Procedural technicalities should take a back seat in PIL: Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.191721 Anand Vaibhav Son of Gayaneshwar Singh resident of Village Mohalla Block Colony Satyendra Nagar P.O. and P.S. Aurangabad District ... Petitioner s The State of Bihar through Principal Secretary Higher Education Department Govt. of Bihar Patna The Principal Secretary Higher Education Department New Secretariat The Vice Chancellor Magadh University Bodh Gaya District Gaya The Registrar Magadh University Bodh Gaya District Gaya 5. Dr. Ganesh Mahto the Principal of Ram Lakhan Singh Yadav College Aurangabad Sahapur P.O. and P.S. Aurangabad District Aurangabad Sri Janardan Singh Son of Dev Raj Singh resident of Village and P.S Kachhwan District Rohtas at present posted as Head Clerk at Ram Lakhan Singh Yadav College AurangabadFor a direction to the respondent University authorities to take an action in view of the enquiry report dated 05.01.2018 submitted by enquiry committee of Magadh university against the Private Respondent no. 6 who has ruined the healthy reaching atmosphere of the College by misusing his post of Head clerk in the said College b) For a direction to the respondent University to cancel the appointment letter of the Respondent no. 6 i.e. dated 10.05.2021 which has been issued by Respondent no. 5 without jurisdiction and contrary to provision of law by appointing to respondent no.6 on the post of Head clerk in Ram Lakhan Singh Yadav College Aurangabad c) For a direction to the respondent State authority to take legal action against Respondent no.6 by lodging F.I.R. for obtaining post of head clerk in the said college by committing forgery in obtaining his initial appointment letter and he is posted in the said college on the basis of fake appointment letter which is clear from the enquiry report also submitted by enquiry committee dated 05.01.2018 d) For any other order orders on the basis of facts and circumstances stated herein after of the The Hon’ble Supreme Court in D. N. Jeevaraj Vs Chief Secretary Government of Karnataka & Ors 2 SCC 653 paragraphs 34 to 38 observed as under: Patna High Court CWJC No.191721 dt.05 01 2022 “34. The learned counsel for the parties addressed us on the question of the bona fides of Nagalaxmi Bai in filing a public interest litigation. We leave this question open and do not express any opinion on the correctness or otherwise of the decision of the High Court in this regard. 35. However we note that generally speaking procedural technicalities ought to take a back seat in public interest litigation. This Court held in Rural Litigation and Entitlement Kendra v. State of U.P Rural Litigation and Entitlement Kendra v. State of U.P. 1989 SuppSCC 504] to this effect as follows SCC p. 515 para 16 “16. The writ petitions before us are not inter parties disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations procedural laws do not apply. At the same time it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court.” 36. A considerable amount has been said about public interest litigation in R&M Trust3 SCC 91] and it is not necessary for us to dwell any further on this except to say that in issues pertaining to good governance the courts ought to be somewhat more liberal in entertaining public interest litigation However in matters that may not be of moment or a litigation essentially directed against one organisation or individualought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies 37. In such cases that might not strictly fall in the category of public interest litigation and for which other remedies are available insofar as the issuance of a writ of mandamus is concerned this Court held in Union of India v. S.B. Vohra 2 SCC 150: 2004 SCC363] that SCC p. 160 paras 12 13 Patna High Court CWJC No.191721 dt.05 01 2022 Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King s Bench directing performance of a public legal duty 13. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted.” 38. A salutary principle or a well recognised rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v Union of India 2 SCC 630] in the following words:Vol. 11 p. 106 ‘198. Demand for performance must precede application.—As a general rule the order will not be granted unless the party complained of has known what it was he was required to do so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that Patna High Court CWJC No.191721 dt.05 01 2022 which the party seeking the mandamus desires to enforce and that that demand was met by a refusal.’ 25. In the cases before us there was no such demand or refusal. Thus no ground whatsoever is shown here for the issue of any writ order or direction under Article 226 of the After the matter was heard for some time learned counsel for the petitioner under instructions states that petitioner shall be content if a direction is issued to the authority concerned to consider and decide the representation which the petitioner shall be filing within a period of four weeks from today for redressal of the grievance(s). Learned counsel for the respondents states that if such a representation is filed by the petitioner the authority concerned shall consider and dispose it of expeditiously and preferably within a period of four months from the date of its filing along with a copy of this order. Statement accepted and taken on record. As such petition stands disposed of in the following terms: a) Petitioner shall approach the authority concerned within a period of four weeks from today by filing a representation for redressal of the grievance(s) b) The authority concerned shall consider and dispose it of expeditiously by a reasoned and speaking order preferably Patna High Court CWJC No.191721 dt.05 01 2022 within a period of four months from the date of its filing along with a copy of this order c) Needless to add while considering such representation principles of natural justice shall be followed and due opportunity of hearing afforded to the parties d) Equally liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law e) We are hopeful that as and when petitioner takes recourse to such remedies as are otherwise available in law before the appropriate forum the same shall be dealt with in accordance with law and with reasonable dispatch Liberty reserved to the petitioner to approach the Court if the need so arises subsequently on the same and subsequent cause of action issues are left open g) We have not expressed any opinion on merits. All h) The proceedings during the time of current Pandemic Covid 19 shall be conducted through digital mode unless the parties otherwise mutually agree to meet in person i.e. physical mode The petition stands disposed of in the aforesaid terms. Patna High Court CWJC No.191721 dt.05 01 2022 Interlocutory Application(s) if any stands disposed of. Sanjay Karol CJ) ( S. Kumar J

Summary: When an issue of severe public importance is up for review before the court, every technicality in the procedural law is not accessible as a defence. Procedural technicalities should take a back seat in public interest litigation as in public interest litigations, procedural laws do not apply is upheld by the High Court of Patna through the learned bench led by HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR in the case of Anand Vaibhav Vs. The State of Bihar (Civil Writ Jurisdiction Case No.19179 of 2021) Brief facts of the case are that the Petitioner has asked for a directive to the respondent University authorities to take action in light of the inquiry report dated 05.01.2018 submitted by the Magadh University enquiry committee against the Private Respondent who has ruined the healthy reaching atmosphere of the College by misusing his post of Head Clerk in the said College, as well as a directive to the respondent University to cancel the Respondents appointment letter dated 10.05.2021 which has been issued by other Respondent, contrary to provision of law by appointing on the post of Head clerk in Ram Lakhan Singh Yadav College Aurangabad. Further, the petitioner has requested that the respondent State authority take legal action against Respondent by filing an F.I.R. for obtaining the post of head clerk in the said college by committing forgery in obtaining his initial appointment letter and he is posted in the said college on the basis of a fake appointment letter, as evidenced by the enquiry committee’s report dated 05.01.2018. Under instructions, learned counsel for the petitioner states that if a direction is issued to the authority concerned to consider and decide the representation that the petitioner will be filing within four weeks from today for redress of the grievance, the petitioner will be satisfied, whereas learned counsel for the respondents states that if such a representation is filed by the petitioner, the authority concerned will consider and dispose of it expeditio. According to Rural Litigation and Entitlement Kendra v. State of U.P.  1989 Supp (1) SCC 504, the Hon’ble Supreme Court in D. N. Jeevaraj Vs. Chief Secretary, Government of Karnataka &amp; Ors, (2016) 2 SCC 653, procedural technicalities should take a back seat in public interest litigation. Court further stated that Saraswati Industrial Syndicate Ltd. v. Union of India expressed a salutary principle or well-known rule that should be kept in mind before issuing a writ of mandamus. As stated in “Demand for performance must precede application,” there is no such demand or refusal. As a result, there is no basis for issuing any writ, order, or direction under Article 226 of the Constitution. Petitioner shall approach the authority concerned within four weeks by filing a representation for redress of the grievance, and the authority concerned shall consider and dispose of it expeditiously by a reasoned and speaking order, preferably within four months from the date of its filing, along with a copy of this order, and while considering such representation, natural justice principles shall be followed and due opportunity of hearing afforded to the parties. The petition is dismissed, and the procedures will be handled in digital mode during the current Pandemic-Covid-19, unless the parties mutually agree to meet in person, i.e. physical mode. Click here to read the judgment