1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:13.09.2011 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.(MD)No.10377 of 2011 and M.P.(MD)No.1 of 2011 R.Arumugam ... Petitioner Vs. 1. The District Collector, Karur District, Karur. 2.The Assistant Director of Town Panchayats, Dindigul Regiion, Dindigul. 3.The Executive Officer, Punjai Pugalur Town Panchayat, Velayuthampalayam, Karur District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of Mandamus, directing the respondents to consider the petitioner's representation dated 18.07.2011 and appoint him to the post of Record Clerk Post lying vacant under the Krishnarayapuram Town Panchayat in Karur District. For Petitioner .. Mr.M.Karthikeya Venkitachalpathy For Respondents .. Mr.B.Pugalendhi Spl. Govt. Pleader O R D E R After completion of higher secondary school education, the petitioner has registered the same in the employment exchange, Karur and upon sponsoring, he was appointed as Water Meter Reader on 23.12.1993 in Aravakurichi Town Panchayat in time scale of pay. As there was an attempt to terminate his appointment, the petitioner filed O.A.No.3800 of 1996, before the Tamil Nadu State Administrative Tribunal, Chennai and pursuant to an interim order of the Tribunal, directing the respondents 1 to 3 herein, not to terminate the petitioner's service, he was continuing as Water Meter Reader. On 01.04.2003, the Director of Town Panchayat, Chennai, transferred the petitioner from Aravakurichi Town Panchayat to Madurai Region, with the direction to give a suitable post. Since Madurai Region did not have a Water Meter Reader post, on 09.04.2003, the petitioner was surrendered back by the Assistant Director of Town https://hcservices.ecourts.gov.in/hcservices/ 2 Panchayat, Madurai Region to the Director of Town Panchayat, Chennai. Again, vide order dated 22.07.2003, the Director of Town Panchayat, Chennai, posted the petitioner in Karur District. On 18.08.2003, the petitioner was appointed as Tank Cleaner in Punjai Pugalur Town Panchayat. Thereafter, on 06.10.2003 the petitioner applied to the Assistant Director of Town Panchayats, Dindigul Region, Dindigul, the second respondent herein, for the post of Record Clerk, which was vacant in Puliyur Town Panchayat. 2. The post of Tank Cleaner required a pass in eighth standard. As the petitioner has been working for long time, he made a representation to the Assistant Director of Town Panchayats, Dindigul Region, Dindigul, the second respondent herein, to appoint him as Record Clerk in Puliyur Town Panchayat, but without any reasons, the petition was rejected. Again on 14.10.2003 and 27.11.2003, the petitioner made representations with the same request, to the District Collector, Karur District, the first respondent. He forwarded the said representations to the second respondent herein and stating that the application was not filed properly, rejected the same. Again the petitioner made another representation, dated 04.02.2009, to the second respondent. In the month of July, 2011, the petitioner came to know that four Record Clerk posts were vacant in various Town Panchayats within Karur District. Therefore, he submitted a representation, dated 18.07.2011, to all the respondents, seeking appointment to the post of Record Clerk. He further submitted that out of four posts of Record Clerk vacant, three posts were already filled up. Only one post alone is vacant in Krishanarayapuram Town Panchayat, Karur District. In the above said circumstances, the petitioner has sought for a Mandamus, directing the respondents to consider his representation, dated 18.07.2011, and appoint him to the post of Record Clerk, which is vacant in Krishnarayapuram Town Panchayat in Karur District. 3.Head learned counsel for the parties and perused the materials available on record. 4.When the learned counsel for the petitioner was confronted with a question, as to whether, appointment for the post of Record Clerk, is being made on the basis of seniority maintained in each Town Panchayat or not, he is not able to explain, with reference to any rules or regulations, governing the appointment of Record Clerk. However, he submitted that as the Head of District Administrative, the District Collector, is competent to appoint a person from one Town Panchayat to another, by transfer and that therefore, if a direction is issued by this Court to consider petitioner's representation, dated 18.07.2011, the petitioner may get a chance to get appointed to the vacant post in Krishnarayapuram Town Panchayat in Karur District. There cannot any quarrel over the power of the District Administration to effect transfers. The question is whether an employee in one Town Panchayat can be appointed in another Town Panchayat, to a post carrying higher scale, merely because, there is a vacancy in the latter Town Panchayat. Unless the petitioner establishes a case that seniority of all employees working in all the Town Panchayats is one and the same, he cannot, as a matter of right, seek for appointment to a post, carrying higher scale in another Town Panchayat. It is well settled that a Writ of Mandamus can be issued only if the petitioner is able to substantiate his right to be https://hcservices.ecourts.gov.in/hcservices/ 3 considered for any post under the statutory rule or regulation and that there should be a corresponding duty on the part of the respondents, against whom the relief is sought for. Mandamus, can be issued only if there is a failure on the part of the respondents, to exercise statutory function or duty. Useful reference can be made to few decisions on this point:- (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 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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 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 https://hcservices.ecourts.gov.in/hcservices/ 5 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...." 5.Admittedly, the petitioner is working as 'Tank Cleaner' in Punjai Pugalur Town Panchayat and that he has not established his right to be considered for appointment as Record Clerk in another town panchayat by placing any rule or regulation. In such view of the matter, this Court is not inclined to issue any Mandamus, as prayed for. 6.In the result, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed. mpk/gcg Sd/- Assistant Registrar /True copy/ Sub Assistant Registrar To 1. The District Collector, Karur District, Karur. 2.The Assistant Director of Town Panchayats, Dindigul Regiion, Dindigul. 3.The Executive Officer, Punjai Pugalur Town Panchayat, Velayuthampalayam, Karur District. W.P.(MD)No.10377 of 2011 Dated:13.09.2011 5P/4C RPB 21.09.2011[I.T.] https://hcservices.ecourts.gov.in/hcservices/