JUDGMENT
Jaspal Singh, J.
(1) The facts need not delaine
us for long. Sometime in September, 1988 Air India, a Corporation constituted under the Air Corporation Act, 1953 and being wholly owned and controlled by the Government of India, invited applications for appointment to the posts of Assistant Flight Pursers. Since the petitioner fulfillled all the necessary prescribed conditions, he too applied for the same. and in response, was called for a written test which he passed successfully.
(2) Thereafter, he crossed the hurdle of the Group discussion/preliminary interview. This was on December 14, 1988. As on January 19, 1989 he successfully appeared for the final interview also, by a letter dated ll/15th May, 1990 (Annexure V) he was informed that he had been considered suitable for appointment as an Assistant Flight Purser subject to his being found medically “Fit” by the Corporation Medical Officer and that he should present himself for medical examination on or before May 30, 1990.
(3) As the letter itself
was received by the petitioner on June 2, 1990, he was medically examined only on June 8, 1990. The day, however, did not augur well for him. He was found to be overweight by about 21 kilograms and as such, by letter dated July 18, 1990 was declared to be “temporary unfit for a period of 03 months” and was required to report for his “medical re-assessment on 01-10-1990.”
(4) On September 4, 1990 the petitioner wrote to the respondent Corporation that having brought down his weight to the required standard, an earlier date be fixed for his medical re-asscssment. Consequently he was medically examined on September 19, 1990 and was declared “Fit”. Unfortunately he was still not destined to have smooth sailing. The storm came in the shape of a letter from the respondent dated 22/24th January. 1991. After acknowledging his having cleared the medical test, the petitioner was informed: “3.As you have taken considerable time to complete your Medical Examination, we could not keep the vacancies of Assistant Flight Purser vacant and they were filled by the candidates who were medically ‘Fit’ for the post. 4. We would like to inform you that due to operational reasons it has been decided not to appoint any more Assistant Flight Pursers. As such, in case you are interested in the post, you will have to apply afresh in response to our future advertisements.”
(5) The petitioner protested through his letter dated January 29, 1991. It evoked no response. Hence this writ petition under Article 226 of the Constitution of India seeking quashing of the letter dated 22nd/24th January, 1991 and for a direction in the nature of Mandamus directing the respondent Corporation to appoint him to the post of Assistant Flight Purser.
(6) Needless to say, the respondent Corporation has contested the petition. Mr. Singhvi appearing for the respondent Corporation resisted the petition on two grounds. His First contention was that due to unfortunate scrapping of a Booing 747 aircraft there remained no further vacancies of Assistant Flight Pursers, and as all the existing vacancies had been filled up before the receipt of the result of petitioner’s medical examination the respondent Corporation could not be held obliged to absorb him.
(7) The other argument was that, in any case, no writ in the nature of Mandamus could lie. We, however, regard both the contentions as totally devoid of force.
(8) The letter dated 22/24th January, 1991 is self-revealing and destructive of the defense set-up by the respondent Corporation. The two paragraphs of the letter already reproduced by us need to have another look. It is paragraph 3 of the letter which holds the key. It shows: (i) There was no cut in the existing vacancies, (ii) all the existing vacancies had been filled up, and (iii) the petitioner could not be absorbed for the only reasons that (a) he had “taken considerable time” to complete his medical examination and further as (b) the respondent Corporation “could not keep the vacancies of Assistant Flight Pursers vacant”. Significantly, paragraph 3 of the letter no where says that the petitioner could not be appointed due to any cut in the existing vacancies on account of grounding or scrapping of an aircraft. Of course, paragraph 4 speaks of operational reasons for the decision “not to appoint any more Assistant Flight Pursers”, but it provides no reason for not appointing the petitioner in the already existing vacancies which the respondent had chosen to fill. And, as already noticed above, the only reasons provided for not absorbing the petitioner are the ones mentioned in paragraph 3 of the letter. And, if they are the only reasons, they can hardly be termed as reasonable. It was not the petitioner who had taken “considerable time” to complete his medical examination. He had been given time till October 1, 1990 by none other but the Medical Officer of the respondent Corporation itself and yet it was the petitioner who is to be credited for curtailing that period, for it was at his instance that the Medical re-assessment was proponed
to September 19, 1990. How can he be thus accused of having taken “considerable time” to complete his medical examination? And, having itself fixed October 1, 1990. how can it be open to the respondent Corporation to say that it could not keep the vacancies open till then?
(9) Let us assume that due to scrapping or grounding of some- aircraft it had been decided not to appoint “any more” Assistant Flight Pursers. We were informed that the decision was taken in early September, 1990. If so, why was the petitioner not informed about it before his medical examination? In any case, admittedly one Mr.S.D. Bhavsar was medically examined much after September 19, 1990 and was appointed sometime in October 1990. If it had really been decided in early September not to appoint “any more” Assistant Flight Pursers, why an exception was made in the case of Mr.Bhavsar and not in the case of the petitioner? Afterall it was the petitioner and not Mr. Bhavsar who had cleared the medical examination first. As the date of medical fitness has to be the date on which the medical examination took place.
(10) It was contended by Mr.Singhvi that Mr.Bhavsar belonged to special category of ‘sportsman’ and that for that reason the petitioner who belonged to the ‘General category’ could not take advantage from the posting of Mr.Bhavsar. The argument, we feel, is an illegitimate offspring of desperation. The advertisement for the posts issued by the respondent Corporation spoke of reservation of 15% and 7-1/2% of the posts for Scheduled Caste and Scheduled Tribe Candidates respectively and of no other reservation at all. There is nothing on the record to lend support to the contention that there was yet another category of reservation meant for sportsmen. In any case, how could the decision not to recruit “any more” Assistant Flight Pursers due to scrapping of an aircraft axe only general category candidates but save those falling in ‘sportsman category’? A “State” Corporation such as the respondent must take care to act in good faith and reasonably. However, in the present case the exercise of power of employment has been manifestly arbitrary and exercised on a non-consideration or non-application of mind to the relevant factors. It cannot thus be supported in any view of the matter. We refuse to be a party to it.
(11) This much with regard to the first contention of the respondent Corporation. Can Mandamus be issued? The query is in response to the second contention of Mr.Singhvi. The path to the answer is neither dark nor slippery. The judicial pronouncements have already made it silken. Almost a hundred and thirty four years ago, Martin B., in Mayor of Rochester v. Regina 1858 1 B & P 1024, 1032, 1034 said: “BUT,were there no authority upon the subject, we should be prepared upon principle to affirm the judgment of the Court of Queen’s Bench. That Court has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to be used when the law has provided no specific remedy and justice and good government require that there ought to be one for the execution of the common law or the provisions of a statute. Comyn’s Digest. Mandamus (A) Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction it can be made applicable.”
(12) The principle enunciated in Mayor of Rochester’s case has been approved and followed not only in subsequent cases in England but by our own Supreme Court as well and why not? After all it enables the High Court “to reach injustice wherever it is found” and “to mould the reliefs to meet the peculiar and complicated requirements of this country.” (See: Hochtief Gammon v. State of Orissa ). In Halsbury’s Laws of England, Fourth Edition Volume I, paragraph 89, the purpose of an order of mandamus is neatly summed up as “to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right, and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient beneficial and effectual.”
(13) The answer being in what has been noticed above, we, in exercise of our jurisdiction under Article 226 shall never shy away from issuing a writ of mandamus or a writ in the nature of mandamus when arbitrariness and perversion are writ large and brought out clearly. The Supreme Court makes it clear in Comptroller and Auditor-General of India and another vs. K.S. Jagannathan and another in the following words: “THERE is
thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.”
(14) This is one such fit and proper case and thus calls for from this court an order which the respondent Corporation should itself have passed in proper and lawful exercise of its authority. We direct the respondent Corporation to appoint forthwith the petitioner to the post of Assistant Flight Purser. The petitioner shall also be entitled to costs of this petition. Costs quantified at Rs.1000.00 .