Ashok Kumar Kamal Urf Kaval v. State of U.P. and Another

Court No. - 6 Case :- WRIT - C No. - 36917 of 2023 Petitioner :- Ashok Kumar Kamal Urf Kaval Respondent :- State of U.P. and Another Counsel for Petitioner :- Chandra Bhan Kushwaha Counsel for Respondent :- CSC Hon'ble Mrs. Manju Rani Chauhan,J. The instant petition has been filed with a prayer to decide the petitioner's representation dated 10.04.2023 within some stipulated period. Learned counsel for the petitioner submits that a writ petition being Writ-C No. 7622 of 2023 was filed by the petitioner challenging the order dated 20.07.2022, vide which second appeal filed by the petitioner was dismissed. The petition was disposed of permitting the petitioner to file a fresh application before the Entertainment Commissioner, who was expected to decide the same in accordance with law expeditiously. In compliance of the said order, the petitioner is stated to have filed a representation dated 10.04.2023 which has not been decided till date. Learned counsel for the petitioner submits that though the petitioner is being called by respondent no. 2 but no final orders have been passed. Learned Standing Counsel submits that in case the representation of the petitioner has not been decided within stipulated period as directed by the Court, he should have filed a contempt petition. Even otherwise, the writ petition with single prayer to decide the representation is not maintainable. In support of his contention, he relied upon the judgment of the Apex Court in the case of A.P.S.R.T.C. & Ors. vs. G. Srinivas Reddy & Ors. reported in AIR 2006 SC 1465, wherein it has been held that a writ with the prayer to decide the representation is not maintainable if there is no statutory provision for filing the representation. Relevant part of the judgment of the Supreme Court reads as under: - "19. There are also several instances where unscrupulous petitioners with the connivance of "pliable" authorities have misused the direction "to consider" issued by court. We may illustrate by an example. A claim, which is stale, time-barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to "consider" and dispose of the representation. When the court disposes of the petition with a direction to "consider", the authority grants the relief, taking shelter under the order of the court directing him to "consider" the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order "to consider" as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to "consider", may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of the court's direction to "consider" the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily-wagers seeking regularisation/absorption into regular service is a species of cases, where there has been a large-scale misuse of the orders "to consider"." Reference may also be made to the judgement of this Court in the case of Daya Shankar Pande vs. State of U.P. and others, reported in 2001(1) AWC 671. Para 15 of the said judgment reads as follows:- "15.The argument of learned counsel for the petitioner is that against the order passed by D.I.O.S. disapproving petitioner's appointment, the petitioner has filed an appeal/representation on 16.3.1999 before the Deputy Director of Education on

14.11.2000 and a direction be issued for deciding the aforesaid appeal/representation. The argument is devoid of any merit for two reasons. Firstly, Second Order under which the appointments on short-term vacancies are made, do not provide for any appeal/representation to the Deputy Director of Education or the Director of Education. The provision of appeal was only in First Order where appointments against substantive vacancies were made. Since the State Government did not provide for any appeal or representation to the educational authorities against short-term appointments, the appeal/representations of the petitioner were not made under any provision of law, therefore, no direction can be issued for deciding the same. The other reason is that First and Second Orders have been deleted with effect from 25.1.1999 and they being no more in existence, any appeal/representation under First or Second Orders could not be made by the petitioner. Further, it having been held that the appointment of petitioner was defective as it had been made without following the mandatory procedure under the Removal of Difficulties Orders no direction can be issued to educational authorities to decide the appeal/representation of the petitioner." Learned counsel for the petitioner further submits that respondent no. 4 is the competent person under the Right to Information Act, 2005 to give information as required by the petitioner, therefore, the respondent no. 2 should have been impleaded in that capacity which has not been done. In view of the above, the relief claimed cannot be granted as the petitioner does not have any statutory right in his favour to get such representation decided nor there is any statutory obligation on the part of the respondents to decide such representation. Therefore, the writ petition is liable to be dismissed being misconceived. Accordingly, the writ petition is dismissed. No order as to costs. Order Date :- 30.11.2023 DS High Court of Judicature at Allahabad