IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
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CWP No. 1608 of 2019-A
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Date of Decision : July 24 , 2019
Surender Kumar ...Petitioner
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Versus
State of Himachal Pradesh & others. ...Respondents
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Coram:
The Hon’ble Mr. Justice V. Ramasubramanian, Chief Justice.
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The Hon’ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1
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For the petitioner : Mr. Sunil Mohan Goel and Mr. Paras
Dhaulta, Advocates.
For the respondents : Mr. Ashok Sharma, Advocate General with
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M/s J.K. Verma, Ritta Goswami, Adarsh K.
Sharma, Ashwani Sharma & Mr. Nand Lal
Thakur, Additional Advocate Generals for
respondent No. 1.
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: Mr. Amit Singh Chandel, Advocate, for
respondent No. 2.
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: Mr. Shrawan Dogra, Senior Advocate, with
Mr. Bharat Thakur, Advocate, for
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respondent No. 3/Caveator.
V. Ramasubramanian , Chief Justice. (Oral)
Aggrieved by the dismissal of his application by
the Himachal Pradesh Administrative Tribunal, Shimla (in
short referred to as the ‘Tribunal’), refusing to upset the so
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Whether reporters of Local Papers may be allowed to see the judgment?
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called up-gradation of the entries in the Annual Confidential
Reports (in short referred to as the ‘ACRs’) of the 3 rd
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respondent herein, the person working as a Superintending
Engineer in the Himachal Pradesh Housing & Urban
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Development Authority (in short referred to as the
‘HIMUDA’), has come up with the above writ petition.
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2. Heard Mr. Sunil Mohan Goel, learned Counsel for
the petitioner, Mr. J.K. Verma, learned Additional Advocate
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General for the 1st respondent-State, Mr. Amit Singh
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Chandel, learned counsel for the 2nd respondent-HIMUDA
and Mr. Shrawan Dogra, learned Senior Counsel for the 3 rd
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respondent.
3. It appears that in the ACRs of the 3 rd respondent
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herein for the years 2002-03, 2003-04 and 2004-05, the
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Reporting Officer recorded the overall performance as
“Very Good”. But the Reviewing Officer reported it as
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“Good”.
4. Therefore, when a vacancy arose in the
promotional post of Executive Engineer, the Departmental
Promotion Committee which considered the cases of the
petitioner and the 3rd respondent, decided to grant
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promotion to the petitioner herein, despite his being junior
to the 3rd respondent.
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5. Therefore, the 3rd respondent filed an Original
Application in OA No. 1642 of 2007 before the Tribunal. The
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application was transferred to this Court after the abolition
of the Tribunal in the year 2008 and numbered as CWP(T)
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No. 15395 of 2008. The said writ petition filed by the 3 rd
respondent herein was allowed
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18.12.2012, on the ground that the entry made by the
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Reviewing Officer virtually tantamounts to down gradation
and that the same was done in violation of the principles of
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natural justice, with reference to the law laid down by the
Supreme Court in Dev Dutt vs. Union of India, (2008) 8 SCC
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725.
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6. The judgment of the learned Single Judge dated
18.12.2012, in CWP(T) No. 15395 of 2008, passed in favour
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of the 3rd respondent herein was challenged by the
petitioner herein by way of an intra Court appeal in LPA No.
30 of 2013. The appeal was allowed by a judgment dated
23.8.2014 and the matter was remanded back to the
learned Single Judge on the short ground that the HIMUDA
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which is the employer was not even made a party to the
writ petition.
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7. By the time the matter was remanded, the Tribunal
again came back to life. The Tribunal by an order dated
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13.7.2017 passed in the said case and renumbered as T.A.
No. 601 of 2015 allowed the application and directed the 3 rd
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respondent herein to make a representation to the 1 st
respondent rtnamely the Secretary (Housing) to the
Government of Himachal Pradesh. A direction was also
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issued to the Secretary (Housing) to take a decision on any
such representation within two months. A further direction
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was issued to the effect that if the entries are upgraded,
the 3rd respondent shall be considered for promotion
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retrospectively by the Departmental Promotion Committee.
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It may be useful to extract the operative portion of the order
passed by the Tribunal in TA No. 601 of 2015, dated
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13.7.2017, which reads as follows:
“Consequently, the transferred application
is allowed and the applicant is permitted to
make a representation for up-gradation of her
ACRs to 1st respondent, through the Secretary (
Housing) to the Government of Himachal
Pradesh, if she so chooses, within one month
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and the said representation will be decided
within two months thereafter. If her entries are
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upgraded, the applicant shall be considered for
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promotion retrospectively by the Departmental
Promotion Committed within three months
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thereafter and if the applicant gets selected for
promotion retrospectively, she should be given
benefits notionally till the joining.”
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8. Pursuant to the said order, the 3rd respondent made
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a representation on 31.7.2017. The said representation was
considered by the Additional Chief Secretary (Housing) to
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the Government of Himachal Pradesh who passed an order
dated 17.8.2017. By the said order the officer concerned
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upgraded the entries in the ACRs of the 3rd respondent for
the years 2002-03, 2003-04 and 2004-05 from “Good” to
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“Very Good”.
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9. Challenging the said order of the Additional Chief
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Secretary (Housing) dated 17.8.2017, the petitioner herein
filed an Original Application in O.A. No. 342 of 2019 before
the Himachal Pradesh Administrative Tribunal.
10. The Tribunal dismissed the said application O.A.
No. 342 of 2019 of the petitioner herein, by an order dated
10.7.2019 on the short ground that in a matter which is
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purely between an employer and an employee, the
petitioner will have no locus standi to question the nature of
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the entries made in the ACRs of the 3rd respondent. In any
case, the Tribunal also felt that there was no scope for
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judicial review in such cases. Aggrieved by the said order,
the petitioner has come to this Court by way of the above
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writ petition.
11. The impugned order of the Tribunal rejecting his
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application on the ground of locus standi, is challenged by
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the petitioner primarily on two grounds namely (a) that by
virtue of the law laid down by the Supreme Court, a co-
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employee has a right to challenge the expunction of the
adverse entries made in the ACRs of another employee and
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(b) that in any case in a writ petition filed by the petitioner
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in CWP No. 1896 of 2017, challenging the order of the
Tribunal, liberty was given to him to challenge the
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proceedings of the Appellate Authority.
12. Let us take the first ground of attack. Relying upon
the judgment of the Supreme Court in Lakhi Ram vs. State
of Haryana & others, (1981) 2 SCC 674, it is contended by
the learned counsel for the petitioner that a co-employee
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who has better chances of promotion in the event of the
entries in the ACRs of his colleague remaining as such, has
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a locus standi to challenge the modification of the entries.
Let us take a look at the judgment in Lakhi Ram (supra).
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13. The judgment of the Supreme Court in Lakhi Ram
(supra) is actually a brief order running to two paragraphs.
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Therefore the first paragraph which contains the portion
purportedly in favour of the writ petitioner can be extracted
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as follows:
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“The only ground on which the writ
petition filed by the appellant has been
dismissed by the High Court is that the
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appellant has no locus standi to maintain the
writ petition. The appellant filed the writ
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petition challenging the action of the
government expunging the adverse remarks
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made in the annual confidential report of
respondent 6. The High Court took the view
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that the appellant was not entitled to complain
against the expungement of adverse remarks
made in the confidential report of another
officer. But this view is, in our opinion,
erroneous because the effect of expungement
of adverse remarks in the confidential report of
respondent 6 is to prejudice the chances of
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promotion of the appellant and if the appellant
is able to show that the expungement of the
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remarks was illegal and invalid, the adverse
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remarks would continue to remain in the
confidential report of respondent 6 and that
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would improve the chances of promotion of the
appellant vis-a-vis respondent 6. The appellant
was, therefore, clearly entitled to show that
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the government acted beyond the scope of its
power in expunging the adverse remarks in
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the confidential report of respondent 6 and
that the expungement of adverse remarks
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should be cancelled. The appellant had, in the
circumstances, locus standi to maintain the
writ petition and the High Court was in error in
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rejecting it on the ground that the appellant
was not entitled to maintain the writ petition.”
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14. It may be seen from the portion extracted above
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that the Supreme Court pronounced an opinion about
adverse remarks and the expunction of the same and the
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adverse effect of such expunction upon the promotional
prospects of other employees. The case did not deal with
the situation like the one in hand. In the situation on hand,
the Reporting Officer recorded “Very Good” for all the three
years in question but the Reviewing Officer reported “Good”
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for all the three years. By virtue of the liberty granted by
this Court to the 3rd respondent to file a representation and
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the direction issued by this Court, the Additional Chief
Secretary (Housing), who appeared to be an Appellate
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Authority, came to the conclusion that the entry recorded
by the Reviewing Officer without any reason was not
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correct. Therefore, the Appellate Authority has restored the
entries as originally suggested by the Reporting Officer and
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cancelled the entry made by the Reviewing Officer. This is
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not a case where the 3rd respondent suffered an adverse
entry in the ACR and the same was expunged so as to
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enable the petitioner to take advantage of the order passed
by the Supreme Court in Lakhi Ram (supra).
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15. As fairly pointed out by the learned counsel for the
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petitioner himself, the decision in Lakhi Ram (supra) was
also considered by a three number Bench of the Supreme
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Court in Chandra Gupta, I.F.S. vs. Secretary, Govt. of India,
Ministry of Environment & Forests & others, (1995) 1 SCC
23.
16. In paragraph-14 of the said judgment the Supreme
Court referred to the opinion expressed by a two number
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Bench in Lakhi Ram (supra) to the effect that an officer
whose chances of promotion are prejudiced by the
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Government’s action, expunging the adverse remarks has
locus standi to maintain a writ petition challenging the
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expunction.
17. After having extracted the opinion rendered in
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Lakhi Ram (supra) in paragraph-14 of the judgment in
Chandra Gupta (supra), the Supreme Court formulated a
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short question that arose for consideration in Chandra
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Gupta (supra) in para-20. No question was raised in
paragraph-20 about the locus of a person or about the view
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expressed in Lakhi Ram (supra).
18. However, in paragraph-24 of its decision in
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Chandra Gupta (supra), the Supreme Court extracted the
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operative portion of the judgment in Lakhi Ram (supra).
What the Supreme Court said thereafter in paragraph-25 is
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what is important. In paragraph-25, the Supreme Court
indicated after extracting the judgment in Lakhi Ram
(supra) that what is required to be carefully noted is that
the Court was considering the effect of expungement of
adverse remarks which was likely to prejudice the chances
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of promotion. The Court went on to say that it is well
settled that no employee has a right or vested right to
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chances of promotion. A series of judgments of the Supreme
Court were cidted in paragraph-27 of the judgment in
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Chandra Gupta (supra) to the effect that mere chances of
promotion will not give rise to a right or vested right to
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promotion.
19. Therefore, it is clear that the decision in Lakhi Ram
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(supra), was not taken to be a final word in Chandra Gupta
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(supra).
20. Paragraph – 25 of the judgment in Chandra Gupta
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(supra), is to the clear effect that cases of expunction of
adverse remarks [even if Lakhi Ram (supra) is taken to be
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laying down the correct position of law] will stand on a
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different footing than cases of this nature where there were
no adverse remarks. Hence the first contention with regard
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to the locus standi raised by the learned counsel for the
petitioner cannot be accepted.
21. Primarily the entries in the ACRs of an employee
are matters of both subjective and objective opinion by the
Reporting Officer, confirmed or modified by the Reviewing
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Officer, subject however to the remedies available under
the relevant Rules or the Notifications. It is actually a
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matter between an employer and the concerned employee.
No other employee can challenge the entries so made in the
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ACRs of any other person. In case of adverse remarks, a
co-employee merely takes advantage of the entries made in
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the ACRs of his colleague. But no one has a right to say
whether another employee’s performance shall be assessed
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as ‘Poor’, ‘Average’, ‘Satisfactory’, Good’, ‘Very Good’ or
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‘Excellent’.
22. We can look it at from another angle. Let us take a
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hypothetical case where the Reviewing Officer has agreed
with the Reporting Officer and has also recorded “Very
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Good” in the ACR of the 3 rd respondent. In such an event,
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would it have been possible for the petitioner to come up
with a challenge to this entry? No. Certainly he cannot.
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23. Therefore, we are of the considered view that the
opinion rendered by the Tribunal that the petitioner has no
locus standi is perfectly in order.
24. Coming to the second ground, it appears that the
order passed by the Tribunal in T.A. No. 601 of 2015, dated
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13.7.2017 giving liberty to the 3 rd respondent to make a
representation and giving a direction to the Secretary
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(Housing) to the Government of Himachal Pradesh to
consider the representation was challenged by the
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petitioner in CWP No. 1896 of 2017. The said writ petition
was disposed of by an order dated 10.12.2018. The
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contention, in the said writ petition, was that the Tribunal
could not have granted any liberty to make a representation
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and could not have directed the Secretary (Housing) to
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pass an order in the said representation.
25. But by the time the writ petition came up for
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hearing, the representation of the 3rd respondent had
already been made and the same had also been allowed by
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an order dated 17.8.2017. Therefore, virtually the writ
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petition in CWP No. 1896 of 2017 had become infructuous
by the time it came to be decided on 10.12.2018. It is in
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that context that liberty was granted to the petitioner to
challenge the consequential action as the events had
overtaken the cause with which the petitioner came to the
Court in CWP No. 1896 of 2017.
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26. Therefore, the liberty granted to the petitioner to
challenge the order passed by the Additional Chief
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Secretary (Housing) cannot be taken to have re-written the
law on the point and conferred the locus standi on the
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petitioner.
27. It is true that the order of this Court in CWP No.
of
1896 of 2017 was also taken on an appeal by the writ
petitioner to the Supreme Court in Special Leave to Appeal
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(C) No. 163 of 2019. Before the Supreme Court the learned
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counsel for the petitioner sought permission to withdraw
the same in view of the liberty given by the High Court to
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pursue the remedy. The brief order of the Supreme Court
dated 14.1.2019 in SLP(C) No. 163 of 2019 reads as follows:
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“Learned counsel for the petitioner seeks
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permission to withdraw the special leave
petition in view of the liberty given by the High
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Court to the petitioner to pursue a suitable
remedy against the order dated 17.8.2017.
Permission to withdraw the petition is
granted.
The Special leave petition is dismissed as
withdrawn.”
28. The above order of the Supreme Court cannot be
taken to have put a seal of approval on the liberty granted
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by this Court to the petitioner to challenge the order dated
17.8.2017. The locus of the petitioner was never questioned
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before this Court in CWP No.1896 of 2017. Therefore, it
could not have been in question before the Supreme Court.
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29. If the locus of the petitioner was not in question
when a liberty was granted and when liberty was granted
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on account of writ petition having become infructuous, the
Tribunal was not barred from considering the question of
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locus standi independently.
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30. Therefore, we are of the considered view that the
impugned order passed by the Tribunal does not call for
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interference. Hence, the writ petition is dismissed.
Pending applications, if any, also stand disposed of
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accordingly.
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(V. Ramasubramanian),
Chief Justice.
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(Anoop Chitkara),
Judge.
July 24 , 2019 (PK)
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