discharge of
their functions, transgress constitutional limitations. It is
equally their duty to oversee that the judicial decisions
rendered by those who man the subordinate courts and
tribunals do not fall foul of strict standards of legal
correctness and judicial independence. The constitutional
safeguards which ensure the independence of the Judges of
the superior judiciary, are not available to the Judges of the
subordinate judiciary or to those who man tribunals created
by ordinary legislations. Consequently, Judges of the latter
category can never be considered full and effective
substitutes for the superior judiciary in discharging the
function of constitutional interpretation. We, therefore, hold
that the power of judicial review over legislative action
vested in the High Courts under Article 226 and in this
Court under Article 32 of the Constitution is an integral and
essential feature of the Constitution, constituting part of its
basic structure. Ordinarily, therefore, the power of High
Courts and the Supreme Court to test the constitutional
validity of legislations can never be ousted or excluded.
79. We also hold that the power vested in the High
Courts to exercise judicial superintendence over the
decisions of all courts and tribunals within their respective
jurisdictions is also part of the basic structure of
the Constitution. This is because a situation where the High
Courts are divested of all other judicial functions apart from
that of constitutional interpretation, is equally to be
avoided.”
(emphasis supplied)
Having so read the power of judicial review of legislative or
executive action vested in the High Courts and the Supreme Court
to be part of the basic structure of the Constitution, the report went
on to observe, in para 80, that “there is no constitutional prohibition
against their (Tribunals) performing a supplemental as opposed to a
substitutional role in this respect”. Deriving support from Article
32(3) of the Constitution in that regard, the Supreme Court went
on, in para 81, to hold : (L. Chandra Kumar, para 81)
“81. If the power under Article 32 of the Constitution,
which has been described as the ‘heart’ and ‘soul’ of
the Constitution, can be additionally conferred upon ‘any
other court’, there is no reason why the same situation
cannot subsist in respect of the jurisdiction conferred upon
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the High Courts under Article 226 of the Constitution. So
long as the jurisdiction of the High Courts under Articles
226/227 and that of this Court under Article 32 is retained,
there is no reason why the power to test the validity of
legislations against the provisions of
the Constitution cannot be conferred upon Administrative
Tribunals created under the Act or upon Tribunals created
under Article 323-B of the Constitution. It is to be
remembered that, apart from the authorisation that flows
from Articles 323-A and 323-B, both Parliament and the
State Legislatures possess legislative competence to effect
changes in the original jurisdiction of the Supreme Court
and the High Courts. This power is available to Parliament
under Entries 77, 78, 79 and 95 of List I and to the State
Legislatures under Entry 65 of List II; Entry 46 of List III
can also be availed of both by Parliament and the State
Legislatures for this purpose.”
(emphasis supplied)
11. From paras 81 to 89, the Supreme Court flagged the issue
of the alarming state of pendency of matters in the High Courts as
one of the reasons why it was necessary to preserve the conferment
of jurisdiction on Tribunals. Thereafter, in para 90, the report
addressed “the issue of exclusion of the power of judicial review of
the High Courts”. After holding that “the jurisdiction of the High
Courts under Articles 226/227 cannot wholly be excluded”, the
Supreme Court rejected the contention that Tribunals be allowed to
adjudicate only on matters in which constitutional issues were not
raised, and particularly not to be allowed to adjudicate upon
matters where the vires of legislations were in question. As the
Supreme Court held, “if such a view were to be adopted, it would
be open for litigants to raise constitutional issues, many of which
may be quite frivolous, to directly approach the High Courts and
thus subvert the jurisdiction of the Tribunals”. Moreover, observed
the Supreme Court, even in these special branches of law, certain
provisions of the Constitution would invariably, arise for
consideration; for instance, in service matters, Articles 14, 15 and
16 would routinely be pressed into service. Rather than excluding
such issues from the purview of the jurisdiction of Tribunals,
therefore, the better alternative was found to be subjection of the
decisions rendered by the Tribunals to judicial review by the High
Court under Articles 226/227 of the Constitution. This, it was
observed, would “ensure that frivolous claims are filtered out
through the process of adjudication in the Tribunal”. Keeping in
view these factors, and following the proposal, mooted in its earlier
decision in R.K. Jain v Union of India7, that “the possibility of an
7 (1993) 4 SCC 119
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appeal from the Tribunal on questions of law to a Division Bench
of a High Court within whose territorial jurisdiction and the
Tribunal falls, be pursued”, the Supreme Court went on to hold, in
para 91 of the report, that “all decisions of tribunals, whether
created pursuant to Article 323-A or Article 323-B of
the Constitution, will be subject to High Court’s writ jurisdiction
under Articles 226/227 of the Constitution, before a Division
Bench of the High Court within whose territorial jurisdiction the
particular Tribunal falls”. This was clarified, in para 92, by further
holding that “no appeal from the decision of a Tribunal will
directly lie before the Supreme Court under Article 136 of
the Constitution; but instead, the aggrieved party will be entitled to
move the High Court under Articles 226/227 of
the Constitution and from the decision of the Division Bench of the
High Court the aggrieved party could move this Court under
Article 136 of the Constitution”. Para 93 of the report proceeded to
summarise the conclusions, in the judgment, on the jurisdictional
powers of tribunals, thus :
“93. … The Tribunals are competent to hear matters where
the vires of statutory provisions are questioned. However,
in discharging this duty, they cannot act as substitutes for
the High Courts and the Supreme Court which have, under
our constitutional set-up, been specifically entrusted with
such an obligation. Their function in this respect is only
supplementary and all such decisions of the Tribunals will
be subject to scrutiny before a Division Bench of the
respective High Courts. The Tribunals will consequently
also have the power to test the vires of subordinate
legislations and rules. However, this power of the Tribunals
will be subject to one important exception. The Tribunals
shall not entertain any question regarding the vires of their
parent statutes following the settled principle that a tribunal
which is a creature of an Act cannot declare that very Act to
be unconstitutional. In such cases alone, the High Court
concerned may be approached directly. All other decisions
of these tribunals, rendered in cases that they are
specifically empowered to adjudicate upon by virtue of
their parent statutes, will also be subject to scrutiny before a
Division Bench of their respective High Courts. We may
add that the Tribunals will, however, continue to act as the
only courts of first instance in respect of the areas of law
for which they have been constituted. By this, we mean that
it will not be open for litigants to directly approach the
High Courts even in cases where they question the vires of
statutory legislations (except, as mentioned, where the
legislation which creates the particular Tribunal is
challenged) by overlooking the jurisdiction of the Tribunal
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concerned.”
(emphasis supplied)
12. Thus, the Supreme Court clarified, in terms as unequivocal as
could be, that it would not be open to a litigant to approach the
High Court in matters relating to the areas of law in which the
Tribunal concerned is constituted, and that the Tribunal would
continue to act as the court of first instance in all such matters, the
only exception being where the very legislation under which the
Tribunal is constituted is challenged. In other words, save and
except for cases in which the litigant challenges one or the other
provision of the AT Act, it is not open to the litigant to approach
the High Court in the first instance, in respect of matters which the
Central Administrative Tribunal is competent to adjudicate; in
other words, in respect of matters which fall within the purview of
Article 14 of the Constitution. In all such matters, the Central
Administrative Tribunal would be the only court of first instance,
available to the litigant.
13. Para 99 of the report summarises the judgment, in the
proverbial nutshell, thus:
“99. In view of the reasoning adopted by us, we hold that
Clause 2(d) of Article 323-A and Clause 3(d) of Articles
323-B, to the extent they exclude the jurisdiction of the
High Courts and the Supreme Court under
Articles 226/227 and 32 of the Constitution, are
unconstitutional. Section 28 of the Act and the ‘exclusion of
jurisdiction’ clauses in all other legislations enacted under
the aegis of Articles 323-A and 323-B would, to the same
extent, be unconstitutional. The jurisdiction conferred upon
the High Courts under Articles 226/227 and upon the
Supreme Court under Article 32 of the Constitution is a part
of the inviolable basic structure of our Constitution. While
this jurisdiction cannot be ousted, other courts and tribunals
may perform a supplemental role in discharging the powers
conferred by Articles 226/227 and 32 of the Constitution.
The Tribunals created under Articles 323-A and 323-B of
the Constitution are possessed of the competence to test the
constitutional validity of statutory provisions and rules. All
decisions of these tribunals will, however, be subject to
scrutiny before a Division Bench of the High Court within
whose jurisdiction the Tribunal concerned falls. The
Tribunals will, nevertheless, continue to act like courts of
first instance in respect of the areas of law for which they
have been constituted. It will not, therefore, be open for
litigants to directly approach the High Courts even in cases
where they question the vires of statutory legislations
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(except where the legislation which creates the particular
Tribunal is challenged) by overlooking the jurisdiction of
the Tribunal concerned. Section 5(6) of the Act is valid and
constitutional and is to be interpreted in the manner we have
indicated.”
(emphasis supplied)
14. Thus, the position in law is clear as crystal. All matters,
which fall within the purview of Section 14 of the AT Act have
first to be agitated before the Tribunal. It is the Tribunal alone
which can entertain these matters, as a court of first instance. The
litigant is completely proscribed from approaching the High Court
in such matters, without first approaching the Tribunal. The only
circumstance in which the litigant can approach the High Court,
without first approaching the Tribunal, is where the litigation
challenges the vires of the AT Act itself, or of one or the other of
its provisions.
15. It is completely befuddling, therefore, to see petitions,
which clearly fall within the scope and ambit of Section 14 of the
AT Act, being directly filed in the High Court. Going by the
number of such petitions which are still coming up before this
Court itself, the malaise is reaching endemic proportions. Without
meaning any disrespect to High Courts which may choose to
entertain such petitions, these stray examples, if any, cannot
derogate from the position in law so unequivocally stated by seven
Hon’ble Judges of the Supreme Court in L. Chandra Kumar.”
14. On our pointing out to Mr. Chinmoy that the present petition
would not lie before this Court as this is a “service matter” which, as
per Section 19(1)8 of the AT act has to be preferred before the
Tribunal, Mr. Chinmoy has drawn our attention to Section 3(q)9 of the
8 19. Applications to Tribunals. –
(1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to
any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the
redressal of his grievance.
Explanation.–For the purposes of this sub-section, “order” means an order made –
(a) by the Government or a local or other authority within the territory of India or
under the control of the Government of India or by any corporation or society owned or
controlled by the Government; or
(b) by an officer, committee or other body or agency of the Government or a local
or other authority or corporation or society referred to in clause (a).
9 (q) “service matters”, in relation to a person, means all matters relating to the conditions of his service
in connection with the affairs of the Union or of any State or of any local or other authority within the
territory of India or under the control of the Government of India, or, as the case may be, of any
corporation or society owned or controlled by the Government, as respects–
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AT Act which defines “service matters”. He submits that by virtue of
the said definition, a “service matter” has to be a matter relating to the
conditions of service of the person who approaches the Court. In as
much as the dispute in WP (C) 819/2025, from the order passed in
which the present appeal emanates, was not a matter concerning the
conditions of service of the petitioner but was in the nature of a quo
warranto challenging the legality of appointment and continuance in
office of Respondent 4, Mr. Chinmoy’s contention is that it would lie
before this Court.
15. The contention, to our mind, is misguided.
16. The appellant is either a person interested in the appointment of
Respondent 4, or a person who is not interested in the appointment of
Respondent 4. There is no half way house.
17. In case the appellant has a personal interest in the appointment
of Respondent 4, in that setting aside of the appointment of
Respondent 4 would affect the appellant’s conditions of service, the lis
in the writ petition would clearly be a “service matter” within the
meaning of Section 2(q) of the AT Act, and would have to be
preferred before the Tribunal under Section 19 thereof.
18. On his attention being drawn to this aspect, Mr. Chinmoy,
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and
superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever;
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submits that as on date, his client is not eligible for the post of GM
(Legal), which is occupied by Respondent 4. If that is so, it is clear
that the appellant cannot maintain an individual writ petition seeking a
quo warranto against the appointment of Respondent 4, for want of
locus standi. On the entitlement of a person, who has no enforceable
right which he seeks to espouse or enforce, to invoke Article 226 of
the Constitution of India, the Constitution Bench spoke thus, as far
back as in State of Orissa v Ram Chandra Dev10, through
Gajendragadkar J. (as he then was):
“8. On the merits, the position is absolutely clear. Under
Article 226 of the Constitution, the jurisdiction of the High Court is
undoubtedly very wide. Appropriate writs can be issued by the
High Court under the said article even for purposes other than the
enforcement of the fundamental rights and in that sense, a party
who invokes the special jurisdiction of the High Court under
Article 226 is not confined to cases of illegal invasion of his
fundamental rights alone. But though the jurisdiction of the High
Court under Article 226 is wide in that sense, the concluding words
of the article clearly indicate that before a writ or an appropriate
order can be issued in favour of a party, it must be established that
the party has a right and the said right is illegally invaded or
threatened. The existence of a right is thus the foundation of a
petition under Article 226. The narrow question which falls for our
decision in the present appeals is whether the respondents can be
said to have proved any legal right in respect of the properties of
which they apprehended they would be dispossessed by the
appellant.”
19. Specifically on the right of an ineligible person to challenge the
appointment of another, the Supreme Court holds thus, in para 88 of
Sudhakar Baburao Nangnure v Noreshwar Raghunathrao
Shende11:
88. The answer to the submissions is simple: the appellant did
not at any stage challenge the appointment of the respondent to the10 AIR 1964 SC 685
11 (2020) 11 SCC 399
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post of JDTP nor did he challenge the GR dated 20-3-2003
providing for consequential seniority. The appellant was not
eligible for the post of DTP on 30-4-2016, when the vacancy
occurred. He cannot, hence, challenge the appointment of the first
respondent.”
(Emphasis supplied)
20. Ayaaubkhan Noorkhan Pathan v State of M.P.12 reiterated the
law in this regard, thus:
18. As Respondent 5 does not belong to the Scheduled Tribes
category, the garb adopted by him, of serving the cause of
Scheduled Tribe candidates who might have been deprived of their
legitimate right to be considered for the post, must be considered
by this Court in order to determine whether Respondent 5, is in
fact, in a legitimate position to lay any claim before any forum,
whatsoever.
19. This Court in Ravi Yashwant Bhoir v District Collector,
Raigad13 held as under :
“58. Shri Chintaman Raghunath Gharat, ex-President
was the complainant, thus, at the most, he could lead
evidence as a witness. He could not claim the status of an
adversarial litigant. The complainant cannot be the party to
the lis. A legal right is an averment of entitlement arising out
of law. In fact, it is a benefit conferred upon a person by the
rule of law. Thus, a person who suffers from legal injury can
only challenge the act or omission. There may be some harm
or loss that may not be wrongful in the eye of the law because
it may not result in injury to a legal right or legally protected
interest of the complainant but juridically harm of this
description is called damnum sine injuria.
59. The complainant has to establish that he has been
deprived of or denied of a legal right and he has sustained
injury to any legally protected interest. In case he has no
legal peg for a justiciable claim to hang on, he cannot be
heard as a party in a lis. A fanciful or sentimental grievance
may not be sufficient to confer a locus standi to sue upon the
individual. There must be injuria or a legal grievance which
can be appreciated and not a stat pro ratione voluntas
reasons i.e. a claim devoid of reasons.
12 (2013) 4 SCC 465
13 (2012) 4 SCC 407
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60. Under the garb of being a necessary party, a person
cannot be permitted to make a case as that of general public
interest. A person having a remote interest cannot be
permitted to become a party in the lis, as the person who
wants to become a party in a case, has to establish that he
has a proprietary right which has been or is threatened to be
violated, for the reason that a legal injury creates a remedial
right in the injured person. A person cannot be heard as a
party unless he answers the description of aggrieved party.”
20. A similar view has been reiterated by this Court in K.
Manjusree v State of A.P.14 , wherein it was held that the applicant
before the High Court could not challenge the appointment of a
person as she was in no way aggrieved, for she herself could not
have been selected by adopting either method. Moreover, the
appointment cannot be challenged at a belated stage and, hence, the
petition should have been rejected by the High Court on the
grounds of delay and non-maintainability alone.
21. In Balbir Kaur v U.P. Secondary Education Services
Selection Board15, it has been held that a violation of the equality
clauses enshrined in Articles 14 and 16 of the Constitution, or
discrimination in any form, can be alleged, provided that, the writ
petitioner demonstrates a certain appreciable disadvantage qua
other similarly situated persons. While dealing with the similar
issue, this Court in Raju Ramsing Vasave v Mahesh Deorao
Bhivapurkar16 held :
“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
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, in14 (2008) 3 SCC 512
15 (2008) 12 SCC 1
16 (2008) 9 SCC 54
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our opinion, this Court will not shirk its responsibilities from
doing so.”
(See also Manohar Joshi v State of Maharashtra17.)
22. In Vinoy Kumar v State of U.P.18 this Court held :
“2. … Even in cases filed in public interest, the court can
exercise the writ jurisdiction at the instance of a third party
only when it is shown that the legal wrong or legal injury or
illegal burden is threatened and such person or determined
class of persons is, by reason of poverty, helplessness or
disability or socially or economically disadvantaged position,
unable to approach the court for relief.”
23. Thus, from the above it is evident that under ordinary
circumstances, a third person, having no concern with the case at
hand, cannot claim to have any locus standi to raise any grievance
whatsoever. However, in exceptional circumstances as referred to
above, if the actual persons aggrieved, because of ignorance,
illiteracy, inarticulation or poverty, are unable to approach the
court, and a person, who has no personal agenda, or object, in
relation to which, he can grind his own axe, approaches the court,
then the court may examine the issue and in exceptional
circumstances, even if his bona fides are doubted, but the issue
raised by him, in the opinion of the court, requires consideration,
the court may proceed suo motu, in such respect.”
(Emphasis supplied)
21. Mr. Chinmoy has drawn our attention to the judgment of the
Supreme Court in Duryodhan Sahu v Jitendra Kumar Mishra19. We
need not dwell on the decision, as it also holds that a prayer for
issuance of a writ of quo warranto can lie at the instance of person
who is an aspirant for the post, by way of a public interest litigation.
Para 23 of Ayaaubkhan Noorkhan Pathan also says so. Equally,
however, it also underscores the parameters within which a public
interest litigation would lie.
17 (2012) 3 SCC 619
18 (2001) 4 SCC 734
19 (1998) 7 SCC 273
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22. WP(C) 819/2025 filed by the appellant in which the impugned
order has been passed is, in any event, not a public interest litigation.
23. In that view of the matter, WP (C) 819/2025, in our view, was
not maintainable before the learned Single Judge, even on this ground.
24. Besides, we find that WP(C) 819/2025 additionally not
maintainable, for another, equally significant, reason.
25. The appellant instituted OA 1360/2021 before the Tribunal
challenging the appointment of Respondent 4 as GM (Legal). That
OA was dismissed by the Tribunal on 22 July 2021 on the ground that,
as the appellant was not even a contender for the post of GM (Legal),
the OA was not maintainable. The appellant never chose to challenge
the said judgment. In other words, the appellant acceded to the
position that as a person who was not a contender for the post of GM
(Legal), he could not maintain an individual challenge to the
appointment of Respondent 4 to the said post – which, in fact, was the
correct position in law.
26. Having not chosen to challenge the order dated 22 July 2021
passed by the Tribunal in OA 1360/2021, we are at a loss to
understand how the appellant could file writ petition after writ petition
challenging the appointment of Respondent 4 as GM (Legal).
27. We do not wish to say anything further.
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28. Clearly, the learned Single Judge was justified in declining to
entertain the writ petition.
29. The appeal is, accordingly, dismissed, with no orders as to
costs.
C. HARI SHANKAR, J.
AJAY DIGPAUL, J.
MARCH 6, 2025/yg
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