JUDGMENT : S. Manikumar, J. Instant writ appeal is directed against the judgment passed in W.P.(C) No.13627 of 2016 dated 13.09.2018, by which the writ court, after setting aside Exhibit-P4 order dated 3.2.2016 of the Director of National Savings Department, respondent No.2 therein, rejecting the request to transfer Mahila Pradhan Kshetriya Bachat Yojana (MPKBY) Agency from the name of Smt. T. Kamalakshi to and in favour of Smt. M. Sasikala, directed the respondents therein to consider the application of the writ petitioner for transfer of agency. 2. Short facts leading to the appeal are that writ petitioner was an agent of Mahila Pradhan Kshetriya Bachat Yojana Agency appointed on 27.10.1980. She crossed the upper age limit for continuation of Mahila Pradhan Agency. She filed an application for transfer of Agency in favour of Smt. M. Sasikala, wife of her grandson. By Exhibit-P4 dated 3.2.2016, the Director of National Savings Department, respondent No.2 therein, has rejected her request. Hence, W.P.(C) No.13627 of 2016 has been filed for a writ of certiorari to quash Exhibit-P4 as arbitrary and consequentially for a direction compelling respondent No.2 therein to transfer the Certificate of Agency in the name of Smt. M. Sasikala within a time frame. 3. Adverting to the above, the Liaison Officer and Under Secretary to the Government, Financial Department, attached to the office of the Advocate General, Ernakulam, has filed a counter affidavit on behalf of respondent No.2 before the writ court stating that the writ petitioner submitted a representation dated 2.1.2014 to the Director, National Saving Scheme for transfer of her Agency in the name of her grandson's wife on the grounds that writ petitioner has attained the age of 80 years and is suffering from illness. Her application was rejected. Challenging the same, writ petitioner filed W.P(C) No.17681 of 2014 in this Court and sought for transferring Mahila Pradhan Kshetriya Bachat Yojana Agency in favour of Smt. M. Sasikala, wife of her grandson. This Court directed the Director of National Savings to consider the application, within a period of one month, in the light of judgment of the Hon'ble Supreme Court in Union of India and Others v. V.P. Parukutty reported in (1997) 2 SCC 252 . 4. This Court directed the Director of National Savings to consider the application, within a period of one month, in the light of judgment of the Hon'ble Supreme Court in Union of India and Others v. V.P. Parukutty reported in (1997) 2 SCC 252 . 4. Before the writ court, respondent No.2 has further contended that application of the writ petitioner to transfer her Agency in the name of Smt. M. Sasikala, wife of her grandson, was rejected on the grounds that the Government have stopped appointing new Mahila Pradhan Kshetriya Bachat Yojana agents. Further contention was made that the Director of National Savings has temporarily stopped appointing new Mahila Pradhan Kshetriya Bachat Yojana agents as the decision of the Government was pending on the proposal for revision of criteria for the appointment of new agents. Once a decision is taken by the Government and intimated to the Director of National Savings, application would be examined in the light of the said decision. On the above grounds, appellants/respondent Nos.1 to 3 sought for dismissal of the writ petition. 5. Adverting to the above pleadings and submissions, the writ court at paragraph 6 of the judgment dated 13.09.2018 in W.P.(C) No.13627 of 2016 ordered thus: “6. On considering the contentions advanced on either side, I am of the opinion that the transfer of agency as requested by the petitioner would not amount to the grant of a fresh agency, since the petitioner has been functioning as an agent from 1980 on wards. In the above WP(C) No.13627 of 2016 4 view of the matter, and in the light of the submission made in the counter affidavit that Smt. M. Sasikala is eligible for grant of the agency on transfer, I am of the opinion that appropriate orders are liable to be passed by the respondents transferring the agency of the petitioner to Smt. M. Sasikala in accordance with law. The interdiction as stated in the counter affidavit with regard to the appointment of new Mahila Pradhan Agents shall not stand in the way of the consideration of the application of the petitioner for transfer. The interdiction as stated in the counter affidavit with regard to the appointment of new Mahila Pradhan Agents shall not stand in the way of the consideration of the application of the petitioner for transfer. Orders shall be passed by the respondents considering the application of the petitioner for transfer in favour of Smt. M. Sasikala on the basis of the submissions made in Paragraph 5 of the counter affidavit, within a period of one month from the date of receipt of a copy of this judgment.” 6. Assailing the correctness of the judgment of the writ court dated 13.09.2018, instant writ appeal is filed on the following grounds, inter alia, that: “A. The learned Single Judge ought to have found that the petitioner has not mentioned anything in the Writ Petition as far as her right for transferring the agency in favour of another person. The agreement executed at the time of granting agency clearly stipulates that the agent shall not assign or transfer the agency. Therefore on factual aspects itself, the petitioner approached this Hon’ble Court without any right on her part for invoking the writ jurisdiction of this Hon’ble Court. At the time of hearing, though this aspect was brought to the notice of the learned Single Judge, unfortunately the learned Single Judge has not adverted to this relevant aspect of the matter. Therefore the judgment of the learned Single Judge is liable to be interfered with. B. The interpretation of the learned Single Judge that the request is only for a transfer and it will not amount to grant of a new agency which is now stopped by the department is without any logic. It is to be noticed that the petitioner admittedly is a person granted agency way back on 27.10.1980 and admittedly she has completed 82 years of age. In the counter affidavit it is specifically pointed out that as an agent who attains 70 years of age, is not eligible for the remuneration from the State Government and that she is working without any remuneration from the State Government for many years. Therefore as an agent, who has crossed the age of 70 years and working without any remuneration from the State Government has no subsisting right to seek for transfer of the agency. This relevant factual position has also not duly taken note of by the learned Single Judge. Therefore as an agent, who has crossed the age of 70 years and working without any remuneration from the State Government has no subsisting right to seek for transfer of the agency. This relevant factual position has also not duly taken note of by the learned Single Judge. Therefore in essence, the appointment of Smt. Sasikala is nothing more than that of a new appointment which is stopped by the Government and hence, the direction issued by the learned Single Judge to grant transfer of agency in favour of Smt. M. Sasikala is unsustainable. C. It is as a matter of policy, the Government has taken decision to stop an appointment of MPKBY agents. The said policy decision of the Government is on sound reasons. It is pointed out in the counter affidavit that decision of the Government is pending since proposal for revision of criteria for the appointment of new agents has to be formulated. Further the existing MPKBY Rules prohibits the transfer of agency to another personal. The Government of India had transferred to power to appoint MPKBY agents to State Government. Since there are alternate source to mobilize funds which are cheaper than the loans provided by NSD, Government of India and since the Government is utilizing the service of existing agents for additional work to propagate the welfare schemes of Government by paying remuneration, appointment of fresh agents will put additional burden to State Government. It is accordingly the Government had ordered to discontinue the appointments of MPKBY agents. Being the policy decision of the Government, learned Single Judge is not justified in interpreting the request of the petitioner saying that it will not amount to appointment of a new agent but only a transfer of agency. The direction issued by the learned Single Judge therefore run counter to the policy decision of the Government. D. It is settled position of law that the policy decision of the Government shall not be lightly interfered, unless there are vitiating reasons for interfering with such policy decisions. In the case at hand there is nothing on record to arrive at a conclusion that a policy decision of the Government is in violation of any of the principles.” 7. In the case at hand there is nothing on record to arrive at a conclusion that a policy decision of the Government is in violation of any of the principles.” 7. On the above grounds, Mr.Aravind Kumar Babu, learned Government Pleader, contended that the scheme for appointment of Mahila Pradhan Kshetriya Bachat Yojana Agent does not contemplate transfer of agency and that any person, who intends to be an agent, has to make an application to the competent authority. Reference has been made to Mahila Pradhan Kshetriya Bachat Yojana. 8. Per contra, Mr. S.M. Prem, learned counsel for the respondent/writ petitioner, submitted that before the writ court, State has raised a contention that Central Government is in the process of revision of criteria for appointment and grant of agency under Mahila Pradhan Kshetriya Bachat Yojana Scheme, and that the decision is awaited. Therefore, the writ petitioner/respondent has filed I.A. No.4 of 2019 in W.A. No.884 of 2019 to implead the Central Government. He made submissions to sustain the judgment made in W.P.(C) No.13627 of 2016. 9. Heard learned counsel for the parties and perused the material on record. 10. On the aspect as to whether the Rules of Mahila Pradhan Kshetriya Bachat Yojana Scheme enables an agent to transfer the individual Mahila Pradhan agent, we deem it fit to consider the Rules of the Scheme issued vide MOF(DEA) Letter No.F.1(1)-NS/71 dated 29.1.1972 and N.S.C.Nagpur letter No.42327-78/MGC(s) (3) 81 dated 5.12.1981 and further amended from time to time, which is extracted hereunder: “CHAPTER 17 MAHILA PRADHAN KSHETRIYA BACHAT YOJANA [Issued vide MOF(DEA) letter No.F.1(1)-NS/71 dated 29.01.1972 and N.S.C. Nagpur letter No.42327-78/MGC(s) (3) 81 dated 05.12.1981 and further amended from time to time] PART-1 RULES OF THE SCHEME 1. The scheme will be called the "Mahila Pradhan Kshetriya Bachat Yojana” 2. Objectives : -The objectives of the 'Mahila Pradhan Kshetriya Bachat Yojana' are as under : - (i) To educate house wives in family budgetting. (ii) To inculcate the habit of thrift among house holds and self employed people. (iii) To canvas for the secure investments in P.O. 5-year Recurring Deposit Accounts from small savers. (iv) to raise resources for financing development and defence of the country. 3. Date of Introduction : -The Mahila Pradhan Kshetriya Bachat Yojana has come into force with effect from the 1st April, 1972. 4. (iii) To canvas for the secure investments in P.O. 5-year Recurring Deposit Accounts from small savers. (iv) to raise resources for financing development and defence of the country. 3. Date of Introduction : -The Mahila Pradhan Kshetriya Bachat Yojana has come into force with effect from the 1st April, 1972. 4. Scope of Agency :-The Agency will be confined to canvassing for and receiving investments in the Post Office 5-Year Recurring Deposit Accounts. The Appointing Authority shall intimate to the post office to which the Authorised Worker of an Organisation or an Agent Leader is attached under the scheme, the fact of the appointment and the address of the authorised worker/agent leader. The Director General Posts will issue instructions to post offices directing them to stamp the schedules as and when presented at the post office by the Authorised Worker/Agent Leader. 5. Eligibility:-(i) A woman organisation (hereinafter called Agent Organisation) doing Social, Religious, Educational, Recreational or Charitable work (e.g. A Mahila Mandal, satsang Mnadal etc.) irrespective of whether it is registered or not, shall be appointed as Authorised Agent under this sheme in its corporate capacity, if it is considered suitable and recommended in writing by the District Savings Officer, National Savings of the area for such appointment. (ii) An individual woman(hereinafter called Agent Leader) who being a resident of locality is desirous of being appointed as authorised Agent Leader under this scheme to canvass the households in that locality and is recommended for such appointment by the District Savings Officer of that area. (iii) No Central/State Government employee should be appointed as Agent leader. (iv) Near relatives of the employees of Department of Posts and National Savings Organisation are not eligible for appointment as agents or renewal of their existing agency under Mahila Pradhan Kshetriya Bachat Yojana. (v) Near relatives of other Central/State Government official (excluding Department of posts and NSO officials) may however be appointed as agents provided clearance is given by the Head of Office/Department of the concerned official. (vi) A person will be regarded as near relative of an official if the official is the person's wife/husband, legitimate child or step child, father/step father, mother/step mother, brother/step brother, sister/step sister, father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law or daughter-in -law. [Ministry of Finance(DEA) letter No.F.1/5/83-NS dated 03.01.1984 and No.F.1/5/83-NS dated 16.02.1985] 6. (vi) A person will be regarded as near relative of an official if the official is the person's wife/husband, legitimate child or step child, father/step father, mother/step mother, brother/step brother, sister/step sister, father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law or daughter-in -law. [Ministry of Finance(DEA) letter No.F.1/5/83-NS dated 03.01.1984 and No.F.1/5/83-NS dated 16.02.1985] 6. Application for appointment:-(a) The application for Agent Organisation will be made in the prescribed form No. ASLAAS-I(A) (Annexure I). Provisions have been made for addition of authorised workers at any time after the appointment of the agent organisation and also for cancellation of the Certificates of Authority of one or more the authorised workers. Ordinarily as agent organisation shall have not more than six of its workers authorised to work for it. An agent organisation, which is not registered will, however, be authorised to operate through not more than three workers only. (b) Individual Mahila agent will apply in form No.ASLASS-I (B) (Annexure - 2) (c) The Appointing Authority shall inform the applicant/ organisation/ institution/ individual agent about its/her approval for appointment in a form No.ASLAAS-2(Annexure-3) 7. Security:-(a) A Security Rs.100/-/Rs.500/-, as the case may be shall be furnished by the agent organisation/agent leader in the shape of a 6year National Savings Certificate duly pledge to the President of India in his official capacity. An unregistered organisation/ institution shall, however, furnish a cash security of Rs.100/-/ Rs.500/-only. This security will be deposited at a Treasury and receipted Treasury Challan forwarded to the Appointment Authority with the Agreement. (b) Security may also be given (i) in the form of Fidelity Guarantee Policy of the value of Rs.1000/-/ Rs.5000/-as the case may be or (ii) two personal sureties, each guaranteeing to the extent of Rs.1000/- /Rs. 5000/- Note:-For handling cash at a time upto Rs.5000/-, the lower amount of security(Rs.100) is required and for handling cash upto Rs. 10,000/-at a time the higher security(Rs.500) will be required. 8. Agreement:-The Agent Organisation/individual agent shall execute an agreement in writing (in form No. ASLAAS-3) Annexure 4). In the case an Agent Organisation, the agreement shall be signed by any tow office bearers of the Agent Organisation duly authorised by a resolution passed by the Agent Organisation in this behalf. 9. 10,000/-at a time the higher security(Rs.500) will be required. 8. Agreement:-The Agent Organisation/individual agent shall execute an agreement in writing (in form No. ASLAAS-3) Annexure 4). In the case an Agent Organisation, the agreement shall be signed by any tow office bearers of the Agent Organisation duly authorised by a resolution passed by the Agent Organisation in this behalf. 9. Certificate of Authority:-An authorised worker/agent leader shall be given a Certificate of Authority (in form ASLAAS-4) (Annexure-5) attaching her to one post office only, In the case of an Agent-Organisation the Certificate of Authority shall be issued in its name and shall contain the name of its worker, its address and the specimen signature of the authorised worker. CLARIFICATIONS (1) Attachment of MPKBY Agents to Post Offices:-A doubt was raised whether an MPKBY Agent can be attached with an EDBPO or EDSPO. Although rules are not specific, it may be mentioned that the post office regards H.P.Os as Head Bank and sub-post offices as sub-banks. Branch Post Offices even though permitted to carry out Savings Bank transactions, are doing so as an extension of the account office, (H.P.O or S.P.O) to which they are attached. The Branch Postmaster's certification of postal accounts/ records is not taken as final. In other words, even if the money is deposited in R.D. Accounts standing open in a Branch Office, it would be necessary for the schedules to be certified by the sub-postmaster of the office to which the branch office is attached. In some cases, branch office may be directly attached to a. H.P.O. when the schedule will have to be certified by the Head Postmaster. It is, however, suggested that preferably the agents should be attached only to Head/Sub Post Offices. [N.S.C Nagpur letter No.Dev. 1/22/1/11/83-Temp, dated 06.09.1985] (2) Validity of certificate of authority for acceptance of RD collections by MPKBY agent on expiry of validity period of licence specified in the agreement : -The National Savings Commissioner, Nagpur has advised that the post offices should not accept deposits from MPKBY Agents after expiry of the validity period of licence as specified in the agreement. [D.G. Posts letter No.62-8/88BB dated 12-12-1988] 10. Field of Operation :-An authorised worker/agent-leader shall be allowed to canvass for and receive investment in the area specified in the Certificate of Authority. 11. [D.G. Posts letter No.62-8/88BB dated 12-12-1988] 10. Field of Operation :-An authorised worker/agent-leader shall be allowed to canvass for and receive investment in the area specified in the Certificate of Authority. 11. Issue of Card to Depositors :-(i) With effect from 1st April, 1977 the Mahila Agents will use serially numbered card in form ASLAAS-5 (Annexure6) for acknowledging receipt of the deposits. The card has three foils. These cards will be supplied to Agents by Regional Director at his headquarter town and by District Savings Officer of the National Savings for the District in his charge. (ii) When Mahila Agent visits an existing or prospective depositor who wishes to deposit money:-” 11. As per Rule 5, certain eligibility conditions are prescribed. Rule 6 extracted supra states that an application for Agent Organisation should be made in the prescribed form and so also the application by a individual Mahila agent. In the case on hand, writ petitioner is an Individual Mahila Agent. Scrutiny of the Rules of Scheme makes it clear that there is no provision for transfer of Individual Mahila Agent to another person. Appointment is made only when an application is made in the prescribed format, subject to satisfying the eligibility criteria set out in Rule 5 of the Rules of Scheme. 12. A prerogative writ, like, a Mandamus cannot be demanded ex debito justiatiae, but it can be issued by the court in its discretion, for which, it must be shown that, there is a non discretionary legal duty upon the authority against whom, the relief is sought for and that the person approaching the High Court under Article 226 of the Constitution of India, has to prove that he has a legal right to be enforced against the authority, for the failure of performance of a legal or statutory duty, by the authority against whom, the relief is sought for. 13. Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions. 14. On the aspect of mandamus, reference can be made to a few decisions. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions. 14. On the aspect of mandamus, reference can be made to a few decisions. (a) In the decision reported in (1996) 9 SCC 309 (State of U.P. and Ors. v. Harish Chandra and Ors.) in paragraph 10, the 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.... (b) In the decision reported in (2004) 2 SCC 150 (Union of India v. S.B. Vohra) the Hon'ble 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. (c) In the decision reported in (2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) in paragraph 11 of the Hon'ble Supreme Court held thus, 11. 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. 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 http://www.judis.nic.in 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. (d) In State of Kerala v. A. Lakshmi Kutty reported in 1986 (4) SCC 632 , the Hon'ble Supreme Court held 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 a duty must be in the applicant himself. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, 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. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus. (e) In Raisa Begum v. State of U.P., reported in 1995 All.L.J. 534, the Allahabad High Court has held that,- "Certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law." 15. When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows: “Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective." (emphasis supplied) 16. Thus, without any right under the Scheme to be enforced against the Director of National Savings, appellant No.2, representation dated 2.1.2014 has been given for transfer of Mahila Pradhan Kshetriya Bachat Yojana Agency, to and in favour of Smt. M. Sasikala, wife of grandson, which has been rejected. Director of National Savings, appellant No.2, has considered the application and rejected the same vide Exhibit-P4. Transfer of agency cannot be granted as a matter of right unless and until such authority is confined with a jurisdiction to decide as and when received. In the light of the discussion and decisions, we are of the view that the judgment made by the writ court in W.P.(C) No.13627 of 2016 dated 13.09.2018 requires interference. Accordingly the judgment is set aside. Writ appeal is allowed.