1. The petitioner was appointed as Work Superintendent, in the Work Establishment Cadre in the Public Works Department in July, 1950. In January 1955, all qualitied persons in the Work Establishment, including the petitioner, were taken to the permanent establishment, but their appointment had to he regularised by the Public Service Commission. Government ordered by Ext. P I on June 9, 1955, that the Chief Engineer, Public Works Department, should send up a list of qualified persons to the Public Service Commission for regularisation. The Chief Engineer did send up a list of some of them, but not of others including the petitioner, and the appointment of those whoso names were sent up, was regularised. On September 16, 1958, Government issued an order directing the reversion of the petitioner and others, whose appointment had not been regularised, to the Work Establishment. The Chief Engineer implemented this order, by Ext. P 2 dated November 1, 1958. This petition is to quash Ext. P2 and the ground on which it is sought to be quashed is, that there has been discrimination against the petitioner and others like him, whose appointment in the permanent establishment had not been regularised,
2. There has undoubtedly been discrimination in treatment with respect to the petitioner and others, though this resulted from the action of the Chief Engineer, in sending up a list of some names only. It was not disputed, that the petitioner was a duly qualified person. It is greatly to be regretted, that neither the Government nor the Chief Engineer who are respondents 1 and 2 herein, has filed a counter-affidavit, explaining the reason, if any, for such discriminatory treatment, and all that the learned Government Pleader could therefore state was, that the petitioner and others had been intimated that they could apply to the Public Service Commission For regularisation. I am of the view, that it was for the respondents to explain, how this differential treatment was accorded to the petitioner and others As it is, I have to proceed on the footing that there has, in fact, been discrimination against the petitioner by the respondents.
3. The learned Government Pleader relied on Articles 310 and 311 of the Constitution which, in my view, have no application whatever to the present case, which has to be dealt with| under Article 14. A division bench of this Court had held in Joseph Valamangalatn v. State of'Kerala, 1958 Ker LT 233 at 248 : (AIR1958 Kerala 290 at p. 299) that Article 14 isnot applicable to executive orders. This decision was rendered on February 17, 1958 But itwas ruled by the Supreme Court, in Ram KrishnaDalmia v. justice Tendolkar, AIR 1958 SC 538at 550, on March 28, 1958, that Article 14 appliesequally to orders of the Executive Government. Itherefore hold, that Ext. P2 has to be quashed. Itis open to the respondents to consider, whetherthe petitioner's name also should not be sent upto the Public Service Commission for regularisa-tion. This petition is allowed to the above extent.No costs.