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State of Kerala Vs. Davasy Manjooram - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1977)IILLJ74Ker
AppellantState of Kerala
RespondentDavasy Manjooram
Cases ReferredIn Union of India v. Indo Afghas Agencies Ltd.
Excerpt:
.....court to stem from breaches of contracts and not from breaches of law (1972)illj442sc .the other well known principal, of court, there are exceptions, is that a third party to a contract cannot seek to enforce it. we do not think we should tarry to consider these decisions elaborately for the principles enucleated therein appear to be well-established. p 7 dated 4.9.1973 the order clearly states that all the teaching staff who were on the rolls of private arts. 9. generally speaking, an administrative order confers no justifiable right, but this rule ,like all other general rules. it is a matter of public policy is also clear from the fact that government wanted to ensure that those who taught in those collages received adequate remuneration and without fail and regularly and without..........that what the 1st respondent sought to in force was an agreement entered into between tin state government and the managements of private colleges and that this court would not enforce contractual obligations in proceedings under article 226 of the constitution and particularly so at the instance of a third party to such an agreement. we shall deal with these contentions.6. at regards the first question, it his to be stated that no contention has been raised in the earlier petition. o.p. no 1491 of 1973, by the respondents there to who were the manager of the nirmala college (2nd respondent) where this 1st respondent herein as employed fey the 3rd respondent, the principal of the said college, by the 4th respondent, the state of kerala, or by the 1st respondent the registrar of.....
Judgment:

Govindan Nair, C.J.

1.This is an appeal by the State of Kerala and the Deputy Director of Collegiate Education from the judgment of a learned single judge of this Court allowing O.P. No. 657 of 1975. the 1st respondent herein was the petitioner in the original petition. The 2nd respondent is the Registrar. University of Kerala. The first prayer in the original petition was 'To pay forthwith to the petitioner all the arrears of salary and other emoluments due to him at an Additional professor (I Grade) in the Post-Graduate Department of the College, at the recognized scale of pay for the post as revised form time to time and with all due increments, accruing minthly from the Ist of September, 1982 together with compensatory interest thereon from such dater caloulsted at a minimum rate of 18% per annum'. The learned Judge by the judgment under appeal has allowed the earlier part of this prayer but has declined the compensatory interest claimed in the prayer.

2. It will be useful to refer very briefly to the past history of this petition. There was an earlier original petition by the 1st respondent, O.P. No. 1491 of 1973 which contained three prayers. The questions that arcse for consideration in the original petition were formulated in the judgment in these terms:

Was the post of an additional Professor a post recognized by the Ordinances thatwere in force on the 1st of March, 1972 when the petitinor was appointed to the poat?

(2) Dees that appointment require any approval of recognition by the University?

(3) If the appointment does not require any approval or recognition by the University. Can the communications Exts. P4 and P6 issued by the 1st respondent stand in so far as the state that the appointment cannot be approved.

(4)If the answers to all the three questions formulated above are in favour of the petitioner, is he entailed to the relief couched in language which is not easy to understand in prayer No. 3 of the petition. but when understood necessarily conveying a clear import?.

3. After the case was heard, judgment was dictated in Court on the 19th of December, 1973. Before the judgment was finalized and signed, the petitioner in that original petition moved C.M.P. No. 15852 of 1973 for withdrawing the 3rd prayer in the petition. This petition was beard and allowed on the 31st of January, 1974 The order is reported in 1975 KLT. 348. It was also directed by the order that the 'question arising from prayer No. 3 is this left open'. Consequent on the allowing of the petition, the discussion relating to prayer No. 3 in the judgment as originally dictated were deleted and after dealing with the first three questions the judgment stated in paragraph 12:

The petition C.M.P. No. 15852 of 1973, for withdrawing the 3rd prayer in the original petition was granted by is by older dated 31.1.1974. So we express no opinion on the question whether the petitioner is entitled is get his salary or not. This mast be decided with reference to statutory provisions if any that are applicable or the terms of the agreements that have been reached. It wilt be open to both parties to urge their contentions in this regard and far the appropriate authorities to take the decision.

4. The present original petition the Judgment from which is under appeal, has been filed for the reliefs which we have adverted to. Two contentions have mainly been raised by the appellants in apposition to the petition. One was based on facts and the other question of law whether in proceedings under Article 216 of the Constitution any direction could be issued by this Court for disbursement of the salary in the circumstances of the case The learned Judge by the Judgment under appeal found against the appellant on both these aspects.

5. The first contention of the Government Pleader on behalf of the appellants was that the question whether there has really been an appointment of the 1st respondent as an Additional Professor, 1st Grade on the 1st March, 1972. as claimed is still under investigation and that there is reason to believe that there has been no such appointment and that, therefore, the appellants were justified in withholding the payment of salary. It was next contended that what the 1st respondent sought to in force was an agreement entered into between tin State Government and the managements of Private Colleges and that this Court would not enforce contractual obligations in proceedings under Article 226 of the Constitution and particularly so at the Instance of a third party to such an agreement. We shall deal with these contentions.

6. At regards the first question, it his to be stated that no contention has been raised in the earlier petition. O.P. No 1491 of 1973, by the respondents there to who were the Manager of the Nirmala College (2nd respondent) where this 1st respondent herein as employed fey the 3rd respondent, the Principal of the said College, by the 4th respondent, the State of Kerala, or by the 1st respondent the Registrar of the University of Kerala, that the 1st respondent herein had not been appointed as an Additional Professor. 1st Grade with effect front the 1st of March, 1972. The only contention that was raided was that the appointment was ineffective in that no approval of the appointment had been granted by the University and the attempt had been to sustain Exts. P4 and P6 in those cases by which approval had been declined On the basis it was farther urged that the 1st respondent herein, the petitioner the O.P. No. 1491 of 1973, could not be treated as an Additional Professor, 1st Grade. Those contention were negatived by the judgment and the first three questions that were formulated were all answered in favour of the petitioner therein, the 1st respondent herein The contentions now raised that there hat been an amendment of the First Ordinance of the University, which was admittedly in operation and force on the 1st of March, 1972, by the passing of the first statute on the 6th of March, 1972 and that the First Statute did not provide for a post of an Additional Professor in a Private Collage were all contention that could have been raised in O.P. No. 1491 of 1975 and which we consider, ought to have been raised is that original petition, In the absence of any such contention in O.P. No 1491 of 1973 we do not think that the appellants are justified now in raying such Contentions Id the present proceedings We have, therefore, to proceed on the basis that there has been an appointment of the 1st respondent of the 1st of March, 1972 as Additional Professor. The learned Judge in the Judgment under appeal has found that there ins been an appointment and the fact had been communicated to the University on the 24th of June 1972. That communication specifically stated that the appointment wan as on the 1st of March, 1972 We are of this opinion that the matter is net open for discussion or for a fresh decision la these proceedings.

7. Pasting on now to the question of law urged by counsel on behalf of the appellants. what has been contended is based on very well known principles. Those principles are that this Court would not normally seek to enforce containable obligation. Contractual obligations though perhaps enforceable at law in appropriate other proceeding has been ruled by the Supreme Court to stem from breaches of contracts and not from breaches of law : (1972)ILLJ442SC . The other well known principal, of court, there are exceptions, is that a third party to a contract cannot seek to enforce it. So in kumari Regina v. Sr. Aloysius Higher Elementary, school and Anr. : AIR1971SC1920 and in The state of Assam and Anr. v. Ajit kumar Sarma and Anr. : (1966)ILLJ451SC , the Court declined relief at the instance of a third party holding that agreement and the State to private collage have not the force of law and that those even if they amounted to contracts could not be enforced at the instance of third parties. Reference was also made to the decision of the Supreme Court in Heri Shanker and Anr. etc. v. The Deputy Excise and Taxation Commissioner and Ors. etc. : [1975]3SCR254 by counsel for the appellants. The Supreme Court ruled there in that there was a concluded contract in the case and that the writ applicant was ingeniously finding out or attempting to find out in validating circumstances. It was ruled that the Court in proceeding under Article 226 of the Constitution will not assist the writ applicant in establishing those invalidating circumstances to plead that the contract is non est. Coming now to the decisions of this Court we may refer to the following decisions in T.V. Joseph v. State of Kerala and Ors. (1975) K.L.T. 779 and in State of Kerala v. P.C. Abraham (1974) K.L.T. 779, wherein the same principles have been applied. We do not think we should tarry to consider these decisions elaborately for the principles enucleated therein appear to be well-established.

8. In the case before us too, there an agreement., or to be more accurate, there were agreement, between the State Government and the carious managements of private collage. Those agreement do contain a provision that the State government should pay the the salaries of the teachers in the collage which trem would include Additional Professors. If the claim of the 1st respondent had been rested exclusively on that agreement, perhaps the principles of the decisions that have been relied on by counsel for the appellants would have to be applied.

9. It appears that simultaneous with the negotiations with the management of Private Collage and the Government, there have been negotiations going on between the organizations representing the teachers of these Private Collages and the Government. The Government accepted the representation made by such Teachers' Organizations and undercook the the responsibilities. This demand on the part of the Teachers' Associations have been accepted by the Government and the Government issued an order which has been produced in the original petition marked as Ext. P 7 dated 4.9.1973 The order clearly states that.all the teaching staff who were on the rolls of Private Arts. And Science Collages in vacancies on or before original partition 1.9.72 will be given the benefit of direct payment of salaries, irrespective of whether their appointments and their posts were approved by the University or not. This will include payment of salaries to those members of the staff who have been will be declared supernumeraries by the Universities. Such of those who are later found to be in excess of state pattern will be declared as supernumerary hands and sprained as such till they are absorbed in regular vacancies or till they retires or resign from the service of the collage. They will be entitled to all the benefits admissible to regular teaching staff wherever supernumeraries exist future vacancies arising in that cadre shall not be filled up before absorption of all the supernumeraries.

10. Exhibit P7 is only an executive order or it may be termed as an administrative direction. But it is not as though executive orders or administrative directions have no force; nor dose is mean that there is no obligation on the part of the Government issuing such order of administrative detection to carry them out Similar quotations number of times. The decision in Union of India v. K.P. Joseph and Ors. : [1973]2SCR752 , refers to some of the earlier decisions of the Court on the subject. It will be useful to extract in Union of India V. K.P. Joseph and Ors. : [1973]2SCR752 in which Mathew J., observed as follews:

9. Generally speaking, an administrative order confers no justifiable right, but this rule , like all other general rules. Is subject to exceptions. This Court has held in Sani Ram Sharma V. State of Rajastan. : (1968)IILLJ830SC that although Government cannot supersede statutory rules by administrative instructions, yet. If the Constitute ion are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with rules already framed and these instructions will govern the conditions of service.

10. In Union of India v. Indo Afghas Agencies Ltd. : [1968]2SCR366 , this Court in considering the nature of the important Trade Policy said:

Granting that it is executive in character this Court has held that Court have the power in appropriate cases to compel performance of the obligations imposed by the Schemes upon the departmental authorities.To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer right and impose duties. It is because an administrative order can abridge or take away sights that we have imported the principal of natural justice of audt alterm partem in to this area....

The learned not be understood as laying from Mr. Harrisons' Intances and sounded a note of warning in paragraph 11:

We should not be understood as laying down any general proposition on this question. But we think that the order in question conferred upon the first respondent the right to have his pay fixed in the manner specified in the order and that was cart of the conditions of his service. We see no reason why the Court should not enforce that right.

11. We should in the light of pronouncements examine the obligations if any imposed on the State by the order Ext. P7 and whether this order is part of the scheme in relation to an important matter University education in the higher level evolved by the State on the basis of public policy in the discharge of a public duty which every civilized State must undertake. There can be little doubt that there has been such a scheme evolved by the State. This is discernible from the agreements entered into by the Government with the managements and from the order Ext. P7 by which in unequivocal terms the Government under took to pay the salaries of Private Collages. There can be little dust that these agreements were entered into and the order was passed in exercise of the function of a State in the matter of ensuring prepare education. It is a matter of public policy is also clear from the fact that Government wanted to ensure that those who taught in those Collages received adequate remuneration and without fail and regularly and without any unauthorised deductions. Consequently the order Ext. P7 was passed undertaking given by no less an authority than the Government itself. Such an authority giving such an assurance in such circumstances at a measure of implementing a public policy, we think, must sustain it and any failure to comply with such assurances contained in those orders can be enforced by this Court. This is in a sense what has been done by the learned judge by the judgment under appeal and we see no justifiable reason to differ from the view taken by the learned Judge. We see no reason to interfere with the judgment under appeal and to dismiss this writ appeal with costs.


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