Satyendra Prakash vs The State Of Bihar
2021 Latest Caselaw 4268 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.10785 of 2021
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Satyendra Prakash Son of Ramdahin Singh resident of Village- Makhdumpur, P.O. and P.S.- Kurta, District- Arwal.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Social Welfare Department, Government of Bihar, Patna.

2. The Director, Integrated Child Development Scheme (ICDS), Bihar, 2nd Floor, Indira Bhawan, R.C. Singh Path, P.O. Punaichak, P.S. Punaichak, District Patna.

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

For the Petitioner/s : Mr.Rajesh Kumar Sharma, Advocate For the Respondent/s : Mr. Gyan Prakash Ojha, GA 7 ====================================================== 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 : 24-08-2021 Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):-

"A. For issuance of writ in nature of mandamus for direction that concern respondent authority may restrained from terminating the service of Aanganbadi Sevika/Sahaika, who were earlier appointed under Aanganbadi Sevika / Sahaika Guideline-2016 issued by the Principal Secretary, Social Welfare Department, Government of Bihar, Patna vide Memo No.990 dated 05- 04-2016 (hereinafter referred as old Guideline), on the ground of Clause-6 of said old Guideline which stated that "an applicant whose husband/father-in-law working under Government or non-government servive and whose Patna High Court CWJC No.10785 of 2021 dt.24-08-2021

monthly salary is Rs.12000/- or above will be ineligible for the selection of Aanganbadi Sevika/ Sahaika" same is discriminatory against the women fundamental right. B. For direction to remove discrimination amongst equal and provide same and similar treatment to Aanganbadi Sevika/ Sahaika whose selection were earlier made under Aanganbadi Sevika/ Sahaika Guideline-2016, which is now given under new Aanganbadi Sevika/Sahaika Guideline-2019 (hereinafter referred as new Guideline) whereby and whereunder bar or restriction of monthly income of Rs.12000/- to her husband or father-in-law is removed.

C. For direction to reinstate the service of Aanganbadi Sevika/Sahaika, whose service were earlier terminated by the respondent authority on ground of Clause-6 of Aanganbadi Sevika/ Sahaika Guideline-2016 (hereinafter referred as old Guideline) D. And for any other relief/reliefs for which the petitioners are found to be entitled under the provision of law involved in the present case."

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. [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 Patna High Court CWJC No.10785 of 2021 dt.24-08-2021

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 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 Patna High Court CWJC No.10785 of 2021 dt.24-08-2021

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."

After the matter was heard for some time, learned

counsel for the petitioner, under instructions, states that Patna High Court CWJC No.10785 of 2021 dt.24-08-2021

petitioner shall be content if a direction is issued to the

authority concerned or any of the statutory authority 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 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

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 Patna High Court CWJC No.10785 of 2021 dt.24-08-2021

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

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 Patna High Court CWJC No.10785 of 2021 dt.24-08-2021

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)

Sanjay/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          26.08.2021
Transmission Date       NA