Civil Appeal Nos 4799 4800 of 1992
From the Judgments dated 431992 and 841992 in Madras High Court in WP No 24692 and WA No 349 of 1992
G Ramaswamy Attorney General K Sankaran A Rangananthan and AV Rangam for the Appellants
MK Ramamurthi MA Krishnmoorthy MA Chinnaswamy H Subramaniam and Ms C Ramamurthi for the Respondents
Rajendra Sachhar Ambrish Kumar and MD Pandey for the Inter vener
The Order of the Court was delivered Intervention application is allowed
Leave granted
Civil Appeal No 4799 of 1992
The controversy in this case is in a narrow compass
The appellant Bank issued Staff Circular No 42 containing an understanding reached with the Bank staff union laying down the policy for promotion of clerks to the post of Head Clerks
Clause 1d of the said circular states as follows Employees who decline to accept Head Clerk s post at a Branch Office outside their place of service ie outside their city will again be offered the appointment only when a vacancy arises at any one of the offices within that city provided that at the material time there is no other senior employees at that office who had earlier declined a posting outside his Branch as a Head Clerk in which case the senior most employee will first be offered the appointment
Also if an employee declines to accept the post of a Head Clerk at an office within the same city his case for appointment as Head Clerk will be considered only when a vacancy arises at his office in the order of his seniority
His case cannot be considered for a vacancy at any of the other offices in the city
It will be apparent from the above provision of the said clause that those employees who decline to accept the Head Clerk s post at a branch office which is outside the city in which they work will have a further option
Such employees would be offered the post of Head Clerk again but only when a vacancy arises at any one of the Bank s offices within that city
This is of course subject to the condition that at the material time there is no other senior employee who had similarly declined the post outside his branch office in which case the senior most would have the first choice
The further provision of this rule and with which we are concerned in the present case is as follows
If an employee declines to accept the post of Head Clerk at an office within the same city his case for appointment as Head Clerk would be considered only when a vacancy arises at his office
This is also subject to the condition that there is no senior employee similarly situated at the material time
If the third and the final offer for the post of Head Clerk is declined there is a permanent debarment of the promotion
One more thing necessary to be stated before we come to the facts of the present case is that the appellant Bank has a local Head Office at Madras
In 1972 it was split into two the local Head Office and Madras Main Branch
In 1976 77 there was a further splitting up of the local Head Office and the Main Branch and ultimately in 1979 the Madras Local Head Office was divided into following six offices as part of the same Head Office i Local Head Office ii Madras Main Branch iii Overseas Branch iv Regional Office which is called Zonal Office v The Commercial Branch vi Siruthozhil Branch 4
There is no dispute that as far as the Clerks and the Head Clerks in all the six parts of the same local Head Office are concerned a common seniority list is maintained
The effect of the aforesaid arrangements for the purposes of the clause 1d is that the employees in the said clause means the employees in all the said six parts of the local Head Office
In other words if a vacancy for a Head Clerk occurred at any of the said six offices it was considered to be a vacancy in one office viz
the local Head Office of which the other five offices were only parts
It appears that respondent Parthasarathy was working as a clerk in the Madras Regional Office now called Zonal Office which is as will be clear from above a part of the Local Head Office itself
On 21st August 1973 he was offered the post of Head Clerk at Deva Kottain which is outside Madras city
This offer was declined by him
On 1st July 1980 he was offered the post of Head Clerk in the Sowkarpet branch office in the same city which was less than 2 kms from his Regional office where he was working
He declined the said offer too
He was then entitled to be considered for posting as Head Clerk only in his office which meant in any of the six parts of the local Head Office that being the third and the final offer that could be made to him
The third offer was made to him for the post of Head Clerk at the Overseas branch and that being part of the same local Head Office he was bound to accept it
However he declined the third and the final offer also and issued a lawyer s notice to the Bank contending that the Overseas branch was different from the Regional office where he was working and therefore the offer given to him was contrary to the said clause 1d
The allegations made in the notice were of course denied by the bank
On 6th September 1983 one A Nizamuddin who was working as Head Clerk in the Regional office passed away and that post became vacant
On 24th September 1983 the respondent filed a writ petition before the High Court for quashing the third and the final offer made to him on 4th August 1983 and for a direction for posting him in the Regional office where the vacancy had occurred
The High Court took the view that the third offer made was not for the post of the Head Clerk in the same office where the respondent was working and therefore his refusal to accept the post did not exhaust the third option and he was entitled to the vacancy created by Nizamuddin s death in the Regional office where the respondent was working
We are afraid this interpretation is incorrect in view of the position explained above with regard to the local Head Office which was split into six different offices which together constituted one unit
The respondent when he was offered the third option in the Overseas branch was offered the post in the same office where he was working the Regional office being as much a part of the Head Office as the Overseas branch
By refusing to accept the said third and the final offer the respondent had clearly exhausted all his three options and had become permanently debarred from seeking promotion to the post of Head Clerk
We however do not interfere with the appointment of the respondent to the post of Head Clerk in the Regional office in the facts and circumstances of the case which show that a fortuitous appointment had arisen within almost a month of his refusal to accept the offer
This however will not be treated as a precedent nor does it affect the interpretation that we have placed on the clause 1d as above
Civil Appeal No 4800 of 1992 In this case also the respondent Sampath was working as a Clerk in Madras Regional Office
The first offer of the post of Head Clerk was made to him on 6th August 1973 at Mudukulathur branch which is in Madras city
This was declined by him
On 12th May 1980 he was given the second offer for the post of Head Clerk at Air Force Station branch Tambaram which was in Madras city
The third and final offer was made to him on 4th August 1983 to the post of Head Clerk in the Stationery department of the Madras Local Head Office
There is no dispute that Stationery department of the Local Head Offfice and the Regional Office form part of one unit viz Madras Local Head Office
The respondent declined this offer as well and on 23rd January 1984 filed a writ petition in the High Court for quashing the third offer and for posting him in his office viz Regional Office as the Head Clerk
The learned Single Judge of the High Court quashed the order making the third offer and allowed the petition following the earlier decision in Parthasarathy s case with which we have dealt with earlier
The Division Bench of the High Court also confirmed the order
For the reasons we have given in CANo 4799 of 1992 we are unable to accept the interpretation given by the High Court on clause 1d of Staff Circular No 42
However if in the present case the respondent has already been accommodated in the post of Head Clerk in the Regional Office itself we do not intend to interfere with the same
It is nonetheless made clear that it is the interpretation that we have placed on the said clause that will prevail and not the interpretation placed by the High Court
With these observations the appeals are allowed only to the extent that the interpretation placed by the appellant Bank on clause ld of the Staff Circular No 42 is correct and the decision of the High Court on the point is incorrect
There will be no order as to costs


Summary:
The petitioner in Petition No 143 was the Moopil Nair of the Kavalappara sthanam and as the sthanee claimed to be the sole proprietor of the sthanam properties
The respondents Nos 2 to 17 who were the junior members of the Kavalappara tarward or family resisted the claim on the ground that the properties were tarward properties and they had rights in them
There was litigation between the parties and ultimately the Privy Council held in favour of the petitioner
The petitioner transferred some of the properties to his wife and two daughters and son and they were the petitioners in the two other petitions
The parties were governed by the Marumakkathayam Law and in 1955 the Madras Legislature purporting to remove certain misapprehensions evident in decisions of courts passed the Madras Marumakkathayani Removal of Doubts Act 1955 Act 32 of 1955 which by section 2 provided as follows  2
Certain kinds of sthanam properties declared to be tarward properties  Notwithstanding any decision of Court any sthanam in respect of which athere is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarward or bthe members of the tarwad have been receiving main tenance from the properties purporting to be sthanam properties as of right or in pursuance of a custom or otherwise or cthere had at any time been a vacancy caused by there being no male member of the tarwad eligible to succeed to the sthanam shall be deemed to be and shall be deemed always to have been a Marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which the provisions of the Madras Marumakkathayam Act 1932 Madras Act XXII Of 1932 shall apply 317 Immediately after the publication of the Act the respondents Nos 2 to 17 published notices in the press that by reason of the passing of the Act Kavalappara estate had become their tarwad property and that rents could be paid to the sthanee only as the Karnavan of the properties and not otherwise
The notices further stated that the donees under the two deeds of gift executed by the sthanee were not entitled to the properties conveyed to them and should not be paid any rents at all
One of the respondents filed a partition suit and others also contemplated doing the same
The petitioners sought for a writ of mandamus or any other writ or order directing the respondents to forbear from enforcing the impugned Act against the sthanee and the sthanam estate and declaring the Act to be unconstitutional and invalid
Preliminary objection was raised on behalf of some of the respondents as to the maintainability of the petitions and it was contended that 1 the prayer for a writ of mandamus Was not maintainable since there was an adequate remedy in the partition suit filed by one of the respondents  2 that violation of right of property by private individuals was not within the purview of article 191f or article 311 and the remedy was not by way of application under article 32 3 that no application under article 32 could be maintained until the State had taken or threatened to take any action under the impugned law that would infringe fundamental rights 4 that the proceeding under article 32 could not be converted into or equated with a declaratory suit under section 42 Of the Specific Relief Act in and 5 that this court could not on an application under article 32 embark upon an enquiry into disputed questions of fact
Held per Das C J Bhagwati Sinha and Subba Rao jj that all the contentions must be negatived and all the preliminary objections must fail
The right to enforce a fundamental right conferred by the Constitution was itself a fundamental right guaranteed by article 32 of the Constitution and this court could not refuse to entertain a petition under that Article simply because the petitioner might have any other adequate alternative legal remedy
Rashid Ahmed vs Municipal Board Kairana  and Romesh Thappar vs The State of Madras 1950 SCR 594 referred to
In the instant cases as the grievance of the petitioners was primarily against the impugned Act passed by the Madras Legislature which was a State as defined by article 12 of the Constitution and the dispute was not one between two sets of private individuals but between the petitioners on the one hand and the State and persons claiming under a law made by the State on the other article 32 must apply
PD Shamdasani vs Central Bank of India Ltd 1952 SCR 391 distinguished and held inapplicable
Where an enactment such as the impugned Act unlike 318 others that contemplated some further action to be taken by the State after the enactment had come into force automatically took away or abridged a person s fundamental rights immediately it came into force there was no reason why the aggrieved person should not immediately be entitled to seek the  remedy under article 32 Of the Constitution
State of Bombay vs United Motors India Limited  and Himmatlal Harilal Mehta vs The State of Madhya Pradesh  referred to
In view of the language used in section 2 of the impugned Act and its effect there could be no doubt that the petitioners could legitimately complain that their fundamental right to hold and dispose of the sthanam properties have been violated by the action of the Legislature
Article 32 of the Constitution conferred wide powers on this Court and such powers were not confined to the issuing of prerogative writs alone
In appropriate cases this court had the right in its discretion to frame its writs or orders suitable to the exigencies created by enactments
It was clear on the authorities that this Court could where the occasion so required make even a declaratory order with consequential relief under article 32 of the Constitution
Chiranjit Lal Chowdhury vs The Union of India 1950 SCR goo Rashid Ahmed vs Municipal Board Kairana 1950 SCR 566 T C Basappa vs T Nagappa  and Ebrahim Vazir Marat vs The State of Bombay 1954 SCR 933 relied on
Maharaj Umeg Singh vs The State Of Bombay 1955 2 SCR 164 considered
This court would fail in its duty as the custodian and pro tector of the fundamental rights if it were to decline to entertain a petition under article 32 simply because it involved the determination of disputed questions of fact
Clause 2 of article 32 conferred on this court the power to issue directions or orders or writs of various kinds mentioned therein and in dismissing a petition it had either to hold that any particular writ asked for was not appropriate to the occasion or that the petitioner had failed to establish a fundamental right or its breach 
In either case however it had to decide the petition on merits
Chiranjit Lal Chowdhuri vs The Union of India 1950 SCR 869Kathi Raning Rawat vs The State of Saurashtra  and Ramkrishna Dalmia vs Shri  justice section R Tendolkar   referred to
In appropriate cases opportunity might also be given to the parties to establish their cases by further affidavits or by issuing a commission or even by setting the application down for trial on evidences
Per Wanchoo J If the petitions were based solely on the infringement of article 14 there could be no doubt that they would not be maintainable
Even though they were based on the 319 infringement of article 191f also their maintainability would still be in doubt in the absence of any further provision in the impugned Act for its direct enforcement by the State