1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).Nos.11221 to 11225 of 2011 K.Alagar : Petitioner in W.P.(MD)No.11221/2011 S.Vanamamalai : Petitioner in W.P.(MD)No.11222/2011 P.Ganesan : Petitioner in W.P.(MD)No.11223/2011 S.Raju : Petitioner in W.P.(MD)No.11224/2011 G.Kasiviswanathan : Petitioner in W.P.(MD)No.11225/2011 Vs. 1.The State of Tamil Nadu, rep. by its Secretary to Government, Highways and Minor Ports Department, Fort St. George, Secretariat, Chennai-600 009. 2.The Director General, Highways Department, Chepauk, Chennai-600 005. : Respondents in all W.Ps. COMMON PRAYER: Writ Petitions are filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, directing the respondents to consider the petitioners' representation dated 24.08.2011 made insofar as not to amend the Tamil Nadu Highways Engineering Service Rules in regard to promotion to the post of Assistant Divisional Engineer from the feeder category of Junior Engineer within the time limit that may be stipulated by this Court. For Petitioners : Mr.G.Thalaimutharasu For Respondents : Mr.S.Chandrasekar Government Advocate COMMON ORDER The petitioners have sought for a Mandamus, directing the respondents to consider their representations dated 24.08.2011, made insofar as not to amend the Tamil Nadu Highways Engineering Service Rules in regard to promotion to the post of Assistant Divisional Engineer from the feeder category of Junior Engineer. 2. The question of prescribing the eligibility criteria for appointment/promotion is purely the prerogative of the appointing authority. The said legal position is well settled in the judgment in P.U.Joshi and others vs. Accountant General Ahmedabad and others reported in (2003) 2 Supreme Court cases 632, wherein at paragraph https://hcservices.ecourts.gov.in/hcservices/ 2 No.10 of the judgement, 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. Mandamus sought for can be issued, only if there is any legal or statutory right. The said position is well settled in many decisions. (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 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.... (b) In the decision reported in (2004) 2 SCC 150 (Union of India v. S.B. Vohra) the Supreme Court considered https://hcservices.ecourts.gov.in/hcservices/ 3 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. (c) 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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 https://hcservices.ecourts.gov.in/hcservices/ 5 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...." 4. The petitioners have no legal or statutory right to insist that the representation made for amendment of Service Rules should not be considered by the Government. In such circumstances, Mandamus to consider the petitioners' representations dated 24.08.2011 cannot be issued. Hence, the Writ Petitions are dismissed. However, it is made clear that the dismissal of the Writ Petitions would not preclude the authorities from considering the representations, if they so desire. It is made clear that no Mandamus is issued in this regard, as there is no legal or statutory right. No costs. Sd/- Assistant Registrar(Records) /True Copy/ Sub Assistant Registrar To 1.The Secretary to Government, Highways and Minor Ports Department, Fort St. George, Secretariat, Chennai-600 009. 2.The Director General, Highways Department, Chepauk, Chennai-600 005. +1cc to the Special Govt.Pleader, Sr.No. 34367 sml ssk/18.10.2011 /4c -5p/- Common Order made in W.P.(MD).Nos.11221 to 11225 of 2011 Dated:- 29.09.2011 https://hcservices.ecourts.gov.in/hcservices/