S.Arokiya Antony Majeela v. The Joint Director of School Education, Chennai

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 15.09.2011CORAM:THE HONOURABLE MR.JUSTICE S.MANIKUMARW.P.(MD).No.10488 of 2011 andM.P.(MD).No.1 of 2011S.Arokiya Antony Majeela: PetitionerVs.1.The Joint Director of School Education, Chennai.2.The Chief Educational Officer, Kanyakumari District.: RespondentsPRAYER: Writ Petition is filed under Article 226 of the Constitution ofIndia praying for the issue of a Writ of Mandamus, directing the 1strespondent to consider the representation of the petitioner dated20.07.2011 and thereby to transfer the petitioner to any one of thevacancy in PG Assistant (Chemistry) in Kanyakumari District in theexisting vacancy or in the future vacancy.For Petitioner: Mr.RamanathanFor Respondent: Mr.S.Chandra SekarGovernment AdvocateORDERAccording to the petitioner, she is working as a HigherSecondary PG Assistant (Chemistry), in Government Higher SecondarySchool, Sevalpatti, Virudhunagar District. It is the contention of thepetitioner that though the Government, have issued instructions inletter No.54102/A2/74S dated 02.01.1975, Education Department, to theeffect that while effecting transfers of teachers, the length of servicerendered by a teacher outside Kanyakumari District should be thecriterion for deciding the case and those who stayed outside KanyakumariDistrict should necessarily be given preference. The aforesaidinstruction has been given in the year 1975 and currently, a counsellingsystem is in vogue, while ordering transfers. That apart no rule orregulation has been placed before this court to substantiate that thecircular of the year 1975 has been issued with reference to any rule orregulation. In the absence of the petitioner establishing a legal orstatutory right, and establishing a consequential failure on the partof the respondents, this court is not inclined to issue any mandamus, inview of the following decisions:i)(1996) 9 SCC 309 (State of U.P. and Ors. v. Harish Chandra andOrs.)ii)(2004) 2 SCC 150 (Union of India v. S.B. Vohra)iii)(2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder LalJain) 2.Further material on record disclose that pursuant to thedirections of this court in W.P.(md).11249 of 2010 dated 30.08.2010, the https://hcservices.ecourts.gov.in/hcservices/ 2Joint Director of School Education, (Higher Secondary), Chennai hasissued proceedings in O.Mu.No.87338/W2/E2/10 dated 22.09.2010 statingthat the petitioner's letter dated 25.08.2010 would be considered, atthe time of general counselling as per the guidelines.3.In such circumstances, mandamus sought for cannot be issued.However, liberty is given to the petitioner, to work out his remedybefore the appropriate forum.4.As regards mandamus, it is pertinent to extract few decisionsas to when mandamus can be issued. (a)In the decision reported in (1996) 9 SCC 309 (State of U.P.and Ors. v. Harish Chandra and Ors.) in paragraph 10, the Apex Courtheld as follows:10. ...Under the Constitution a mandamus canbe issued by the court when the applicantestablishes that he has a legal right to theperformance of legal duty by the party against whomthe mandamus is sought and the said right wassubsisting on the date of the petition....(b) In the decision reported in (2004) 2 SCC 150 (Unionof India v. S.B. Vohra) the Supreme Court considered the saidissue and held that 'for issuing a writ of mandamus in favourof a person, the person claiming, must establish his legalright in himself. Then only a writ of mandamus could be issuedagainst a person, who has a legal duty to perform, but hasfailed and/or neglected to do so.(c) In the decision reported in (2008) 2 SCC 280(Oriental Bank of Commerce v. Sunder Lal Jain) in paragraphs11 and 12 the Supreme Court held thus,11. The principles on which awrit of mandamus can be issued have been stated asunder in The Law of Extraordinary Legal Remedies byF.G. Ferris and F.G. Ferris, Jr.:Note 187.-Mandamus, at commonlaw, is a highly prerogative writ, usually issuingout of the highest court of general jurisdiction, inthe name of the sovereignty, directed to any naturalperson, corporation or inferior court within thejurisdiction, requiring them to do some particularthing therein specified, and which appertains totheir office or duty. Generally speaking, it may besaid that mandamus is a summary writ, issuing fromthe proper court, commanding the official or boardto which it is addressed to perform some specificlegal duty to which the party applying for the writis entitled of legal right to have performed.Note 192.-Mandamus is, subject to theexercise of a sound judicial discretion, theappropriate remedy to enforce a plain, positive,specific and ministerial duty presently existing andimposed by law upon officers and others who refuse https://hcservices.ecourts.gov.in/hcservices/ 3or neglect to perform such duty, when there is noother adequate and specific legal remedy and withoutwhich there would be a failure of justice. The chieffunction of the writ is to compel the performance ofpublic duties prescribed by statute, and to keepsubordinate and inferior bodies and tribunalsexercising public functions within theirjurisdictions. It is not necessary, however, thatthe duty be imposed by statute; mandamus lies aswell for the enforcement of a common law duty.Note 196.-Mandamus is not a writ ofright. Its issuance unquestionably lies in the soundjudicial discretion of the court, subject always tothe well-settled principles which have beenestablished by the courts. An action in mandamus isnot governed by the principles of ordinarylitigation where the matters alleged on one side andnot denied on the other are taken as true, andjudgment pronounced thereon as of course. Whilemandamus is classed as a legal remedy, its issuanceis largely controlled by equitable principles.Before granting the writ the court may, and should,look to the larger public interest which may beconcerned-an interest which private litigants areapt to overlook when striving for private ends. Thecourt should act in view of all the existing facts,and with due regard to the consequences which willresult. It is in every case a discretion dependentupon all the surrounding facts and circumstances.Note 206.- ... The correct rule isthat mandamus will not lie where the duty is clearlydiscretionary and the party upon whom the duty restshas exercised his discretion reasonably and withinhis jurisdiction, that is, upon facts sufficient tosupport his action.12. These very principles have been adoptedin our country. In Bihar Eastern Gangetic FishermenCoop. Society Ltd. v. Sipahi Singh after referringto the earlier decisions in Lekhraj SathramdasLalvani v. N.M. Shah, Rai Shivendra Bahadur (Dr.) v.Nalanda College and Umakant Saran (Dr.) v. State ofBihar this Court observed as follows in para 15 ofthe Reports (SCC): (Sipahi Singh case, SCC pp. 152-53)15. ... There is abundant authorityin favour of the proposition that a writof mandamus can be granted only in a casewhere there is a statutory duty imposedupon the officer concerned and there is afailure on the part of that officer todischarge the statutory obligation. Thechief function of a writ is to compel https://hcservices.ecourts.gov.in/hcservices/ 4performance of public duties prescribed bystatute and to keep subordinate tribunalsand officers exercising public functionswithin the limit of their jurisdiction. Itfollows, therefore, that in order thatmandamus may issue to compel theauthorities to do something, it must beshown that there is a statute whichimposes a legal duty and the aggrievedparty has a legal right under the statuteto enforce its performance.... In theinstant case, it has not been shown byRespondent 1 that there is any statute orrule having the force of law which casts aduty on Respondents 2 to 4 which theyfailed to perform. All that is sought tobe enforced is an obligation flowing froma contract which, as already indicated, isalso not binding and enforceable.Accordingly, we are clearly of the opinionthat Respondent 1 was not entitled toapply for grant of a writ of mandamusunder Article 226 the Constitution and theHigh Court was not competent to issue thesame.” 5.In view of the above decisions, the petitioner has not madeout a case for issuance of mandamus. Accordingly, the writ petition isdismissed. Dismissal of the writ petition would not preclude the rightof the petitioner to participate in the counselling, if she is eligible.Consequently, connected M.P.No.1 of 2011. No costs.Sd/-Assistant Registrar(Crl.Side)/TRUE COPY/Sub Assistant RegistrarTo1.The Joint Director of School Education, Chennai.2.The Chief Educational Officer, Kanyakumari District.+1cc The Special Govt.Pleader SR.No.31888Writ Petition(MD)No.10488 of 2011andMP(MD)No.1 of 201115.09.2011vsPA/20.09.2011/4P/4C