Patna High Court
Kamlesh Kumar vs The State Of Bihar on 3 February, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9563 of 2020
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Kamlesh Kumar, Son of Late Kishori Rai, Resident of Bangao N. Ward No. 1,
P.S. Bajpatti, District Sitamarhi.
... ... Petitioner/s
Versus
1. The State of Bihar through Secretary, Health and Family Welfare
Department, Government of Bihar, Patna.
2. The Regional Director/Deputy Director, Health Services, Government of
Bihar, Patna.
3. The Collector, Sitamarhi.
4. The Civil Surgeon-cum-Member Secretary, District Health Committee,
Sitamarhi.
5. The Superintendent, Sadar Hospital, Sitamarhi.
6. The Deputy Superintendent, Sadar Hospital, Sitamarhi.
7. The Medical Officer In-Chage, Primary Health Center, Sitamarhi.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Y. C. Verma, Sr. Advocate
Mr. Ansul, Advocate
For the Respondent/s : Mr. Birju Prasad, GP-13
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
ORAL JUDGMENT
Date : 03-02-2022
This matter is heard via video conferencing due to
circumstances prevailing on account of COVID-19 Pandemic.
2. Heard learned counsel for the parties.
3. In the instant petition, the petitioner has prayed for the
following reliefs:
"A. A writ in the nature of MANDAMUS or any other
appropriate writ/s, order/s directing and commanding
the Respondent Authorities:-
i. To consider the case of the petitioner and direct the
respondent authorities to regularise the petitioner on
Patna High Court CWJC No.9563 of 2020 dt.03-02-2022
the post of Dresser at Bajpatti, Sitamarhi wherein 8 of
the said posts are lying vacant since a very long time,
keeping in mind the fact that the petitioner holds the
requisite educational qualification and experience to be
appointed on the said post and also the fact that he has
been additionally doing the work of a Dresser in
addition to carrying out the work of Emergency
Medical Technician at Bajpatti, Sitamarhi.
ii. To further hold that the petitioner holds the requisite
educational qualification and also holds an extensive
work experience, having been given the additional
charge of the post of Dresser.
B. Any other writ/s, order/s and direction/s as the
Hon'ble Court deems fit and necessary."
4. For issuance of a writ of Mandamus one must satisfy
two ingredients, namely, establishing statutory/legal right followed
by demand before the competent authority. Both the ingredients
are not forthcoming from the pleadings.
5. Therefore, the writ petition stands dismissed in the
light of the Apex Court decision in the case of Mani Subrat Jain
V. State of Haryana & Ors., reported in (1977) 1 SCC 486. Para 9
reads as under:
"9. The High Court rightly dismissed the petitions. It is
elementary though it is to be restated that no one can
ask for a mandamus without a legal right. There must
be a judicially enforceable right as well as a legally
protected right before one suffering a legal grievance
can ask for a mandamus. A person can be said to be
Patna High Court CWJC No.9563 of 2020 dt.03-02-2022
aggrieved only when a person is denied a legal right by
some one who has a legal duty to do something or to
abstain from doing something (See Halsbury's Laws of
England 4th Ed. Vol. 1, paragraph 122; State of
Haryana v. Subash Chander Marwaha & Ors. (1)
Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir
Ahmed & Ors. (2) and Ferris Extraordinary Legal
Remedies paragraph 198."
6. Dismissal of the present writ petition would not
come in the way of petitioner, submitting a detailed representation
along with the service particulars to the competent authority within
a period of eight weeks' from today.
7. The competent authority is hereby directed to decide
the petitioner's representation/appeal at the earliest in passing
speaking order.
(P. B. Bajanthri, J)
uday/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 09.02.2022
Transmission Date NA
