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Ramadoss (K.) Vs. Commissioner, Vizianagaram Municipality and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1959)IILLJ562AP
AppellantRamadoss (K.)
RespondentCommissioner, Vizianagaram Municipality and anr.
Excerpt:
- - another is of 30 april 1955, reverting the writ petitioner on the ground of his failure to pass the examination; 4. it is complained that as a result of the aforesaid orders the petitioner's services from 1949 to june 1955 have been ignored, that he had been required to undergo probation from 28 june 1955 to the same date in june 1957, that he would be entitled to a salary of rs. ' the ground of the particular resolution being justifiable can best be shown by the authority that passed the resolution and failing the authority perhaps the parson who may be directly affected. this becomes unnecessary because it is well settled that a party must have a legal right in order to invoke the article;.....disposed of till 3 october 1955 on which date it was rejected.3. in between the aforesaid two main orders, the commissioner on 25 september 1954 issued memorandum requiring the writ petitioner to pass the account test in the next examination, failing which the petitioner was to be reverted under the relevant rule, and he appears to have passed the examination in june 1955. between the aforesaid two dates, certain other orders were passed by the municipal commissioner, which the petitioner has not asked to be vacated, but has referred to perhaps with a view to show the arbitrary manner in which the appointing authority have proceeded against the petitioner. one of such orders is of 3 december 1954, whereby the commissioner had directed the petitioner's appointment from 29 may to 17 june.....
Judgment:
ORDER

Mohammad Ahmed Ansari, J.

1. The petitioner is a teacher in municipal high school, Vizianagaram, and seeks to vacate an order by the commissioner of the Vizianagaram municipality of May 1951. The petitioner further seeks to quash two other orders that are of 3 October 1955 and 11 August 1956. These have dismissed his appeals against the main order, the earlier being by the Government, and the latter by the Governor.

2. The several facts in support of the prayer for certiorari are contained in the affidavit accompanying the petition. It states that the petitioner was promoted as the headmaster of the municipal high school, Kaspa, by the commissioner through his order dated 2 May 1949; and on 9 May 1951 the commissioner passed another order reverting him as assistant. The order was without any notice to show cause and in violation of the statutory rules relating to the appointment and punishment of officers and servants of the municipal council. Other relevant facts are that as one Sanjeeva Rao, who had been appointed to fill in the office by the same order, had declined to accept the post and also another person who was the headmaster of the municipal middle school. The commissioner through another order of 5 June 1951 appointed the writ petitioner as a headmaster with effect from 29 May 1951. The appeal to the Government was filed on 6 August 1951 but was not disposed of till 3 October 1955 on which date it was rejected.

3. In between the aforesaid two main orders, the commissioner on 25 September 1954 issued memorandum requiring the writ petitioner to pass the Account Test in the next examination, failing which the petitioner was to be reverted under the relevant rule, and he appears to have passed the examination in June 1955. Between the aforesaid two dates, certain other orders were passed by the municipal commissioner, which the petitioner has not asked to be vacated, but has referred to perhaps with a view to show the arbitrary manner in which the appointing authority have proceeded against the petitioner. One of such orders is of 3 December 1954, whereby the commissioner had directed the petitioner's appointment from 29 May to 17 June 1951 to be without right of promotion. Another is of 30 April 1955, reverting the writ petitioner on the ground of his failure to pass the examination; but that was not given effect to because of a direction by the Government not to revert headmasters on the ground of their not passing the Account Test. The third of such orders is of 21 March 1956, and thereby the writ petitioner's probation was started afresh from 28 June 1955 treating his earlier services as one under emergency provisions, and he was at the same time directed to return Rs. 88-5-0. These orders were passed before the petitioner's appeal to the Governor against the main order was rejected, which was on 11 August 1956. Thereafter this writ petition had been filed.

4. It is complained that as a result of the aforesaid orders the petitioner's services from 1949 to June 1955 have been ignored, that he had been required to undergo probation from 28 June 1955 to the same date in June 1957, that he would be entitled to a salary of Rs. 200 from 8 May 1954 whereas he was being paid Rs. 150 and that he has suffered loss of Rg. 3,000 in addition to the direction to pay Rs. 88-5-0. But Article 226 would not be of any help to the complainant, because Courts in exercise of the jurisdiction under the article do not not as appellate authority over administrative authorities. The counsel for the writ petitioner has, therefore, tried to build his case for a writ upon the absence of notice to his client under the rules framed under the Madras District Municipalities Act, 1920. He relies on Rule 4 of the Act whose relevant part provides that

no order of dismissal, or removal, or reduction shall be passed on an officer or servant of a municipal council unless he has been informed in writing the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself.

5. The counsel has pressed before me that the absence of notice under this part of rule would justify an appropriate order under Article 226 as it is violative of a statutory provision. Evidently his is the case of reduction in rank: but that would mean that the client's appointment to the post, from which he had been made to revert, was proper and according to the rules. It follows that if the initial appointment to the post be not valid, no question of reduction in rank would arise, nor any notice would be required in such a case. Now the case for the respondent is that the writ petitioner's appointment to the office of the headmaster in 1949 was not proper, because it was made in disregard of seniority of two other persons, and thereupon the appointment resolution was cancelled under Section 36 of the Madras District Municipalities Act. It follows that the order of 9 May 1951 was not one of reduction but of setting aside something which was not according to the rule and for this the relevant part of the rule does not require notice.

6. The counsel for the writ petitioner has further argued that an order under Section 36 of the Act would be inoperative unless the person concerned was given an opportunity to show cause against the proposed order of cancellation, He has urged that the words ' the authority or person concerned ' in the proviso to Section 36(1) should be construed as entitling both to be heard. The context, I am afraid, does not justify ' or ' in the proviso as being read ' and.' The ground of the particular resolution being justifiable can best be shown by the authority that passed the resolution and failing the authority perhaps the parson who may be directly affected. Therefore two need not be heard on the same case with the result that the word 'or' in the proviso is obviously meant to be alternative and not cumulative. It follows that the writ petitioner was not entitled to notice under the proviso unless the appointing authority be not given any notice and that is not his case.

7. The counsel then argued that the order has caused loss to his client, it should be treated as punitive even though the loss be not the result of some personal conduct and Ms client would, therefore, be entitled to notice under the rules. In support of this argument, he relies on Bannali v. District Board, Jhansi A.I.R. 1956 All. 460, With respect, I would differ. The provisions requiring notice to a person must be construed as proceeding on some rational basis. It would mean that the person who is to receive notice has to justify some conduct because of which the particular step has been taken, or he is being deprived of something to which he is legally entitled. Therefore, notice would not be required when the reason for the order is not the conduct of the person claiming the notice. Also loss to him would not require notice if he be deprived of what he is not legally entitled to. In such circumstances, one fails to understand the ground on which such a person can claim a notice. There is, therefore, cogent reason why the argument by the Government Pleader should be accepted. He has relied on several cases where it has been held that reduction in rank in Article 311(2) means reducing to a lower rank due to some personal default of the officer. If that be the meaning of the word in article, a fortiori the same word in other statutory provisions should be similarly construed, particularly when the object of the rules be to secure similar privileges to those who are not entitled to the benefit of the article. Therefore, the writ petitioner was not entitled to notice because he had incurred losses.

8. Having reached the conclusion that the rules relied on by the writ petitioner did not cover the order made against him in May 1951, nor that the provision of Section 36 of the Act entitles him to a notice, I need not deal with the elaborate argument by the counsel of the petitioner that Article 226 confers jurisdiction to make appropriate order in cases where the authorities have passed only administrative orders. This becomes unnecessary because it is well settled that a party must have a legal right in order to invoke the article; nor need I deal with the several complaints concerning the other orders in the writ petition, which are consequent upon the legality of the main order. Once it is not disputed that the appointment is subject to the order of seniority among the employees and headmasters were bound to pass Account Examination, the other orders cease to be improper. The writ petitioner had not, according to his own averment, passed the examination till June 1955 and, therefore, the several orders concerning his probationary period are consequent upon his having passed the qualifying examination in that year.

9. In the result, this writ petition fails and is dismissed with costs. Advocate's fee Rs. 100.


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