Andhra Pradesh High Court - Amravati
Dr W M Sarfaraz Nawaz vs Union Of India on 13 December, 2021
Bench: Prashant Kumar Mishra, M.Satyanarayana Murthy
IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION NO.967 OF 2021
(Proceedings through Physical mode)
W.P.No.967 of 2021
Dr. W.M. Sarfaraz Nawaz
s/o N.M. Abdul Masjeed
Occ: Lecturer
Dr. Abdul Haq Unani Medical College,
Kurnool ..... Petitioner
Versus
Union of India,
Ministry of Ayurveda, Yoga and Naturopathy,
Unani, Siddha and Homeopathy
Ayush Bhavan, B-B\lock
New Delhi, rep by its Secretary and two others ..... Respondents
Counsel for the Appellants : Mr. K.R. Srinivas
Counsel for Respondent Nos.1 & 2 : Mr. N. Harinath,
Assistant Solicitor General
Counsel for Respondent No.5 : Government Pleader for
Medical & Health.
ORDER
Dt.13.12.2021
(Per M. Satyanarayana Murthy, J)
Dr. W.M. Sarfaraz Nawaz filed this writ petition under Article 226
of the Constitution of India, to declare the proceedings issued by the first
respondent by incorporating the proceedings in F.No.Y.11030/9/2020-
EP(III) dated 11.01.2021 as illegal, arbitrary and consequently direct the
second respondent to consider the claim of the petitioner under teaching
CJ & MSM,J
WP_967_2021
category for admission into PG course under Central Government
guidelines framed in F.No.Y.11030/5/2020-EP(III) dated 02.06.2020.
The petitioner is a graduate in Bachelor of Science and Bachelor of
Unani Medicine & Surgery. He was appointed as Lecturer in an aided
post in the year 2007 in Dr. Abdul Haq Unani Medical College, Kurnool
and his services were regularized in the year 2013.
The first respondent issued comprehensive guidelines for Central
Government nomination to MD (Ayurveda /Unani /Sidda and
Homeopathy) courses vide proceedings in F.No.Y.11030/5/2020-EP-3 for
the sessions 2020-2021. As per Clause 2.3 of the Guidelines, preference
has to be given to the teaching staff, medical officers and research
officers. Clause 4.2 prescribed the manner in which the
nomination/sponsoring of the candidates of the deficient State
Governments and Union Territory Administrations.
As the petitioner satisfied the eligibility conditions prescribed in the
guidelines, he made a representation to the third respondent to consider
his candidature for admission to MD courses as Central Government
Nominee. The third respondent forwarded the application of the
petitioner vide letter Lr.No.2727/D2/2020 dated 06.08.2020 for
admission to post graduation studies under Central Pool Quota through
Central Government Nomination for the academic year 2020-2021.
The second respondent addressed letter dated 16.12.2020 to the
Director, National Institute of Unani Medicine, Bangalore, citing list of
eligible seven nominated candidates of deficient states with designation
and seniority and also list of eleven eligible candidates for Central
Government Nominees 2020-2021. The petitioner was shown at Serial
CJ & MSM,J
WP_967_2021
No.13 in the Waiting List of Medical Officers. Thereupon, the petitioner
made a representation to the second respondent to reconsider his case
updating that he is working as a Lecturer and as per the guidelines, first
preference has to be given to Lecturers, Medical Officers and Research
Analysts thereafter. Inspite of representations made by the petitioner on
17.12.2020 and 18.12.2020, the second respondent did not consider the
candidature of the petitioner under Lecturer category and treated the
application under Medical Officer category, which according to the
petitioner is illegal, arbitrary and contrary to the guidelines issued by the
first respondent.
As per Guideline No.2.3, while making recommendation/
nomination against Government of India's Nominees; preference shall be
given to regular teaching staff with 3 years' regular service of any
Government-run medical institution. If no eligible teaching staff with 3
years' regular service of State Government-run medical institution is
available for nomination, Medical Officers(M.Os) and Research Officers
(R.Os) working on regular basis and have rendered 3 years' regular
service in the Government will be nominated as Government of India
nominees. If neither a Teacher nor a Medical Officer or a Research Officer
working in the Government is available for nomination; the vacant seats
under CentraI pool' in donor institutions will be filled up by the eligible
private candidates recommended/ nominated by deficient States/ Union
Territories. In case, no Central Government Nominee (i.e. either Teacher
or Medical Officer or Research Officer) or Private candidate
recommended/nominated by deficient States/UTs is still available, the
vacant seat under 'Central Pool' will be filled up by open category
candidates by the donor institute according to the merit of the All India
Ayush Post Graduate Entrance Test.
CJ & MSM,J
WP_967_2021
As per Guideline No.4.2, while nominating/sponsoring the
candidates, the deficient State Governments and Union Territory
Administrations are required to give priority to the regular teaching staff
with 3 years' service in Government-run medical institutions. In case, no
teaching staff of Government-run medical institution is available for
sponsoring/nominating, Medical Officer and Research Officers working
on a regular basis for 3 years in Government may be
sponsored/nominated.
It is contended that, the petitioner herein is working as Lecturer in
an aided post and the salary of the petitioner is released by the State
Government. Since the petitioner is working as a lecturer, first priority
should be given to the petitioner, as he is in the teaching department.
But, the second respondent without taking the said factor into
consideration and treating the application of the petitioner as that of
Medical Officer, placed the petitioner in Waiting List at Serial No.13.
Thus, the action of the second respondent is illegal and arbitrary.
It is contended that, from bare reading of the impugned order
passed by the second respondent, it is clear that all the persons who
have been nominated under the Central Government Nomination to MD
courses, it is clear that the Medical Officers and no persons from the
teaching staff is identified. Once the Central Government has issued the
guidelines, the second respondent cannot select majority of the
candidates only from one state leaving the candidates of other states and
such selection is contrary to Guideline No.4.5, which deals with
application of the sponsor candidates be scrutinized by the Ministry,
keeping in view their seniority, subject, teaching. Hence, very selection
and allotment of Central Government for admission into post graduate
CJ & MSM,J
WP_967_2021
courses is illegal, arbitrary and contrary to the guidelines and requested
to grant the relief as stated supra.
First respondent - Secretary, Ministry of Ayurveda, Yoga and
Naturopathy, Unani, Siddha and Homeopathy filed counter affidavit
denying material allegations, while admitting the procedure prescribed
under Guideline Nos. 2.3 and 4.5 vide Letter F.No.Y.11030/5/2020-
EP(III) dated 02.06.2020. Therefore, the petitioner was not considered for
admission into MD/PG course under the scheme reserved under Central
Pool.
It is further contended that, the petitioner was considered under
Central Government nomination to MD (Unani) Course at National
Institute of Unani Medicine (NIIUM) Bangalore and was placed in the
waiting list of 11 eligible candidates for Central Government Nomination
and the petitioner is at Serial No.13 of the list. However, later on, it came
to the notice that the petitioner is a Lecturer in a college which is
partially aided by the State Government. Therefore, the application of the
petitioner was returned along with letter dated 11.01.2021. Thus, the
petitioner is not eligible under the Central Government Nomination for
admission in MD (Unani) as he is a Lecturer in the partially aided
institution by the State Government and other candidates of
Government-run-Medical Institutions and regular service in Government
are available and thereby, not entitled to claim any relief in the writ
petition and requested to dismiss the writ petition.
Respondent Nos. 2 & 3 did not file any counter affidavit.
The petitioner filed reply/rejoinder to the counter affidavit,
reiterating the contentions, while submitting that, Dr.K. Md. F. Rehman,
CJ & MSM,J
WP_967_2021
Lecturer at Dr. Abdul Haq Unani Medical College, Kurnool was allowed
by the respondents to prosecute MD Unani Course at National Institute
of Unani Medicine, Bangalore and G.O.Rt.No.446 dated 22.08.2015 was
issued to that effect. Further, the then guidelines dated 17.07.2014 are
identical to the present guidelines. Previous Guideline No.1.2 is now
numbered as Guideline No.2.3 in the present guidelines dated
02.06.2021. Therefore, denial of admission to this petitioner is nothing
but discriminating him from similarly situated person, infringing
fundamental right and violation of Articles 14 and 16 of the Constitution
of India. Further, in October, 2021, two Sri Lankan candidates were
admitted in Nizamia Tibbi College, Hyderabad with a condition that they
will complete the course within the prescribed period, along with the
rejoinder filed copies of proceedings issued by the Government also filed.
The petitioner also further contended that he is working in the third
respondent college as a Lecturer since 01.09.2013 and thereby, he is
eligible for nomination being a Lecturer working for more than seven
years. Apart from that, the petitioner is working in the State Government
aided college and thereby it must be held that Dr. Abdul Haq Unani
Medical College, Kurnool is said to be a government-run-medical college
for the purpose of nomination of this petitioner under Central
Government quota for admission into MD/PG Unani course.
Discrimination of this petitioner from the earlier candidate
Dr.K.Md.F.Rehman who worked as a Lecturer in the same college i.e.
Dr.Abdul Haq Unani Medical College amounts to serious violation of
fundamental right guaranteed under Article 14 of the Constitution of
India and two equals cannot be treated as unequals. Consequently, the
proceedings under challenge are invalid and requested to issue a
CJ & MSM,J
WP_967_2021
direction to nominate this petitioner under Central Government quota for
admission into MD/PG Unani Course.
During hearing Sri K.R. Srinivas, has drawn attention of this Court
to various documents filed along with the writ petition and reply to the
counter affidavit/rejoinder to establish that the petitioner is
discriminated from similarly situated person - Dr.K.Md.F.Rehman, who
worked as Lecturer in Dr. Abdul Haq Unani Medical College and
nominated by the Central Government for prosecuting PG/MD Course at
National Institute of Unani Medicine, Bangalore and G.O.Rt.No.446 dated
22.08.2015 was issued to this effect. Apart from that, modified guidelines
would clearly substantiate the contentions of the petitioner and
requested to grant relief as stated supra.
Whereas, Mr. N. Harinath, learned Assistant Solicitor General of
India contended that, Dr. Abdul Haq Unani Medical College is not a State
or Central Government-run-medical institution and only the
Lecturers/Medical Officers/Research Officers working in the Government
college/medical institution are eligible for being nominated by the State
Government for admission into MD/PG in (Ayurveda/Unani/Sidda and
Homeopathy) courses. Dr. Abdul Haq Unani Medical College is only
partly aided minority institution and thereby, it cannot be held to be a
government-run-medical institution, merely because the petitioner is
working as a Lecturer in aided post. Therefore, denial of his nomination
under Central Government quota for admission into MD/PG
(Ayurveda/Unani/Sidda and Homeopathy) courses is in accordance with
law and thereby, the petitioner is disentitled to claim relief in the writ
petition and requested to dismiss the writ petition.
CJ & MSM,J
WP_967_2021
Considering rival contentions, perusing the material available on
record, the sole point that needs to be answered by this Court is as
follows:
"Whether working in aided post by the petitioner in
Dr. Abdul Haq Unani Medical College - a minority
institution would confer any right on him to claim writ
of mandamus, declaring the proceedings issued by the
first respondent by incorporating the proceedings in
F.No.Y.11030/9/2020-EP(III) dated 11.01.2021 as illegal
and arbitrary. Consequently, whether a direction be
issued to Union of India to consider the case of this
petitioner for nomination to MD (Ayurveda/Unani/Sidda
and Homeopathy) courses?
P O I N T:
It is an undisputed fact that this petitioner is working as Lecturer
in Dr. Abdul Haq Unani Medical College on 01.09.2013 in aided post.
The said fact is supported by documentary evidence. The service
certificate issued by the Principal, Dr. Abdul Haq Unani Medical College
dated 29.06.2020 certifying that this petitioner is working as a Lecturer
in the institute as a Grant-in-Aid regular employee since 01.09.2013 to
date. This certificate remained un-denied. Hence, the contention of the
petitioner that he is working in grant-in-aid post as a Lecturer since
01.09.2013 is to be accepted. However, the first respondent in the
counter affidavit contended that, this petitioner is not having three years
of regular service as a Lecturer in the government-run-medical college
and this contention is not based on the fact. But, the question is whether
Dr. Abdul Haq Unani Medical College is a government-run-medical
institution or not is to be answered.
CJ & MSM,J
WP_967_2021
Merely because the petitioner is having three years of regular
service in a minority institution, Dr. Abdul Haq Unani Medical College,
the same cannot be construed as a government-run-medical institution.
Therefore, to the extent that the petitioner is not having three years of
regular service as a Lecturer in government-run-medical institution is to
be accepted.
The word "government-run-medical institution" is not defined
anywhere. But, the second respondent reviewed PG guidelines and
clarified vide File No.Y-11030/8/2021-EP-111 dated 28.09.2021 that
"Government-run-medical institute/institution‟ means institutes/
institution run either by State/UT government or Central Government/".
We may fall back on to the provisions of the Andhra Pradesh Education
Act, 1982 (for short „Education Act‟) to decide whether Dr. Abdul Haq
Unani Medical College, Kurnool is a government-run-medical institution
or not?
The word „private institution‟ is defined under Section 2(35) of the
Education Act. It means an institution imparting education or training,
established and administered or maintained by anybody of persons, and
recognised as educational institution by the Government, and includes a
college, a special institution and a minority educational institution, but
does not include an educational institution-
(a) established and administered or maintained by the Central
Government or the State Government or any local authority;
(b) established and administered by any University established by law;
or
(c) giving, providing or imparting only religious instruction, but not any
other instruction;
CJ & MSM,J
WP_967_2021
On close analysis of the expression „private institution‟, Dr. Abdul
Haq Unani Medical College is a minority educational institution which
falls within the private college imparting medical Unani education.
„Grant-in-aid‟ means an amount of money paid from the State
Government to any educational institution. Therefore, the petitioner is
working in aided post in Dr. Abdul Haq Unani Medical College and his
salary is paid from the State Government grant. That does not mean that
Dr. Abdul Haq Unani Medical College is a government-run-medical
institution.
In the letter dated 11.01.2021 addressed by the first respondent to
second respondent, it is made clear that, as per CGN guidelines dated
02.06.2020, the Central Government gives preference to regular service
teaching staff with 3 years regular service of any Government-run-medical
institution for CGN are eligible for admission on recommendation as
Central Government sponsored candidate. It is further made clear that
Dr.W.M. Sarfaraz Nawaz - petitioner herein is a Lecturer in a college
which is partially aided by the State Government i.e not a Government-
run-medical institution. Therefore, it is obvious from the material on
record that this petitioner is working in aided minority college which is
not a government-run-medical institution/college. Only the lecturers who
are working in government-run-medical institution/college are eligible for
nomination by the Central Government for admission into PG/MD Unani
courses, but not the persons who are working in aided posts in minority
colleges.
In fact, the relief claimed by this petitioner is only to declare the
proceedings issued by the first respondent by incorporating the
proceedings in F.No.Y.11030/9/2020-EP (III) dated 11.01.2021 as illegal
CJ & MSM,J
WP_967_2021
and arbitrary and consequently direct the second respondent to consider
the claim of the petitioner under teaching category for admission into PG
course under Central Government guidelines framed in
F.No.Y.11030/5/2020-EP(III) dated 02.06.2020. Thus, the prayer
consists of two limbs. One is to declare the proceedings in
F.No.Y.11030/9/2020-EP (III) dated 11.01.2021 as illegal and arbitrary
and the other prayer is a consequential direction to the second
respondent to consider the claim of the petitioner under teaching category
for admission into PG course under Central Government guidelines
framed in F.No.Y.11030/5/2020-EP(III) dated 02.06.2020, as such, it is
appropriate to deal with the legality of the proceedings in
F.No.Y.11030/9/2020-EP (III) dated 11.01.2021.
The second respondent addressed Letter F.No.Y.11030/9/2020-EP
(III) dated 11.11.2021 assigning specific reason for not recommending the
petitioner‟s candidature for admission into PG/MD Unani Course as
Central Government sponsored candidate. Even on examination of the
contents of the corrigendum and the original guidelines, it is clear that,
only the Lecturers from government-run-medical institution/college are
entitled for recommendation as Central Government sponsored candidate
for admission into PG/MD Unani course, but not otherwise. The entire
dispute is revolving around the meaning of „government-run-medical
institution/college‟, but it is not defined in any law. However, the word
„private institution‟ is defined under Section 2(35) of the Education Act,
which we extracted in the earlier paragraphs be taken into consideration
to decide the core issue. If, the same analogy is applied, Dr. Abdul Haq
Unani Medical College, Kurnool would fall within the definition of private
institution. But, the petitioner is working in aided post. Thus, it is
explicitly clear from the material on record that, Dr. Abdul Haq Unani
CJ & MSM,J
WP_967_2021
Medical College is not a „government-run-medical college/institution‟ and
it is a minority Unani medical college, where the petitioner is working in
aided post. Merely because the petitioner is working in aided post, i.e.
grant-in-aid for the post, that does not mean that the institution is being
run by the Government. Viewed from any angle, Dr. Abdul Haq Unani
Medical College is only a partial or fully aided minority educational
institution (Unani Medical College) and not a government-run-medical
institution/college. Therefore, we find no illegality or manifest
arbitrariness in issuing the proceedings F.No.Y.11030/9/2020-EP (III)
dated 11.01.2021. Hence, we are of the confirmed view that it is difficult
to declare the proceedings F.No.Y.11030/9/2020-EP (III) dated
11.01.2021 as illegal and arbitrary, as it is in the nature of clarification to
the original Guideline No.2.3. Consequently, the fist limb of the prayer is
rejected.
The second limb of the prayer is to direct the second respondent to
consider the claim of the petitioner under teaching category for admission
to PG course under Central Government guidelines framed in
F.No.Y.11030/5/2020-EP(III) dated 02.06.2020.
Since the petitioner‟s name is shown in the Waiting List of 11
eligible candidates for CGN 2021 under category of Medical Officer at
Serial No.13, whereas, list of 07 eligible candidates of different States with
designation is shown in List-I as per seniority. The petitioner is at Serial
No.13 in Waiting List of 11 eligible candidates for CGN 2020-2021. The
petitioner is not a Medical Officer undisputedly, but he is working as a
Lecturer in Dr. Abdul Haq Unani Medical College, Kurnool, which is a
minority aided medical college (either partially or fully). The petitioner‟s
case does not fall under government-run-medical institution/college, and
a direction to consider his case to make a recommendation for admission
CJ & MSM,J
WP_967_2021
as Central Government sponsored candidate for admission into MD/PG
Unani course does not arise. Hence, the second limb of the relief claimed
by the petitioner is hereby rejected, while holding that the petitioner is not
working in a government-run-medical institution/college, but working in
minority medical institution/college, either fully or partly aided, however,
the petitioner is working in aided post.
One of the contentions raised before this Court based on the
additional material placed on record iss that, similarly situated person
Dr.K.Md.F.Rehman, who worked as Lecturer in Dr. Abdul Haq Unani
Medical College was nominated by the Central Government for
prosecuting PG/MD Course at National Institute of Unani Medicine,
Bangalore and G.O.Rt.No.446 dated 22.08.2015 was issued to that effect.
Copy of the proceeding is placed on record to substantiate the same. The
respondents did not dispute recommending Dr.K.Md.F.Rehman who was
working in Dr. Abdul Haq Unani Medical College for admission into
PG/MD Course as a Central Government sponsored candidate. But, mere
making recommendation erroneously does not confer any benefit on this
petitioner and denial by the Central Government to recommend the
petitioner‟s candidature as Centrally Sponsored candidate for admission
into MD/PG Unani course does not amount to discrimination of petitioner
from similarly situated persons for the simple reason that, the Courts
cannot perpetuate an illegality, merely because Dr.K.Md.F.Rehman was
recommended for admission into PG/MD Unani course erroneously
without drawing distinction between government-run-medical
institution/college and minority aided college. Therefore, on the ground of
alleged discrimination, proceedings in F.No.Y.11030/9/2020-EP(III) dated
11.01.2021 cannot be set-aside.
CJ & MSM,J
WP_967_2021
To claim writ of mandamus, the petitioner must establish his
existing legally enforceable right, it‟s infringement or invasion or
infringement.
Writ of mandamus is discretionary in nature and such power of
judicial review under Article 226 of the Constitution of India can be
exercised only in certain circumstances. At best, this Court cannot decide
the legality of the order. Yet issuance of Writ of Mandamus is purely
discretionary and the same cannot be issued as a matter of course.
In "State of Kerala v. A.Lakshmi Kutty1", the Hon'ble Supreme
Court held 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, therefore, the Court will only enforce the performance
of statutory duties by public bodies on application of a person who can
show that he has existing legal right to insist on such performance. The
existence of a right is the foundation of the jurisdiction of a Court to issue
a writ of Mandamus.
Writ of mandamus cannot be issued merely because, a person is
praying for. One must establish the right first and then he must seek for
the prayer to enforce the said right. If there is failure of duty by the
authorities or inaction, one can approach the Court for a mandamus. The
said position is well settled in a series of decisions.
1 1986 (4) SCC 632
CJ & MSM,J
WP_967_2021
In "State of U.P. and Ors. v. Harish Chandra and Ors.2" the
Supreme Court held as follows:
"..........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."
(Emphasis supplied)
In "Union of India v. S.B. Vohra3" 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.
In "Oriental Bank of Commerce v. Sunder Lal Jain4" the
Supreme Court held thus:
"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.
2 (1996) 9 SCC 309
3 (2004) 2 SCC 150
4 (2008) 2 SCC 280
CJ & MSM,J
WP_967_2021
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."
(Emphasis supplied)
When a Writ of Mandamus can be issued, has been summarised in
Corpus Juris Secundum, as follows:
"Mandamus may issue to compel the person or official in
whom a discretionary duty is lodged to proceed to exercise
such discretion, but unless there is peremptory statutory
direction that the duty shall be performed mandamus will
not lie to control or review the exercise of the discretion of
any board, tribunal or officer, when the act complained of is
either judicial or quasi-judicial unless it clearly appears that
there has been an abuse of discretion on the part of such
Court, board, tribunal or officer, and in accordance with this
rule mandamus may not be invoked to compel the matter of
discretion to be exercised in any particular way. This
principle applies with full force and effect, however, clearly it
may be made to appear what the decision ought to be, or
even though its conclusion be disputable or, however,
erroneous the conclusion reached may be, and although
there may be no other method of review or correction
provided by law. The discretion must be exercised according
to the established rule where the action complained has
been arbitrary or capricious, or based on personal, selfish or
fraudulent motives, or on false information, or on total lack of
authority to act, or where it amounts to an evasion of
positive duty, or there has been a refusal to consider
pertinent evidence, hear the parties where so required, or to
entertain any proper question concerning the exercise of the
discretion, or where the exercise of the discretion is in a
manner entirely futile and known by the officer to be so and
there are other methods which it adopted, would be
effective"
(emphasis supplied)
But here, the petitioner while working as a Lecturer in minority
aided educational institution either fully or partially, did not possess
legally enforceable right, thereby, question of infraction, invasion or
infringement of the legal right of the petitioner does not arise to issue writ
CJ & MSM,J
WP_967_2021
of mandamus. In view of the law laid down by the Supreme Court in the
judgments referred supra, unless the petitioner established his existing
legal right, its infringement or invasion does not arise, a writ of
mandamus cannot be issued. In view of the law, we hold that the
petitioner is not entitled to claim writ of mandamus.
In view of our foregoing discussion, we find no illegality or
arbitrariness in the proceedings impugned in the writ petition.
Consequently, the writ petition deserves to be dismissed.
In the result, writ petition is dismissed, but however, without costs.
Consequently, miscellaneous petitions pending, if any, shall also
stand dismissed.
PRASHANT KUMAR MISHRA, CJ M. SATYANARAYANA MURTHY, J
Sp
