G. Saravanan v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05-10-2005CORAM :THE HONOURABLE MR. MARKANDEY KATJU, CHIEF JUSTICEandTHE HONOURABLE MR. JUSTICE A. KULASEKARANW.P. No. 1676 & 3345 of 2001-O-WP No. 1676 of 2001G. Saravanan.. Petitioner Versus1. The District Employment Officer Krishnagiri Dharmapuri District2. The Managing Director Dharmapuri District Central Co-operative Bank Dharmapuri.. Respondents WP No. 3345 of 2001K.M. Dhanalakshmi.. PetitionerVersus1. The Government of Tamil Nadu rep. by its Secretary to Government Co-operative, Food and Consumer Protection Department Fort St. George Chennai – 600 0092. The Registrar of Co-operative Societies Kilpauk Chennai – 600 0103. The Managing Director Dharmapuri District Co-operative Bank Dharmapuri – 636 7014. The District Employment Officer Krishnagiri Dharmapuri District .. Respondents https://hcservices.ecourts.gov.in/hcservices/ Petitions under Article 226 of The Constitution of India prayingfor a Writ of Mandamus as stated therein.For Petitioners:Mr. R. Thamaraiselvan in both the Writ Petition For Respondents :Mr. V. Ragupathy, Govt. Pleader for R1 in WP 1676/2001 and for RR1, 2 & 4 in WP 3345/2001Mr. K.M. Srirangan for R2 in WP 1676/2001 FOR R3 in WP 3345/2001COMMON ORDERA. KULASEKARAN, JThe prayer in WP No. 1676 of 2001 is for a Writ of Mandamusdirecting the first respondent to sponsor the name of the petitionerherein - Registration No. 5538/1985 to the second respondent forappointment to the post of Assistant in the Dharmapuri District CentralCo-operative Bank Limited, Dharmapuri by considering his seniority inregistration with the Employment Exchange, Krishnagiri.2.WP No. 3345 of 2001 has been filed praying for a Writ ofMandamus forbearing the third respondent from in any manner appointingthe candidates for the post of Assistants pursuant to the publicationdated 22-11-2000 without considering the petitioner's claim forappointment based on petitioner's seniority in the employment exchangeand previous experience.3.The case of the petitioner in WP No. 1676 of 2001 is that hehad completed his higher secondary course in April 1984 and alsounderwent General basic course in Nachiappa Co-operative TrainingInstitute, Salem and passed the Diploma Course in Co-operationconducted by the Tamil Nadu Co-operative Union, Chennai; thatthereafter, the petitioner registered his name in the DistrictEmployment Exchange, Krishnagiri on 12-07-1985 under Registration No.5538/1985; that the petitioner's name was sponsored for employment inCo-operative Housing Society, Krishnagiri by the first respondent on07-01-1988; that the petitioner has also attended the interview, but hewas not selected; that again, his name was sponsored by the firstrespondent and he attended another interview on 02-04-1983 in PrimaryAgricultural Co-operative Bank, but he was not selected; that thepetitioner learnt that second respondent herein has requested the firstrespondent to send eligible candidates for appointment to the post ofAssistant by direct recruitment in their Bank and the first respondentalso sponsored the names of 69 candidates on 09-01-2001, but his namewas not included therein; that the persons who were sponsored by the https://hcservices.ecourts.gov.in/hcservices/ first respondent are juniors to the petitioner in the matter ofregistration of their names in the employment exchange; that thepetitioner has also made representation dated 17-01-2001 to the firstrespondent and requested to sponsor his name; that though the firstrespondent sent a reply by stating that his name will be sponsored, butso far, his name was not sponsored, hence the present writ petition.4.The case of the petitioner in WP No. 3345 of 2001 is that shehad completed her higher secondary examination in 1982, Diploma in Co-operative in 1985 and B.Com Decree in May 1989; that she had alsocompleted Co-operative Supervisor's Training Course in 1985; that sheregistered her name with the fourth respondent and her name wassponsored to the third respondent in respect of the interview held on03-06-1998 for the recruitment of Assistant, but the interview was notheld on that date; thereafter her name was sponsored for interview tothe post of Junior Assistant in Dharmapuri Town Co-operative Bank on17-06-1998 and the same was also not conducted; that the thirdrespondent issued an advertisement in Tamil newspaper on 22-11-2000fixing the age limit of the candidates, with the result, though thepetitioner is senior as per registration, she was not found eligibleand her name was not included; that the petitioner has submittedrepresentations on 05-06-2000 and 23-11-2000 to the third respondent,but the same were not disposed of till date, hence, the present writpetition.5.For the sake of convenience, the writ petitioners shallhereinafter be referred to as 'Petitioners', Dharmapuri DistrictCentral Co-operative Bank as 'Co-operative Societies' and the DistrictEmployment Officer, Krishnagiri as 'employment exchange'.6.The case of the respondent/Dharmapuri District Central Co-operative Bank is that the petitioners cannot seek for a direction toappoint them in their bank based on their seniority in registrationwith employment exchange by issuing Mandamus is devoid of any vested oraccrued fundamental right is not at all maintainable; that theseniority in employment exchange got nothing to do with the selectionprocess; that filling up the post in the bank depends on severalfactors and it would arise as and when the government decides as amatter of policy; that the selection process involve many parameterswhich were meticulously followed; that the petitioners were notselected as they are found not fit; that as per by-law III of Co-operative Societies dated 24-07-1997, cut off date was fixed as 01-10-2000 to determine the age of the candidates eligible to participate inthe interview, which cannot be stated as an arbitary act.7.The other respondents have also taken similar stand, hence,the same is not discussed elaborately.8.For issuance of Mandamus, the petitioners must show thatthere is a statutory duty imposed upon the respondents and there is afailure on their part to discharge that statutory duty. The HonourableSupreme Court in the below mentioned cases held thus;-i) (Dr. Rai Shivendra Bahadur vs. Governing Body of the Nalanda https://hcservices.ecourts.gov.in/hcservices/ College, Bihar Sharif and others) AIR 1962 Supreme Court 1210 whereinin para-5, it was held thus:-"5.....In order that mandamus may issue tocompel the respondents to do something it must beshown that the Statutes impose a legal duty and theappellant has a legal right under the Statutes toenforce its performance. It is, however, whollyunnecessary to go into or decide this question orto decide whether the Statues impose on theGoverning Body of the College a duty which can beenforced by a writ of mandamus because assumingthat the contention of the appellant is right thatthe College is a public body and it has to performa public duty in the appointment of a Principal, ithas not been shown that there is any right in theappellant which can be enforced by mandamus.According to the Statutes all appointments ofteachers and staff have to be made by the GoverningBody and no person can be appointed, removed ordemoted except in accordance with Rules but theappellant has not shown that he has any rightentitling him to get an order for appointment orreinstatement. Our attention has not been drawn toany article in the Statutes by which the appellanthas a right to be appointed or reinstated and if hehas not that right he cannot come to court and askfor a writ to issue. It is therefore not necessaryto go into any other question."ii) (Lekhraj Sathramdas lalvani vs. N.M.Shah, Deputy Custodian cumManaging Officer, Bombay and others) AIR 1966 Supreme Court 334 whereinin para-5, it was held thus:-"5......The reason is that a writ of mandamusmay be granted only in a case where there is astatutory duty imposed upon the officer concernedand there is a failure on the part of that officerto discharge that statutory obligation. The chieffunction of the writ is to compel the performanceof public duties prescribed by statute and to keepthe subordinate tribunals and officers exercisingpublic functions within the limits of theirjurisdictions....... In our opinion, any duty orobligation falling upon a public servant out of acontract entered into by him as such public servantcannot be enforced by the machinery of a writ underArticle 226 of the Constitution......."iii)(Dr. Umakant Saran v. State of Bihar and others) AIR 1973 SC964 wherein in para-10 it was held thus:-"10.This court has pointed out in Dr.RajShivendra Bahadur v. The Governing Body of the https://hcservices.ecourts.gov.in/hcservices/ Nalanda College. 1962(2) Supp SCR 144 = (AIR 1962SC 1210) that in order that mandamus may issue tocompel the authorities to do something it must beshown that the statute imposes a legal duty and theaggrieved party had a legal right under the statuteto enforce its performance. It is contended onbehalf of the State that apart from the fact thatrespondents 5 and 6 had been validly appointed inaccordance with the practice followed by theGovernment, Dr.Saran who was not eligible forconsideration for appointment at the time had noright to question the appointments since he was notaggrieved."9.In this case, the petitioners sought for issuance of Writ ofMandamus to direct the employment exchange to send their names as perseniority in registration and to further direct the co-operative bankto appoint them in a particular post. It is averred by the petitionersthat on earlier occasions, their names were sponsored by theemployment exchange and they attended the interviews conducted by theco-operative societies, but were not selected, subsequently, vacanciesarose in the co-operative societies but due to ban by the Government,appointments were not made and even after lifting of ban, co-operativesocieties failed to proceed immediately for recruitment, later, theybecame ineligible pursuant to the notification dated 22-11-2000published in newspapers by co-operative society, hence juniors who havesatisfied the conditions of the said notification dated 22-11-2000 weresponsored by the employment exchange.10.It is well settled that a writ of mandamus is not a writ ofcourse or a writ of right, but is, as a rule, discretionary. There mustbe a judicially enforceable right, for the enforcement of which amandamus will lie. In the decision reported in (The MunicipalCorporation for Greater Bombay and another vs. The Advance Builders(India) Pvt Ltd and others) AIR 1972 SC 793 in para-13 it was heldthus:-"13. It was, however, contended by the learnedAttorney-General that, after all, a writ ofmandamus is not a writ of course or a writ of rightbut is, as a rule, a matter for the discretion ofthe court. That is undoubtedly the case. It ispointed out by Lord Hathorely in Queen v. ChurchWardens of All saints, Wigan (1875-76) 1 AC 611that upon a prerogative writ there may arise manymatters of discretion which may induce the Judgesto withhold the grant of it – matters connectedwith delay, or possibly with the conduct of theparties; but, as further pointed out by HisLordship, when the Judges have exercised theirdiscretion in directing that which is in itselflawful to be done, no other Court can question thatdiscretion in so directing...."11.To issue Mandamus, there must be a judicially enforceable https://hcservices.ecourts.gov.in/hcservices/ right, for the enforcement of which, Mandamus will lie. The legalright to enforce the performance of a duty must be in the petitionerhimself. In general, therefore, the Court will only enforce theperformance of a statutory duty by public bodies on application by aperson, who can show that he has himself a legal right to insist onsuch performance. Followed (State of Kerala vs. A. Lakshmikutty andothers) AIR 1987 SC 331 wherein in para-33 it was held thus;-"33.....It is well settled that a writ ofmandamus is not a writ of course or a writ of right,but is, as a rule, discretionary. There must be ajudicially enforceable right for the enforcement ofwhich a mandamus will lie. The legal right toenforce the performance of a duty must be in theapplicant himself. In general, therefore, the Courtwill only enforce the performance of statutoryduties by public bodies on application of a personwho can show that he has himself a legal right toinsist on such performance......"12.Hence, we hold that the Mandamus prayed for by thepetitioners cannot be issued as they have no vested or enforceablelegal right. Admittedly, there is no statutory duty imposed upon therespondents, particularly the co-operative society and employmentexchange or failure on their part to discharge that statutory duty.13.The petitioners herein have not challenged their non-selection. The argument that for certain periods ban was imposed bythe Government and if there had been selection during that period orimmediately after lifting the ban, they may have been appointed isuntenable. In this context, it is appropriate to cite the decisionreported (State of Orissa and others v. Bhikari Charan Khuntia andothers) AIR 2003 Supreme Court 4588 wherein in para 8 and 9, it washeld thus:-"8.As was observed by this Court in Govt. ofOrissa, through Secretary, Commerce and TransportDepartment, Bhubaneswar v. Haraprasad Das andothers 1998 (1) SCC 487, whether to fill up or notto fill up a post, is a policy decision and unlessit is arbitrary, the High Court or the Tribunal hasno jurisdiction to interfere with such decision ofthe Government and direct it to make furtherappointments......9. ..... The reasons which persuaded theGovernment to absorb those who were renderedsurplus on account of abolition of octroi and thedecision taken to abolish a substantial number ofposts to minimize expenditure cannot be said to beeither extraneous or irrelevant for the purpose, tobe ignored by the Court in according relief to thewrit petitioners.... https://hcservices.ecourts.gov.in/hcservices/ In view of the said judgment, it is not open to the petitioners toquestion the ban imposed by the Government or compel the authorities toinitiate recruitment proceedings.14.In so far as the averment relating to fixation of age isconcerned, it is well settled that the authorities are entitled to fixthe cut off date. The Honourable Supreme Court in the decisionrendered in (Bhupinderpal Singh v. State of Punjab AIR 2000 SC 2015)in para-13 held thus:-13. Placing reliance on the decisions of thisCourt in Ashok Kumar Sharma v. Chander Shekhar,(1997) 4 JT (SC) 99; A.P. Public Service Commissionv. B. Sarat Chandra (1990) 4 Serv LR 235 (SC);District Collector and Chairman, Vizianagaram SocialWelfare Residential School Society v. M. TripuraSundari Devi (1990) 4 Serv LR 237 (SC); Mrs. RekhaChaturvedi v. University of Rajasthan (1993) 1 JT(SC) 220: (1993) AIR SCW 1488: 1993 Lab IC 1250; Dr.M.V. Nair v. Union of India (1993) 2 SCC 429: (1993AIR SCW 1412) 1993 Lab IC 1111 and U.P. PublicService Commission U.P., Allahabad v. Alpana (1994)1 JT (SC) 94; (1994) AIR SCW 2861), the High Courthas held (i) that the cut-off date by reference towhich the eligibility requirement must be satisfiedby the candidate seeking a public employment is thedate appointed by the relevant service rules and ifthere be no cut-off date appointed by the Rules,then such date as may be appointed for the purposein the advertisement calling for applications; (ii)that if there be no such date appointed, then theeligibility criteria can be applied by reference tothe last date appointed by which the applicationshave to be received by the competent authority. Theview taken by the High Court is supported by severaldecisions of this Court and is therefore wellsettled and hence cannot be found fault with.However, there are certain special features of thiscase which need to be taken care of and justice bedone by invoking the jurisdiction under Article 142of the Constitution vested in this Court so as toadvance the cause of justice."15.When the petitioners herein have not satisfied the conditionsincluding the age, they are not eligible to appear for interview. Hencenot sponsoring their name by the employment exchange is perfectlyvalid.16.Though in the affidavit, the petitioners have not canvassedthe applicability or non-applicability of the Employment Exchanges(compulsory notification of vacancies) Act 1959, in the arguments, itis canvassed that the co-operative societies have not notified thevacancy to employment exchange. The said plea is factually incorrect https://hcservices.ecourts.gov.in/hcservices/ since the petitioners have admitted in their affidavit that theemployment exchange have sponsored certain number of candidates on therequest made by the co-operative society.17.The averments that the representations submitted by thepetitioners were not disposed of by the Co-operative Society isconcerned, it is not incumbent on the part of the society to dispose ofthe same when there is no legal obligation cast upon them. For thesaid reason, we hold that the co-operative society have not committedany violation of the principles of natural justice, which is requiredto be followed as per statute. Similarly, the employment exchangecannot be blamed for not sponsoring the name of the petitioners. 18.In view of the above discussions, we hold that there is nomerit in the writ petitions. Hence, the writ petitions are dismissed.No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrshTo1. The Secretary to The Government of Tamil Nadu Co-operative, Food and Consumer Protection Department Fort St. George Chennai – 600 0092. The Registrar of Co-operative Societies Kilpauk Chennai – 600 0103. The Managing Director Dharmapuri District Central Co-operative Bank Dharmapuri – 636 7014. The District Employment Officer Krishnagiri Dharmapuri District +1cc to Mr.R.Thamarai Selvan Advocate Sr 41474+2ccs to K.M.Srirangan Advocate Sr 41359,41358AKM (CO)km/7.10.W.P. No. 1676 & 3345/2001