Suresh Kumar vs State Of Himachal Pradesh & Another

Tarlok Singh Chauhan, J

The petitioner, is working as Chowkidar/Peon with respondent No.2 and has filed the instant petition, on the ground that there is vacancy available in District Kangra and therefore he be transferred there.

We really wonder how the petition is maintainable.

It is more than settled that a writ of mandamus does not lie to create or establish a legal right but to enforce the legal right that is already established. Writ being equitable in nature, its issuance is governed by equitable principle. The writ cannot be granted unless it is established that there is an existing legal right of the applicant or an existing duty of the respondent.

Apart from other, an employee has no vested right to create a particular post to serve at a particular place for a particular time. It is within the exclusive domain of the employer to determine as to at what place and where the services of a particular employee are required.

What is more important is that just prior to filing of the instant petition, the petitioner preferred a representation to the respondent with a similar prayer and that without waiting for its outcome has filed the instant writ petition. It is on the basis of such representation, that the petitioner has sought direction to the respondent to consider and decide the same within time bound manner. Even though, the prayer on the face of it appears to be now innocuous, but when considered in depth, it would be noticed that the petitioner wants this Court to act as a Post-Office, which is not permissible in law. This practice of filing the representation without waiting for its outcome for a reasonable time deserves to be deprecated.

The country is going through a very difficult time in the wake of Covid-19 Pandemic. It was after that the Courts have devised procedures, where majority of the Court proceedings are now being held on the virtual platform and filing of petition through e-mail is being accepted. However, off-late, we notice that this process is being grossly abused and the instant petition is one such glaring example. Procedure of entertaining and filing of petition through e-mail was meant to deal with urgent matters only, but we notice that this procedure is being mis-used and mis-harnessed by the litigants inasmuch as the cases of ordinary, non-urgent and even stale-matters are being filed by the aforesaid modes by filing unwarranted applications under Rule-2 of the Writ Rules and other cognate provisions. Furthermore, reply and rejoinder etc., in pending cases are also being filed through e-mail containing scanned copy of the same that too in the nick of time on the previous date of the listing of the case. Thus pleadings which could have been filed physically in ordinary courses, are also being filed by resorting to the extra-ordinary mode. On an average about 40-50 matters are being filed by way of e-mail, as a result whereof, extreme pressure is exerting on the human and material resources of the Registry. Registry now is required to deal with the cases in dual mode i.e. physical and electronic, which entails considerable charge on the time of dealing hands and also leads to unwarranted depletion of stationery, printing equipments and other inventory.

That apart, more significantly, reckless and irresponsible filing of urgent/non-urgent cases through extra-ordinary mode is being resorted to pushing back the deserving cases which actually involve urgency owing to the aforesaid circumstances. The Judicial Branch of the Registry is reeling under and working in a pressure cooker situation and under enormous stress. Therefore, it is high time to release the stress, in order to prevent burn out of the resources and to preserve the vigour of officials of the Registry, who are already working relentlessly and zealously and coping up with the challenging time thrown up by the current extraordinary times.

However, since these matters, are within the exclusive purview of the Hon'ble Chief Justice, we, therefore, direct the Registry of this Court to putforth the following proposals:-

(i) Request for listing of a case on the next date should be made only in the cases which have extreme urgency and cannot wait for three days for the purpose of being listed before the Court.

(ii) The condition for putting the physical file under quarantine may be reduced from three to two days as it is resulting in undue delay of the cases. This is clearly evident from the fact that in case a new petition is filed on Monday, it will remain in quarantine upto Thursday and thereafter taken up for scrutiny on Friday. Meaning thereby, the petition not even listed in the same week will essentially have to come up on the next Monday.

(iii) Filing of the cases which are required to be listed on the next day only be permitted by 1.30 P.M., by which time physical filing as well as e-mail containing the scanned copy should be received in the Registry. Objections, if any, raised by the Registry in such cases should be removed by 3.45 P.M.

(iv) Reply/Rejoinder/Supplementary pleadings etc., preferably be filed atleast three days prior to the date fixed in the case.

(v) Mentions before Hon'ble the Chief Justice/Concerned Court be made only in those cases, which already stand filed by any learned counsel. They are required to furnish filing slips, mentioning number allotted at the time of physical filing.

(vi) The usual system of publishing daily and supplementary cause-lists may be permitted/resumed.

Let needful be done within one week from today.

In view of the above, the instant writ petition is dismissed, alongwith pending application(s),if any.