no mandamus for legislation or subordinate legislation

1.            State of J&K v. A.R. Zakki, 1992 Supp (1) SCC 548 : 1992 SCC (L&S) 427 :  (1992) 20 ATC 285 at page 554

10. In our opinion there is considerable merit in this submission. A writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. Section 110 of the J and K Constitution, which is on the same lines as Article 234 of the Constitution of India, vests in the Governor, the power to make rules for appointments of persons other than the District Judges to the Judicial Service of the State of J and K and for framing of such rules, the Governor is required to consult the Commission and the High Court. This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court.

2.            The same has also been previously taken by Hon'ble Supreme Court in Supreme Court Employees' Welfare Association v. Union of India [(1989) 4 SCC 187 : 1989 SCC (L&S) 569] wherein it has been laid down: (SCC p. 219, para 51)

"There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority."

 

3.            Thus, it is stated that framing of a rule is a matter of policy, especially the rules relating to recruitment to public posts.

Improper Selection

In Dy. Executive Engineers' Assn. v. State of Gujarat, 1994 Supp (2) SCC 591 at page 601, it has been by this Hon'ble Court that:

 

“11. The entire appointment of direct recruits, therefore, from the waiting list was not proper. But these persons have been appointed and are working now at least for five years. It would, therefore, be unjust and harsh to quash their selection at this stage.”

 

Similar view has been taken by this Hon'ble Court in Nayagarh Cooperative Central Bank Limited and Another v. Narayan Rath & Another, (1977) 3 SCC 576:

“4. The writ petition filed by Respondent 1 could succeed, in our opinion, on the narrow ground that he had been permitted to function for over thirteen years as secretary of the Bank and that his appointment as Secretary was decided upon in a meeting over which the Registrar of Cooperative Societies had himself presided. The writ petition in substance is directed not against any order passed by the Cooperative Bank but against the order passed by the Registrar disapproving the appointment of Respondent 1 as secretary of the Bank. It was not open to the Registrar, in our opinion, to set aside Respondent 1's appointment as a secretary after having acquiesced in it and after having for all practical purposes, accepted the appointment as valid. It is undesirable that appointments should be invalidated in this manner after a lapse of several years.”