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2001 DIGILAW 382 (ALL)

MITHILESH DIKSHIT v. MANAGEMENT COMMITTEE

2001-04-20

D.S.SINHA, LAKSHMI BIHARI

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D. S. SINHA, J. ( 1 ) HEARD Shri Sant Sharan Sharma, learned counsel appearing for the petitioner and Sri S, K. Mehrotra, learned brief-holder of the State of U. P. , appearing for District Inspector of Schools. Ferozabad and State of U. P. , at length and in detail. ( 2 ) THE Principal prayer of the petitioner, who is the Head of the Hindi Department of B. D. M. M. Girls Degree College. Shikohabad, is that this Court may issue a writ of mandamus commanding the respondents to pay her the arrears of salary for the period October and November, 1991 and the salary from March. 1993 onwards. Further prayer of the petitioner is that the respondents be restrained from interfering in her functioning as Head of the Hindi Department of the college. ( 3 ) THE dispute about the petitioners functioning as Head of the Hindi Department of the college does not survive, and the learned counsel of the petitioner states that instant petition may be treated to be confined only with regard to the payment of dues of salary. ( 4 ) IT is not disputed that the Uttar Pradesh State Universities Act. 1973 (hereinafter called the act), is applicable to the college where the petitioner is serving. ( 5 ) SECTION 60e of the Act contemplates that for payment of salaries of teachers and employees of every college, governed by the Act, due in respect of any period after March 31, 1975, the State government shall be liable. It is not disputed that the matter regarding payment of salary is looked after by the District Inspector of Schools of the area wherein the college is situated. ( 6 ) IN the counter-affidavit filed on behalf of the respondent Nos. 1 and 2, the stand taken is that the petitioner had been absenting from duty. She is, therefore, not entitled tc the salary claimed. In the rejoinder-affidavit and supplementary rejoinder- affidavit, petitioner asserts that it is false to say that she has been absenting from the college. She has made reference of certain documents in support of the assertion that she has in fact been attending the college. She is, therefore, not entitled tc the salary claimed. In the rejoinder-affidavit and supplementary rejoinder- affidavit, petitioner asserts that it is false to say that she has been absenting from the college. She has made reference of certain documents in support of the assertion that she has in fact been attending the college. ( 7 ) THUS, there is serious dispute about the factum of the petitioners working in the college at the relevant time, and the controversy cannot be decided without evidence to be led by parties and appreciation thereof by the appropriate authority. The appropriate authority in the instant case, in the opinion of the Court, would be the District Inspector of Schools in whose Jurisdiction the institution in which the petitioner is serving is located. ( 8 ) FROM the record before the Court, it is not established that the petitioner has ever approached either District Inspector of Schools or the State Government making demand of payment of salary. ( 9 ) IN its decision rendered in State of Haryana and another v. Chanan Mal and others, AIR 1976 sc 1654 , the Honble Supreme Court has clearly and firmly ruled as follows : "any petitioner who applies for a writ or order in the nature of a mandamus should, in compliance with a well known rule of practice, ordinarily, first call upon the authority concerned to discharge its legal obligation and show that it has refused or neglected to carry it out within a reasonable time before applying to a Court for such an order even where the alleged obligation is established. " ( 10 ) IN another decision rendered by it in Mani Subrat Jain and another v. State of Haryana and others, AIR 1977 SC 276 , the Honble Supreme Court has observed thus : "it is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a Judicially enforceable right as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something. There must be a Judicially enforceable right as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something. " ( 11 ) IN the Bihar Eastern Gangetic Fishermen Co-operatiue Society Limited v. Sipahi Singh and others, AIR 1977 SC 2149 , the Honble Supreme Court has again reiterated : "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. " ( 12 ) FROM the decisions of the Honble Supreme Court, noticed above, it is clear that before approaching the Court for issuance of a writ of mandamus for securing performance of the statutory duty by the concerned authority, the petitioner must approach the said authority and demonstrate to the Court that the authority has failed to discharge statutory obligation imposed upon him. ( 13 ) IN the instant case, petitioner never approached the relevant authorities for enforcement of her legal right and performance of the corresponding duty of the concerned authority. However, she may do so now, if advised. ( 14 ) ON the facts and circumstances and what has been stated above, the Court declines to intervene in the matter at this stage. Accordingly, the writ petition is dismissed. There is no order as to costs. .