Existence of a right is the foundation of the jurisdiction of a Court to issue a ‘Writ of Mandamus’: High Court of J&K and Ladakh
The ‘Writ of Mandamus’ is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice, despite demanded, has not been granted as upheld by the Hon’ble High Court of J&amp;K and Ladakh through a learned bench of Justice Ali Mohammad Magrey and Justice Sanjay Dhar in the case of Ghulam Hassan Lone Vs JK High Court &amp; Ors [SWP No. 790/2019 [WP(C) No. 1227/2019]. Brief facts of the case are that the rejection of the claim of the Petitioner was challenged, amongst other grounds, primarily on the ground that the same is violative of the principle of “Equal Pay for Equal Work”. It is contended that since the Petitioner is performing his duties on the post of Plumber in the Respondent High Court, as such, he is entitled to get the same pay for such services as is being paid to the Plumbers working in various Departments of the Government of Jammu and Kashmir, including those working in the Estates Department and Public Health Engineering (Jal Shakti) Department. In essence, the Petitioner was seeking revision of pay scale already sanctioned against the post of Plumber in the Respondent-High Court which, on examination by the competent authority, is not found favour with in terms of the impugned Order dated 27th of April, 2017. Merely because the Government of Jammu and Kashmir has sanctioned the pay scale in the case of Plumbers working in various Government Departments other than the one available to the Petitioner, working in the Respondent-High Court, cannot be a ground for seeking pay revision at par with such Plumbers. The payment of salary to an employee of the Respondent-High Court on a post borne on the establishment of the High Court is sanctioned and attached with the said post by the competent authority. An employee of the Respondent-High Court is accordingly governed by the terms and conditions of their employment, including the grant of salary, other allowances, etc. The Petitioner has not placed on record any material which could substantiate his claim for the release of enhanced pay scale at par with the Plumbers working in the various Departments of the Government of Jammu and Kashmir. Merely because there are different pay scales sanctioned and attached to the post of Plumber in various Departments of the Government of Jammu and Kashmir is not sufficient to grant the Writ in favour of the Petitioner qua the relief claimed. In terms of settled legal position, for seeking a Writ from this Court, the Petitioner has to show as to which of his right stands violated as would warrant the Petitioner to approach this Court for seeking a ‘Writ of Mandamus’ in their favour. In conclusion, while referring to the judgment of Supreme court in State of UP &amp; Ors. V. Harish Chandra &amp; Ors.; (1996) 9 Supreme Court Cases 309, the High Court stated that “From the perusal of the law laid down above, it is crystal clear that existence of a right is the foundation of the jurisdiction of a Court to issue a ‘Writ of Mandamus’. In the case on hand, the Petitioner has not been able to show as to which of his right has been violated by the Respondents which can be directed to be enforced by way of issuing a ‘Mandamus’ from this Court. In this context, the irrefutable conclusion which can be drawn is that none of the right of the Petitioner stands violated by the Respondents for which a ‘Writ of Mandamus’ can be issued in his favour.”
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR SWP No. 790 2019No. 1227 2019] Serial No. 21 Regular Cause List Dated: 24th of November 2021. … Petitioner(s) Ghulam Hassan Lone Mr Mutahar Ahmad Makhdoomi Advocate. JK High Court & Ors. … Respondent(s) Through: Mr Sofi Manzoor Advocate vice Mr N. A. Beigh Senior Advocate for R 1 and Mr B. A. Dar Sr. AAG for R 2 & 3. Hon’ble Mr Justice Ali Mohammad Magrey Judge Hon’ble Mr Justice Sanjay Dhar Judge Per Magrey Jhas been rejected. The rejection of the claim of the Petitioner is challenged amongst other grounds primarily on the ground that the same is violative of SWP No. 790 2019No. 1227 2019] the principle of “Equal Pay for Equal Work”. It is contended that since the Petitioner is performing his duties on the post of Plumber in the Respondent High Court as such he is entitled to get the same pay for such services as is being paid to the Plumbers working in various Departments of the Government of Jammu and Kashmir including those working in the Estates Department and Public Health Engineering Department. In essence the Petitioner is seeking revision of pay scale already sanctioned against the post of Plumber in the Respondent High Court which on examination by the competent authority is not found favour with in terms of the impugned Order dated 27th of April 2017. Merely because the Government of Jammu and Kashmir has sanctioned the pay scale in the case of Plumbers working in various Government Departments other than the one available to the Petitioner working in the Respondent High Court cannot be a ground for seeking pay revision at par with such Plumbers. The payment of salary to an employee of the Respondent High Court on a post borne on the establishment of the High Court is sanctioned and attached with the said post by the competent authority. An employee of the Respondent High Court is accordingly governed by the terms and conditions of their employment including the grant of salary other allowances etc. The Petitioner has not placed on record any material which could substantiate his claim for the release of enhanced pay scale at par with the Plumbers working in the various Departments of the Government of Jammu and Kashmir. Merely because there are different pay scales sanctioned SWP No. 790 2019No. 1227 2019] and attached to the post of Plumber in various Departments of the Government of Jammu and Kashmir is not sufficient to grant the Writ in favour of the Petitioner qua the relief claimed. In terms of settled legal position for seeking a Writ from this Court the Petitioner has to show as to which of his right stands violated as would warrant the Petitioner to approach this Court for seeking a ‘Writ of Mandamus’ in their favour. ‘Mandamus’ literally means a command. The essence of ‘Mandamus’ is that it is a command issued for directing performance of a public legal duty. A ‘Writ of Mandamus’ is issued in favour of a person who establishes a legal right in himself. A ‘Writ of Mandamus’ is issued against a person who has a legal duty to perform but has failed and or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The ‘Writ of Mandamus’ is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted. The Apex Court of the country while dealing with the scope of ‘Mandamus’ in case titled ‘State of Kerela V. Smt. A. Lakshmikutty & Ors. 1986) 4 Supreme Court Cases 632’ at Paragraph No.34 has observed as SWP No. 790 2019No. 1227 2019] “34. We must refer to the case of Mani Subrat Jain v. State of Haryana & Ors. which was relied upon by learned counsel for the State Government. It is well settled that a writ of mandamus is not a writ of course or a writ of right but is as a rule discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general there fore the Court will only enforce the performance of statu tory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. Applying the principles stated in Halsbury s Laws of England 4th edn. vol. 1 paragarph 122 this Court observed that a person whose name had been recommended for appointment as a District Judge by the High Court under Art. 233(1) had no legal right to the post nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for a mandamus. It was observed: of District “It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of persons for appointment. If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation. The consultation of the Governor with the High Court does not mean that the Governor must accept whatever advice of recommendation the High Court. Article 233 re quires that the Governor should obtain from the High Court its views on the merits and demerits of persons selected for promotion and direct is given by The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus. The present trend of judicial opinion appears to be that in the case of non selection to a post no writ of mandamus lies.” Again in the case of ‘State of UP & Ors. V. Harish Chandra & Ors. 9 Supreme Court Cases 309’ at Paragraph No.10 the Supreme Court held thus: SWP No. 790 2019No. 1227 2019] “10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. 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 said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But so mandamus can be issued to direct the Government to refrain from enforcing the provision of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights it any of persons included in the list did not subsist. In the course of hearing the learned counsel for the respondents no doubt have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation. The learned counsel appearing for the appellants submitted that in some cases pursuance to the direction of the Court some appointments have been made but in some other cases it might have been done by the Appointing Authority. Even though we are persuaded to accept the submission of the learned counsel for the respondents that on some occasion appointments have been made by the Appointing Authority from a select list even after the expiry of one year from the data of selection but such illegal action of the Appointing Authority does not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. We have no hesitation in coming to the conclusion that such appointments by the Appointing Authority have been made contrary to the provisions of the Statutory Rules for some unknown reason and we deprecate the practice adopted by the Appointing Authority in making such appointments contrary to the Statutory Rules. But at the same time it is difficult for us to sustain the direction given by the High Court since admittedly the life of the select list prepared on 4.4.87 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court. We may not be understood to imply that the High Court must issue such direction if the writ Petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. In view of the aforesaid conclusion of ours it is not necessary to deal with the question whether the stand of the State Government that there existed one vacancy in the year 1987 is correct or SWP No. 790 2019No. 1227 2019] From the perusal of the law laid down above it is crystal clear that existence of a right is the foundation of the jurisdiction of a Court to issue a ‘Writ of Mandamus’. In the case on hand the Petitioner has not been able to show as to which of his right has been violated by the Respondents which can be directed to be enforced by way of issuing a ‘Mandamus’ from this Court. In this context the irrefutable conclusion which can be drawn is that none of the right of the Petitioner stands violated by the Respondents for which a ‘Writ of Mandamus’ can be issued in his favour. For the foregoing reasons we do not find any merit in the instant Petition which is accordingly dismissed along with any pending CM(s) connected therewith. Interim directions if any subsisting as on date shall stand vacated. November 24th 2021 (Ali Mohammad Magrey) Judge Judge Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking 