1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.10488 of 2011 and M.P.(MD).No.1 of 2011 S.Arokiya Antony Majeela : Petitioner Vs. 1.The Joint Director of School Education, Chennai. 2.The Chief Educational Officer, Kanyakumari District. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, directing the 1st respondent to consider the representation of the petitioner dated 20.07.2011 and thereby to transfer the petitioner to any one of the vacancy in PG Assistant (Chemistry) in Kanyakumari District in the existing vacancy or in the future vacancy. For Petitioner : Mr.Ramanathan For Respondent : Mr.S.Chandra Sekar Government Advocate ORDER According to the petitioner, she is working as a Higher Secondary PG Assistant (Chemistry), in Government Higher Secondary School, Sevalpatti, Virudhunagar District. It is the contention of the petitioner that though the Government, have issued instructions in letter No.54102/A2/74S dated 02.01.1975, Education Department, to the effect that while effecting transfers of teachers, the length of service rendered by a teacher outside Kanyakumari District should be the criterion for deciding the case and those who stayed outside Kanyakumari District should necessarily be given preference. The aforesaid instruction has been given in the year 1975 and currently, a counselling system is in vogue, while ordering transfers. That apart no rule or regulation has been placed before this court to substantiate that the circular of the year 1975 has been issued with reference to any rule or regulation. In the absence of the petitioner establishing a legal or statutory right, and establishing a consequential failure on the part of the respondents, this court is not inclined to issue any mandamus, in view of the following decisions: i)(1996) 9 SCC 309 (State of U.P. and Ors. v. Harish Chandra and Ors.) ii)(2004) 2 SCC 150 (Union of India v. S.B. Vohra) iii)(2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) 2.Further material on record disclose that pursuant to the directions of this court in W.P.(md).11249 of 2010 dated 30.08.2010, the https://hcservices.ecourts.gov.in/hcservices/ 2 Joint Director of School Education, (Higher Secondary), Chennai has issued proceedings in O.Mu.No.87338/W2/E2/10 dated 22.09.2010 stating that the petitioner's letter dated 25.08.2010 would be considered, at the time of general counselling as per the guidelines. 3.In such circumstances, mandamus sought for cannot be issued. However, liberty is given to the petitioner, to work out his remedy before the appropriate forum. 4.As regards mandamus, it is pertinent to extract few decisions as to when mandamus can be issued. (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 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 https://hcservices.ecourts.gov.in/hcservices/ 3 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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.” 5.In view of the above decisions, the petitioner has not made out a case for issuance of mandamus. Accordingly, the writ petition is dismissed. Dismissal of the writ petition would not preclude the right of the petitioner to participate in the counselling, if she is eligible. Consequently, connected M.P.No.1 of 2011. No costs. Sd/- Assistant Registrar(Crl.Side) /TRUE COPY/ Sub Assistant Registrar To 1.The Joint Director of School Education, Chennai. 2.The Chief Educational Officer, Kanyakumari District. +1cc The Special Govt.Pleader SR.No.31888 Writ Petition(MD)No.10488 of 2011 and MP(MD)No.1 of 2011 15.09.2011 vs PA/20.09.2011/4P/4C https://hcservices.ecourts.gov.in/hcservices/