V.Ramaraj v. The General Manager,Tamil Nadu Ex-servicemen Corporation Limited,Srinagar Colony, Saidapet,Chennai – 600 015

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 21/09/2011C O R A MTHE HONOURABLE Mr.JUSTICE S.MANIKUMARWrit Petition (MD)No.10717 of 2011 AND MP. No. 1 OF 2011V.Ramaraj...Petitioner VsThe General Manager,Tamil Nadu Ex-servicemen Corporation Limited,Srinagar Colony, Saidapet,Chennai – 600 015. ...RespondentsPrayer : Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a writ of Certiorarified Mandamus to call forthe records pertaining to the impugned proceedings inLr.No.TEXCO/8023/VR/AM/2011-12 dated 24.08.2011 passed by the respondentand quash the same and consequently direct the respondent to appoint thepetitioner as an Assistant Manager, TEXCO, Madurai on fresh contract.For petitioner ...Mr.N.Sudhakar Nagaraj For respondent...No appearanceO R D E RSeeking to quash the communication, dated 24.08.2011, of theGeneral Manager, Tamil Nadu Ex Servicemen Corporation Limited, (TEXCO)Chennai, addressed to the learned counsel for the petitioner, that theCorporation is not in a position to take any decision on the petitioner'srequest to engage the petitioner on contract basis, he has come forwardwith the present writ petition for a certiorarified mandamus to quash thesame and consequently, prayed for a direction to the respondent to appointhim as an Assistant Manager, TEXCO, Madurai.2. Petitioner was engaged as an Assistant Manager, Madurai Region,on contract basis, in TEXCO Limited, Chennai. Based on a report, theDirectorate of Vigilance and Anticorruption Department, conducted a trap inthe office of the TEXCO, Madurai, and trapped Ex-Hav. R.Karuppasamy, OfficeAssistant, for having demanded and accepted an amount of Rs.12,000/- fromEx.Nk.K.Kasilingam in connection with his posting at TNEB Devakottai andseized unaccounted cash of Rupees one lakh, six term deposit receipts worthRs.5,40,000/- Central Bank of India, Savings Bank account pass book and LICpolicies from the residence of Ex.Nb.Sub.V.Ramaraj, the petitioner herein. https://hcservices.ecourts.gov.in/hcservices/ 2Pursuant to the same, show cause notices were issued to the petitioner anddepartmental enquiry has also been conducted. Not satisfied with theexplanation, charges levelled against the petitioner has been held asproved and that, as per Clause II (6) of the duties and responsibilities ofthe office of the Manager on contract agreement, it amounted to gravemisconduct and that he had failed to discharge the duties, maintaindiscipline, loyalty and integrity. Accordingly, as per Clause 14 of theagreement, vide order dated 16.03.2007, of the General Manager, Tamil NaduEx Servicemen Corporation Limited, the contract has been terminated. 3. Pleadings disclose that the abovesaid order is under challengein this Court in W.P.No.9628 of 2010. Subsequently, when vacanciesavailable in the office of Assistant Manager in various districts, inMadurai, were sought to be filled up, the petitioner seemed to have appliedfor the above said post for fresh contract. An opinion seemed to have beengiven by a learned Government counsel to the effect that, there is nohindrance or bar, to engage the petitioner as Assistant Manager in TEXCO oncontract basis. As the petitioner has not been considered for the aforesaidassignment, he has come forward with this writ petition. First of all, thepetitioner has no legal or statutory right to insist that TEXCO Ltd.,Chennai should execute an agreement in his favour, as it is purely itsprerogative. No rule or regulation has been placed before this Courtsubstantiating the right of the petitioner against the respondent, so as tocompel him to execute a contract in his favour. It is well settled thatmandamus, can be sought for only if there is any enforceable, legal orstatutory right and that there should be a corresponding duty on the partof the respondent, failure of which, can by, enforced through the commandof this Court. 4. Useful reference can be made to few decisions:In the decision reported in (1996) 9 SCC 309 (State of U.P. andOrs. v. Harish Chandra and Ors.) in paragraph 10, the Apex Court held asfollows:10. ...Under the Constitution a mandamus can beissued by the court when the applicant establishes thathe has a legal right to the performance of legal dutyby the party against whom the mandamus is sought andthe said right was subsisting on the date of thepetition....5. In the decision reported in (2004) 2 SCC 150 (Union of India v.S.B. Vohra) the Supreme Court considered the said issue and held that 'forissuing a writ of mandamus in favour of a person, the person claiming, mustestablish his legal right in himself. Then only a writ of mandamus could beissued against a person, who has a legal duty to perform, but has failedand/or neglected to do so.6. In the decision reported in (2008) 2 SCC 280 (Oriental Bank ofCommerce v. Sunder Lal Jain) in paragraphs 11 and 12 the Supreme Court heldthus,11. The principles on which a writ of mandamuscan be issued have been stated as under in The Law ofExtraordinary Legal Remedies by F.G. Ferris and F.G. https://hcservices.ecourts.gov.in/hcservices/ 3Ferris, Jr.:Note 187.-Mandamus, at common law, is a highlyprerogative writ, usually issuing out of the highestcourt of general jurisdiction, in the name of thesovereignty, directed to any natural person,corporation or inferior court within the jurisdiction,requiring them to do some particular thing thereinspecified, and which appertains to their office orduty. Generally speaking, it may be said that mandamusis a summary writ, issuing from the proper court,commanding the official or board to which it isaddressed to perform some specific legal duty to whichthe party applying for the writ is entitled of legalright to have performed.Note 192.-Mandamus is, subject to the exerciseof a sound judicial discretion, the appropriate remedyto enforce a plain, positive, specific and ministerialduty presently existing and imposed by law uponofficers and others who refuse or neglect to performsuch duty, when there is no other adequate and specificlegal remedy and without which there would be a failureof justice. The chief function of the writ is to compelthe performance of public duties prescribed by statute,and to keep subordinate and inferior bodies andtribunals exercising public functions within theirjurisdictions. It is not necessary, however, that theduty be imposed by statute; mandamus lies as well forthe enforcement of a common law duty.Note 196.-Mandamus is not a writ of right. Itsissuance unquestionably lies in the sound judicialdiscretion of the court, subject always to the well-settled principles which have been established by thecourts. An action in mandamus is not governed by theprinciples of ordinary litigation where the mattersalleged on one side and not denied on the other aretaken as true, and judgment pronounced thereon as ofcourse. While mandamus is classed as a legal remedy,its issuance is largely controlled by equitableprinciples. Before granting the writ the court may, andshould, look to the larger public interest which may beconcerned-an interest which private litigants are aptto overlook when striving for private ends. The courtshould act in view of all the existing facts, and withdue regard to the consequences which will result. It isin every case a discretion dependent upon all thesurrounding facts and circumstances.Note 206.- ... The correct rule is that mandamuswill not lie where the duty is clearly discretionaryand the party upon whom the duty rests has exercisedhis discretion reasonably and within his jurisdiction,that is, upon facts sufficient to support his action.12. These very principles have been adopted inour country. In Bihar Eastern Gangetic Fishermen Coop. https://hcservices.ecourts.gov.in/hcservices/ 4Society Ltd. v. Sipahi Singh after referring to theearlier decisions in Lekhraj Sathramdas Lalvani v. N.M.Shah, Rai Shivendra Bahadur (Dr.) v. Nalanda Collegeand Umakant Saran (Dr.) v. State of Bihar this Courtobserved as follows in para 15 of the Reports (SCC):(Sipahi Singh case, SCC pp. 152-53)15. ... There is abundant authority infavour of the proposition that a writ ofmandamus can be granted only in a case wherethere is a statutory duty imposed upon theofficer concerned and there is a failure onthe part of that officer to discharge thestatutory obligation. The chief function of awrit is to compel performance of publicduties prescribed by statute and to keepsubordinate tribunals and officers exercisingpublic functions within the limit of theirjurisdiction. It follows, therefore, that inorder that mandamus may issue to compel theauthorities to do something, it must be shownthat there is a statute which imposes a legalduty and the aggrieved party has a legalright under the statute to enforce itsperformance.... In the instant case, it hasnot been shown by Respondent 1 that there isany statute or rule having the force of lawwhich casts a duty on Respondents 2 to 4which they failed to perform. All that issought to be enforced is an obligationflowing from a contract which, as alreadyindicated, is also not binding andenforceable. Accordingly, we are clearly ofthe opinion that Respondent 1 was notentitled to apply for grant of a writ ofmandamus under Article 226 the Constitutionand the High Court was not competent to issuethe same.Therefore, in order that a writ ofmandamus may be issued, there must be a legalright with the party asking for the writ tocompel the performance of some statutory dutycast upon the authorities...."7. Merely because, a learned Government counsel, has given anopinion in favour of the petitioner and at his instance, the said opinion,is not binding on the respondent. Admittedly, the petitioner, who has beenimplicated as an accused in a case in Crime No.17 of 2006, on the file ofthe Madurai Police Station, Vigilance and Anticorruption and that theearlier contract, has been terminated, on the specific finding that thepetitioner has contravened Clause 2 (1)(6) of the duties andresponsibilities of Assistant Manager, which amounted to failure tomaintain the discipline, loyalty and integrity, and he cannot insist thatthe respondent should be compelled to execute any contract with him, dehorsthe finding recorded. Such contentions, are not only fallacious, they areliable to be rejected. The opinion of the learned Government counsel is not https://hcservices.ecourts.gov.in/hcservices/ 5binding on the respondent and therefore, the petitioner cannot takeadvantage of the same. In the result, this Court finds no manifestillegality in the impugned communication warranting interference of thiscourt. In the result, the writ petition is dismissed. No costs.Consequently connected miscellaneous petition is closed. SDDEPUTY REGISTRAR ( WRITS )/TRUE COPY/ASST REGISTRAR RRToThe General Manager,Tamil Nadu Ex-servicemen Corporation Limited,Srinagar Colony, Saidapet,Chennai – 600 015.DM:2011:OCTOBER:20::Writ Petition No.10717 of 2011and M.P.No.1 of 2011