ORDER
A.V. Srinivasa Reddy, J.
1. The existence of a statutory right in favour of the petitioners and a corresponding statutory duty on the part of the authority are sine-qua-non for a writ of mandamus. The primary object and function of a Court in a petition filed for issuance of a writ of mandamus is one of commanding or ordering the doing of an act which has been declined by the executive in the course of its administrative function. The Court does not perform the function of 'adjudicating' on the right of the petitioner who is before Court. Even in cases, where the right springs from the statute itself and it is there for all to see, a person moving the Court for a writ of mandamus has to first exhaust the remedy available to him by laying a claim before the executive. It is so, even where the right is clear, unqualified and specific. The primary function of the Court in the writ of mandamus proceedings being one of merely commanding the performance of a certain act by the executive because, the party seeking the relief is entitled to certain right, there must be adjudication by the executive of the right claimed, which adjudication serves as the material on the basis of which the Court could arrive at a conclusion that a person has been wrongly or rightly denied his statutory right. Thus, the issuance of a writ of mandamus must be preceded by an executive order passed, on consideration of the claim to a certain right by the person aggrieved. In the absence of such consideration there is a vacuum insofar as the basis on which the Court could decide whether the person is entitled to a right claimed by him or not and the writ of mandamus cannot be issued in favour of such a person who has not laid his claim before the executive. The precondition is, existence of statutory right on the part of the person claiming the relief and a corresponding statutory duty on the part of the authority against whom the relief is sought. It, therefore, necessarily follows that the authority concerned must have declined to perform his legal duty to enable the petitioner to approach the Court seeking a writ of mandamus. Unless such a denial is there, no petition seeking a writ of mandamus can lie.
2. Further, the denial of a right in the statement of objections filed before the Court by the authority would not tantamount to consideration of the claim by the authority after due application of mind, in performance of its public duty. The consideration and decision that follows such consideration are functions that have to be performed on the administrative side by the authority as a matter of public duty and the authority can perform such public duty only if it is called upon to do so. Where the authority concerned is not called upon to perform its public duty, no writ of mandamus can lie.
3. That apart, this Court under Article 226 of the Constitution, cannot perform the dual function of executive and judiciary. Deciding a petition for issuance of a writ of mandamus when the same is not adjudicated upon by the authority would amount to the Court taking upon itself the function of adjudicating the right of an aggrieved person and then sitting in judgment over its own adjudication. This is so, because the function of adjudication of a statutory right, which is performed by the executive, is distinct and different by its very nature from the function of issuing a writ of mandamus which is essentially the function of the Court and these cannot be clubbed together. While the adjudication has to be done by the executive, the latter function of issuing a command has to be done by the judiciary in pursuance to such adjudication. Clubbing these functions together and performance of the dual functions by the Court is impermissible in law.
4. Now let me examine the claim of the petitioners in the background of the underlying principle on a writ of mandamus.
5. Briefly stated, the petitioner Nos. 1 to 42 in W.Ps. 15387-429/99 are the students who were admitted to respondent No. 6 college through the C.E.T. Government of Karnataka. The college is affiliated to the fifth respondent-University. The petitioners 1 to 25 are the students of the academic year 1993-94 and petitioner Nos. 26 to 33 in W.Ps. 15387-428/99 belonged to the 1994-95 academic year. They have completed their four years degree in dental surgery course. After completion, they are required to undergo one year compulsory internship programme. In order to show that they were the students selected through Common Entrance Test and that they have been studying in the sixth respondent-college, the petitioners have produced necessary identification cards and also the registration certificates along with the writ petitions. The petitioners claiming that they are entitled to stipend salary allowance of Rs. 1950/- per month during their internship programme have filed the present writ petitions.
6. It is the grievance of the petitioners that they have not been paid the said stipend during their internship programme till completion of the internship programme. Therefore, the petitioners have filed the present writ petitions for a writ of mandamus and for a further declaration that the act of nonpayment of stipend/salary to the petitioners is ultra vires, discriminatory and without the authority of law and unconstitutional. The petitioners have also sought for a further mandamus directing the respondents 1 to 5 to enforce the Government Circular bearing No. MEP (2) : 296 :_ 1998-99 dated 8-2-1999 (Annexure-F) in respect of the sixth respondent institution for flagrant violation of the Dental Council of India Regulation and also for a direction to the sixth respondent to refund the refundable caution money deposit of Rs. 1000/- paid by each of the petitioners to the sixth respondent at the time of their admission and also for a declaration that the payment of stipend to free seat students of Dental College only and not to the students of the private dental colleges who are similarly placed, is discriminatory, ultra vires and unconstitutional.
7. Similarly W.P. Nos. 14720-762 of 1999 are filed by the petitioners 1 to 25 who were students of sixth respondent medical college and the petitioners 26 to 43 who are the students of the seventh respondent medical college during the academic year 1993-94 through selection of C.E.T. In these batch of writ petitions also the petitioners are aggrieved by non-payment of the stipend by the respondent Nos. 6 and 7 colleges during the Internship of the petitioner from January 1999 till the date of completion of their House Surgeon Internship programme at the rate of Rs. 2090/- per month.
8. Therefore, the point that arises for my consideration is :
Whether the petitioners are entitled for a writ of mandamus as sought for in these writ petitions?
9. In both these writ petitions a careful reading of the prayers made therein show that the petitioners are seeking a writ of mandamus against the respondents directing them to pay the stipend amount for the internship period that the petitioners underwent. It is also not stated in these writ petitions that the petitioners before approaching this Court for a writ of mandamus and other directions, have made any demand on the concerned colleges or the authorities. When the learned counsel for the petitioner was specifically asked as to whether the petitioners have made any demand before approaching this Court, the learned counsel admitted that the petitioners have not made any representation to the authorities regarding the prayers sought for in these writ petitions. The contention of the learned counsel for the petitioners is that even if such a demand was made, the result would have been in the negative having regard to the stand taken by the contesting respondents in the statement of objections. This line of argument is difficult to countenance for the simple reason, that before approaching this Court for a writ of mandamus an aggrieved party has to follow certain essential requirements. The learned counsel for the respondents also submitted during the course of the arguments that there was no opportunity for the colleges to know the grievance of the petitioner and to examine whether the petitioners were entitled to the relief of payment of stipend as claimed in these writ petitions. Without giving an opportunity to the respondents to consider the grievance of the petitioners, they contend, the petitioners could not have come up with these writ petitions which are premature and untenable.
10. I have carefully examined the various facts of the contentions urged by the learned counsel for the petitioner to the effect that the petitioners are entitled to claim stipend under the Regulations of Dental Council of India framed under the Dentist Act as well as the Regulations framed by the Medical Council of India under the Indian Medical Council Act. Assuming that the petitioners are entitled for the reliefs as contented by the learned counsel for the petitioners under the Act and the Regulations, even then, the petitioners without making a demand on the respondents and without knowing the result of such a demand, could not have approached this Court on the assumption that the petitioners' claim would have been rejected.
11. Further, the learned counsel for the petitioners also strenuously argued that there was no need to approach the respondents, making a demand. He relied on a decision of Apex Court in S. I. Syndicate Bank Ltd. v. Union of India, : [1975]1SCR956 to show that the powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. But, a careful examination of the said ruling reveals that the principle laid down by the Apex Court therein runs counter to the argument put forth by the learned counsel for the petitioner. The Apex Court while considering the essential requirements to be satisfied before a writ of mandamus can issued has laid down the law as :
'Nevertheless, the well recognized rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions is applied in this country, as it is in England, when a writ of mandamus is asked for, could be stated as follows : 'As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal. Halsbury's Laws of England, 3rd Edn. Vol. 13. P. 106.'
12. In this batch of writ petitions the petitioners want this Court to do exactly that which is prohibited. The petitioners anticipation that their claim will be rejected by the authorities concerned is only an, assumption. As stated earlier, mere denial of; a right in the statement of objections filed before Court would not tantamount to a denial by the authority concerned in exercise of its public duty. Where the petitioners have not claimed his right before the authority concerned and have rushed to the Court in anticipation that their claim will be rejected, no relief can be granted.
13. The learned counsel placed reliance on some of the provisions contained in the Indian Medical Council Act and The Dentist Act and the Regulations thereunder to substantiate his contention that the direction sought from this Court is for performance of a public duty which is mandatory in nature. Whether the nature of public duty is mandatory or directory are all matters which have to be decided by the executive first, before this court can sit in judgment over the decision of the executive for the purpose of deciding whether a writ of mandamus could be issued in any given case. Where the executive is not called upon to perform its public duty, there is no point in relying upon the provisions of the Act to show that they are mandatory in nature. Even if they are mandatory in nature, it would not do away with the requirement of calling upon the authority to do its statutory duty.
14. Hence, there is no merit in these writ petitions and they are, accordingly, dismissed as premature. However, dismissal of the writ petitions would not come in the way of the petitioners approaching the concerned authorities for the relief of payment of stipend, if they are entitled according to Acts, Rules and Regulations.
15. Parties are directed to bear their own costs.