1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/09/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.10717 of 2011 AND MP. No. 1 OF 2011 V.Ramaraj ...Petitioner Vs The General Manager, Tamil Nadu Ex-servicemen Corporation Limited, Srinagar Colony, Saidapet, Chennai – 600 015. ...Respondents Prayer : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records pertaining to the impugned proceedings in Lr.No.TEXCO/8023/VR/AM/2011-12 dated 24.08.2011 passed by the respondent and quash the same and consequently direct the respondent to appoint the petitioner as an Assistant Manager, TEXCO, Madurai on fresh contract. For petitioner ...Mr.N.Sudhakar Nagaraj For respondent ...No appearance O R D E R Seeking to quash the communication, dated 24.08.2011, of the General Manager, Tamil Nadu Ex Servicemen Corporation Limited, (TEXCO) Chennai, addressed to the learned counsel for the petitioner, that the Corporation is not in a position to take any decision on the petitioner's request to engage the petitioner on contract basis, he has come forward with the present writ petition for a certiorarified mandamus to quash the same and consequently, prayed for a direction to the respondent to appoint him as an Assistant Manager, TEXCO, Madurai. 2. Petitioner was engaged as an Assistant Manager, Madurai Region, on contract basis, in TEXCO Limited, Chennai. Based on a report, the Directorate of Vigilance and Anticorruption Department, conducted a trap in the office of the TEXCO, Madurai, and trapped Ex-Hav. R.Karuppasamy, Office Assistant, for having demanded and accepted an amount of Rs.12,000/- from Ex.Nk.K.Kasilingam in connection with his posting at TNEB Devakottai and seized unaccounted cash of Rupees one lakh, six term deposit receipts worth Rs.5,40,000/- Central Bank of India, Savings Bank account pass book and LIC policies from the residence of Ex.Nb.Sub.V.Ramaraj, the petitioner herein. https://hcservices.ecourts.gov.in/hcservices/ 2 Pursuant to the same, show cause notices were issued to the petitioner and departmental enquiry has also been conducted. Not satisfied with the explanation, charges levelled against the petitioner has been held as proved and that, as per Clause II (6) of the duties and responsibilities of the office of the Manager on contract agreement, it amounted to grave misconduct and that he had failed to discharge the duties, maintain discipline, loyalty and integrity. Accordingly, as per Clause 14 of the agreement, vide order dated 16.03.2007, of the General Manager, Tamil Nadu Ex Servicemen Corporation Limited, the contract has been terminated. 3. Pleadings disclose that the abovesaid order is under challenge in this Court in W.P.No.9628 of 2010. Subsequently, when vacancies available in the office of Assistant Manager in various districts, in Madurai, were sought to be filled up, the petitioner seemed to have applied for the above said post for fresh contract. An opinion seemed to have been given by a learned Government counsel to the effect that, there is no hindrance or bar, to engage the petitioner as Assistant Manager in TEXCO on contract basis. As the petitioner has not been considered for the aforesaid assignment, he has come forward with this writ petition. First of all, the petitioner has no legal or statutory right to insist that TEXCO Ltd., Chennai should execute an agreement in his favour, as it is purely its prerogative. No rule or regulation has been placed before this Court substantiating the right of the petitioner against the respondent, so as to compel him to execute a contract in his favour. It is well settled that mandamus, can be sought for only if there is any enforceable, legal or statutory right and that there should be a corresponding duty on the part of the respondent, failure of which, can by, enforced through the command of this Court. 4. Useful reference can be made to few decisions: 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.... 5. 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. 6. 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. https://hcservices.ecourts.gov.in/hcservices/ 3 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. https://hcservices.ecourts.gov.in/hcservices/ 4 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...." 7. Merely because, a learned Government counsel, has given an opinion in favour of the petitioner and at his instance, the said opinion, is not binding on the respondent. Admittedly, the petitioner, who has been implicated as an accused in a case in Crime No.17 of 2006, on the file of the Madurai Police Station, Vigilance and Anticorruption and that the earlier contract, has been terminated, on the specific finding that the petitioner has contravened Clause 2 (1)(6) of the duties and responsibilities of Assistant Manager, which amounted to failure to maintain the discipline, loyalty and integrity, and he cannot insist that the respondent should be compelled to execute any contract with him, dehors the finding recorded. Such contentions, are not only fallacious, they are liable to be rejected. The opinion of the learned Government counsel is not https://hcservices.ecourts.gov.in/hcservices/ 5 binding on the respondent and therefore, the petitioner cannot take advantage of the same. In the result, this Court finds no manifest illegality in the impugned communication warranting interference of this court. In the result, the writ petition is dismissed. No costs. Consequently connected miscellaneous petition is closed. SD DEPUTY REGISTRAR ( WRITS ) /TRUE COPY/ ASST REGISTRAR RR To The General Manager, Tamil Nadu Ex-servicemen Corporation Limited, Srinagar Colony, Saidapet,Chennai – 600 015. DM:2011:OCTOBER:20:: Writ Petition No.10717 of 2011 and M.P.No.1 of 2011 https://hcservices.ecourts.gov.in/hcservices/