1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.7501 of 2011 S.Pushkala Kumari ... Petitioner -Vs- The Managing Director TWAD Board Chepauk Chennai ... Respondent PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Mandamus directing the respondent to promote the petitioner to the post of Junior Draughting Officer with effect from the date on which she becomes eligible for the promotion as per the seniority list. *** For Petitioner : Mr.B.Vijay Karthikeyan O R D E R The petitioner seeks for a Writ of Mandamus directing the respondent to promote the petitioner to the post of Junior Draughting Officer Grade III. 2. Pleading disclose that the petitioner underwent a training of Draughtsman (civil) Certificate Course conducted by Director General of Employment and Training, Government of India, New Delhi and that she possessed a National Trade Certificate issued by Government of India. It is his contention that she was appointed as Assistant Draughtsman on 11.03.1977 in TWAD Board and that though she had rendered service for three decades, her case has not been considered for promotion to the post of Junior Draughting Officer Grade III. 3. Placing reliance on G.O.Ms.No.9, Public Works Department, dated 02.01.1965, which has recognized the Educational qualification possessed by the petitioner as sufficient qualification for the post of Draughtsman Grade III and also of the orders issued in G.O.Ms.No. 2607, dated 18.12.1971, Mr.Vijay Karthikeyan, the learned counsel appearing for the petitioner submitted that despite the abovesaid Government Orders and the Government of India issued Memorandum No. DGET-5(2)/90, dated 12.06.1990 addressed to all the State Governments/UTs stating to the effect that the certificate courses conducted by the Director General of Employment and Training, Government of India can be considered for appointment in Engineering Subordinate Services in Central Government as https://hcservices.ecourts.gov.in/hcservices/ 2 well as in State Government and the recommendations of the Commissioner of Employment and Training, Chennai, vide proceedings dated 09.06.1997 to the Joint Chief Engineer, TWAD Board, to the effect that National Trade Certificate holders can be considered for appointment as Draughtsman (civil), which is now redesignated as Junior Drafting Officer in State Government Departments, the case of the petitioner has not been considered for many years. 4. It is the grievance of the petitioner that though she possessed a suitable or equivalent qualification for the post of Junior Draughting Officer Grade III, she has worked in the same post for three decades, she has not been promoted /approved to the post of Draughting Officer Grade III and in these circumstances, has sought for Mandamus as prayed for. 5. Though the petitioner has contended that the Government of India have issued a Memorandum No. DGET-5(2)/90 dated 12.06.1990 addressed to all the State Governments/UTs which is forwarded to the TWAD Board contending inter alia that educational qualifications and the certificate issued by the Director General of Employment and Training, Government of India, New Delhi can be considered for appointment in Engineering Subordinate Services in Central Government as well as in State Government and the recommendations of the Commissioner of Employment and Training, Chennai, vide proceedings dated 09.06.1997 to the Joint Chief Engineer, TWAD Board, are all also on the same lines, the qualifications prescribed for appointment to the post of Junior Draughting Officer Grade III, under TWAD Board Service Regulation 1972 are extracted hereunder:- "The Degree in Engineering (Civil or Mechanical) or the L.C.E., L.S.E., D.C.E., L.M.E., or D.M.E., Diploma awarded by the Board of Technical Education and Training, Madras or any Diploma recognized by the Government of Tamil Nadu as equivalent thereto for appointment under the said Government; and 2) Three years experience as Draughtsman." 6. Admittedly the educational qualification possessed by the writ petitioner has not been included in the recruitment rules as suitable or equivalent to the one prescribed and in such circumstances, she does not have a legal or statutory right to seek for a Mandamus directing the respondents to promote her to the post of Junior Draughting Officer Grade III, unless the above said qualification is included in the TWAD Board Service Regulation 1972. As on today, the qualification prescribed are only Degree in Engineering Civil or Mechanical etc., as stated supra. https://hcservices.ecourts.gov.in/hcservices/ 3 7. 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 by in series of 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 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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 https://hcservices.ecourts.gov.in/hcservices/ 5 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...." 8. In view of the same, the petitioner cannot be said to have any legal right to seek for a Mandamus. Hence, the Writ Petition is dismissed. No costs. Sd/- Assistant Registrar /True Copy/ Sub-Assistant Registrar To The Managing Director TWAD Board Chepauk Chennai vsg rl/2c – 19.7.2011 W.P.(MD).No.7501 of 2011 https://hcservices.ecourts.gov.in/hcservices/