Kerala High Court
Sivakumar vs Sreekumar on 14 December, 2001
Author: K. Balakrishnan Nair
Bench: K.S. Radhakrishnan, K. Balakrishnan Nair
JUDGMENT K. Balakrishnan Nair, J.
1. All the four Appeals are directed against the judgment of the learned singe Judge in O.P. No. 3125/97 dated 19.2.1997. Therefore, they are being disposed of by a common judgment. The point that is to be decided in these cases is whether the Government can reopen a statutory appellate order on the basis of a representation filed by a person who claims himself aggrieved by it. The brief facts necessary for the disposal of the Appeals are the following:
2. The Kerala State Co-operative Agricultural and Rural Development Bank, the third respondent in the Original Petition (hereinafter refereed to as the Bank) invited application for appointment to the post of Assistants by Notification dated 22.10.1993. After written test and interview, 58 persons were appointed by the Bank. The writ petitoner is a Government servant. As per the contusions of the Notification, he was bound to apply for the post through proper channel. But in violation of the said stipulation, he applied directly for the post. Therefore, even though he has acquired high marks in the written test, he was not considered for appointment.
3. Against the selection and appointment of 58 candidates, several complaints were raised by unsuccessful candidates including the Writ Petitoner. The Additional Registrar of Co-operative Societies by Ext. P3 proceedings dated 24.3.1995 set aside the selection made as per Resolution No. 23 dated 9.2.1995 of the Bank. In the said Order, under Issue No. 11, the petitoner's objection was considered. It was stated thereunder that the petitoner has not applied proper channel. Since he has not complied with the conditions in the Notification it was further held that no violation of any direction is observed. Apparently, it refers to the general directions of the Registrar in the matter of the selection and appointment to Co-operative Societies.
4. From the pleadings of the writ petitoner in the Original Petition, it is evident that he has not taken any steps against Ext. P3. The petitoner's grievance against the selection has been rejected by the said order. Even if, in the light of Ext. P3, fresh selection is made from among the candidates who applied pursuant to the Notification, petitioner will not be considered. Since, he chose not to challenge Ext. P3, it has become final as against him. Against the order of the Registrar, an Appeal is provided to the Government under Section 83(1)(j) of the Kerala Co-operative Societies Act and the time limit for filing the Appeal is sixty days. Since the petitoner has chosen not to file any appeal within that time, the said order as against him as gained statutory finality.
5. The aggrieved employees whose appointments were unsettled, moved the Government in appeal. The Bank also filed an appeal against Ext. P3. All these appeals were heard together and disposed of by Ext. P4 order dated 16.1.1996. The Government set aside Ext. P3 order of the Additional Registrar.
6. The Writ Petitioner on 19.12.1996 filed Ext. P5 representation before the Government seeking a reconsideration of Ext. P4 order with notice to all affected parties including him. Thereafter, he filed OP No. 3125/97 on 18.2.1997 praying inter alia, for a direction to dispose of Ext. P5. He had also made a prayer to quash Ext. P4. But, it appears, the prayer for direction to consider Ext. P5 along was pressed. The learned Single Judge disposed of the said Original Petition on 19.2.1997 at the admission stage without issuing notice to anybody including the affected parties. Only one of the affected parties was impleaded as 4th respondent in the Original Petition. The judgment of the learned Single Judge read as follows:
"Petitoner has filed Ext. P5 representation before the 1st respondent. In Ext. P5, petitioner has requested for reconsideration of Ext. P4 order passed by the 1st respondent after giving an opportunity to all affected parties including the petitioner. Under these circumstances, the first respondent is directed to consider and pass orders on Ext. P5 representation within three months from the date of receipt of a copy of this judgment."
Thus, from the above judgment it can be seen that the learned single Judge has disposed of the Original Petition without going into the merits, by directing the Government to consider Ext. P5 representation within three months from the date of receipt of a copy of the judgment.
7. Aggrieved by the said judgment, the 4th respondent in the Original Petition has filed Writ Appeal No. 1378/97. The other Appeals are filed by the aggrieved employees after obtaining leave of this Court.
8. We heard both sides. The counsel for the appellant submitted that the petitoner cannot be said to be aggrieved by Ext. P4 as his claim has already been rejected by the Additional Registrar in Ext. P3. In the absence of any challenge against Ext. P3, he cannot raise any valid grievance against Ext. P4, it is submitted. Further it is submitted that Ext. P4 being a statutory appellate order, in the absence of any express provision empowering the Government to undertake a review, Ext. P5 petition is not maintainable.
9. We find considerable force in the submission made on behalf of the appellants. Petitioner's application for appointment itself stood rejected as the same was not routed through proper channel. Therefore, his non-selection was upheld by the Additional Registrar in Ext. P3. He has not taken any steps to avoid the said order by any process known to law. Therefore, he is unconcerned with the fate of Ext. P3 at the hands of the appellate authority. So, even if Ext. P4 is set aside and Ext. P3 is restored, he is in no way benefited. Ext. P5 filed against Ext. P4 is misconceived. Further, the Original Petition filed by him challenging Ext. P4 is an abuse of the process of the Court. His alternate prayer for the disposal of Ext. P5 is equally frivolous. But unfortunately it is seen that the learned single Judge has directed the disposal of Ext. P5 without adverting to the facts of the case. The simple reason that the Writ Petitioner has filed a representation is no ground for the direction of its disposal. Writ of mandamus is a high prerogative writ which is normally issued to compel the performance of a public duty on an application made by one who has got a legal right to the performance of that duty by the concerned public authority. In Halsubry's Law of England (4th Edition, Vol.I, Paragraph 89) it is stated that the object of mandamus is:
"to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."
In Administrative Law (H.W.R. Wade & C.S. Forsyth- 8th Edition) it is stated:
"The prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities of all kinds. Like the other prerogative remedies, it is normally granted on the application of a private litigant, though it may equally well be used by one public authority against another. The commonest employment of mandamus is a weapon in the hands of an ordinary citizen when a public authority fails to do its duty by him. Certiorari and prohibition deal with wrongful action, mandamus deals with wrongful inaction. The prerogative remedies thus together cover the field of governmental powers and duties.".
In Judicial Review of Administrative Action by De Smith, Woolf and Jowell (5th Edn) it is stated:
"Today the main role of order of mandamus, now obtainable only in Order 53 proceedings, is to compel inferior tribunals to exercise jurisdiction that they have wrongfully declined, and to enforce the exercise of statutory duties and discretion in accordance with law".
Our Supreme Court in Praga Tools Corporation v. Immanual (AIR 1969 SC 1306) has observed:
"...The condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought".
Again, the apex court in Mani Subrit v. State of Haryana (AIR 1977 SC 276) has held as follows:
"It is elementary that it is to be re-stated that none can ask for mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something."
Again the Supreme Court in State of Kerala v. Lekshmikutty (1986(4) SCC 632) reiterated:
"It is well settled that a writ of mandamus is not a writ of course or a writ of right, but it is as a rule discretionary. There must be a judicially enforceable right for the enforcement of which, a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the court will only enforce the performance of statutory duties by public bodies on an application of a person who can show that he has himself a legal right to insist on such performance.....The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus".
10. The circumstances under which a mandamus can be issued are well settled. But, we are constrained to point out the fundamental principles regarding the issue of mandamus in view of the frivolous nature of the present petition. We feel that entertainment of such petitions has the effect of compromising the efficacy of this Court in subserving the goals for which it is established. The grant of relief to the petitioner at the admission stage without notice to the respondents has respondents has resulted in the filing of four writ appeals before this Court.
11. In this context, it may be apposite to quote the words of apex court from the decision in Union of India v. Upendra Singh (1994 (3) SCC 357) which read:-
"It is true that a High Court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view, as observed by this Court in T.C. Basappa v. T.Nagappa. It was observed by Mukherjea, J. speaking for the Constitution Bench:
"The language used in Article 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Court in India extend to issuing of orders, writs or directions including writs in the nature of 'habeas corpus, mandamus, quo warranto, prohibition and certiorari's as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English Law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of 'certiorari' in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law".
If we do not keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law, the exercise of jurisdiction becomes rudderless and unguided; it tends to become arbitrary and capricious. There will be no uniformity of approach and there will be the danger of t he jurisdiction becoming personalised. The parameters of jurisdiction would vary from Judge and from Court to Court. (Some say, this has already happened). Law does advance, Jurisprudence does undoubtedly develop with the passage of time, but not by forgetting the fundamentals. You have to build upon the existing foundations and not by abandoning them. It leads to confusion; it does not assist in coherence in thought or action (emphasise supplied)
12. The words of caution sounded by the Apex Court are timely. We feel it is high time to stick to certain rudimentary principles while invoking and exercising the jurisdiction under Article 226.
13. Coming to the facts of the case at hand, the writ petitioner's application itself having been rejected by the Bank and that too on valid grounds, he can in no way said to be aggrieved by Ext. P4. Therefore, we hold that he has no locus standi to maintain Ext. P5. Further, in the absence of a provision enabling review, the Government are incompetent to consider Ext. P5. Normally, only in the case of an order obtained by fraud, an exception to the principle that no review its competent in the absence of an express power for the same, is recognised by courts. So, even if the writ petitoner was a person aggrieved, the Government are not competent to suo motu review the said order in the light of the statutory scheme contained in the Kerala Co-operative Societies Act.
14. Therefore, we allow these Appeals and dismiss O.P.No. 3125/97.