Bharat Bhushan Singh vs State Of Uttarakhand & Others

Sharad Kumar Sharma, J

The petitioner to the present writ petition, claiming himself to be the President of the Parents Teacher Association, in relation to the Institution of the

respondent No.4, has filed this writ petition praying for a writ of mandamus, to the respondents to conduct the proceedings for induction of the new

members of the Committee of Management in accordance with the “Scheme of Administrationâ€, as framed under the provisions of the

Uttarakhand School Education Act, 2006. Further a writ of mandamus has been sought, for taking an action against the Ex-Manager, as well as the

Clerk, who are said to have been involved in usurping of the money of the Committee of Management.

After going through the writ petition, and the petitioner’s prayer for the induction of the new Members to the general body under the terms of

the Clause 7 of the Scheme of Administration. Even; even if it is taken that the Scheme framed under Section 29 of the Uttarakhand School Education

Act, 2006; falls to be having a statutory force or blend in it, and which entails a performance of a duty on part of the Committee of Management, to

induct the Members in accordance with the terms of the Scheme of the Administration, but if there is inaction in enforcing the Scheme of

Administration for the purposes of the induction of the members of the general body; for the purposes of issuance of writ of mandamus, it needs no

reference in detail that there has had to be specific pleadings, in the writ petition that before filing the writ petition, the petitioner ought to have

approached the respondents for pressing his relief under the Scheme of Administration, and the relief, which has been pressed is a relief, which falls

within the domain of the law, and further that there had been an inaction on the part of the respondents in the performance of any statutory duty, or in

not taking an action on the request made by the petitioner.

Instead, in the writ petition there is not even a single whisper by way of pleadings, that the petitioner before filing the writ petition for the relief

claimed therein, had ever approached the respondents for enforcing the impact of Clause 7 of the Scheme of Administration, or for the nature of the

relief which has been sought by the writ of mandamus, as prayed in relief two. Hence, this writ petition at this stage, would not be tenable, in view of

the judgment of the Hon’ble Apex Court, which has been reported in 2007 (5) SCC 65, “State of Manipur & others Vs. Y. Token Singh &

othersâ€​, and the principle as it has been enunciated in Paragraph Nos.18 and 23 of the said judgment, which reads as under:-

“18. Moreover, it was for the respondents who had filed the writ petitions to prove existence of legal right in their favour. They had inter alia

prayed for issuance of a writ of or in the nature of mandamus. It was, thus, for them to establish existence of a legal right, in their favour and a

corresponding legal duty in the respondents to continue to be employed. With a view to establish their legal rights to enable the High Court to issue a

writ of mandamus, the respondents were obligated to establish that the appointments had been made upon following the constitutional mandate

adumbrated in Articles 14 and 16 of the Constitution of India. They have not been able to show that any advertisement had been issued inviting

applications from eligible candidates to fill up the said posts. It has also not been shown that the vacancies had been notified to the employment

exchange.

We, as noticed hereinbefore, do not know as to under what circumstances the orders of appointments were issued.â€​

It has further been reported in the judgment reported in 2006 (12) SCC 561, “State of Bihar & others Vs. Amrendra Kumar Mishraâ€, and the

principle as it has been enunciated in Paragraph Nos.15 to 18, which reads as under:-

“15. In Maruti Udhyog Ltd. v. Ram Lal and Ors., it was observed:

While construing a statute, ""sympathy"" has no role to play. This Court cannot interpret the provisions of the said Act ignoring the binding decisions

of the Constitution Bench of this Court only by way of sympathy to the workmen concerned.

In A. Umarani v. Registrar, Coop. Societies this Court rejected a similar contention upon noticing the following judgments: SCC PP. 131 â€" 32,

paras 68-70)

In a case of this nature this Court should not even exercise its jurisdiction under Article 142 of the Constitution of India on misplaced sympathy.

In Teri Oat Estates (P) Ltd. v. U.T., Chandigarh it is stated: (SCC p. 144, paras 36-37)

We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the

appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in

Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a statutory

provision.

As early as in 1911, Farewell, L.J. in Latham v. Richard Johnson & Nephew Ltd. observed: (All ER p. 123 E)

We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o' the wisp to take as

a guide in the search for legal principles.

Yet again, recently in Ramakrishna Kamat v. State of Karnataka this Court rejected a similar plea for regularisation of services stating: (SCC pp.

377-78, para 7)

We repeatedly asked the learned Counsel for the appellants on what basis or foundation in law the appellants made their claim for regularisation and

under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the

appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zila Parishads in view of the

government orders and that their cases need to be considered sympathetically. It is clear from the order of the learned Single Judge and looking to the

very directions given, a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and

circumstances of the case. While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to

the large number of eligible persons waiting for a long time in a long queue seeking employment.

In the facts and circumstances of this case, in our opinion, the High Court should not have allowed Respondent herein to join his services only on

the basis of sympathy.

It is now also well settled that in absence of any legal right, the Court should not issue a writ of or in the nature of mandamus on the basis of

sympathy.

We, therefore, are of the opinion that the High Court committed a manifest error in allowing the writ petition of Respondent. It is set aside

accordingly. The appeal is allowed. However, no recovery shall be made for the period he has actually worked. No costs.

The Hon’ble Apex Court has specifically laid down that the circumstances and the principle, which are the pre-conditions which are required to

be satisfied by the petitioner who approaches the writ court for seeking a writ of mandamus.

Since the writ petition does not falls to be within the aforesaid purview, the same is dismissed as the writ petition lacks pleading that the petitioner

prior to filing of writ petition, has approached the competent authority, making a request for the enforcement of any of his statutory rights which has

been infringed by the respondents, with the liberty left open to the petitioner to approach the Competent Authority for compliance of Clause 7 of the

Scheme of Administration.

Subject to the above observations, the writ petition stands dismissed subject to the aforesaid liberty.