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Judgment
S. Manikumar, J.—The petitioner has sought for a mandamus directing the respondents to promote and appoint the petitioner as B.T.
Assistant (Mathematics) at Panchayat Union Middle School, Thimmarasanaickanur, Andipatti Union, Theni District, as and when the respondents
create the said post, as per the Seniority List dated 01.01.2013 prepared by the second respondent on the basis of the representation made by the
petitioner dated 14.08.2013. The basis for the relief sought for supra, is that, according to the petitioner, she is at No. 1 in the Seniority List,
prepared by the second respondent and as per G.O. Ms. No. 239, School Education Department, dated 22.09.2007, qualified secondary grade
teacher has to be promoted to the post. The relief sought for is like an anticipatory mandamus directing the respondents to consider the case of the
petitioner as and when the post of B.T. Assistant (Mathematics) is created. Mandamus can be issued only when the petitioner has a right and
consequently, the statutory authorities fail to exercise their duties. The issue as to whether the respondents have failed to exercise their duty in the
manner known to law, as per the Government Order, stated supra, has not come up for consideration yet. At this juncture, this Court deems it fit
to consider some decisions as to when a mandamus can be issued. Writ of mandamus cannot be issued merely because she is praying for. One
must establish the right first and then seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, she can
approach the Court for mandamus. The said position is well settled by in series of decisions.
(a) In Comptroller and Auditor-general of India, Gian Prakash, New Delhi and Another Vs. K.S. Jagannathan and Another, a Three-Judge Bench
of the Honourable Apex Court referred to Halsbury''s Laws of England 4th Edition, Vol. I. Paragraph 89, about the efficacy of mandamus:
Nature of Mandamus.--.... is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where
there is a specific legal right and no specific legal remedy, for enforcing that right; and it may issue in cases where, although there is an alternative
legal remedy, yet that mode of redress is less convenient, beneficial and effectual.
(b) In the decision reported in State of U. P. and others Vs. Harish Chandra and others, he Apex Court held as follows:
10....Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of
legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....
(c) In the decision reported in Union of India (UOI) and Another Vs. S.B. Vohra and Others, ) the Supreme Court considered the said issue and
held that ''for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of
mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
(d) In the decision reported in Oriental Bank of Commerce Vs. Sunder Lal Jain and Another, the Supreme Court held thus,
The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G.
Ferris and F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the
sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein
specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper
court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is
entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and
ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other
adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the
performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their
jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-
settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where
the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is
classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the
larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court
should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent
upon all the surrounding facts and circumstances. Note 206.-... The correct rule is that mandamus will not lie where the duty is clearly discretionary
and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support
his action.
These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh after
referring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M. Shah, Rai Shivendra Bahadur (Dr.) v. Nalanda College and Umakant
Saran (Dr.) v. State of Bihar this Court observed as follows in para 15 of the Reports (SCC): (Sipahi Singh case, SCC pp. 152-53)
15.... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty
imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ
is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the
limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown
that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.... In the
instant case, it has not been shown by Respondent 1 that there is any statute or rule having the force of law which casts a duty on Respondents 2
to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not
binding and enforceable. Accordingly, we are clearly of the opinion that Respondent 1 was not entitled to apply for grant of a writ of mandamus
under Article 226 the Constitution and the High Court was not competent to issue the same.
Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance
of some statutory duty cast upon the authorities....
On the facts and circumstances of this case, no anticipatory mandamus can be issued. Hence the writ petition is dismissed. No costs.