T. Ramabhadran, J.C.
1. This petition, purporting to be tinder Article 226 of the Constitution, arises under the following circumstances : The petitioner was appointed in July, 1946, as an engineer in the erstwhile Bilaspur State on a salary of Rs. 350/- p. m. and was confirmed in that capacity on 15-3-1947, when his pay was increased to Rs. 400/- p.m. On 15-8-1948, Bilaspur State was merged in the Indian Dominion. The petitioner's designation was altered to 'Divisional Engineer' and he was permitted to draw the salary he was then receiving.
From March, 1949, to April, 1950, petitioner worked as Divisional Engineer of Bilaspur State. On 25-5-1950, the petitioner received orders posting him as Sub-Divisional Officer, Paonta. The petitioner protested to the Chief Commissioner, Bilaspur, and also sent a representation to the States Ministry at Delhi, against being appointed to a lower post. On 21-8 1950, petitioner was informed that his services were to be terminated. He was also placed under suspension. By order dated 17-10-1950, the Chief Commissioner, Himachal Pradesh terminated the services of the petitioner.
2. On 31-7-1953, a writ petition, purporting to be under Article 226, read with Article 311 of the Constitution, was filed in this Court by the petitioner, wherein he prayed that a writ be issued to the Union of India and the then State of Himachal Pradesh, declaring that the termination of his services was illegal, ultra vires and inoperative and further directing them to retain the petitioner- in service on existing terms. That petition (No. Civil Writ Petition 11 of 1953) was rejected by this Court on 20-9-1954 on the ground that since there was a dispute between the parties as to facts and the petitioner should seek his remedy, if so advised, by way of suit.
3. Accordingly, a suit was filed by the petitioner in the Court of the Senior Subordinate Judgeat Nahan. It was, however, dismissed by that Court, The petitioner went up in. appeal and the learned District Judge of Sirmur, vide his judgment dated 28-10-1957 in Civil Appeal No. 17-S/13 of 1957, allowed the appeal in the following terms :
'I, therefore, accept the appeal, set aside the judgment and order of the learned lower Court and pass a decree in favour of the plaintiff to the effect that the orders of terminating his services as S.D.O. Paoata are wrongful, illegal and void and the same are set aside and the plaintiff is restored to his service as a Sub-Divisional Officer. The defendants are burdened with the costs of the plaintiff in both the Courts.'
4. The present writ petition (Civil Writ Petition No. 28 of 1959) has been brought to this Court on the footing that despite the decree passed by the learned District Judge of Sirmur in the above appeal, he (the petitioner) has not so far been restored to service and the various representations, made by him, in this regard to the Chief Engineer, Himachal Pradesh P.W.D. as well as to the Himachal Pradesh! Administration have not yielded any results. I was, accordingly, requested to issue a writ to the respondents, directing them to restore the petitioner la his post in accordance with the decree of the District Judge dated 28-10-1957 aforesaid.
5. When learned counsel appeared at the admission stage on the 13th instant, he was called upon to state whether the above decree of file District Judge was an executable decree or not. Mr. Man Mohan Nath took time to study the point. On the 22nd instant, he made a statement (as recorded on the order-sheet) that the above decree was not executable.
6. He was then called upon to show how the present writ petition was maintainable, under the above circumstances. He submitted that the respondents were bound to comply with the decree passed by the District Judge, both in law and spirit. Reliance was placed upon the following authorities : (i) Venkati Ganpat v. State of Madhya Pradesh, (S) AIR 1955 Nag 9. There, a Division Bench of that Court remarked that :
'No doubt, the fact that there is an alternative remedy does not take away the jurisdiction of the High Court under Article 226; but none of the remedies provided by that Article are as of right. Where there is another remedy available, which is adequate and effective, a writ will not ordinarily be issued but the Court may issue a writ of quo warranto where the alleged intrusion is patent.'
There, the petitioner had sought a writ of quo warranto against respondent No. 4 on the ground that he was disqualified under Section 10 (g) of the Central Provinces and Berar Local Government Act, 1948, to stand for election because he was tinder 25 years of age. It was, under the circumstances, that the Division Bench expressed its view stated earlier. Here, what the petitioner wants is that this Court, by means of a writ, should execute a decree which is not executable.
(ii) Kanglu Baula Kotwal v. Chief Executive Officer, Janpad Sabha, Durg, (S) AIR 1955 Nag 49 (FB). There, a Full Bench of that High Court expressed its opinion in the following terms :
'The powers of the High Court under Article 226 are untrammelled by a law made by the Legislature and even though Section 22 of the C. P. and Berar Local Government Act says that elections can be challenged only by way of an election petition before a Tribunal created by the Act, the jurisdiction of the High Court, which is derived from the Constitution, can in no way be affected.' No doubt, the High Court would not ordinarily interfere under Article 226, where another remedy, which is equally convenient, is open to the petitioner. But the existence of another remedy is not in every case, a bar to the exercise of the powers of a High Court under Article 226, and the Court can interfere if the circumstances of the case demand interference.'
The fact remains that the decree obtained by the petitioner from the Court of the District Judge, Sirmur admittedly, is not an executable one.
(iii) Laxmanrao Madhprao Wankhede v. Addl. Deputy Commissioner, Nagpur, (S) AIR 1955 Nag 158. There, in a case arising out of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, a Division Bench of that High Court observed that: 'Where the provision in the statute, which granted a remedy, was introduced shortly before the impugned orders, when it was not possible for the parties to comprehend its true scope and there was no authoritative decision as to whether the power of review, conferred by the provision, was unlimited or should be deemed to be circumscribed and one thing, however was certain that the clause in question did not extend to the parties any legal right and the relief that it contemplated was only discretionary with the appellate authority, such a remedy would not be a ground for refusing to exercise jurisdiction under Article 226 of the Constitution.'
As pointed out earlier, here, we are not dealing with the question of whether the petitioner has an alternate remedy; The material question is whether a non-executable decree can be sought to be executed by means of a petition under Article 226.
(iv) M. Thomas v. State. AIR 1954 Trav-Co. 114. There, a learned Judge of that High Court remarked that : 'A writ of mandamus can be issued only when an authority under an obligation to perform a legal duty fails to perform it. Mandamus does not lie in a case where the authority has functioned and the only criticism is that the order passed by it is unsustainable on the merits. What the Court can do is only to direct the authorities to do their duty if they have declined to do it. It is beyond the competence of the Court to direct the authorities to do the duty in a particular manner as in that caset the Court would be appropriating to itself the jurisdiction of the authorities which the law does not allow.'
If anything this ruling goes against the petitioner. At the risk of repetition, I may point out that the decree passed in the petitioner's favour by the District Judge is admittedly not an executable one. Therefore, the respondents are under no obligation to perform a legal duty thereunder. The question of their failing to perform a legal duty would arise only when a legal duty is imposed upon them by the decree of the Court. That element is lacking here.
7. I may refer to State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12, wherein their Lordships of the Supreme Court held that :
'The issuing of writs or directions by the High Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Article 226 have to be read in the context of what precedes the same. Therefore, the existence of the right is the foundation of the exercise of jurisdiction of the Court under this Article.'
8. What is the right on which this writ petition is based? The petitioner has obtained merely adeclaratory decree to the effect that the termination of his services was illegal and void. In other words, the Court has made a declaration as to the legal character of the petitioner with reference to an office under the respondents. Such a declaration merely defines the petitioner's rights present and future, but it does not offer him any present relief. Learned counsel has conceded that the decree is not executable. Therefore, no legal duty has been cast by the decree upon the respondents to perform any act now. I am, therefore, clearly of the opinion that no writ can be issued to the respondents in the manner desired by the petitioner. This writ petition is, obviously, misconceived and must fail.