Anil Kumar Mishra And Ors. vs Union Of India ...
2018 Latest Caselaw 1788 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 7
 

 
Case :- SERVICE BENCH No. - 30102 of 2017
 

 
Petitioner :- Anil Kumar Mishra And Ors.
 
Respondent :- Union Of India Throu,Secy.Ministry Of Railway N.Delhi & Ors.
 
Counsel for Petitioner :- Alok Kr. Misra
 
Counsel for Respondent :- A.S.G.,Neerav Chitravanshi
 

 
Hon'ble Anil Kumar,J.

Hon'ble Mrs. Rekha Dikshit,J.

Heard Sri Alok Kumar Mishra, learned counsel for the petitioners, Sri Neerav Chitravanshi, learned Standing Counsel for opposite parties and perused the record.

Sri Alok Kumar Mishra, learned counsel for the petitioners/ claimants submits that bread earner of the families of the petitioners/ claimants, namely, Anil Kumar Mishra, Ayodhya Sharan Mishra and Raghav Sharan Mishra were travelling on 20.3.2015 in Janta Express having Train No.14266 met an accident near Bachrawa railway station as a result of which they died . Thereafter a sum of Rs. 4.00 lakhs on account of death of passengers in railway accident as per prevalent scheme has already been paid to all the kith and kin of the deceased. Apart from it a sum of Rs. 2.00 lakhs were also received by the kith and kin of the deceased from Chief Minister Relief Funds.

Learned counsel for the petitioners further submits that under Right to Information Act, the petitioners/ claimants came to know that in one accident occurred with Kalka Mail in the year 2011, the Railway Board under Special Circumstances gave compassionate appointment to kith and Kin as substitute in Group 'D' posts in Railway, so they submitted an application before the authorities concerned for considering their case for compassionate appointments. When the same has not been considered by the authorities concerned, petitioner no.1/ Anil Kumar Mishra had filed Writ Petition No.18958 (SS) of 2016 ( Anil Kumar Mishra Vs. Union of India and others ) and petitioner no.2/ Ayodhya Sharan Mishra had filed Writ Petition No.18976 (SS) of 2016( Ayodhya Sharan Mishra Vs. Union of India and others) before this Court, the same were dismissed by order dated 12.8.2016 which on reproduction reads as under:-

"Heard learned counsel for the petitioner and Ms. Jyotsna Pal, learned counsel for respondents.

By means of this petition, the petitioner seeks a direction in the nature of mandamus to be issued to respondents to consider the case of the petitioner for appointment on special compassion against a suitable post.

It has been contended by learned counsel for petitioner that the petitioner's father, namely, Ram Sajiwan Mishra died in a rail accident which occurred in the year 2015 while he was travelling in Janta Express from New Delhi to Raebareli. He has also stated that in case of another rail accident which occurred in the year 2011, various passengers who were travelling in Kalka Mail had died and their dependents have been given appointment as substitute Group D employees. Such appointments are 47 in number, as is apparent from perusal of letter dated 06.04.2016, which has been annexed as annexure no.6 to the writ petition.

It has strenuously been contended by learned counsel for the petitioner that denial of employment to the petitioner will amount to violation of Article 14 of the Constitution of India which not only provides that there shall be equality before law but also that there will be equal protection of law. Submission of learned counsel for petitioner in nutshell is that since dependents of the deceased passengers of Kalka Mail which met an accident in the year 2011 were given appointment by the railways on special compassion basis, as such denial of such employment to the petitioner will amount to violation of Article 14 of the Constitution.

Learned counsel for the petitioner has utterly failed to show or establish that there is any such scheme which is in vogue under which appointments in such circumstances are permitted. Some appointments might have been made on special compassion basis on the discretion which may have been exercised by the railways, looking into the nature of accident and the death occurred as a result of such accident. The petitioner cannot, in my considered opinion, claim as a matter of right, any such employment as is being claimed by him. The plea of right to be considered for appointment as a dependent of the victim of rail accident on the basis of Article 14 of the Constitution is also not available to the petitioner.

The writ petition being highly misconceived is dismissed."

Thereafter , petitioner no.1/ Anil Kumar Mishra had filed Special Appeal Defective No.465 of 2016 ( Anil Kumar Mishra Vs. Union of India and others) and petitioner no.2/Ayodhya Sharan Misra has filed Special Appeal Defective No.464 of 2016 ( Ayodhya Sharan Mishra Vs. Union of India and others) , same were disposed of by means of order dated 24.10.2016, the relevant portion of the same is quoted below:-

"Consequently, we dispose off this appeal and allow the appellant to withdraw the writ petition itself. Consequently, the writ petition will stand dismissed as observed by the learned Single Judge, but as withdrawn and not on the merits of the claim of the appellant. The appellant shall be at liberty to file a claim petition claiming relief either before the competent authority or before the Central Administrative Tribunal in accordance with law."

Sri Alok Kumar Mishra, learned counsel for the petitioners further submits that thereafter petitioner no.1/ Anil Kumar Mishra has filed Original Application No.57 of 2017 ( Anil Kumar Vs. Union of India and others), Petitioner no.2/ Ayodhya Sharan Mishra has filed Original Application No.58 of 2017 ( Ayodhya Sharan Mishra Vs. Union of India and others) and Petitioner no.3/ Raghav Sharan Mishra  has filed Original Application No. 59 of 2017 ( Raghav Sharan Mishra Vs. Union of India and others) before Central Administrative Tribunal, dismissed by means of order dated 10.3.2017 relevant portion of the order is quoted as under:-

" Having considered the submissions of the parties, Tribunal is of the view that special compensation given by the Railway to particular persons cannot be read as a universal rule of law and cannot be interpret as statute. The applicants have not placed on record  any scheme or rule or administrative or statutory instructions in this regard issued by the respondents. The applicant claimed the benefit of compassionate appointment on the ground of parity and equality before law with those who were given compassionate appointment in Kalka Mail Accident. Hence the applicants cannot claim the compassionate appointment as of a right merely on the basis that the respondents gave compassionate appointment in special case to the dependents of victim of any other train accident occurred in 2011 and especially in absence of any such statute or statutory provision or rule or instructions."

In view of the said backgrounds, the present writ petition has been filed before this Court.

Sri Alok Kumar Mishra has pressed the present writ petition that in past Railway Board had given compassionate appointment to the dependent of the deceased/ bread earner who died in Kalka Mail accident occurred in 2011, so keeping in view the said facts, Railway Board should have given compassionate appointment to the petitioners/ claimants who are kith and kin of the deceased/ bread earner died in rail accident on 20.3.2015 by Janta Express having train no.14266 near Bachrawa railway satation but the Railway Board has not considered the case of the petitioners, so the action on the part of official respondents is in violation of Article 14 of the Constitution of India.

The next arguments which has been advanced by learned counsel for the petitioners that looking into peculiar facts and circumstances of the case as well as taking into consideration the above said fact , they may be permitted to raise their claim for compassionate appointment before appropriate authorities.

Sri Neerav Chitravanshi, learned counsel for the respondents submits that as a matter of fact on record there is no such scheme or rule or administrative or statutory instructions in giving compassionate appointment to the dependent/ kith and kin of the deceased who died in rail accident, so keeping in view  the said facts, Tribunal has rightly dismissed the claim of the petitioners who are kith and kin of the deceased met an accident near Bachrawa railway station on 20.3.2015 while they were travelling in Janta Express having train no.14266, so there is no illegality or infirmity in the impugned order passed by Central Administrative Tribunal, Lucknow , the writ petition filed by the petitioner liable to be dismissed.

We have heard learned counsel for the parties and gone through the record.

So far as the first arguments raised by learned counsel for the petitioner that in past in one accident occurred with Kalka Mail in the year 2011 the Railway Board had given appointment to kith and kin of the deceased as substitute in Group ''D' post in Railways is concerned, has got no force because learned counsel for the petitioners is not able brought before this Court by way of pleading that there is any scheme or rule or administrative or Statutory instructions in regard to give compassionate appointment to the kith and kin of the deceased who died In train accident, so keeping in view the said fact if in past some appointment has been given by the Railway Board on the point in issue, admittedly there is no such provisions for giving compassionate appointment to the kith and kin of the deceased who died in rail accident , so keeping in view of the said fact as well as settled proposition of law that if a wrong has been committed by the respondents to some other persons, that will not provide a cause of action to claim on the ground of equal treatment since the equality in law under Article 14 is applicable for claiming parity in respect to legal and authorized acts. Two wrongs will not make one right. The Apex Court in th case of State of Bihar and others Vs. Kameshwar Prasad Singh and another, AIR 2000 SC 2306; Union of India and another Vs. International Trading Co. and another, AIR 2003 SC 3983; Lalit Mohan Pandey Vs. Pooran Singh and others, AIR 2004 SC 2303; M/s Anand Buttons Ltd. Etc. Vs. State of Haryana and others, AIR 2005 SC 5565 and Kastha Niwarak G.S.S. Maryadit, Indore Vs. President Indore Development Authority , AIR 2006 SC 1142.

Hon'ble the Supreme Court in the case of Gulam Rasool Lone Vs. State of Jammu & Kashmir reported in JT 2009(13) SC 422 in para 11 and 12 held as under:

"11. There cannot be any doubt whatsoever that keeping in view the equal protection clause contained in Articles 14 of the Constitution of India as also Article 16 thereof, all the employees should be treated equally. Equality clause however, must be enforced in legality and not illegality.

12. There cannot furthermore be any doubt that Article 14 is a positive concept. The Constitution does not envisage enforcement of the equality clause where a person has got an undue benefit by reason of an illegal act."

On the aforesaid facts petitioners cannot be given compassionate appointment.

So far as the next arguments which advanced by learned counsel for the petitioners that looking into peculiar facts and circumstances of the case petitioners/ claimants may be permitted to raise their claim for compassionate appointment before appropriate forum is concerned, he is not able to show either by way of any pleadings or arguments whether there is legal duty has been casted upon the official respondents to perform or not and when the writ of mandamus can be issued directed the respondents to do particular act .

"Mandamus" is a Latin word. Literally, it means a "command" or an "order" which directs a person or authority to whom it is addressed tp perform the public duty imposed on him or on it.

Mandamus is English origin. The direction in the Magna Carta that the Crown was bound neither to deny justice to anybody nor to delay anybody in obtaining justice has been recognized by this writ. The first reported case of mandamus was the Middleton's Case (1574) 3 Dyer 332b in 1573 wherein a citizen's franchise was restored. James Bagg (1615) 11 Co Rep 93b was the leading decision by which a membership of local body was restored to the applicant.

The first reported case was in 1775 R. v. Warren Hastings, (1775) 1 ID (05) 1005, where mandamus was sought against the supreme Council of the Governor General. Statutory recognition to grant mandamus was granted by section 50 of the Specific Relief Act, 1877. In Tan Bug Taim V. Collector AIR 1946 Bom 216, an order requisitioning property was held ultra vires. The words "any law" were interpreted as wide enough to include all kind of law, statutory or otherwise.

After the commencement of the Constitution, the supreme Court is empowered under Article 32 to issue mandamus for the enforcement of fundamental rights, while every High Court has power to issue mandamus under Article 226 for the enforcement of fundamental rights and also for "any other purpose" throughout the territories in relation to which it exercises jurisdiction.

Mandamus differs from prohibition and certiorari in that, while the former can be issued against administrative authority,the latter are available against judicial and quasi-judicial authorities. Mandamus acts where the courts and tribunal usurp jurisdiction vested in them or exceed their jurisdiction. Whereas mandamus demands activity, prohibition commands inactivity. While mandamus compels, certiorari corrects.

A writ of mandamus is an extraordinary remedy. It is not a writ of right. It is intended to supply deficiency in law and is thus a discretionary remedy. A court may refuse to issue mandamus unless it is shown that there is clear right of the applicant or statutory or common-law duty of the respondent and there is no alternative remedy available to the applicant. Like any other discretion, however, discretion to issue mandamus also must be exercised fairly reasonably and on well- established legal principles.

In Corpus Juris Secundum Vol 55, 5 (See Halsbury's Laws of England, Vol. 1 (4th Edn.) paras 89 III), mandamus is defined thus:

Mandamus is a writ directed to a person, officer, corporation or inferior court commanding the performance of a particular duty which results from the official station of the one to whom it is directed or from operation of law.

Thus is an order issued by a court to a public authority asking it to perform a public duty imposed upon it by the constitution or by any other law. (See State of Mysore v. K. N. Chandrasekhara, AIR 1965 SC 532) and it is a judicial remedy which is in the form of an order from a superior court (the Supreme Court or a High Court) to any government, court, corporation or the public authority to do or to forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of a public duty and in certain cases of a statutory duty.

While mandamus may require performance of duty, it"s command is never to act in a particular manner. Mandamus cannot be used to substitute a judgment or direction of the court for that of the authority against whom it is issued.

The primary object of mandamus is to supply defect of justice. It seeks to protect rights of a citizen by requiring enforcement and fulfilment of imperative duty created by law. It thus promotes justice. It should therefore, be used at all occasions where the law has conferred right but has created no specific remedy. Through this writ , a court can correct all errors which trend to the oppression of the subject and grant him appropriate relief.

The main function of Mandamus is to compel action. It neither creates nor confers power to act. It only commands the exercise of power already existing when it is the duty of the person or authority proceeded against to act.

Remedy in mandamus is equitable in nature and its issuance is largely controlled by equitable considerations. It can only be issued to prevent injustice. A court will consider whether issuance of mandamus would promote substantial justice or perpetuate injustice. "writ of mandamus will not be granted where harm than good will result from its issuance." (See Wade & Forsyth, Administration Law (2009) 524).

A writ of mandamus can be issued if the following conditions are satisfied by the petitioner:

The petitioner must have a legal right. This is a condition precedent. It is elementary that no one can ask for mandamus without a legal right. There must be legally protected and judicially enforceable right before an applicant may claim mandamus. A person can be said to be aggrieved to do something or to abstain from doing something. The existence of right ids thus the foundation of the jurisdiction of a writ court to issue mandamus. (See Umakant Saran v. State of Bihar, (1973) 1 SCC 485).

Hon'ble the Apex Court in the case of Praga Tools corpn. V. Imanual (1969) 1 SCC 585 (Praga Tools Corpn.) held that the condition precedent for the issue of mandamus is that there is in it one claiming a legal right to the performance of the legal duty by one against whom it is sought.

In Mani Subrat Jain V. State of Haryana (1977) 1 SCC 486, the Apex Court held that it is elementary though it is be restated that no one can ask for mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected interest before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing anything.

Applicant approaching a writ court must show that he himself has legal right which can be enforced. If he is not directly or substantially affected, he cannot maintain a petition mandamus. (See Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41).

The second requirement for a writ of mandamus is that the opposite party must have a legal duty to be performed. A legal duty must have been imposed on the authority by the constitution, a statute or by common law and the performance of that duty should be imperative, not discretionary or optional. There must be in the applicant a right to compel the performance of some duty cast on the opponent. (See State of MP. v. G. C. Mandawar, AIR 1954 SC 493).

Once there is no legal duty casted upon the official respondents as per scheme or rule or administrative or statutory instructions in regard to give compassionate appointment to the kith and kin of the deceased who died in rail accident so by way of writ of mandamus no direction can be issued to the respondents in respect to compassionate appointment of the petitioners as per legal proposition stated herein above.

For the foregoing reasons, we do not find any illegality or infirmity in the impugned order dated 10.3.2017 passed by passed by opposite party no.5/Central Administrative Tribunal Lucknow Bench, Lucknow.

Accordingly, the writ petition lacks merit and it is dismissed.

No order as to costs.

(Rekha Dikshit,J.) (Anil Kumar,J.)

Order Date :- 31.7.2018

dk/