Rajagopala Ayyangar, J.
1. These petitions raise for consideration very difficult questions as to the construction of several orders of Government in relation to the constitution of the judicial service in this State subsequent to the coming into force of the Constitution and the validity of the orders issued by the State Government relating to the seniority among the classes of officers constituting that service.
2. The petitioner in W.P. No. 1131 of 1956 is a Judicial District Magistrate who challenges an order passed by the Government in May, 1956, altering to his prejudice the seniority accorded to him by orders of Government issued in 1951 and confirmed by them in 1954. W. P. Nos. 1353 and 1354 of 1956 have been filed by the officers who have been benefited by the order impugned in W.P. No. 1131 of 1956 and these seek to question the validity of the appointment of the petitioner and of another Judicial District Magistrate situated like him by the issue of writs of quo warranto.
3. Logically therefore the matters set out in W.P. Nos. 1353 of 1956 and 1354 of 1956 have to be considered first since if the challenge to the validity of the appointment of the petitioner in W.P. No. 1131 of 1956 succeeded, the earlier petition would become anfractuous and would not need to be dealt with. In view of this, W.P. Nos. 1353 and 1354 of 1956 were heard first and I propose to follow this order in this judgment also. In doing so, I shall first set out in chronological order the several Government Orders which have been passed by Government which have a bearing on the points in controversy, the construction and validity of which were debated in these petitions. I might at once mention that most of these Government Orders and the other statutory provisions are relevant to the consideration of both the certiorari as well as the quo warranto petitions. As there is very little difference between the allegation in W.P. Nos. 1353 and 1354 of 1956 it would be sufficient if I set out the facts of the earlier numbered one.
4. There are 25 petitioners in W.P. No. 1353 of 1956 and all of them are members of the Madras State Judicial Service who were originally recruited as District Munsifs in the Madras Subordinate Civil Judicial Service. The respondents to this petition are Sri C.D. Venkataraman, District Magistrate (Judicial), Kanyakumari District and the State of Madras. The prayer in the petition is that the Court might issue a writ in the nature of quo warranto calling upon the 1st respondent (Sri C.D. Venkataraman)
to show cause by what authority he claimed to hold, enjoy and perform the duties, rights and privileges of a member of the State Judicial Service and in particular of his office of the District Magistrate (Judicial) in the Madras State Judicial Service.
I do not consider it necessary to set out the matters on the basis of which this relief is asked for as it would be convenient to deal with the arguments urged on behalf of the petitioners at the hearing by their learned Counsel. I shall therefore proceed to set out the necessary facts detailing at the same time the statutory provisions under which the Government proceeded from time to time indicating the contentions raised by the parties in relation to these several Government Orders.
5. Sri C.D. Venkataraman was an advocate of this Court and was practising in Madras. While so, he was appointed as Chief Assistant Crown Prosecutor at Madras. Thereafter he was appointed temporarily to the post of a Presidency Magistrate in the city on 18th June, 1946. Till that date, Presidency Magistrates were being appointed only from Deputy Collectors and the post of a Presidency Magistrate formed part of the Madras Civil Service (Executive Branch). Sri C.D. Venkataraman was appointed as a Presidency Magistrate under Rule 9-A of the Madras Provincial and Subordinate Service Rules which read:
Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the special rules the appointing authority may appoint a person, otherwise than in accordance with the said rules temporarily, until a person is appointed in accordance with the said rules.
These temporary appointments were subject to the provisions of Rule 9-A and in particular to Sub-rule (2) which provided:
A person.... shall not be regarded as a member of the service in which the post to which he is appointed is included and shall not be entitled by reason only of such appointment to any preferential claim to any other appointment in that or any other service.
The order of appointment of Sri C.D. Venkataraman recited that he had been appointed as a Presidency Magistrate until a Deputy Collector became available.
6. Possibly this might be the convenient stage, at which a reference might be made to the provisions contained in the Constitution itself in relation to these matters. The general provision in regard to the services under the Union and the States is to be found in Part XIV of the Constitution and in particular it would be necessary to refer to Articles 309 and 313.
309. Subject to the provisions of this Constitution, Acts of the appropriate legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State.
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor or Rajpramukh of a state or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulatmg the recruitment, and the conditions of service of persons appointed, o such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act.
313.Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India Service or as service or post under the Union or a state continue in force so far as consistent with the provisions of this Constitution.
These are the general provisions applicable to every service, but as regards the judiciary there were special articles in the Constitution contained in Chapter VI of Part VI with the result that Articles 309 and 313 have to be read along with these other provisions. Part VI contained the provisions in relation to the State in Part A and Chapter VI dealt with Subordinate Courts in these States was Chapter V laid down the constitutional provisions as regards High Courts in the several Part A States. Chapter VI is a very short one and consists of just five articles and as all these have been referred to and different interpretations sought to be placed upon them they might conveniently be set out here:
233(1). Appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction m relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
234. Appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.
235. The control over District Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authoring the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law
236. In this Chapter
(a) the expression ' District Judge' includes Judge of a City Civil Court, Additionl District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a small cause courts, chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge;
(b) the expression 'judicial service' means a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge.
237. The Governor may by public notification direct that the foregoing provisions of this Chapter and any rules made thereunder shall with effect from such date as may be fixed by him in that behalf apply in relation to any class or classes of magistrates in the State as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions and modifications as may be specified in the notification.
I shall take up the construction of these articles after completing the narrative, of the several Government orders which were passed in relation to the judicial service in the State.
7. Even prior to Independence, the separation of the Executive from the Judiciary was a reform which had been in the plank of and urged by all the progressive parties in India including of course the Congress At that date, at higher levels the Executive was manned by I.C.S. Officers who also exercised magisterial powers as District Magistrates in the case of Collectors, of First Class Magistrates in the case of officers below the rank of Collectors. The members of the Indian Civil Service were after a period of judicial training appointed to the posts of District Judges and the rules reserved a portion of these posts for members of that service With the Independence Act, recruitment to the I.C.S. was stopped and its place taken by a new service the Indian Administrative Service. A decision was however taken by the Government of India that I.A.S. Officers would be appointed to executive posts merely and not to the higher judicial posts like District Judges. It therefore became necessary to form a Provincial Higher Judicial Service in each State to comprise District and Sessions Judges and others included in the definition of District Judges under the Government of India Act, 1935, to be recruited at State levels, and completely amenable to State administrative control in contrast to the reserve posts held by officers of the Secretary of State services who were under the ultimate control of the Governor-General and of the Secretary of State.
8. When this was decided on it also became necessary to provide a feeder service from which this category of higher judicial officers could be recruited. Direct recruitment could, both on grounds of administrative convenience as well as on other equitable grounds, be only to a fraction of these offices and the rest had to be appointed from a pool of officers, who having had prior judicial experience could be promoted to fill these offices. This necessity led to the formation of the Provincial Judicial Service for serving as a feeder service for promotion to the posts of District Judges. The result therefore was that judicial officers below the category of District Judges came to be manned by officers of gazetted rank performing the civil judicial and criminal judicial functions who were constituted into a single cadre to be called the Provincial Judicial Service which was to serve as a feeder for the Provincial Higher Judicial Service. The idea was that the Subordinate Judges would gain experience in the administration of criminal law by being District Magistrates for a term when they could more efficiently function as District and Sessions Judges than if they were straightaway promoted as District Judges from Subordinate Judges.
9. The details of the Constitution of these services as well as the qualifications-that ought to be possessed by the members of the two services namely the Higher Provincial Judicial Service and the Subordinate Judicial Service which were to be an integrated and unified service consisting of both civil judicial and criminal judicial officers were all settled after consultation with the High Court. The first formal announcement of the constitution of these two services was by G.O. No. 760,, dated 27th February, 1950. The preamble to this Government Order recited:
Consequent on the introduction of the scheme of Separation of the Judiciary from the Executive in certain districts and the decision of Government to extend the scheme to the remaining districts in due course, Government have decided to constitute a separate Provincial Service for the District Magistrates under the Scheme of Separation. The service will be called the Madras Criminal Judicial Service. The rules relating to this service are appended to this order.
2. Government consider that it is unnecessary to consult the Madras Public Service Commission in regard to appointments to the posts of District Magistrates as these posts are to be filled entirely by promotion from the category of Subordinate Judges in the Madras Subordinate Civil Judicial Service in consultation with the High Court. The necessary regulation excluding these posts from the purview of the Commission will be issued in the Public (Services) Department.
This contained an appendix which carried a notification of rules made under the proviso to Article 309 of the Constitution in regard to the Madras Criminal Judicial Service. Under these rules which were stated to have come into force as and from 2nd October, 1949, the Madras Criminal Judicial Service was to consist of District Magistrates and they would be appointed by the State Government in consultation with the High Court by transfer from the category of Subordinate Judges in the Madras Subordinate Civil Judicial Service. A further provision in the rules directed that postings and transfers of District Magistrates were to be made by the State Government in consultation with the High Court.
10. The Madras Criminal Judicial Service having thus been constituted and this being fed by promotions from the category of Subordinate Judges, the State Government proceeded to effectuate the integration from the other end, namely from the point of view of the civil judiciary. This was by G.O. No. 668, dated 22nd March, 1951. The preamble to this Government Order recited:
The Government have had under consideration the constitution of a separate State Higher Judicial Service for the posts of District Judges and certain other isolated posts.... The Government have also had under consideration the question of giving effect to the decision taken in. connection with the implementation of the Scheme of Separation of the Judiciary from the Executive in regard to the integration of Civil Judicial and Criminal Judicial Officers below the rank of District Judges. According to these decisions, barring the District Magistrates under the Scheme of Separation for whom a separate State service has already been constituted (this was a reference to G.O. No. 760, dated 27th February, 1950 mentioned earlier), the posts of Sub-Divisional Magistrates and Presidency Magistrates had to be integrated in the cadre of corresponding officers performing civil judicial functions.
It then went on:
After a careful consideration of all the relevant aspects of the matter and of the recommendations of the Honourable Judges of the High Court on the various questions, Government are pleased to issue the following orders on the points at issue:
I. The Madras State Higher Judicial Service:
(i) This service will consist of the following officers:
1. District Judges Grade I.
2. District Judges Grade II.
3. Chief Judge, Court of Small Causes, Madras.
4. Judges, City Civil Court, Madras.
5. Chief Presidency Magistrate, Madras.
II. The Madras State Judicial Service:
(i) The posts of District Munsifs, Sub-Divisional Magistrates, Presidency Magistrates and Subordinate Judges will be constituted into a separate service called the Madras State Judicial Service with the scale of pay. Of these, the posts of Subordinate Judges will be filled up by senior officers in the category of District Munsifs, Sub-Divisional Magistrates on grounds of seniority and merit.
(iv) With the integration of the posts of Presidency Magistrates in the State Judicial Service the cadre strength of the Madras Civil Service (Executive Branch) will be reduced correspondingly'
(v) The existing incumbents in the posts of Presidency Magistrates will be regularised as members of the Madras State Judicial Service and will be given rank in the seniority list in relation to the pay they are actually drawing on the date of issue of these orders. They will however retain their present relative seniority among themselves.
3. Separate orders will issue in Public (Special) and Home Departments in regard to the issue of or amendment to the relevant rules.
11. The Government proceeded on the basis that by this order they had constituted the two services, namely, the Madras State Higher Judicial Service and the Madras State Judicial Service into one and had integrated the civil judicial officers and the Magistrates into a single unified service from which there could be promotions from one post to another post on the basis of seniority and merit.
12. The Madras Public Service Commission however appeared to have questioned the constitutional validity of the provisions in this Government Order, dated 22nd March, 1951, but the Government disregarded these objections and proceeded to give effect to their orders. The same objections have been urged before me questioning the legality of what is termed the integration of the services but to this I shall address myself after narrating the subsequent orders whose construction and validity were also the subject of argument in these petitions.
13. Sri C.D. Venkataraman was appointed on 8th February, 1952, as an Additional City Civil Court Judge--a post which was equivalent to that of a Subordinate Judge, in the Madras State Judicial Service and in the Quarterly Civil List of April 1952, his name appeared as a Subordinate Judge. Immediately thereafter Sri Tirumalpad the first petitioner in W.P. No. 1353 of 1956 appealed to the Government protesting against the contents of the Government Order and the appointment of Sri Venkataraman who was as. a Subordinate Judge assigned a rank above Sri Tirumalpad. This appeal was however rejected by the Government by its. order, dated July, 1952.
14. It would have been noticed that the G.O. No. 668, dated 22nd March, 1951, had in paragraph 3 stated that orders would issue as regards the amendment of the relevant rules. This was carried out by G.O. No. 3114, dated 6th October, 1953. The notification embodied statutory rules framed in exercise of the powers conferred by Articles 234 and 235 of the Constitution and the rules thus framed were to be in supersession of the existing rules and regulations on the subject. The rules were named the Madras State Judicial Service Rules and the rules were to come into force on 22nd March, 1951, which it will be noticed was the date on which G.O. No. 668 was passed. The provision as regards the Constitution of the service was in Rule 3 the material portion of which read:
(i) The service shall consist of the following categories of officers, namely Category 1--Subordinate Judges: Category 2--District Munsifs.
(ii) Presidency Magistrates shall be construed as belonging to category 1 or category 2, as the case may be, to which they would belong but for their appointment as Presidency Magistrates.
15. The Presidency Magistrates referred to in rule (ii) were obviously the Presidency Magistrates appointed after the rules came into force. Under Rule 4 the District Munsifs were to be recruited from, inter alia, the Sub-Magistrates and Additional First Glass Magistrates in the Madras Subordinate Magisterial Service and the posts of Subordinate Judges were to be filled by promotion from District Munsifs. This was followed up by further special rules for the Madras Criminal Judicial Service--G.O. Ms. No. 3870, Home, dated 26th December, 1953, in supersession of the previous rules. The rules thus framed were however identical with those which were brought in by G.O. No. 760, dated 27th February, 1950, except in regard to the recital in the preamble that the rules were framed in exercise of the powers conferred by Articles 234 and 235 of the Constitution instead of being attributed to the powers conferred by the Proviso to Article 309 as had been stated in the Government Order of February, 1950. Only the new rules were to have operation as and from 22nd March, 1951.
16. Integration thus having been achieved to this extent the Government took the matter a stage further by G.O. Ms. No. 1020, dated 8th April, 1954, under which the posts of District Magistrates which under the G.Os. Nos. 760, dated 27th February, 1950 and 3870, dated 26th December, 1953, formed a separate cadre to be known as the Madras Criminal Judicial Service were integrated with the posts of Subordinate Judges in the Madras State Judicial Service. This order after referring to the Government Orders of February, 1950, and the correspondence with the Public Service Commission stated:
The Government accept the recommendation of the High Court that the posts of District Magistrates which now form a separate cadre on the scale of.... should be integrated with and carry the same pay as posts of Subordinate Judges in Category 1 of the Madras State Judicial Service and direct that the integration be carried out with immediate effect.
2. Consequential amendments to the Madras State Higher Judicial Service Rules and the Madras State Judicial Service Rules will issue in due course.
The necessary amendments to these rules were issued subsequently which carried out this order.
17. After the G.O. No. 1020 of 1954, the Government took up for consideration the question of the officers who had been appointed temporarily as Presidency Magistrates who numbered five and who were recruited under the same conditions of service and similar circumstances as Sri C.D. Venkataraman and passed orders in September, 1954, assigning to these officers the rank and seniority which they should occupy in the State Judicial Civil Service. This was done by Government after consultation with the High Court and the Public Service Commission and the final orders on this matter are to be found in G.O. No. 2707, dated 8th September, 1954. The Government stated in this order:
The Government have had under consideration the question of regularising the services of the following five officers who were appointed temporarily as Presidency Magistrates and who have been promoted subsequently as Sub-Judges temporarily by the High Court. They have decided in consultation with the High Court and the Madras Public Service Commission that the five officers should be absorbed as members of the Madras State Judicial Service by relaxing the relevant rules in their favour.
The power to relax was stated in paragraph 2 of this order as traceable to , G.O. No. 400, dated 26th January, 1950 and the relaxation was said to have been effected by the Governor with the concurrence of the Madras Public Service Commission. It may also be mentioned that before this concurrence of the Public Service Commission was obtained these Presidency Magistrates and Subordinate Judges were interviewed by the Commission and the Commission expressed satisfaction about their suitability for appointment as Subordinate Judges. By reason of this, relaxation of the relevant rules, the State Government took power to appoint these five individuals to the State Judicial Service, that is, as permanent Subordinate Judges. As regards their rank and seniority they were to have these as had been assigned to them by the High Court. This last qualification meant that they would have a seniority above Sri Damodara Rao and Sri Tirumalpad, petitioners 2 and 1 respectively in W.P. No. 1353 of 1956 and necessarily over the other petitioners. The propriety of this assignment of rank and seniority to Sri C.D. Venkataraman and four others (of whom these petitions are concerned only with Sri K. Rajagopalan, the other three having either retired or being about to retire) was the subject-matter of memorials and representations by other officers of the State Judicial Service who having been recruited as District Munsifs had also been promoted to act as Subordinate Judges before these Magistrates started functioning as Subordinate Judges. These representations were considered by Government and they passed an order on 16th May, 1956, G.O. Ms. No. 1463 and directed that the rank and seniority assigned to these officers should be revised and refixed on the basis of the dates of their appointment as Subordinate Judges in 1952. This re-fixing of seniority has resulted in Sri C.D. Venkataraman being assigned a rank much lower than what he had under the Government Order of 8th September, 1954, and it is the validity of the later Government Order of 1956 altering the rank and seniority of Sri C.D. Venkataraman that forms the subject-matter of W.P. No. 1131 of 1956, praying for the issue of a writ of certiorari. I have only to add that the High Court has given effect to the Government Order of May, 1956, by revising the seniority of these officers on the basis indicated in the Government Order impugned in W.P. No. 1131 of 1956.
18. I shall now proceed to consider first the points that arise in the quo warranto petitions. Mr. Nambiar learned Counsel for the petitioners urged that (1) the appointment of Sri C.D. Venkataraman and Sri K. Rajagopalan as Subordinate Judges was ultra virus of the Government the grounds for this being stated as (a) in contravention of the Constitution and (b) in contravention of the rules, and (2) that if Sri C.D. Venkataraman and Sri K. Rajagopalan were not regularly appointed as Subordinate Judges their appointments as District Magistrates--this office being one to which they were promoted from the office of the Subordinate Judge--were also invalid. These in brief were the steps in his argument to sustain the relief of quo warranto sought in W.P. Nos. 1353 and 1354 of 1956. These arguments I shall consider in that order as to whether the appointment as Subordinate Judges of Sri C.D. Venkataraman and Sri K. Rajagopalan who had before that date held the posts of Presidency Magistrates were constitutionally invalid.
19. Before the relevant provisions of the Constitution are referred to it would be necessary to set out the' position under the Government of India Act, 1935, as these two officers were appointed as Presidency Magistrates before the Constitution and as the rules in relation to the recruitment and conditions of service of the several services which had been framed under the Government of India Act, 1935 and had been in force before the Constitution continued to be in operation under Article 313 of the Constitution itself. Section 241 of the Government of India Act, 1935, enabled rules to be made in relation to the recruitment and conditions of service of persons to the civil services of the Crown in India. This was subject to the overriding power vested in the Governor-General and Governor to relax the rules so as not to cause hardship in individual cases. I shall have to consider the effect of this provision in more detail later and it is therefore convenient to set it out here.
241 (5) : No rules made under this section and no Act of any Legislature in India shall be construed to limit or abridge the power of the Governor-General or a Governor to deal with the case of any person serving His Majesty in a civil capacity in India in such manner as may appear to him to be just and equitable:Provided, that, where any such rule or Act is applicable to the case of any person, the case shall not be dealt with in any manner less favorable to him than that provided by that rule or Act.
The main portion of Section 341 contained the general rule applicable to all services but the statute also contained special provisions in relation to judicial officers and of these those relevant in the present context are Sections 254 and 255 of the Act. Sections 254 and 255 ran in these terms:
254. District Judges, etc.--(1) Appointments of persons to be, and the posting and promotion of District Judges in any Province shall be made by the Governor of the Province exercising his individual judgment, and the High Court shall be consulted before a recommendation as to the making of any such appointment is submitted to the Governor.
(2) A person not already in the service of His Majesty shall only be eligible to be appointed a District Judge if he has been for not less than five years a barrister, a member of the Faculty of Advocates in Scotland or a pleader and is recommended by the High Court for appointment.
(3) In this and the next succeeding section the expression 'District Judge' includes Additional District Judge, Joint. District Judge, Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge, and Assistant Sessions Judge.
255. Subordinate Civil Judicial Service.--(1) The Governor of each Province shall, after consultation with the Provincial Public Service Commission and with the High Court, make rules denning the standard of qualifications to be attained by persons desirous of entering the subordinate civil judicial service of a Province.
In this section, the expression 'subordinate civil judicial service' means a service consisting exclusively of persons intended to fill civil judicial posts inferior to the post of District Judge.
(2) The Provincial Public Service Commission for each Province, after holding such examinations, if any, as the Governor may think necessary, shall from time to time out of candidates for appointment to the subordinate civil judicial service of the Province make a list or lists of the persons whom they consider fit for appointment to that service, and appointments to that service shall be made by the Governor from the persons included in the list or lists in accordance with such regulations as may from time to time be made by him as to the number of persons in the said service who are to belong to the different communities in the Province.
(3) The posting and promotion of, and the grant of leave to, persons belonging to the subordinate civil judicial service of a Province and holding any post inferior to the post of District Judge, shall be in the hands of the High Court but nothing in this section shall be construed as taking away from any such person the right of appeal required to be given to him by the foregoing provisions of this chapter, or as authorizing the High Court to deal with any such person otherwise than in accordance with the conditions of his service prescribed thereunder.
It will be seen from the above that there was no specific provision in the Government of India Act, 1935, in relation to the appointment or promotion of personnel constituting the criminal magistracy but that the same were left to be governed by the exercise of the executive powers of the Governor subject to the rules which might be made in that behalf under Section 241 of the Act. In saying this I am omitting from consideration Section 256 as the same is not very relevant for the purpose of the present case.
20. The content of the rules which were framed under Section 241 of the Government of India Act or which had been continued by reason of the provisions of Section 276 of that Act in relation to the Madras Subordinate Civil Judicial Service as it stood and which are relevant to the points arising here were briefly thus. The service was to consist of (a) the Judge of the City Civil Court, Madras; (b) Subordinate Judges ; (c) Poise Judges of the Court of Small Causes ; and (e) District Munsifs. Subordinate Judges were to be recruited by promotion from District Munsifs (vide Rules 2 and 3).
21. The contention strenuously urged by Mr. Nambiar was that under the special rules governing the Subordinate Civil Judicial Service whose operation was continued under Article 313 under which Subordinate Judges formed one of the categories of 'officers of the Subordinate Civil Judicial Service' recruitment could only have been by promotion from the ranks of the District Munsifs and that the appointment of Mr. C.D. Venkataraman who held the office of a Presidency Magistrate before his appointment as a Subordinate Judge was in contravention of the rules. He further urged that under Article 234 of the Constitution a Subordinate Judge was a member of the Judicial Service of the State other than a District Judge and that the appointment of a person to such an office had to be made by the Governor in accordance with the rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court, the argument being that the appointment of Mr. C.D. Venkataraman was neither in accordance with any rules framed nor after consultation with the authorities named in the article. It would have been noticed that Sri C.D. Venkataraman was appointed as the Subordinate Judge on 8th February, 1952, in pursuance of the power vested in that behalf by G.O. No. 668, dated 22nd March, 1951. If this Government Order operated as a rule or even otherwise enabled this appointment to be made, there was no dispute that the appointment would be valid. The contention urged by Mr. Nambiar was directed to challenge the legality and effect of this Government Order. Three points were urged against the Government Order in this connection. The first which I might term the fundamental objection was that the amalgamation or integration of the Civil Judicial Service and the criminal judiciary was unconstitutional and that the Government Order which gave effect to this scheme violated Chapter VI of Part VI of the Constitution. The second was more in the nature of a procedural objection, namely, that the formalities required by Article 234 were not complied within that there had been no consultation with the State Public Service Commission before the Government Order was issued and also before the appointment of Sri C.D. Venkataraman. Lastly, counsel urged that even if he were wrong on these two points, G.O. No. 668 did not on its terms purport to-be a rule varying the service rules which operated on that date under Article 313 and could not therefore have the effect of enabling the appointment to be made.
22. I consider it convenient to deal with these three points in that order. The first point was formulated in this way. The recruitment of persons to fill the posts of Subordinate Judges was governed by Article 234 of the Constitution as these offices constituted civil judicial posts as defined in Article 236(b). Articles 233 to 236 were contrasted with Article 237 which dealt with ' magistrates ' 'or the persons holding criminal judicial posts, to adapt a term. The point urged was that the Constitution intended to treat ' civil judicial posts ' as forming a category wholly different from ' magisterial posts ' and that it did not contemplate and even negatives the possibility of a magistrate being appointed to a civil judicial post. It was further urged that even if a rule were made under Article 237 applying with or without variation the rules in Articles 233 to 235 to magisterial posts, that would not result in any ' integration ' but would only serve to bring into existence two pearled services each having identical rules as to recruitment, control and conditions of service. From these premises the logical result sought to be adduced was that there could be no appointment of a magistrate as a subordinate Judge or of a person holding a civil judicial post to a post as a magistrate.
23. I am unable to agree that the Constitution intended to preserve and perpetuate for ever the dichotomy between civil judicial service and the magisterial service or that the Constitution laid or lay an embargo on magistrates being appointed to civil judicial posts like Subordinate Judges or District Munsifs. In the first place the definition of District Judges includes ' Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge ' so that at the level of the District Judge there is no distinction made between those discharging purely civil judicial functions and those administering the criminal law. This would indicate that the provisions in this chapter conceived the two services as not having between them any irremovable barrier. The definition of 'judicial service' would also appear to support this last conclusion for it proceeds on the basis of the post of a ' District Judge ' being a 'civil judicial post ' notwithstanding he as Sessions Judge administers criminal law for it refers to the inferior posts as 'other civil judicial posts '. The District Judge in Article 236(b) has to be understood in the sense as it appears in the definition in Clause (a) of Article 236 and as therefore including, say, the Presidency Magistrates. Article 236 therefore far from maintaining an inseparable division between the categories of officers who administer civil law and whose service was termed ' civil judicial ' and those who administer criminal law and were called ' magistrates ' would appear to view the functions of the two categories of officers as if they could be comprised in one service. Any other construction would make Article 237 really unnecessary or meaningless. Under Article 309 rules could be framed for any service including of course the magisterial service and it contains no embargo on making a rule under that Article similar to those contemplated by Articles 233 to 235. Therefore if the two services--the civil judicial and the magistrates--were to run on parallel lines, even after a notification under Article 237 the latter article would perform no function. In my judgment Article 237 has been enacted by way of abundant caution and serves as a pointer to the intention of the framers of the Constitution who had in Article 50 directed the State to take steps to separate the judiciary from the executive. Viewed in this light it appears to me that if Article 237 were availed of, its effect would be to expand the definition of 'judicial service ' in Article 236(b) so as to comprehend the class of magistrates also. Further the entire argument on which the unconstitutionality of' integration ' rests on the use of the expression ' exclusively ' in the definition of judicial service in Article 236(a). Even taking it literally I do not consider that it precludes a magistrate being appointed to a ' civil judicial post '. The reference in this definition is to ' posts ' and not to cadres or categories and the only constitutional requirement is that under Article 234 under which the rules in relation to appointments to these posts should be framed in the manner there laid down or that appointments to these posts should be preceded by the consultation with the authorities named depending on the proper interpretation of the article. I am therefore of the opinion that the provision for the appointment of a Presidency Magistrate as a Subordinate Judge is not in contravention of Chapter VI of Part VI of the Constitution.
24. The second point urged in attack on the G.O. No. 668 was that there had been no consultation with the Public Service Commission before its issue and that this violated Article 234 is not easy to construe there being an ambiguity as to whether the consultation referred to in the article is with reference to the ' appointments ' with which the article opens or to the framing of the rule in pursuance of which the appointments should be made. In other words, the question is whether ' the rule ' mentioned in the article is merely a reference to a rule under Article 309 or whether Article 234 confers an independent rule-making power subject to the specific condition that it should be framed in consultation with the Public Service Commission and the High Court and Mr. Nambiar urged the latter for my acceptance. In support of the former interpretation the following might be urged. Under Article 309 the power of regulating the recruitment and conditions of service of persons appointed to the public service is, subject to the provisions of the Constitution, vested in the appropriate Legislature (vide Item 41 of List II of Schedule VII). The proviso enables the Governor to exercise this power until provision in that behalf is made by the Legislature and subject to such legislation. In the construction contended for by Mr. Nambiar that Article 234 confers an independent rule-making power on the Governor, i.e., on the Executive, subject to the conditions set out in the article, if accepted, it would mean that such rules framed by the Executive would be outside the legislative power of the State Legislature to modify them under the first paragraph of Article 309. This is certainly a weighty consideration against the acceptance of this construction. This is because it may not be proper to read the conditions namely consultation with the Public Service Commission and the High Court as conditions which would govern legislation by the State Legislature. These considerations under Article 234 might point to the construction that under Article 234 it is at the stage of an appointment that the consultation referred to in the article is brought in and that the rules referred to, are rules framed under Article 309 subject to the exercise of legislative power under the main part of that article.
25. Though I was at first inclined to accept this as a proper interpretation of the article by reason of the consideration set out above, I have persuaded myself though with considerable hesitation, to accept Mr. Nambiar's argument. The absence of a comma or other punctuation mark in the article which could serve to specify ' the appointment ' as the event which requires the consultation appeared to me very significant. In the absence of any punctuation mark the grammar of the article seemed to point to the consultation referred to being in relation to the mating of the rule. This conclusion is more than strengthened--and in fact this last one I consider as of overwhelming weight--by the terms of Article 237. It refers to the ' foregoing provisions of this Chapter and any rules made thereunder ' and there is no other article in the Chapter which refers to any rules made under it except Article 234. The reference to the rules in Article 237 must therefore have been to the rules made under Article 234 which necessarily meant (a) that the rules might be made under Article 234 and (b) that these rules required prior consultation of the authorities named before they are made.
26. This construction appears also to derive support from the terms of Section 255 of the Government of India Act, 1935, which might be termed the predecessor of Article 234. Section 255(1) referred to the rules being made by the Governor after consultation with the Provincial Public Service Commission and the High Court though these rules were for defining the standards of qualifications to be attained by persons desirous of entering the subordinate civil judicial service and Article 234 is wider.
27. If the last were the proper construction of Article 234, it would appear that G.D. No. 668, dated 22nd March, 1951, which purported by executive action to alter the existing rules in relation to the recruitment to the civil judicial service of the State could not have effect as a rule under Article 234 because there was no prior consultation with the Public Service Commission.
28. If G.O. No. 668 was not a rule and the existing rules did not enable the Governor to appoint a Subordinate Judge by promoting a Presidency Magistrate to that office, there might be a doubt whether the original appointments of Sri C.D. Venkataraman and (of Sri K. Rajagopalan) as Subordinate Judges in 1952 were strictly in accordance with law.
29. This however does not conclude the question. The relevant rules were in terms and in accordance with the law altered by G.O. No. 3114, dated 6th October, 1953 and these were framed after consultation with the Public Service Commission. These rules were given retrospective effect as and from 22nd March, 1951. In my judgment whatever informality or irregularity there might have been in the first appointment of these two officers as Subordinate Judges this was regularised and made legal by G.O. No. 3114, dated 6th October, 1953. Moreover even on the basis that Article 234 required the actual appointment as distinct from the rules relating to appointments having to be made in consultation with the High Court and the Public Service Commission, these formalities were all satisfied when the two officers having been interviewed by the Public Service Commission were confirmed in the appointments as Subordinate Judges by G.O. No. 2707, dated 8th September, 1954. After that date their appointments as Subordinate Judges were valid from whichever angle they might be viewed with the consequence that their appointments as District Magistrates subsequently are also valid.
30. The last point has reference to the form of G.O. No. 668 and in particular to the contents of its paragraph 3 reading:
Separate orders will issue in Public (Spl.) and Home Departments in regard to the issue of or amendment to the relevant rules.
All these relevant rules were issued in G.O. No. 3114, dated 6th October, 1953. In my judgment the point raised is not really of any substance and for the reason already stated in the concluding portion of the previous paragraph. When the rules formally altering the previous service rules were issued in October, 1953, they were brought into force from the earlier date 22nd March, 1951, when G.O. No. 668 of 1951 was issued. Mr. Nambiar contended that the Government had no power to give retrospective effect to the rules so as to validate appointments made before the rules were actually made. I do not however consider that he was well-founded in this submission. It is unnecessary for the purpose of the quo warranto writ to finally decide the status of Sri C.D. Venkataraman during the period 8th February, 1952 and 6th October, 1953, i.e., between his factual appointment as Subordinate Judge and when he could without any doubt or controversy have been appointed to that post. I therefore hold that whether G.O. No. 668 of 1951, dated 22nd February, 1951, was valid or not as a rule under Article 234 when it was issued and even if it did not operate as a formal amendment of the rule in relation to the recruitment of officers to civil judicial service, the legality of the appointment of Sri C.D. Venkataraman was not open to any infirmity after 6th October, 1953.
31. The next point to be considered is as regards the validity of the actual appointment of Sri C.D. Venkataraman to the post of a Subordinate Judge though this is in the light of my conclusions already expressed really academic. Under Article 234 as I have construed it the executive power of the State in relation to the appointment has to be exercised in accordance with the rules made after consultation with the State Public Service Commission and the High Court. Mr. Nambiar contended that there had been a contravention of Article 234 in regard to the actual appointment in respect of both these matters. The contravention was said to be on two points: (1) that on the date of Sri C.D. Venkataraman's appointment as Subordinate Judge there was no specific rule enabling the appointment to be made. No doubt G.O. Mis. No. 400, dated 26th January, 1950, had introduced into the existing service rules framed under Section 241 of the Government of India Act and which was continued in force under Article 313 of the Constitution, the power of relaxation which was contained in Section 241(5) of the Government of India Act which had not been reproduced into the Constitution. This relaxation was in these terms:
Under rule made under Section 241(2)(4) of the Government of India Act, 1935 and continued in force by Article 313 of the Constitution and no rule made under the proviso to Article 309 of the Constitution shall be construed to limit or abridge the power of the Governor to deal with the case of any person serving in a civil capacity under the Government of Madras in such a manner as may appear to him just and equitable.
32. This power, it was said, would enable the executive to disregard an existing rule but that the power to disregard a rule could not itself serve as an independent rule on the basis of which alone an appointment could be made under Article 234. Under the rules framed under Section 241 which were in force on the date of the appointment, the argument ran, Subordinate Judges could be recruited only from the category of District Munsifs and the mere relaxation of this would not enable an appointment to be made from outside the category of Munsifs. Mr. Nambiar further contended that relaxation could have a meaning when the rules prescribed a plurality of qualifications for appointment when one of the several requisite qualifications could be waived by reason of the relaxation but in cases where the rule prescribed only a single qualification a relaxation of that rule would not have the effect of permitting an appointment to be made without reference to the qualification. In the view however I have taken of G.O No. 668, dated 22nd March, 1951 and G.O. No. 3114, dated 6th October, 1953 and regarding the effect of the later Government Order on validity of the appointment of Sri C.D. Venkataraman as Subordinate Judge I do not consider it necessary to discuss or decide the question from the angle here presented.
33. The next ground urged was as regards the consultation which ought to precede an appointment under Article 234 a contention which would arise only if the article was read as imposing conditions as to appointment. In the case of Sri C.D. Venkataraman the High Court was certainly consulted before his appointment (and this applies to the appointment of Sri Rajagopalan also). The question is whether the failure to consult the Public Service Commission at the date of the appointment would render it invalid. This would depend upon whether the requirement as to consultation was directory or mandatory Mr. Nambiar urged that I should hold the requirement to be mandatory as both under the Government of India Act, 1935 and under the Constitution the requirement has been put in on grounds of public policy to secure a public purpose namely the avoidance of political pressure in the matter of appointments. I do see considerable force in this argument but I am relieved of the task of finally deciding this point in view of what happened subsequently. Both Sri C.D. Venkataraman (and Sri Rajagopalan) were subsequently interviewed by the Public Service Commission and their appointments were confirmed. After this was done G.O. No. 2707, dated 8th September, 1954 was passed. That Government Order recited that the Government had decided in consultation with the High Court and with the concurrence of the Madras Public Service Commission to relax the relevant rules to enable these officers to be appointed regularly to the Madras State Judicial Service. Whatever' therefore might have been the defect in the appointment of Sri C.D. Venkataraman 'when he was appointed as a Subordinate Judge in 1952, every defect was removed and every formality was complied with when after G.O. No. 3114, dated 6th October, 1953 was passed and the rules modified enabling Presidency Magistrates to be appointed as Subordinate Judges. Sri C.D. Venkataraman was confirmed in the appointment as Subordinate Judge after consultation with the Public Service Commission and the High Court. Thereafter every requirement of Article 234 as urged before me by Mr. Nambiar was satisfied when this confirmation took place in 1954. I therefore hold that the appointment of Sri C.D. Venkataraman as Subordinate Judge was valid when made in February, 1952, by the retrospective operation of G.O. No. 3114 of 1953 and that in any event it was certainly valid froth and after September, 1954, when G.O. No. 2707 took effect.
34. The next question is whether Mr. C.D. Venkataraman having been validly appointed as a Subordinate Judge could have been appointed as a District Magistrate. A special cadre called the Madras Criminal Judicial Service, as has already been stated, which was to consist of District Magistrates was created by G.O. No. 760, dated 27th February, 1950. I have heard no arguments challenging the validity of the creation of this service. Indeed not even the objection such as was raised to the promotion of a Presidency Magistrate to the post of a Subordinate Judge based on Chapter VI of Part VI of the Constitution could be urged as against it. Section 10, Criminal Procedure Code enacts:
10(1) : In every district outside the presidency towns the Provincial Government shall appoint a Magistrate of the first class, who shall be called the District Magistrate.
35. The Code of course does not prescribe the qualifications that should be possessed by an appointee or the service from which he could be recruited. Nor does the Constitution prescribe any conditions as regards appointment to that office. Nothing can therefore be said to question the legality of the creation of the Madras Criminal Judicial Service under G.O. No. 760, dated 27th February, 1950. Sri C.D. Venkataraman and (also Sri Rajagopalan) were Subordinate Judges and therefore they could under the rules governing the Madras Criminal Judicial Service be appointed to the posts of District Magistrates. The conclusion to which I have arrived therefore is that both C.D. Venkataraman and (also K. Rajagopalan) were validly appointed as District Magistrates and the challenge to the validity of their appointments in the two petitions for the issue of writs of quo warranto fail.
36. In this view, I do not consider it necessary to discuss the argument urged in regard to the course that I should take if the appointment were in fact found to be irregular or invalid. Mr. Venkatasubramania Ayyar contended that even if the appointments were invalid no writ of quo warranto ought to issue because of the long delay which had occurred between the appointment and the date of the petition coupled with the failure on the part of the affected parties to move this Court at an earlier date. He further urged that the issue of a writ at this stage would result in invalidating every official act performed by these officers as Magistrates and Judges which would lead to such an amount of public inconvenience and mischief that the Court should in the exercise of its discretion refuse the issue of a writ. On the other hand, Mr. Nambiar contended that the issue of a writ would not automatically render invalid the acts of these officers and that would really result in emotion without this having any effect upon the validity of the judicial or administrative acts when they were de facto in possession of the office. As I have already stated, in view of the conclusion that I have reached that the appointment of these officers is valid I do not propose to spend any time in discussing the relative merits of the contentions on either side.
37. The result is that W.P. Nos. 1353 and 1354 of 1956 fail and are dismissed. There will however be no order as to costs.
38. I shall now proceed to consider W.P. No. 1131 of 1956 filed by C.D. Venkataraman questioning the legality of the order of Government varying the seniority of the petitioner in May, 1956 and altering to his prejudice the seniority accorded to him and recognized by the Government in G.O. Mis. No. 2707, dated 8th September, 1954.
39. I shall now briefly recapitulate the facts necessary to appreciate the points arising for decision in W.P. No. 1131 of 1956. The petitioner Sri C.D. Venkataraman was, as has already been pointed out, temporarily appointed as a Presidency Magistrate on 18th June, 1946. This post was thereafter treated as an addition to the cadre of the Madras Civil Service executive branch. After the completion of the separation of the State Judiciary from the executive, the post of a Presidency Magistrate was directed to be treated as equivalent to the posts in the cadre of corresponding officers performing civil judicial functions. This was under G.O. No. 668, dated 22nd March, 1951 and under paragraph 2 (II) of this Government Order the posts of Subordinate Judges were directed to be filled up by officers in the category of District Munsifs, Sub-Divisional Magistrate or Presidency Magistrates. That Government Order also by paragraph (II) (v) treated the existing Presidency Magistrates as members of the Madras State Judicial Service. This was how the, integration of the two services became effected. As Presidency Magistrates and District Munsifs had before that date belonged to different services the inter se seniority between the two categories had to be fixed. This was done on the basis of the pay the officers were drawing on 22nd March, 1951, the date of the Government Order. This however caused a considerable amount of dissatisfaction to the existing Subordinate Judges and Senior District Munsifs who had been recruited to Madras Civil Judicial Service years before 1946 when Sri C.D. Venkataraman was first appointed as a Presidency Magistrate. This fixation was effected after consultation with the High Court. Subsequently on 8th February, 1952, the petitioner Sri C.D. Venkataraman was appointed as a Subordinate Judge and was posted as a City Civil Judge. In the Civil Judicial List he was shown as having the rank and seniority amongst the Subordinate Judges in accordance with the G.O. No. 668, dated 22nd March, 1951. The existing Subordinate Judges and the Senior District Munsifs contended that the appointment of a Presidency Magistrate as a Subordinate Judge was unconstitutional as well as contrary to the rules relating to the Civil Judicial Service. It was urged that the Subordinate Judges who had been appointed to the Civil Judicial Service years before 1946 when Sri C.D. Venktaraman was appointed as a Presidency Magistrate were unjustly deprived of their seniority by the ranking effected under paragraph II (v) of G.O. No. 668. The Government however rejected this representation. An objection was also raised by the Public Service Commission that they should have been consulted before the appointment of Presidency Magistrates as Subordinate Judges. The petitioner and four other officers who were like him recruited as Presidency Magistrates and subsequently were posted as Subordinate Judges were interviewed by the Public Service Commission who approved of their appointment. This was formally given effect to by G.O. No. 2707, dated 8th September, 1954. The seniority assigned to them by the High Court when Sri C.D. Venkataraman was appointed as a Subordinate Judge in 1952 was continued.
40. While things were in this stage, Sri C.D. Venkataraman was appointed as District Magistrate of Tiruchirappalli on 1st January, 1955. The post of a District Magistrate was under G.O. No. 760, dated 27th February, 1950, to be filled up by promotion from the category of Subordinate Judges and Sri C.D. Venkataraman was appointed to this post because of the seniority which he enjoyed among the Subordinate Judges. Several appeals were filed by Subordinate Judges against the ranking effected by G.O. No. 668 of 1951 as modified by subsequent Government Orders which had resulted in Sri C.D. Venkataraman being senior to several others entitling him to promotion as District Magistrate. The Government considered these objections as having some validity and by G.O. No. 1463, Home Department, dated 16th-May, 1956, refixed the seniority of the five Subordinate Judges who were originally recruited as Presidency Magistrates among the Subordinate Judges as and from the date when they actually took charge as Subordinate Judges in the year 1952. The Government by the Government Order requested the High Court to refix the seniority of these officers on this new basis. This necessarily resulted in the petitioner Sri C.D. Venkataraman being assigned a seniority 10 places lower than that which he originally held under G.O. No. 668, dated 22nd March, 1951.
41. The contention urged in the petition was that when once the Government had in consultation with the High Court fixed by G.O. No. 668, dated 22nd March, 1951, inter se seniority between the Presidency Magistrates and members of the Madras Civil Judicial Service on the basis of the salary drawn by the officers and had applied this to him when his service was regularised in 1954 there was no power in the Government to revise or refix the seniority departing from the principle upon which the original fixation was made.
42. The main grounds urged in the petition in support of this attack on the validity of G.O. No. 1463, dated 16th May, 1956 were : (1) The order of the Government violates the provisions of the Article 311 of the Constitution which enacts that no member of a civil service shall be reduced in rank without being given a reasonable opportunity of showing cause against the proposed reduction. (2) Under Article 235 of the Constitution the control over the posting and promotion of persons belonging to the judicial service of the State holding posts inferior to that of a District Judge' is vested exclusively in, the High Court and this precludes the State Government from interfering with the seniority of persons so as to prejudicially affect their promotion in the service. (3) G.O. No. 668 had fixed the seniority on proper principles and there was therefore no justification for interfering with the seniority thus fixed.
43. The learned Advocate-General who appeared for the State in opposition to this writ urged that the impugned order, dated 16th May, 1956 did not violate any legal right vested in the petitioner--legal rights which were justifiable or capable of enforcement by Courts. Before however dealing with the submission of the learned Advocate-General, I shall set out and discuss the contention urged byMr. Venkatasubramania Ayyar. The steps in his argument were these:
(1) When G.O. No. 668 was issued, Sri C.D. Venkataraman was a Presidency Magistrate. Under that G.O. the Presidency Magistrates were placed in the same position as District Munsiffs as regards their qualifications for promotion as Subordinate Judges. Before that date the Presidency Magistrates and District Munsifs were members of two different services. There was therefore necessity to define inter se seniority between the District Munsifs and the Presidency Magistrates for determining the priority for promotion as Subordinate Judges. The District Munsifs had been recruited from, inter alia, advocates of three to six or seven years' standing. Sri C.D. Venkataraman and others along with him had been recruited as Presidency Magistrates when they had practised for nearly 14 years. Some allowance had to be made for this basic difference in the qualifications of the appointees. The Government had in consultation with the High Court considered that the pay drawn by the officers on the date of the G.O. was the most equitable criterion and seniority was directed to be fixed in accordance with that rule. There was therefore no injustice to the several officers in the judicial service in assigning the rank on this basis.
(2) This seniority had been maintained throughout and was indeed the basis upon which the promotion of Sri C.D. Venkataraman had taken place as a District Magistrate. The Government however had acceded to the memorials and representations by the other officers and without giving an opportunity to the petitioner of being heard had passed an adverse order reducing the petitioner's rank. This was therefore in violation of the principles of natural justice.
(3) When once the seniority had been fixed a vested right is acquired by that officer to that rank and seniority and this cannot be interfered with by the Government except as a punishment and admittedly in this case this was not the ground of reduction.
(4) In order to enable the petitioner to relief by the issue of a writ of certiorari no justifiable right of his need be violated and it is sufficient if there is an infraction of some rule which adversely affects the petitioner.
44. I shall put out of account the ground urged in the petition based on violation of Article 311 that there had been a ' reduction in rank ' within the meaning of that article which had been effected without a reasonable opportunity being afforded to him against such action. Mr. Venkatasubramania Ayyar frankly and I would add very properly, stated that the reduction in rank contemplated by the article was reduction as a punishment and that as in this case no punishment was involved the article had no application. Flowing from this construction of Article 311 that it does not apply to ' any reduction in rank ' not ordered as a punishment the learned Advocate-General urged that any other variation in the order of seniority to the prejudice of an officer in the civil service could not give rise to a right whose violation could be remedied by invoking the jurisdiction of the Court under Article 266. The Madras State and Subordinate Services General Rules enact the following provisions for determining the seniority among the several officers in the State Subordinate Service:
35 (a) : The seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade....
(b) The appointing authority may, at the time of passing an order appointing two or more persons simultaneously to a service, fix either for the purpose of satisfying the rule of reservation of appointments or for any other reason, the order of preference amongst them ; and where such order has been fixed, seniority shall be determined in accordance with it.
(c) The transfer of a person from one class or category of a service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purposes of seniority; and the seniority of a person so transferred shall be determined with reference to the date of his first appointment to the class or category from which he was transferred. Where any difficulty or doubt arises in applying this Sub-rule, seniority shall be determined by the appointing authority.
This was the General Rule and under Rule 2 of these rules:
If any provision in the General Rules contained in this part is repugnant to a provision in the Special Rules applicable to any particular service.... the latter shall, in respect of that service prevail over the provision in the General Rules in this part.
The provision in the Special Rules applicable to the Madras State Judicial Service to which the officers in these petitions belonged was in these terms:
20. The seniority of a person in a category of the service shall, unless he has been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such category.... The appointing authority may, at the time of passing an order appointing two or more persons simultaneously to either category in the service either for the purpose of satisfying the rule of reservation of appointments or for any other reason, fix the order of preference among them ; and where such order has been fixed, seniority shall be determined in accordance with it. Where any difficulty or doubt arises in applying this rule, seniority shall be determined by the appointing authority.
It will be seen that there is not much difference between the operation of the two sets of rules. If these rules had been strictly followed, the seniority of Sri C.D. Venkataraman who was appointed as a Subordinate Judge in 1952, which formed a category of the State Judicial Service, had to be determined by the date of his first appointment to such office. But by reason of other factors including his age, his qualifications in the shape of his standing in the Bar as well as the office of the Presidency Magistrate which he held before the date of his appointment to the category of Subordinate Judge, he was justly assigned a rank in relation to the pay which he then drew. This was effected by the exercise of the power of relaxation in G.O. 400 dated 26th January, 1950 which incorporated the provisions theretofore contained in Section 241(5) of the Government of India Act, 1935, into the ruleswhich were continued in operation by Article 313. It was this departure from and relaxation of the rule, which was complained of by the other members of the service who had been recruited as District Munsifs. The question now for consideration is whether the Government having once fixed the seniority by relaxing the Rule 20 of the Special Rules, have the power to refix the seniority by assigning to the officer a rank lower than what he originally held but not below that to which he would have been entitled by a strict application of Rule 20. This is slightly a different approach from that involved in an enquiry as to whether any legal right of the officer has been violated giving rise to the interference by the Courts in what is ultimately an administrative matter, and it is with this background that I consider it proper to discuss the submissions of the learned Advocate-General. His argument was in these terms :-Article 310(1) emphasizes the common law concept of service under Government being held at the pleasure of the Government and unless there is any express provision in the Constitution the rule that governs their relationship is that it is terminable, and the conditions of service, variable at the pleasure of the State. Section 310(1) is in these terms:
310(1). Except as expressly provided, by this Constitution, every person who is a member of a defense service or of a civil service of the Union or of an all-India service or holds any post connected with defense or any civil post under the Union holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor or, as the case may be, the Rajpramukh of the State.
The express provision in the Constitution that is referred to in the opening words of the article is to be found in Article 311 which provides a statutory protection of two classes: (1) which is absolute and which is contained in Article 311(1) against being dismissed or removed from service by an authority subordinate to that by which the officer was appointed. When a violation of this provision occurs the result is really one where 'the pleasure of the Governor' is not expressed. In other words, the dismissal or removal is merely a purported act not being the expression of the pleasure within Article 31 o (1) and, is therefore null. This proposition is certainly acceptable as it flows from the language of Articles 310(1) and 311(1) read together and it is also supported by the decision of the Privy Council in Lall's case High Commissioner for India v. I.M. Lal (1948) 2 M.L.J. 55 : L.R. 75 IndAp 225 : 1948 F.L.J. 23 : (1948) F.C.R. 44 , where their Lordships of the Judicial Committee designedly used the expression at pages 65 and 67 of the report ' purported ' in reference to the declaration as to the dismissal which ought to be granted to the officer.
45. The next point urged was in relation to the scope and legal effect of Article 311(2) which affords statutory protection to the officers in relation to three types of punishment. The Civil Services (Classification, Control and Appeal) Rules which regulated the conditions of service, the discipline and conduct of officers in the civil service of the Crown in India before the Government of India Act, 1935, provided for seven types of punishment :-(1) censure ; (2) withholding of increments or promotion; (3) reduction to a lower post or time scale or lower stage in a time scale ; (4) recovery from pay of the whole or any part of any pecuniary loss caused to the Government by negligence or breach of orders ; (5) suspension ; (6) removal from the civil service of the Crown which does not disqualify from future employment and (7) dismissal from the service of the Crown which ordinarily disqualifies from future employment.
46. Out of these seven punishments, Section 240(3) of the Government of India Act had selected two, dismissal which by definition included removal from service and reduction in rank and had added a constitutional backing to the provision in the service rules which required that the officer should have a reasonable opportunity of showing cause before these punishments were inflicted. The Constitution re-enacted this section in Article 311 with the removal from service being taken for a definition into the section itself. Based on that, it was urged by the learned Advocate-General that the rule of expressly unius was attracted and that the service rules whose violation could give rise to enforceable claims were (a) in relation to punishments, (b) the punishments being restricted to the three named and (c) even in regard to them the only complaint which could be urged by the officer was that he was not afforded an opportunity to show cause. Beyond this area of constitutional protection it was said that the normal rule that Government servants held their office at pleasure applied and that any violation of the service rules would not give rise to claims such as would be agitated in Courts of law. He also urged that even if the basic relationship between the Government and these officers were treated as that between master and servant and there were stipulations governing service conditions, these could not be specifically enforced by Courts and that the interference prayed for by Sri C.D. Venkataraman would, if granted virtually amount to the specific performance of a service condition.
47. These submissions deserve careful consideration. I shall examine the position historically. Upto the enactment of Section 96-B by the Government of India Act, 1919, the tenure of Crown servants was wholly at pleasure and though undoubtedly there were manifold and diverse rules, special and general, in relation to the several services, any infraction of the rules could have been remedied only by departmental appeals if any or by memorials to authorities and on the basis that no legal or justiciable rights were involved, the tenure being one merely at pleasure, the civil Courts could not afford any relief.
48. Section 96-B was then introduced into the Government of India Act, 1915, by an amendment effected in 1919. It should however be remembered that statutory safeguard that was provided by Section 96-B was only against dismissals by authorities subordinate to that by which he was appointed. The section further conferred on. the executive power to make rules regulating the conditions of service of officers in the civil service and after vesting in the Secretary of State the ultimate power in regard to every servant of the Crown imparted statutory validity to the conditions then in force. The question which was raised on the construction of this provision and which the Judicial Committee had to consider in Venkata Rao's case R. Venkata Rao v. Secretary of State for India in Council (1937) 1 M.L.J : 529 : L.R. 64 IndAp 55 : I.L.R. (1937) Mad. 532 was whether the provisions of the section so modified the law that the tenure of the service ceased to be one at pleasure, the service conditions becoming so to speak statutory terms of a contract governing the relationship between the Government and their servants. Their answer was in these terms:
Section 96-B in express terms states that office is held during pleasure. There is therefore no need for the implication of this term and no room for its exclusion. The argument for a limited and special kind of employment during pleasure but with an added contractual term that the rules arc to be observed is at once too artificial and too far-reaching to commend itself for acceptance. The rules are manifold in number and most minute in particularity and are all capable of change. Counsel for the appellant nevertheless contended with most logical consistency that on the appellant's contention an action would lie for any breach of any of these rules, as for example of the rules as to leave and pension and very many other matters. Inconvenience is not a final consideration in a matter of construction but it is at least worthy of consideration and it can hardly be doubted that the suggested procedure of control by the Courts over Government in the most detailed work of managing its services would cause not merely inconvenience but confusion. There is another consideration which seems to their Lordships to be of the utmost weight. Section 96-B and the rules make careful provision for redress of grievance by administrative process and it is to be observed that Sub-section (5) in conclusion reaffirms the supreme authority of the Secretary of State in Council over the civil service. These considerations have irresistibly led their Lordships to the conclusion that no such right of action as is contended for by the appellant exists. It is said that this is to treat the words 'subject to the rules' appearing in the section as superfluous and ineffective.... They regard the terms of the section as containing a statutory and solemn assurance, that the tenure of office though at pleasure will not be subject to capricious or arbitrary action but will be regulated by rule. The provisions for appeal in the rules are made pursuant to the principle so laid down. It is obvious therefore that supreme care should be taken that this assurance should be carried out in the letter and in the spirit and the very fact that Government in the end is the supreme determining body makes it the more important both that the rules should be strictly adhered to and that the rights of appeal should be real rights involving consideration by another authority prepared to admit error, if error there be, and to make proper redress, if wrong has been done.
Section 96-B was in substance reproduced and re-enacted by Sections 240 and 241 of the Government of India Act, 1935. The slight drafting change in the opening words of Section 240(1) as compared with the corresponding terms of Section 96-B (1) which consisted in the omission of the reference to the rules as those subject to which the officer held his office was calculated to emphasise that all civil offices were held at pleasure.
49. Section 96-B(1) read as follows:
96-B (1).--Subject to the provisions of this Act and of rules thereunder, every person in the civil service of the Grown in India holds office during His Majesty's pleasure, and may be employed in any manner required by a proper authority within the scope of his duty but no person in that service may be dismissed by any authority subordinate to that by which he was appointed, and the Secretary of State in Council may (except so far as he may provide by rules to the contrary) reinstate any person in that service who has been dismissed.
If any such person appointed by the Secretary of State in Council thinks himself wronged by an order of an official superior in a Governor's province, and on due application made to that superior does not receive the redress to which he may consider himself entitled, he may, without prejudice to any other right of redress, complain to the Governor of the province in order to claim justice, and the Governor is hereby directed to examine such complaint and require such action to be taken there on as may appear to him to be just and equitable.
A considerable portion of the argument in Venkata Rao's Case (1937) 1 M.L.J. 529 : I.L.R. (1937) Mad. 532 : L.R. 64 IndAp 55 , was based on the opening words which appeared capable of being construed as if the observance of the rules which were given statutory recognition, was a necessary condition for the exercise of the pleasure '. These words were eliminated in Section 24.0(1) which runs:
240(1)--Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure.
50. There has been some doubt expressed as to these cases excepted by the opening words of Section 240(1). As Sections 200(2) and 220(2) which render the tenure of Judges of the High Courts and of the Federal Court one on good behaviors do not contain any statement that their provisions are an exception to the general rule these sections and others like it could not be the ones that were referred to as those 'expressly excepted'.
51. This apart however, the only change effected by the Government of India Act, 1935, was that by Section 240(3) the statute selected two categories of punish merit, dismissal (which was defined so as to include removal from service) and reduction m rank and required that before they were inflicted the officer concerned should be afforded a reasonable opportunity of showing cause against the punishment, Provisions which were previously some among those in the service rules but which had been taken out of the rules and enacted in the statute itself. It was the correlation between Section 240(1) which stated that the tenure was at pleasure and Section 240(3) which brought into the statute certain service conditions and the question whether the latter provision conferred enforceable rights in the sense that without their observance ' the pleasure ' could not be signified that was de-bated in Lall's Case (1945) 2 M.L.J 270 : 1945 F.C.R 103 : 1945 F.L.J.129 and on appeal to Privy Council (1948) 2 M.L.J. 55 : 1948 F.C.R. 44 : 1948 F.L.J. 23 . The argument addressed by the Advocate-General of India to the Federal Court in support of asubmission that under Section 240 the tenure of civil officers was wholly at pleasure subject to one condition that the dismissal must be by an authority not subordinate to the appointing authority, was that Section 240(3) was merely directory and that it was not an exception contemplated by the opening words of Sections 240(1) This construction was repelled by the Federal Court a decision which was affirmed by the Privy Council on appeal. Spens C.J., who spoke for the majority of the Federal Court said referring to the safeguard provided by Section 240(3), (at page I43-I44)
It can, in our judgment, be regarded as a provision in the Constitution Act which while it does not alter the tenure of office during His Majesty's pleasure prescribed by Sub-section (1) of Section 240 or the power of dismissal at will, does impose in certain cases certain statutory obligations to be carried out before dismissal is effected, breach of which will give to the person adversely affected a cause of action.
Lord Thankerton said in the Privy Council:
The provisions of Section 96-B (1), now reproduced as Sub-section (2) of Section 240 of 1935, and of Sub-sections (2) and (3) of Section 240 are prohibitory in form, which is inconsistent with their being merely permissive.
There was very little by way of change effected when Section 240 was replaced by the provisions of Articles 310 and 311. Article 310 reproduced Section 240(1) while Section 240(2) was enacted as Article 311(1). Section 240(3) became Article 311(2) and the change here was of a drafting nature which consisted in bringing in ' removal from service ' which was included in the definition of ' dismissal ' into the body of the article. To the extent therefore that there was any non-observance of the requirement as to reasonable opportunity insisted on by Article 311(2), Lall's Case (1937) 1 M.L.J. 529 : L.R. 64 IndAp 55 : I.L.R. 1937 Mad. 532 , requires me to answer this question in the negative.
52. Even if the matter had to be decided, without reference to the history of the provisions and the decisions at various stages but only on the terms of the Constitution itself, the question has in my judgment to be answered the same way. Article 310 lays down in emphatic terms that the tenure of civil servants is ' at pleasure ' though subject to the opening words of Clause (1) ' Except as expressly provided by this Constitution ' which might possibly be a reference to provisions like Articles 124(4) and 217(1) proviso (b) as to which there is some doubt and of course to Article 311(1) and (2) and also Article 314. On the language of the article of the Constitution, the argument scarcely seems open that the ' pleasure ' is qualified or conditioned by the observance of the rules framed under Article 309 or other similar provisions or continued under Article 313. If I am right so far, the violation or infraction of a statutory rule would give rise to a cause of action for being agitated in Courts only if the nature of the infringement brought it within the jurisdiction of the Courts or their competency to afford relief. If the violation of a statutory rule governing governmental action caused an injury to a right enforceable in a Court, say a right to property or a right to carry on business or trade, apart from the right being guaranteed by the Constitution, the established Courts of law would be competent to afford relief. In such cases if the jurisdiction of a High Court under Article 226 were invoked, there would be ample power vested in the Court to redress the grievance. The right, however, that was infringed in the case on hand viz., the reduction in seniority was an injury in relation to an office that was constitutionally declared to be held at the ' pleasure ' of the Governor. I do not therefore see any basis for the contention that a legally enforceable right was infringed by the reduction in seniority in the case notwithstanding there was a departure from Rule 20 of the special rule. The learned Advocate-General referred me in this connection to a passage in JointAnti-Fascist Refugee Committee v. Mcgrath 95 L.Ed. 817, reading ' the touchstone to justiciability is injury to a legally protected right ' and I consider the test sound. The only manner in which the petitioner could urge jurisdiction in this Court to interfere in cases of this sort could be on the basis that the service rules and conditions form, as it were, limitations on the 'pleasure ' and that as such their violation gave rise to a justiciable grievance. I feel, however, unable to accept this construction of the articles of the Constitution on which ultimately such an argument has to be rested. No doubt the power to frame rules for the services is vested by the Constitution in the Executive and in the Legislature under Article 309 but from this the conclusion cannot legitimately be drawn that the rules when framed became part of the Constitution so as to be treated as falling within the 'express exception' in the opening words of Article 310(1). This reasoning would apply equally whether the impugned order be treated as administrative or quasi-judicial and that is the reason why I do not consider it necessary to decide the precise category into which the order would fall.
53. Mr. Venkatasubramania Ayyar almost bypassed these considerations and urged that there need be no violation of a legal or justiciable right to enable a party to obtain relief by way of a writ ofcertiorari if an administrative body or authority affects by its decision the interest of an individual by wrongly interpreting or applying the relevant law be it a statute or a rule made under one. In support of this submission the learned Counsel relied on the decision of R. v. Manchester Legal AidCommittee L.R. (1952) 2 Q.B. 413. The Legal Aid Committee set up under the Legal Aid and Advice Act, 1949, had granted a certificate taking into account the means of a bankrupt and disregarding the means at the disposal of the trustee who was the applicant for the certificate. The defendants as against whom proceedings with the aid of the certificate were launched applied for the issue of a writ ofcertiorari to quash the certificate. The Court of Appeal held that the Legal Aid Committee was a body which was bound to act judicially in the matter and was therefore one whose decisions could be the subject-matter of a prerogative writ following in this respect the principles laid down in the oft-quoted passage of Atkin, L.J., in R. v. Electricity Commissioners L.R. (1924) 1 K.B. 171.
54. The next question considered by the Court was whether the applicants, the defendants in the action, could be said to have been persons aggrieved by the order of the Committee granting the certificate. It is the passage dealing with this matter that was relied on by the learned Counsel in support of his submission which I have set out earlier.
The last question which arises is whether the applicants are persons aggrieved. If so, certiorari will be granted ex debitojustitice....
After quoting a passage from the judgment of Lord Reading, C.J., in Rex v. Richmond Confirming Authority L.R. (1921) 1 K.B. 248, the learned Judge (Parker, L.J.), continued:
Lord Reading, C.J., then continued--'I believe that to be the true principle upon which this. Court acts. Here the applicant had an interest distinct from the general inconvenience which may be suffered by the law being wrongly administered.' That was a case of licensing justices having issued a licence without jurisdiction and in spite of an objection made by the applicants for certiorari, who were rival traders, but the principle is clearly laid down. In the present case the applicants seem to us to be persons aggrieved within this principle. They are persons who incur the risks inherent in having to fight a party who has legal aid.... It is true that if the action was fought to judgment and the applicants succeeded, they might before the trial judge, prove the matters proved before us, and persuade him that the certificate should be treated as a nullity, but it seems to us that they should not be forced to take this course.
55. I am unable to draw from this passage the inference or extract the principle which the learned Counsel desires me to. The case is analogous to those which we have in our system wherein the defendant is entitled to object to the grant of permission to a party to conduct proceedings as a pauper. Certainly he has a legal interest in the matter and I, therefore, do not see how this helps the contention urged for the petitioner. As Parker, L.J., points out in the last of the sentences which I have extracted, the validity of the certificate could have been challenged in the action itself. If so, it would clearly be a case where a legal contention open to a party in a suit or proceeding was affected by an improper adverse order. That, in my opinion, furnishes no basis for the argument that no legal right need be infringed to enable a party to move for the issue of a prerogative writ and it is sufficient if he is merely inconvenienced or some interest of his which does not amount to a right is affected.
56. Before concluding I must refer to a very faint argument advanced by Mr. Nambiar, learned Counsel for the respondents in the certiorari petition, questioning the jurisdiction of this Court to issue the writ based on the right not being available to control the proceedings of the High Court. Learned Counsel urged that the ' impugned G.O. of 1956 had requested the High Court to refix the seniority in accordance with the Government's decision and as it was the High Court which ultimately gave effect to the reduction, the present writ petition must be deemed to be one to quash an order of the High Court. In my judgment, there is no substance in this contention. The High Court which is not amenable to the writ jurisdiction under Article 226 is the Court dealing judicially with matters and as in the present case the function of the High Court was merely administrative and even there, it merely gave effect to a decision of Government, there is no basis for the objection raised.
57. In my judgment, therefore, notwithstanding that the order of May, 1956, adversely affected the interest of the petitioner in that the seniority which he enjoyed under the orders passed before that date, was seriously interfered with and this was contrary to the rules, the same cannot be redressed by this Court by the issue of a writ of certiorari. The petition fails. The rule nisi issued is discharged and the petition is dismissed. There will, however, be no order as to costs.
58. W.P. No. 487 of 1956.--Sri N. Devasahayam, the petitioner here, was appointed by the Government of Madras as an Assistant Commandant, Special Armed Police, Madras, in 1948. The appointment was in the police department and under the control and supervision of the Inspector General of Police, Madras. The services of the petitioner and others who were recruited along with him to the same category were utilized during Hyderabad Action. Subsequently when conditions returned to normal the petitioner was appointed as a Deputy Superintendent of Police on probation by G.O. 4242 (Home) dated 28th September, 1950. This was made possible by Government relaxing all the relevant provisions of the Madras Police Services Rules in favour of the petitioner. After fixing the pay scales of this officer and others similarly recruited along with him, it went on to provide:
His Excellency the Governor also directs that the candidates should be allowed to count their service in the Special Armed Police.... for purposes of increments and seniority in the Madras Police Service.
There appeared to have been representations to the Government from existing incumbents of offices in the police service who complained of this fixation of seniority of the petitioner as an unjustified infraction of their rank and seniority. These representations were considered and by an order, dated 31st March, 1956, the Government by G.O. No. 1008 (Home) accepted the representations of the other officers and refixed the seniority of the petitioner and others similarly recruited and in its operative portion passed an order stating:
The Government, therefore, now direct that the orders in G.O. Ms. No. 4242, Home, dated 28th September, 1950, in so far as they relate to seniority of the Deputy Superintendents of Police who were recruited direct and those appointed from among Assistant Commandants, Special Armed Police. . be reckoned strictly in accordance with the dates of their first appointment to the Madras Police Service.
By reason of this re-ranking and the re-fixing of the seniority the petitioner had lost about 15 places. Complaining of this reduction the petitioner has filed this writ petition for the grounds thus stated in paragraph 18 of the affidavit,
the petitioner prays that this Hon'ble Court be pleased to set aside the order of the Government as illegal, invalid and inoperative, as it brings about a reduction in rank, inflicts a penalty although not so called, deprives the petitioner of a right which accrued and became vested more than five years ago and alters a condition or term on the basis of which his appointment was made.
59. On these allegations two points arise for consideration. (1) Whether ' a reduction in rank' specified in Article 311(2) is one which is inflicted as a punishment or whether the expression is comprehensive enough to include every readjustment of seniority. In my judgment, this is capable of Only one answer. I have already in dealing with W.P. No. 1131 of 1956 set out the history of this provision and I do not consider it necessary to repeat it. Moreover the reference to a reasonable opportunity to show cause which is refereed to in the clause can have no meaning in regard to the orders refixing the seniority based on considerations of principle or policy. The petitioner cannot, therefore, complain that a constitutional safeguard enacted in Article 311(2) has been violated.
60. The next point is whether a mere violation of a statutory rule in relation to-conditions of service can give rise to a claim for redress by the issue of a prerogative right. For the reasons already stated in W.P. No. 1131 of 1956 I find this point against the petitioner. The result is that this petition fails. Rule nisi is discharged and the petition is dismissed. There will be no order as to costs.