A.G. Prayagi vs State Of M.P. And Ors.

on 11 April, 1986

Madhya Pradesh High Court

A.G. Prayagi vs State Of M.P. And Ors. on 11 April, 1986
Equivalent citations: AIR 1987 MP 25
Author: C Sen
Bench: C Sen, M Bhatt
JUDGMENT C.P. Sen, J.

1. The petitioner stating to be a tax-payer and citizen of India has filed this petition claiming the
following reliefs : --

"It is therefore prayed that this Hon'ble Court may be pleased to issue a writ of Mandamus to
respondent 1 to remove respondent 2 from the Cabinet, institute an enquiry against, him for the
misuse of public funds and powers and further issue a writ of Mandamus to respondent 1 to remove
respondent 3 and appoint a suitable senior person, review all promotional cases handled by
respondent 2 during his tenure and hold enquiries against the guilty officers. This Hon'ble Court
may further be pleased to issue such other orders/directions/instructions as may be deemed fit in
the interest of justice.

2. The respondent 1 is the State of M. P., the respondent 2 Cabinet Minister of Public Health and the
respondent 3 Engineer-in-chief (E in C) of Public Health Engineering Department (PHE) i.e. Head
of that Department. The petitioner's case is that the respondent 2 as the Minister in charge of PHE
Department has given out-of turn promotion as E in C to respondent 3 who happened to be his
favourite by sending his seniors to looplines although there was complaint of serious nature under
process involving excess expenditure of 8 to 10 crores in Narmada Water Supply Project of Indore,
with full grazing ground of the department with 25-35 crores worth budget at his disposal. During
his regime, all the Chief Engineers promoted (named) including the respondent 3 are all having
blemished record, similarly 19 Executive Engineers have been promoted as Superintending
Engineers in spite of complaints against them but has not cared to fill up the posts of Executive
Engineers. These have all been done with ulterior motives to misuse public funds by inducting
inefficient and corrupt officers and by shielding them. Huge purchases were made of substandard
material at the cost of public exchequer as per complaint of Shri Shitla Sahai M. L. A. The
respondents 2 and 3 have no place for rules in their working, with the result, out of 334 officers in
the Department, 174 officers have gone to Court of law for seeking justice. Even low paid employees
are also harassed and they went on strike. Nobody has any time to look into their grievances as the
respondents 2 and 3 are busy in the summer money harvesting season. Funds are being misused to
the detriment of the Department. There is vulgur misuse of power by the respondent 2.

3. According to the respondent 3, the petition is misconceived, there is no allegation of violation of

any legal or fundamental rights. The petitioner has not shown how he is an aggrieved person. The
petitioner is an Executive Engineer under suspension and he has been charge-sheeted for making
illegal purchases worth crores of rupees, action was taken on the report of Lok Ayukta and D. E, is
pending. Out of frustration, he has indulged in reckless and wild allegations unbecoming of a
Government officer. The petitioner has suppressed these facts and has filed the petition saying that
he is a tax-payer. The petition has been filed only to malign the respondents 2 and 3. If there has

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 A.G. Prayagi vs State Of M.P. And Ors. on 11 April, 1986

been misuse or misutilisation of public funds, it is by the petitioner himself. The subject about the
Council of Ministers and their mutual responsibility is governed by Articles 163 and 164 of the
Constitution and they have joint responsibility. They are accountable to the State Legislature. Then
there is the institution of Lok-Ayukt to look into all such complaints. So the allegations made cannot
be subject matter of judicial scrutiny. The respondent 3 was promoted as Chief Engineer in 1979
when Janta Party was in power. His promotion as E in C was recommended by D. P. C. headed by
the Chief Secretary under the M. P. Public Health Engineering (Gazetted) Service Rules, 1980, and
approved by the cabinet, after receiving concurrence of the State Public Service Commission. The
respondent 3's seniors were not superseded, they were given equally important assignments in
equivalent rank. The complaint against respondent No. 3 was withdrawn after being investigated by
Chief Technical Examiner (Vigilance). The Indore Water Supply Project was taken up in 1972-73
and completed in 1977-78, when respondent 2 was not a Minister. There were high leval boards
constituted to execute the project besides there was a State Adviser. The respondent No. 3 was not
the policy making authority nor authority for accepting tenders nor solely responsible for executing
the project, he had merely to carry out and supervise the works entrusted to him. The works were
duly checked and audited. Some objection was taken in the report of the Auditor and Comptroller
General about excess rate of labour payments but the Public Accounts Committee had enquired the
matter and found no excess payment, the payments were made at the rates given by other
Departments. The Project is a unique monument for India as it is first of its kind in India, praised
very highly by the world Bank and other international agencies. All promotions have been made
strictly as per rules. Officers implicated have not been made parties. All purchases were made
through Director General of Supplies and Disposals and the State Laghu Udyog Nigam. Complaints
are being investigated by Lok-Ayukt and action taken as per recommendations. No protection is
given to any inefficient or corrupt officer. All public funds are used in public interest for the good of
the public in general. There is no misuse or misutilization of funds or powers.

4. The respondents 1 and 2 in their return submitted that the petitioner is an Executive Engineer
under suspension facing grave charges. This is not a petition by a citizen who has filed it in public
interest so as to make this public interest litigation. The forum of the High Court under Article 226
has been misused by the petitioner against whom D. E. is pending at the instance of the Lok Ayukt,
which brought to the notice of the Government the corruption of the petitioner during his tenure as
E. E. & S. E. The Government is thinking of starting another enquiry relating to his tenure as S. E in
respect of illegalities, irregularities and misutilisation of funds. Such a Government servant in the
garb of an innocent citizen has come to this Court and made wild, baseless and false allegations
against the respondents. The charge against him will show how much he cares for public funds in
public interest. He has acted as a most irresponsible public servant and during suspension has
committed acts of gross indiscipline and acted without restraint to make defamatory statements
only to pressurise the respondent 2. He has been appointed as a Cabinet Minister on the advice of
the Chief Minister and holds office at the pleasure of the Governor and the council of Ministers is
collectively responsible to the State Legislature. If a Minister does not discharge his duty in
accordance with constitution and law, there are many checks provided. He is answerable to the
Legislature and can be dismissed by the Governor on the advice of the Chief Minister. The Public
Accounts Committee of the Legislature keeps constant checks by scrutinizing the expenditures of
each department. The Comptroller and Auditor General also exercises control over the accounts

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 A.G. Prayagi vs State Of M.P. And Ors. on 11 April, 1986

through the Accountant General. Besides, there is Lok Ayukt constituted under a statute and has
power to investigate into complaints against Minister and public servants. The petitioner wants this
Court to exercise the powers of the Legislature, Auditor General and Lok Ayukt, who are
constitutional and statutory functionaries. The petitioner has suppressed that he is a delinquent
public servant facing grave charges and is masquerading as a tax payer to grind his own axe in the
form of public interest litigation. No writ of mandamus can be issued to direct the Chief Minister to
remove a Minister at the instance of a subordinate officer facing charges of corruption. Under the
Constitution, it is prerogative of the Governor on the advice of the Chief Minister. No writ of
mandamus can be granted to direct the Minister to remove his Head of the Department. The
allegations of the petitioner require investigation of facts and Article 226 is not the forum for it. The
forum for enquiry into complaints against Ministers and public servants is the Lok Ayukt. The
petition has been filed mala fide by suppressing material facts. The petitioner's allegations are false
and made with ulterior motives to malign the respondents. The Public Accounts Committee has not
found any irregularity in execution of the Narmada Project and the complaints were found baseless
when enquired into by. Chief Technical Examiner (Vigilance).

5. We have to consider for the present maintainability of this public interest litigation at the instance
of the petitioner i.e. his locus standi and as to whether reliefs prayed can be granted by this Court
under Article 226 of the Constitution. So it is not necessary at this stage to go into the merits of the
imputations made in the petition.

6. The Supreme Court in the Judges' case of S. P. Gupta v. Union of India, AIR 1982 SC 149 has held
as under : --

"The individual who moves the Court for judicial redress in a public interest litigation must be
acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or
private profit or out of political motivation or other oblique consideration, the Court should not
allow itself to be activised at the instance of such a person and must reject his application at the
threshold. As a matter of prudence and not as a rule of law, the Court may confine this strategic
exercise of jurisdiction in cases where legal wrong or legal injury is caused to a determinate class or
group of persons or where constitutional right is violated and as far as possible not entertain cases of
judicial redress. But 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, any member of the public can maintain an application for appropriate direction, order or
writ. The cases may arise where there is undoubtedly public injury by the act or omission of the
State or Public Authority but such act or omission also causes specified injury to an individual or to
a specified group of individuals."

Again the Supreme Court in Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 has held
that the Court would not, in exercise of its discretion, intervene at the instance of a meddlesome
interloper or busy body and would ordinarily insist that only a person whose fundamental right is
violated should be allowed to activise the Court Where however, the fundamental right of person or
class of persons is violated but who cannot have recourse the Court on account of their poverty, or
disability or socially or economically disadvantaged position, the Court can and must allow a

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 A.G. Prayagi vs State Of M.P. And Ors. on 11 April, 1986

member of the public acting bona fide to espouse their cause.

7. The petitioner has filed this petition claiming to be an innocent tax-payer by suppressing the fact
that he is a public servant under suspension facing serious charges of corruption at the instance of
the Lok Ayukt and is facing Departmental Enquiry. He has chosen the forum of writ jurisdiction to
defame and denigrate his Minister and Head of the Department. If all the facts alleged are true,
what made him to wait and to file this petition only after he was suspended and charge-sheeted. It is
obvious that he wants to throw mud on his superiors for obvious reasons. A public servant can take
recourse to Court of law for legitimate grievances but cannot use those proceedings for making
reckless, wild insinuations and aspertions against his superiors. The petition has not been filed bona
fide but has been filed to defame his superiors for ulterior reasons. Certain irregularities in labour
payments found by the Auditor and Comptroller General of India in the Indore Narmade Project
were examined by the Public Accounts Committee of the State Legislature under Rules 221 and 222
of the Rules of business of the Government. The Committee was headed by Shitla Sahai, opposition
MLA and has found no irregularity in payment. In fact, it has highly commended for execution of
the Project efficiently and before the time limit, setting an example to other Projects. The word of P.
A. C. is the last word on the subject. The complaints about irregularities in execution of the Project
were examined by the Chief Technical Adviser (Vigilance) and he found nothing wrong in it. The
respondent 3 was appointed as Chief Engineer by Janta Government in 1979 and his promotion as E
in C in 1982 was not by the respondent 2 but by the Cabinet on the recommendation of the D. P. C.
headed by Chief Secretary under the statutory rules after obtaining concurrence of the Public
Service Commission. So the petitioner has no locus standi to file this petition.

8. Under Article 163 of the Constitution, there shall be a Council of Ministers with the Chief Minister
as the head. Under Article 164, Governor appoints a Minister on the advice of the Chief Minister and
holds office during the pleasure of the Governor. A Minister can be dismissed by the Governor on
the advice of the Chief Minister. The Cabinet is accountable to the State Legislature and can hold
office so long it enjoys the confidence of the Legislature. The State has enacted M. P.

Lok Ayukt Evam Up-Lok Ayukt Adhiniyam, 1981, and under Section 7 they are empowered to
enquire into allegations of misuse of power favouritism, nepotism and corruption against Ministers
including Chief Minister and public servants. Action can be taken by the Government on the report
under Section 12.

Article 226 is not the forum at the first instance to enquire into the allegations made by the
petitioner against the Minister and the Head of the Department, more so when the allegations are
controverted as being false and malicious. The writ jurisdiction cannot be used to wash dirty linen.
This Court cannot issue a writ of Mandamus to the Chief Minister to advice the Governor to dismiss
the respondent No. 2 and to the Minister to dismiss the respondents. The petitioner, if he has
genuine grievances to make, should approach the Lok Ayukt and Up-Lok Ayukt.

The petition is incompetent and the prayer made in the petition is outside the purview of this Court
The petitioner's two petitions M. P.

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 A.G. Prayagi vs State Of M.P. And Ors. on 11 April, 1986

Nos. 950 and 2047 of 84 against his suspension.

and D. E. will be considered on their own merits.

9. Accordingly, the petition is dismissed with costs. Counsel's fee Rs. 250/-, if certified.

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