Chandan Singh @ Chandan Kumar ... vs The State Of Bihar Through , The ...
2021 Latest Caselaw 3863 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Civil Writ Jurisdiction Case No.12353 of 2021
     ======================================================

Chandan Singh @ Chandan Kumar Singh, S/o Kailash Prasad Singh, R/o New Colony, Ward No. 09, P.s. and District- Saharsa, Bihar.

... ... Petitioner/s Versus

1. The State of Bihar Through, The Principal Secretary, Public Health Engineering Department, Govt. of Bihar, Patna.

2. The Principal Secretary, Public Health Engineering Department, Govt. of Bihar, Patna at PHED Bhavan, Bailey Road, MLA Colony, Raja Bazar, Indirapuri, Patna- 800015, Email - [email protected]

3. The Engineer- in- Chief-cum Special Secretary, Public Health Engineering Department, Govt. of Bihar, Patna At PHED Bhavan, Bailey Road, MLA Colony, Raja Bazar, Indirapuri, Patna - 800015. Email - secy-phed- [email protected]

4. The Regional Chief Engineer, Purnia, At Public Health Engineering Department, PHED, Purnia Region, Purnia, Email Id C.e phed [email protected]

5. The Superintendent Engineer, Saharsa, Public Health Engineering Department, Anchal Saharsa, District Saharsa Email id - [email protected]

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Ajit Kumar, Advocate For the Respondent/s : Mr. S. Raza Ahmad (AAG-5) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE S. KUMAR) (The proceedings of the Court are being conducted through Video Conferencing and the Advocates joined the proceedings through Video Conferencing from their residence.)

Date : 02-08-2021

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s).

"(i) For issuance of direction to the Respondent Authorities to strictly adhere the rule of transfer (Or Mass-Transfer) against the prolonged posted offices staffs in Public Health Engineering Department (Hereinafter called 'PHED') offices Patna High Court CWJC No.12353 of 2021 dt.02-08-2021

within the Anchal, Saharsa, who have been working since 06 to 24 years (Except shown 1 to 3 yrs outside posting to escape-out from the 'Rule of Transfer') with the respective offices of Respondent No. 5 and District Executive Engineers (Saharsa, Madhepura and Supaul), within the Anchal, Saharsa, as per the supplied lists of working staffs (Except the staffs, who have superannuated or died in due course, from the lists) [Annexure-1, Series].

ii) For issuance of direction to show cause aganist the Respondent Authorities (Specially to the Respondent No.4) for sitting tight over the matter of transfer of prolonged posted staffs (The root- cause of prevailing corruption within the above said respective PHED offices) OR in order to shows the Department Action/s if any, taken against the applications/representations/complaint letters duly sent/ served to Respondent No 2, 3 and specially to the Respondent No. 4 (Who had worked as Head. S.E PHED at Saharsa Anchal (14/01/2017 to 30/06/2019) before his present promotional post. (firstly promoted and pooled to Bhagalpur and now at Purnia), made by the Petitioner. other locale and also at the end of a State Level Leader of a Political Party to the Respondent No 4 vide their representations/complaint or official letter such as letters dated 21/06/2021; 30/06/2021, 01/07/2021 respectively [Annexure- 2,3,4 Series & 5].

iii) For any other Relief/es as the Honorable Court may deems fit and proper in the facts and circumstances of the present writ application."

The Hon'ble Supreme Court in D. N. Jeevaraj Vs.

Chief Secretary, Government of Karnataka & Ors, (2016) 2

SCC 653, paragraphs 34 to 38 observed as under:-

"34. The learned counsel for the parties addressed us on the question of the bona fides of Nagalaxmi Bai in filing a public interest litigation. We leave this question open and do not express any opinion on the correctness or otherwise of the decision of the High Court in this regard.

35. However, we note that generally speaking, procedural technicalities ought to take a back seat in public interest litigation. This Court held in Rural Litigation and Entitlement Kendra v. State of U.P.

Patna High Court CWJC No.12353 of 2021 dt.02-08-2021

[Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504] to this effect as follows: (SCC p. 515, para 16) "16. The writ petitions before us are not inter parties disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in, mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations, procedural laws do not apply. At the same time it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court."

36. A considerable amount has been said about public interest litigation in R&M Trust [R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91] and it is not necessary for us to dwell any further on this except to say that in issues pertaining to good governance, the courts ought to be somewhat more liberal in entertaining public interest litigation. However, in matters that may not be of moment or a litigation essentially directed against one organisation or individual (such as the present litigation which was directed only against Sadananda Gowda and later Jeevaraj was impleaded) ought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies.

37. In such cases, that might not strictly fall in the category of public interest litigation and for which other remedies are available, insofar as the issuance of a writ of mandamus is concerned, this Court held in Union of India v. S.B. Vohra [Union of India v. S.B. Vohra, (2004) 2 SCC 150: 2004 SCC (L&S) 363] that: (SCC p. 160, paras 12-13) "12. Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty.

13. 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 Patna High Court CWJC No.12353 of 2021 dt.02-08-2021

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."

38. A salutary principle or a well-recognised rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India [Saraswati Industrial Syndicate Ltd. v. Union of India, (1974) 2 SCC 630] in the following words: (SCC pp. 641-42, paras 24-25) "24. ... The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd Edn.), Vol. 11, p. 106:

'198. Demand for performance must precede application.--As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal.'

25. In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution."

Patna High Court CWJC No.12353 of 2021 dt.02-08-2021

After the matter was heard for some time, learned

counsel for the petitioner, under instructions, states that

petitioner shall be content if a direction is issued to the

authority concerned i.e. Superintendent Engineer, Saharsa,

Public Health Engineering Department, Anchal Saharsa,

District Saharsa to consider and decide the representation

which the petitioner shall be filing within a period of four

weeks from today for redressal of the grievance(s).

Learned counsel for the respondents states that if such

a representation is filed by the petitioner, the authority

concerned shall consider and dispose it of expeditiously and

preferably within a period of three months from the date of its

filing along with a copy of this order.

Statement accepted and taken on record.

As such, petition stands disposed of in the

following terms:-

(a) Petitioner shall approach the authority

concerned i.e. Superintendent Engineer, Saharsa, Public

Health Engineering Department, Anchal Saharsa, District

Saharsa within a period of four weeks from today by filing

a representation for redressal of the grievance(s);

(b) The authority concerned shall consider and Patna High Court CWJC No.12353 of 2021 dt.02-08-2021

dispose it of expeditiously by a reasoned and speaking

order preferably within a period of three months from the

date of its filing along with a copy of this order;

(c) Needless to add, while considering such

representation, principles of natural justice shall be

followed and due opportunity of hearing afforded to the

parties;

(d) Equally, liberty is reserved to the petitioner to

take recourse to such alternative remedies as are otherwise

available in accordance with law;

(e) We are hopeful that as and when petitioner

takes recourse to such remedies, as are otherwise available

in law, before the appropriate forum, the same shall be

dealt with, in accordance with law and with reasonable

dispatch;

(f) Liberty reserved to the petitioner to approach

the Court, if the need so arises subsequently on the same

and subsequent cause of action;

(g) Liberty also reserved to the petitioner to make

a mention for listing of the petition on priority basis. As

and when any such mention is made, Registry shall take Patna High Court CWJC No.12353 of 2021 dt.02-08-2021

steps for listing the petition at the earliest.

(h) We have not expressed any opinion on merits.

All issues are left open;

(i) The proceedings, during the time of current

Pandemic- Covid-19 shall be conducted through digital

mode, unless the parties otherwise mutually agree to meet

in person i.e. physical mode;

The petition stands disposed of in the aforesaid

terms.

Interlocutory Application(s), if any, stands

disposed of.

(Sanjay Karol, CJ)

( S. Kumar, J) veena/rajiv-

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