Petitioners sought quashing of government memos affecting Non-formal Education Instructors' absorption. Bench declined to entertain writ due to lack of failure in mandatory duty and directed withdrawal of petition to file a representation.
Petition disposed; Parties directed to approach authority via representation within four weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4336 of 2022
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Patna High Court CWJC No.4336 of 2022 dt.06-04-2022 2/10
... ... Petitioner/s
Versus
... ... Respondent/s
====================================================== Appearance : For the Petitioner/s : Mr.Shashi Shekhar Tiwary, Advocate For the Respondent/s : Mr. Ajay Kr. Rastogi, AAG 10 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)
Date : 06-04-2022
Heard learned counsel for the parties.
Patna High Court CWJC No.4336 of 2022 dt.06-04-2022 3/10
2. Petitioners have prayed for the following
relief(s):-
“i. For diluting/quashing or declaring the clause (iii) of the notice dated 21.4.2016 published in Hindi Daily “Hindustan” rad with clause 6(ka)(i) of the Govt. Memo no. 2530 dated 04.10.2017 as ultravirous to the constitution of India so also nonest in the eye of law.
ii. The respondents simultaneously may kindly be directed to replace the above said incorporation through just, fair, rational and reasonable stipulation so that the constitutional protection under Article 14,16 & 21 be made available to the petitioners and other Non-formal Education Instructors cum Special Education Instructors who are/were validly appointed, bonafidely worked and genuinely entitle for the job/absorption in question within the four corners of law coupled with the illegibility and experience criteria which they having admittedly.
iii. For directing the respondents to consider the petitioners candidature/cause, in view of the well settled preposition of law as stated hereunder-
a. “Justice must not only be done, but must also be seen to be done”, since reported in {1924} 1KB256 (i.e. Rex V. Sussex Justices case) and other cases.
b. “ A reasonless order cannot be termed as an order, more so cou8ld not come under t he definition of law decided and as such not at all have any binding effect”, since reported in (2010) 9 SCC 496 (M/s Kranti Asso. Pvtg. Ltd. & Anr Vs Masood Ahmed Khan & Ors., AIR 2004 SCC 2950 (Narcotics Control Bureau Case) etc.
Patna High Court CWJC No.4336 of 2022 dt.06-04-2022
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The State of Tamil Nadu & Ors.
iv. The answering respondents also may kindly be directed to not at all be prejudice with any decision or order which has no sanction of law and not having any binding effect more so going to cause miscarriage of justice on the face of it.
v. The answering respondent alternatively may kindly be directed to engage the petitioners either on regular
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basis or on contractual basis while extending preferential right/weightage in their favour in view of the latest development published in Hindi Daily “Dainik Jagran” on 19.12.2021.”
Vs. Chief Secretary, Government of Karnataka & Ors, (2016)
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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.
“ 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.”
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.
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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 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
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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.”
(a) Petitioners 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 four months from the date of its filing along with a copy of this order;
(c) The order assigning reasons shall be communicated to the petitioners;
(d) Needless to add, while considering such representation, principles of natural justice shall be followed and due opportunity of hearing afforded to the parties;
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(e) Also, opportunity to place on record all relevant materials/documents shall be granted to the parties;
(f) Equally, liberty is reserved to the petitioners to take recourse to such alternative remedies as are otherwise available in accordance with law;
(g) We are hopeful that as and when petitioners take 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;
(h) Liberty reserved to the petitioners to approach the appropriate forum/Court, should the need so arise subsequently on the same and subsequent cause of action;
(i) We have not expressed any opinion on merits. All issues are left open;
(j) 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;
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disposed of.
(Sanjay Karol, CJ)
( S. Kumar, J)
Sujit/Ashwini
AFR/NAFR CAV DATE Uploading Date 11.04.2022 Transmission Date
2 issues framed by the court
Whether the petition regarding job absorption of non-formal education instructors merits a writ of mandamus or should be withdrawn for departmental representation.
Whether procedural technicalities should be allowed to take a back seat in public interest litigation vis-a-vis mandamus requirements.
Colour shows how this judgement treated each authority
Rural Litigation and Entitlement Kendra v. State of U.P.Referred¶71
[ Rural Litigation and Entitlement Kendra v. State of U.P.
R&M Trust v. Koramangala Residents Vigilance GroupReferred¶73
R&M Trust v. Koramangala Residents Vigilance Group
Union of India v. S.B. VohraReferred¶77
Union of India v. S.B. Vohra
Saraswati Industrial Syndicate Ltd. v. Union of IndiaReferred¶80
Saraswati Industrial Syndicate Ltd. v. Union of India
Meena Devi W/o Jay Kumar Yadav and others
State of Bihar through the Chief Secretary, Government of Bihar
The Principal Secretary, Human Resource Development cum Education Department, Government of Bihar
The Director, Mass Education, Government of Bihar
Sanjay Karol
S. Kumar Oral
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
