Uttarakhand High Court
Bharat Bhushan Singh vs State Of Uttarakhand & Others on 13 August, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 1601 of 2021
Bharat Bhushan Singh .......Petitioner
Vs.
State of Uttarakhand & others .....Respondents
Mr. D.S. Mehta, Advocate, for the petitioner.
Mr. M.S. Bisht, Brief Holder, for the State of Uttarakhand.
Hon'ble Sharad Kumar Sharma, J (Oral)
The petitioner to the present writ petition, claiming
himself to be the President of the Parents Teacher Association, in
relation to the Institution of the respondent No.4, has filed this writ
petition praying for a writ of mandamus, to the respondents to conduct
the proceedings for induction of the new members of the Committee
of Management in accordance with the "Scheme of Administration",
as framed under the provisions of the Uttarakhand School Education
Act, 2006. Further a writ of mandamus has been sought, for taking an
action against the Ex-Manager, as well as the Clerk, who are said to
have been involved in usurping of the money of the Committee of
Management.
2. After going through the writ petition, and the petitioner's
prayer for the induction of the new Members to the general body
under the terms of the Clause 7 of the Scheme of Administration.
Even; even if it is taken that the Scheme framed under Section 29 of
the Uttarakhand School Education Act, 2006; falls to be having a
statutory force or blend in it, and which entails a performance of a
duty on part of the Committee of Management, to induct the Members
in accordance with the terms of the Scheme of the Administration, but
if there is inaction in enforcing the Scheme of Administration for the
purposes of the induction of the members of the general body; for the
purposes of issuance of writ of mandamus, it needs no reference in
detail that there has had to be specific pleadings, in the writ petition
that before filing the writ petition, the petitioner ought to have
approached the respondents for pressing his relief under the Scheme
of Administration, and the relief, which has been pressed is a relief,
which falls within the domain of the law, and further that there had
been an inaction on the part of the respondents in the performance of
any statutory duty, or in not taking an action on the request made by
the petitioner.
3. Instead, in the writ petition there is not even a single
whisper by way of pleadings, that the petitioner before filing the writ
petition for the relief claimed therein, had ever approached the
respondents for enforcing the impact of Clause 7 of the Scheme of
Administration, or for the nature of the relief which has been sought
by the writ of mandamus, as prayed in relief two. Hence, this writ
petition at this stage, would not be tenable, in view of the judgment of
the Hon'ble Apex Court, which has been reported in 2007 (5) SCC
65, "State of Manipur & others Vs. Y. Token Singh & others", and
the principle as it has been enunciated in Paragraph Nos.18 and 23 of
the said judgment, which reads as under:-
"18. Moreover, it was for the respondents who had
filed the writ petitions to prove existence of legal right in
their favour. They had inter alia prayed for issuance of a
writ of or in the nature of mandamus. It was, thus, for
them to establish existence of a legal right, in their favour
and a corresponding legal duty in the respondents to
continue to be employed. With a view to establish their
legal rights to enable the High Court to issue a writ of
mandamus, the respondents were obligated to establish
that the appointments had been made upon following the
constitutional mandate adumbrated in Articles 14 and 16
of the Constitution of India. They have not been able to
show that any advertisement had been issued inviting
applications from eligible candidates to fill up the said
posts. It has also not been shown that the vacancies had
been notified to the employment exchange.
23. We, as noticed hereinbefore, do not know as to
under what circumstances the orders of appointments
were issued."
4. It has further been reported in the judgment reported in
2006 (12) SCC 561, "State of Bihar & others Vs. Amrendra
Kumar Mishra", and the principle as it has been enunciated in
Paragraph Nos.15 to 18, which reads as under:-
"15. In Maruti Udhyog Ltd. v. Ram Lal and Ors., it was
observed:
44. While construing a statute, "sympathy"
has no role to play. This Court cannot interpret the
provisions of the said Act ignoring the binding
decisions of the Constitution Bench of this Court
only by way of sympathy to the workmen
concerned.
45. In A. Umarani v. Registrar, Coop.
Societies this Court rejected a similar contention
upon noticing the following judgments: SCC PP.
131 - 32, paras 68-70)
68. In a case of this nature this Court
should not even exercise its jurisdiction
under Article 142 of the Constitution of
India on misplaced sympathy.
69. In Teri Oat Estates (P) Ltd. v.
U.T., Chandigarh it is stated: (SCC p. 144,
paras 36-37)
36. We have no doubt in our
mind that sympathy or sentiment
by itself cannot be a ground for
passing an order in relation
whereto the appellants miserably
fail to establish a legal right. It is
further trite that despite an
extraordinary constitutional
jurisdiction contained in Article 142
of the Constitution of India, this
Court ordinarily would not pass an
order which would be in
contravention of a statutory
provision.
37. As early as in 1911, Farewell, L.J. in
Latham v. Richard Johnson & Nephew Ltd.
observed: (All ER p. 123 E)
We must be very careful not to
allow our sympathy with the infant
plaintiff to affect our judgment.
Sentiment is a dangerous will o' the
wisp to take as a guide in the search
for legal principles.
70. Yet again, recently in Ramakrishna
Kamat v. State of Karnataka this Court
rejected a similar plea for regularisation of
services stating: (SCC pp. 377-78, para 7)
We repeatedly asked the
learned Counsel for the appellants on
what basis or foundation in law the
appellants made their claim for
regularisation and under what rules
their recruitment was made so as to
govern their service conditions. They
were not in a position to answer
except saying that the appellants have
been working for quite some time in
various schools started pursuant to
resolutions passed by Zila Parishads
in view of the government orders and
that their cases need to be considered
sympathetically. It is clear from the
order of the learned Single Judge and
looking to the very directions given, a
very sympathetic view was taken. We
do not find it either just or proper to
show any further sympathy in the
given facts and circumstances of the
case. While being sympathetic to the
persons who come before the court
the courts cannot at the same time be
unsympathetic to the large number of
eligible persons waiting for a long
time in a long queue seeking
employment.
16. In the facts and circumstances of this
case, in our opinion, the High Court should
not have allowed Respondent herein to join
his services only on the basis of sympathy.
17. It is now also well settled that in absence
of any legal right, the Court should not issue
a writ of or in the nature of mandamus on
the basis of sympathy.
18. We, therefore, are of the opinion that the
High Court committed a manifest error in
allowing the writ petition of Respondent. It
is set aside accordingly. The appeal is
allowed. However, no recovery shall be
made for the period he has actually worked.
No costs.
5. The Hon'ble Apex Court has specifically laid down that
the circumstances and the principle, which are the pre-conditions
which are required to be satisfied by the petitioner who approaches
the writ court for seeking a writ of mandamus.
6. Since the writ petition does not falls to be within the
aforesaid purview, the same is dismissed as the writ petition lacks
pleading that the petitioner prior to filing of writ petition, has
approached the competent authority, making a request for the
enforcement of any of his statutory rights which has been infringed by
the respondents, with the liberty left open to the petitioner to approach
the Competent Authority for compliance of Clause 7 of the Scheme of
Administration.
7. Subject to the above observations, the writ petition stands
dismissed subject to the aforesaid liberty.
(Sharad Kumar Sharma, J.)
13.08.2021
NR/
