Madras High Court
P.Kannan vs ) Controller And Auditor General Of ... on 27 August, 2013
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/08/2013 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P(MD)No.2859 of 2013 and M.P(MD)No.1 of 2013 P.Kannan ... Petitioner Vs 1) Controller and Auditor General of India, New Delhi. 2) Principal Accountant General (A & E), Chennai-600 018. 3) Engineer-in-Chief (Buildings) and Chief Engineer (Buildings), Chennai Region and Chief Engineer (General), Public Works Department, Chennai. 4) The Secretary to the Government of Tamil Nadu, Public Works Department, Chennai. ... Respondents Prayer Writ Petition filed under Article 226 of the Constitution of India, Praying to issue a Writ of Mandamus, directing the 1st respondent to accord permission for provincialisation of the cadre of Divisional Accountant and consequently direct the first and second respondents to absorb who have completed 2 years of service as Divisional Accountants by conducting initial recruitment examination and further direct the first and second respondents not to revert the Public Works Department Assistants of State Government who are now working as Divisional Accountants on deputation in Public Works Department. !For Petitioner ... Mr.K.Murugesan ^For R1 and R2 ... Mr.P.Gunasekaran For R3 and R4 ... Mr.R.Anandaraj, GA :ORDER
The petitioner has sought for a Writ of Mandamus, directing the Controller and Auditor General of India, New Delhi, 1st respondent herein, to accord permission for provincialisation of the cadre of Divisional Accountant. Consequently, he has sought for a direction to the respondents 1 and 2, to absorb the petitioner, who has completed 2 years of service as Divisional Accountant, by conducting initial recruitment examination. The petitioner has also prayed for a direction to the respondents 1 and 2, not to revert the Public Works Department Assistants of State Government, who are now working as Divisional Accountants on deputation in Public Works Department.
2. First of all, the relief sought for by the petitioner cannot be granted, in the light of the decision in P.U.Joshi and others vs. Accountant General Ahmedabad and others reported in (2003) 2 Supreme Court cases 632, wherein, at paragraph 10 of the judgment, the Supreme Court held as follows:
"Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to the fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment of eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criterial and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
3. Provincialisation of a post is purely the discretion of the Government. Further, perusal of the order made in W.P(MD)No.31635 of 2002, filed by the Tamil Nadu Government Employees Union, represented by its State Organising Secretary, shows that vide order, dated 03.07.2012, a similar request has been turned down, by a Hon'ble Division Bench of this Court. While rejecting the case of the Union, the Hon'ble Division Bench, at paragraph 13, has observed as follows:-
Since the relief sought for in the writ petition is already rejected by the Division Bench in W.P.No.20170 of 2000, which has become final, the petitioners cannot re-agitate the same issue. However, the petitioners are at liberty to make a representation before the respondents and on such representation, the respondents shall consider the same and pass appropriate orders on merits and in accordance with law. This order will not stand in the way of the respondents while considering the case of the petitioners. The writ petition stands disposed of accordingly. Consequently, the connected M.P. is closed. However, there shall be no order as to costs.
4. Though the learned counsel for the petitioner has submitted that in the light of the permission granted by the Hon'ble Division Bench in W.P(MD)No.31635 of 2002, a representation has been made to the respondents and that the same remains unanswered and that therefore, the petitioner can seek for a Mandamus, this Court is not in agreement with the submission of the learned counsel for the petitioner, for the reason that Mandamus can be enforced only, if the petitioner satisfies the Court there is an existence of a statutory or legal right recognised and protected by law. Liberty granted by the Court, to make a representation to the higher authorities, while disposing of a writ petition, would not partake the character of a constitutional or statutory right, to re-agitate the matter, once again and seek for a Mandamus.
5. In Wharton's Law Lexicon, the word 'Right' means; 1) is a legally protected interest 2) is an averment of entitlement arising out of legal rules
3) right is an interest recognised and protected by moral or legal rules 4) right, comprehends every right known to the law.
6. In K.J.Aiyar's Judicial Dictionary, the word 'Right' means; 1) a right is a legally protected interest, 2) a right is an interest which is recognised and protected by law.
7. In Stroud's Judicial Dictionary, the word 'Right' means, is where one hath a thing that was taken from another wrongfully, as by disseisin, discontinuance, or putting out, or such like, and the challenge or claime that he hath who should have the thing, is called right.
8. Writ of mandamus cannot be issued merely because a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for mandamus. The said position is well settled in a series of decisions.
(a) In Comptroller and Auditor General of India vs. K.S.Jegannathan, reported in AIR 1987 SC 537 = 1986 (2) SCC 679, a Three-Judge Bench of the Honourable Apex Court referred to Halsbury's Laws of England 4th Edition, Vol.I. Paragraph 89, about the efficacy of mandamus:
"89.Nature 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 legal 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."
(b) 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 Court held as follows:
10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....
(c) 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 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
(d) In the decision reported in (2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) in paragraphs 11 and 12 the Supreme Court held thus,
11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. Note 206.- ... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.
12. These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh after referring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M. Shah, Rai Shivendra Bahadur (Dr.) v. Nalanda College and Umakant Saran (Dr.) v. State of Bihar this Court observed as follows in para 15 of the Reports (SCC): (Sipahi Singh case, SCC pp. 152-53)
15. ... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.... In the instant case, it has not been shown by Respondent 1 that there is any statute or rule having the force of law which casts a duty on Respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that Respondent 1 was not entitled to apply for grant of a writ of mandamus under Article 226 the Constitution and the High Court was not competent to issue the same.
Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities...."
9. The contention of the learned counsel for the petitioner that one Mr.Rathinam, who was working as Divisional Accountant, has been absorbed in the year 1989 after formulation of the Divisional Accountant Rules, 1988, and therefore, the same yardstick ought to have been applied to the case of the petitioner, is also rejected, for the reason that an order of deputation does not confer any statutory right for retention, in the latter department.
10. In State of Punjab and others vs. Inder Singh and Others, reported in (1997 (8) SCC page 372), at paragraph 18, with regard to the concept of deputation, the Supreme Court held as follows:-
"18. The concept of 'deputation' is well understood in service law and has a recognised meaning. 'Deputation' has a different connotation in service law and the dictionary meaning of the word 'deputation' is of no help. In simple words 'deputation' means service outside the cadre or outside the parent Department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. ....."
In the above decision, the Supreme Court had not permitted the claim of absorption where the respondents therein continued in the posts for nearly 20 years and in fact, directed to revert those who have completed 20 years of qualifying service to their parent department.
11. In the decision reported in 2000 (5) SCC 362 (Kunal Nanda vs. Union of India and another), the following conclusion is relevant, "6. On the legal submissions also made there are no merits whatsoever. It is well settled that unless the claim of the deputationists for a permanent absorption in the department where he works on deputation is based upon any statutory rule, regulation or order having the force of law, a deputationists cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. ...." In the above decision, the principle relating to the position of deputationists was settled by the Supreme Court by holding that there is no vested right for a deputationist to claim absorption in the borrowing department. In view of the principle laid down in the above Supreme Court decision, there cannot be a mandamus compelling the respondents to absorb the deputationists, as he has no vested right to claim absorption.
12. Writ jurisdiction is exercisable not only in the case of breach of fundamental rights, but also in all cases, where legal rights of the parties ought to be enforced. The existence of a legal right is the basis of a petition under Article 226 of the Constitution of India.
13. Mandamus is the most valuable and essential remedy in Administrative Justice resorted to supply want of some appropriate ordinary remedy. The functions of the writ court is to compel the performance of public duty, for which, the person approaching the writ court should statutorily, has a clear, specific and unequivocal, constitutional or statutory or legal right to the relief sought for and the failure on the part of those who are bound to perform certain duties and functions, as laid down by the legislature or directions issued for the purpose of enforcing the provisions of an enactment or of any delegated or subordinate legislation. There must be a legal right and corresponding legal duty.
14. In State of Kerala v. A.Lakshmi Kutty reported in 1986 (4) SCC 632, the Supreme Court held that a Writ of Mandamus is not a writ of course or a writ of right but 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 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. The present trend of judicial opinion appears to be that in the case of non- selection to a post, no writ of mandamus lies.
15. In Raisa Begum v. State of U.P., reported in 1995 All.L.J. 534, the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law. The remedy of a writ of mandamus is not intended to supersede completely the modes of obtaining relief by an action in a Civil Court or to deny defence legitimately open in such actions. The power to issue a writ of mandamus is a discretionary power. It is sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a Civil Court and to refuse to issue a writ of mandamus. A writ of mandamus is not a writ of course or a writ of right but is, as a rule a matter for the discretion of the Court. In petitions for a writ of mandamus, the Supreme Court and the High Courts do not act as a Court of appeal and examine the facts for themselves. It is not the function of the Court to substitute its wisdom and discretion for that of the person to whom the judgment in the matter in question was entrusted by law. The Supreme Court does not issue a writ of mandamus except at the instance of a party whose fundamental rights are directly and substantially invaded or are in imminent danger of being so invaded. A writ of mandamus is not issued to settle private disputes or to enforce private rights. A writ of mandamus cannot be issued against the President of India or the Governor of State. In an application for a writ of mandamus, it must be mentioned that a demand for justice had already been made and refused. The 1 petitioner must not be guilty of laches. A writ will not be issued unless the Court is certain that its command will be carried out. The Court must not issue a futile writ. This writ does not lie to a State Legislature restraining it from considering a bill which is alleged to be in violation of the Constitution.
16. When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:
"Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective." (emphasis supplied)
17. A prerogative writ, like, a Mandamus cannot be demanded ex debito justiatiae, but it can be issued by the court in its discretion, for which, it must be shown that, there is a non discretionary legal duty upon the authority against whom, the relief is sought for and that the person approaching the High Court under Article 226 of the Constitution of India, has to prove that he has a legal right to be enforced against the authority, for the failure of performance of a legal or statutory duty, by the authority against whom, the relief is sought for.
18. Perusal of the order made in W.P.No,.31635 of 2002 dated 03.07.2012 shows that the Hon'ble Division Bench, while dismissing the writ petition filed by the Tamil Nadu Government Employees Union, represented by its Organising Secretary, has taken note of an earlier a decision passed by a Division Bench in W.P,No.20195 of 2000, filed by one Mr.C.Kaliyanam, in which, the relief sought for was to consider the case for absorption of the petitioners therein in the Divisional Accountant cadre.
19. The Division Bench has dismissed W.P.No.20185/2000, confirming the order of the Tribunal, holding that the deputationists have no right to seek for absorption in the posts, to which they are deputed. W.P.No.31635 of 2002 filed by the Tamil Nadu Government Employee's Union, represented by its Organising Secretary, for the same prayer, has also been dismissed on 03.07.2012. However, while doing so, the Hon'ble Division Bench has granted liberty to the abovesaid Union to make a representation and further directed the respondents to consider the same on merits and pass appropriate orders in accordance with law. With due respect, this Court is of the view that the direction, granting liberty to make a representation, cannot at any stretch of imagination be construed to confer a legal or statutory right, so as to enable, another Divisional Accountant, Viz., the petitioner herein, to file a writ petition on the same cause of action, for the same same prayer, which has been already considered and rejected, twice by the Hon'ble Division Benches, in W.P.Nos.20185, or 20195 of 2000 and 31635 of 2002 dated 03.07.2012, respectively.
20. Liberty which is granted to make a representation is not a legal right, recognised under the Statute, which can be enforced by Writ of Mandamus, more particularly, when the Hon'ble Division Benches, have already rejected the main relief sought for. There cannot be a resurrection of a right, which has been negatived by the Court. At this juncture, judicial notice can also be taken, that by directing consideration of such representations, once again dead and stale matters, are sought to be re-opened.
21. In Union of India vs. S.A.Khailiq Pasha, (Civil Appeal Nos.368 and 369 of 2009, dated 13.01.2009), the Supreme Court observed that in the absence of any statutory rules, employee does not have any right to be absorbed in the service.
22. In Kunal Nanda vs. Union of India, reported in 2000 (5) SCC 362, the Apex Court, at paragraph 6, held as follows:-
"It is well settled that unless the claim of the deputationist for a permanent absorption in the department where he works on deputation cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation."
23. In Ratilal B.Soni and others vs. State of Gujarat and others, the appellant who belonged to the Revenue Department of the Gujarat Government was allocated to the Panchayat Service on coming into force of Gujarat Panchayat Act 1961. He went on deputation as Circle Inspector in the State Service and was later reverted back to his parent cadre in the Panchayat Service. This was challenged by the appellant. The Court held that the appellant being on deputation could be reverted to his parent cadre at any point of time and he did not get any right to be absorbed on the deputation post.
24. In Ashok Kumar Ratilal Patel vs. Union of India and another (Civil Appeal No.5225 of 2012, dated 16.07.2012), the Supreme Court at paragraph No.11, held as follows:-
11. Ordinarily transfers on deputations are made as against equivalent post from one cadre to another, one department to another, one organisation to another, or one Government to another; in such case a deputationist has no legal right in the post. Such deputationist has no right to be absorbed in the post to which he is deputed.
25. In Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and Others, reported in (2004) 2 SCC 65, at paragraph 25, the Supreme Court held as follows:-
Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post haste manner also indicates malice.
26. Subsequent to the filing of this writ petition, as on today, vide proceedings dated 21.08.2012 of the Senior Accounts Officer/PWC, Office of the Principal Accountant General (Accounts & Entitlements), Tamil Nadu, Chennai, the petitioner, Divisional Accountant (on deputation), serving in the office of the Executive Engineer/PWD, Buildings [Construction and Maintenance] Division, Ramanathapuram, has been repatriated to Public Works Department, with effect from 27.08.2013, Afternoon, on completion of three years term of deputation.
27. In view of the decisions cited supra and the subsequent developments, the relief sought for by the petitioner cannot be granted and the writ petition has also become infructuous. Hence, the writ petition is dismissed. Consequently, M.P(MD)No.1 of 2013 is closed. No costs.
NB2 To
1) Controller and Auditor General of India, New Delhi.
2) Principal Accountant General (A & E), Chennai-600 018.
3) Engineer-in-Chief (Buildings) and Chief Engineer (Buildings), Chennai Region and Chief Engineer (General), Public Works Department, Chennai.
4) The Secretary to the Government of Tamil Nadu, Public Works Department, Chennai.