Ghulam Hassan Lone vs Jk High Court & Ors
2021 Latest Caselaw 1497 j&K/2

                                                                            Serial No. 21
                                                                          Regular Cause List



         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR


                        SWP No. 790/2019 [WP(C) No. 1227/2019]

                                                        Dated: 24th of November, 2021.

Ghulam Hassan Lone

                                                                    ... Petitioner(s)
                                      Through:
                        Mr Mutahar Ahmad Makhdoomi, Advocate.

                                          Versus

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.

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge Hon'ble Mr Justice Sanjay Dhar, Judge (JUDGMENT) Per Magrey; J (Oral):

01. The subject of the instant Writ Petition is challenge made to the

Order bearing No. 39572/NG dated 27th of April, 2017 issued by the Registrar

General of this High Court/ Respondent No.1 herein, whereby the claim of the

Petitioner for fixation of pay scale in the grade of Rs. 4000-100-6000

(Rs.5200-20200 with grade pay 2400-Revised) has been rejected.

02. 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. 790/2019 [WP(C) No. 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 (Jal Shakti) 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.

03. 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. 790/2019 [WP(C) No. 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.

04. '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.

05. 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

under:

SWP No. 790/2019 [WP(C) No. 1227/2019]

"34. We must refer to the case of Mani Subrat Jain v. State of Haryana & Ors., (supra) 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:

"It is elementary though it is to be restated that no one can ask for a mandamus without a legal right.

The initial appointment of District Judges 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 is given by 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 recruitment."

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."

06. Again, in the case of 'State of UP & Ors. V. Harish Chandra &

Ors.; (1996) 9 Supreme Court Cases 309', at Paragraph No.10, the Supreme

Court held thus:

SWP No. 790/2019 [WP(C) No. 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 not."

SWP No. 790/2019 [WP(C) No. 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.

07. 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.

                                       (Sanjay Dhar)                  (Ali Mohammad Magrey)
                                           Judge                                Judge
           SRINAGAR
           November 24th, 2021
           "TAHIR"
                               i.    Whether the Judgment is reportable?           Yes/ No.
                               ii.   Whether the Judgment is speaking?             Yes/ No.




TAHIR MANZOOR BHAT
2021.11.25 14:44
I attest to the accuracy and
integrity of this document