The Jammu and Kashmir High Court has dismissed the petition of a doctor seeking extension of his service up to end 2021 in view of the Covid-19 pandemic.
The petitioner, Dr Nawaz Ashruf Khan, is an experienced medical doctor who discharges his services in the Sher-i-Kashmir University of Agricultural Sciences & Technology (respondent university), Jammu and Kashmir, as Medical Officer and after rendering his services for three decades has retired from service on reaching the age of superannuation on June 1, 2021. The petitioner, in view of the scenario created by Covid-19, filed a representation before the concerned authorities to the effect that he be granted extension in service up to the end of 2021 in tune with the announcement made by the Government of J&K for extension in service of retiring faculty members, consultants, doctors working in Health and Medical Institutions/ Hospitals, Health workers, medical and para-medical staff and warriors of Health and Medical Department of the Union Territory.
The respondent university rejected the claim of the petitioner and conveyed the same to him through a communication dated May 31, 2021. The petitioner feeling aggrieved of the communication challenged the same in the High Court.
On Wednesday, a single-judge bench of Justice Ali Mohammad Magrey observed that the only ground the petitioner has raised in support of his claim is that because of his three decades of continuous and unblemished career he deserved to be given an extension in the service in view of the Covid-19 scenario in tune with the announcement made by the Government of J&K.
The Court said that the ground pressed in service by the petitioner in seeking extension in his service was for the respondent-university to appreciate and the respondent university having found the request beyond the scope, turned down the same in their administrative domain. It is quite obvious that the respondent University did not require the services of the petitioner, therefore, rejected his claim. The petitioner has absolutely no right to question the decision of the respondent university, the Bench held.
It is further observed by the Court that, violation of a fundamental right is a sine-qua-non for invoking the writ jurisdiction of the High Court and since there is no violation of any of the rights of the petitioner, therefore, the writ petition does not have any merit in it.
“‘Mandamus’ literally means a command. The essence of ‘Mandamus’ is that it is a command issued for directing the performance of public legal duty. A ‘Writ of Mandamus’ is issued in favor 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 the 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 the disorder from a failure of justice and is required to be granted in all cases where the law has established no specific remedy and whether justice, despite demand, has not been granted.”
The High Court cited the Judgment of Apex Court, while dealing with the scope of ‘Mandamus’, in a case titled ‘State of Kerela V. Smt. A. Lakshmikutty & Ors.; (1986) 4 Supreme Court Cases 632’, at Paragraph No.34, has observed as under: “34. We must refer to the case of Mani Subrat Jain v. State of Haryana & Ors., (supra) which was relied upon by learned counsel for the State Government. It is well-settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of duty must be in the applicant himself. In general, there- fore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. Applying the principles stated in Halsbury’s Laws of England, 4th edn., vol. 1, paragraph 122, this Court observed that a person whose name had been recommended for appointment as a District Judge by the High Court under Art. 233(1) had no legal right to the post, nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for a mandamus. It was observed:
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“It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of persons for appointment. If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation. The consultation of the Governor with the High Court does not mean that the Governor must accept whatever advice of recommendation is given by the High Court. Article 233 requires that the Governor should obtain from the High Court its views on the merits and demerits of persons selected for promotion and direct recruitment.”
The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus. The present trend of judicial opinion appears to be that in the case of non-selection to a post, no writ of mandamus lies. The High Court, in view of the above facts, dismissed the Petition.