Jaganmohan Reddi, J.:— These two service writs under Article 226 of the Constitution are by a number of Judicial Officers for the infringement of their right of seniority as now fixed by the Government by its G.O No. 564 dated 7-6-1954 and for the issue of a Writ of Mandamus directing the respondent, Government of Andhra Pradesh, to secure to the petitioners then-rank of seniority and service as fixed by an earlier Notification dated 16-12-1949.
2. Writ Petition No. 1241/1958 is by four petitioners viz., Y. Vasudeva Rao, K. Venkataratnam, Ch. Srirama Rao and K. Sri Krishna. On a further petition — C.M.P No. 11051/1958 petitioners 5 to 7 were added viz., N. Srihari Rao, P. Seshagiri Rao and Mohd. Khader Khan. Similarly, Y. Srikrishnamurty, K.H Bhushana Rao, and B. Venkataramana were added as respondents 2 to 4 on 30-1-1960 inasmuch as their rights, if any, were likely to be affected if the remedy sought was secured to the petitioners. W.P No. 1396/1958 is by one P. Anjaneya Raju and the same three persons viz., Y. Srikrishnamurty, K.H Bhushana Rao and B. Venkataramana, were added as respondents 2 to 4 in C.M.P No. 1114/1959 and 760/1960 respectively, which were ordered on 30-1-1960 as neither party had any objection.
3. The petitioners in W.P Nos. 1241 and 1396 of 1958 and respondents 2 to 4 therein were in the list of District Munsifs selected by the Madras Public Service Commission. It may be stated that by a notification dated 16-12-1949 published in the Fort St. George Gazette dated 20-12-1949, the Madras Public Service Commission invited applications for 83 posts of District Munsifs in the Madras Sub-ordnate Civil Judicial Service whereby it was notified that out of the 83 posts to be filled in by direct recruitment, 12 were to go to persons already in the service holding certain classes of employment in the Madras Civil Judicial Department, and the remaining 71 posts would be filled up from among the Official Receivers, Assistant Public Prosecutors and practising members of the Bar.
4. It was further notified that the selection of the candidates would, be made from various castes, religions and communities in pursuance of the rules prescribed in what are popularly described as communal G. Os., which secured for Harijans 19 posts, Muslims 5, Christians 6, Backward Hindus 10, Non-Brahmin Hindus 32 and Brahmins 11 in accordance with certain rotation which will be specified hereafter.
5. Thereafter the Public Service Commission interviewed the candidates and by a Gazette Notification dated 6-6-1950 the Government arranged the list of candidates in order of merit in each community as by Section 255 of the Government of India Act, among whom the 12 persons from the service were also included. The Government thereafter first appointed the 12 service candidates as per G.O.Ms 2440, Home, dated 25-5-1950. Next 45 candidates out of the 71 were appointed by G.O.Ms 3201.Home, dated 13-7-1950.
6. The remaining 26 candidates were appointed as per G.O.Ms 5027.Home, dated 25-11-1950. At this stage, it may be mentioned that B. Venkataramana, respondent No. 4, who was interviewed and was not selected, challenged the selection and appointment of District Munsifs on communal basis before the Supreme Court of India by a petition under Article 32 of the Constitution and succeeded.
7. Their Lordships held that inasmuch as the communal G.O offended the petitioners' fundamental rights under Article 16(1) and (2) and was not sanctioned by Article 16(4), it was void and illegal and it was directed that his application for the post be taken on file and considered on its merits “without applying the rule of communal rotation”. As a consequence of this decision in Venkataramana v. State of Madras, 1951 SCJ 318 : (AIR 1951 SC 229) the Government by G.O.Ms 3199.Home dated 11-8-1951 appointed him in a vacancy which had occurred by that time as a consequence of some resignations.
8. Similarly, K.H Bhushana Rao was also appointed. These persons appointed began to discharge their duties as District Munsifs, when in 1953 as a consequence of the formation of the Andhra State and the subsequent decision of the Andhra State to have a separate High Court, 29 candidates from among the list of District Munsifs selected by the Madras Public Service Commission were allotted to the Andhra State by G.O.Ms 564 dated 7-6-1954, under the President's Notification S.R.C 26-4-53 dated 10-10-1953.
9. It was specifically stated that all of them would commence probation and that their services would be regularised from the dates mentioned against each name in column No. 3 thereof. It is contended that out of the 29 District Munsifs whose services were sought to be regularised in the aforesaid G.O two of them, viz., K.H Bhushana Rao and B.V Venkataramana, were not among the 83 candidates selected by the Public Service Commission; that the said two officers ought not to have been ranked along with the other 27 officers; that their recruitment must be regarded as a subsequent recruitment as they were not selected by the Service Commission, that in the aforesaid G.O.K Bhushana Rao and B. Venkataramana and another Y. Sri Krishna Murthy who entered service on 26-6-1951 were placed above diose who were appointed and entered service much earlier than those three officers.
10. Further, the services of some other officers who were appointed much earlier than Y. Srikrishna Murthy but were placed below him in the G.O were sought to be regularised from the same date, viz. 26-6-1951, with the result that the service put in by those officers prior to 26-6-1951 was not counted for probation. Similarly, because B. Venkataramana entered service on 6-10-1951 and his services were regularised as from that date, the service of some other officers who entered service much earlier than he did, but who were placed below him in the aforesaid G.O were sought to be regularised, as a result of which the service put in by those officers prior to 6-10-1951 was not counted for probation.
11. The effect of this G.O if implemented, it is contended, would be that those who were juniors would become seniors and vice versa. In accordance with this G.O the High Court on the administrative side declared that all the petitioners completed their probation, and took the dates fixed by the Government in the aforesaid G.O for regularisation of their services as the starting point of their probation, as a result of which the petitioners and others suffered loss of service and were adversely affected by the postponing of their increments due to a delay in the completion of their probation.
12. In order to facilitate a better understanding of the several contentions raised in this behalf, the relevant portions of the three notifications under which the 12 service candidates and 45 and 26 direct recruits were appointed may now be stated. With reference to the 12 service candidates appointed under G.O.Ms 2440 dated 25-5-50, the Governor of Madras relaxed the training prescribed in Rule 3-A of the Madras Subordinate Civil Judicial Service Rules, hereinafter referred to as the Rules in favour of the 12 candidates specified therein so as to enable them to be appointed as District Munsifs without undergoing the said training.
13. They were accordingly appointed to act as District Munsifs temporarily. Clause 2 of the Notification specified that appointments referred to in para 1 were made on a purely temporary basis, and that the appointees were not to be regarded as probationers in the service nor were they entitled by reason only of such appointment to any preferential claim to future appointment in the service.
14. A Notification was accordingly published in the Gazette to say that these persons were to act temporarily as District Munsifs. By G.O.Ms 3201 dated 13-7-1950, Rule 8(b) of the Rules relating to the special qualifications was relaxed in favour of the 12 candidates. Similarly, the Governor relaxed the training prescribed under Rule 3-A with respect to the 45 direct recruits named therein so as to enable them to be appointed as District Munsifs without undergoing the said training. These persons were accordingly appointed to act as District Munsifs temporarily. Clause 3 of this Notification was in similar terms to clause 2 of the previous notification in that it laid down that appointments referred to in para 2 were made on a purely temporary basis and the persons so appointed shall not be regarded as probationers in the service or be entitled by reason only of such appointment to any preferential claim to future appointment to the service. Subsequently, by another notification 5027 dated 25-11-50, 26 direct recruits were appointed and with respect to them six of them who required exemption under 8(b) of the Rules were granted exemption and all of them were granted exemption under Rule 3-A.
15. The provision relating to training prescribed in Rule 3-A was relaxed though it was stated that the candidates exempted from undergoing the training may undergo the training until the actual need for posting any of them arises, when the candidates concerned may be withdrawn from training and posted and that they were to undergo magisterial training first and then revenue inspection and survey training. These persons were also appointed temporarily and by clause (3) it was made clear as in the previous notification that they shall not be regarded as probationers in the service or be entitled by reason of such appointment to any preferential claim to future appointment to the service.
16. The learned advocate for the applicants contends (a) that the appointments made by the Government were not temporary appointments within the meaning of Rule 7-A of the Rules; as such once they were appointed under the provisions of the said Rules, they will be deemed to have commenced probation and acquired vested rights; (b) that the Supreme Court did not set aside the appointments already made, as such they must be deemed to have confirmed those appointments, (c) that the Government by their subsequent G. Os in toal disregard of the Rules and the rights of the petitioners arbitrarily fixed the dates of probation; (d) that the Rules made in Section 241 of the Government of India Act corresponding to Article 309 of the Constitution which rules, after the inauguration of the Constitution were kept in force by virtue of Articles 313 and 372 of the Constitution have been infringed; (e) that even if the orders are considered to be administrative orders, the decision taken by the Government is such that no reasonable person would have taken it; (f) that different dates fixed for the commencement of probation for different persons is unwarranted discrimination and affects the fundamental rights of the petitioners under Article 14 of the Constitution; and (g) that non-publication of clause 3 of the notification and the omission to communicate it to the petitioners vitiates the order.
17. For the aforesaid reasons, the learned advocate seeks to have the impugned order declared void and illegal and as not binding on the petitioners.
18. The learned Advocate-General on the other hand contends that the communal G.O had been in existence since 1945 and had been incorporated in the Rules as Rule 6; and that immediately on the inauguration of the Constitution on 26th January, 1950 an application challenging this G.O was made on the 7th June, 1950 with reference to its application to admissions to the Medical College.
19. As soon as this attack was made on the very principle governing the communal G.Os whether pertaining to the admissions to educational institutions or services the Government was put on notice that its future appointments would equally be challenged as offending the provisions of the Constitution and there was a danger of their being set aside.
20. For this reason, the Government made all appointments purely temporary so as to enable it later, if need be, to readjust these matters in the light of any decision which may be given by the High Court or by the Supreme Court. In furtherance of this policy of caution, the appointments were made oil a temporary basis after consultation with the High Court and that, not being content merely by saying that appointments were temporary, it was again made abundantly clear that the appointments were made on a temporary basis and that these do not carry with them any probationary rights or any preferential claim to future appointment to the service.
21. He further contends that on 28th July, 1950 the High Court of Madras in Dorai Rajan v. State of Madras, AIR 1951 Mad 120 (FB) declared that the communal G.O relating to the admissions to colleges was unconstitutional and this was confirmed in appeal by the Supreme Court in State Of Madras v. Srimathi Champakam Dorairajan, AIR 1951 SC 226 and the one relating to appointments was declared void by the decision in 1951 SCJ 318 : (AIR 1951 SC 229). The learned Advocate General submits that the Supreme Court did not bless the appointments already made under the communal G.O as alleged, but were merely concerned with giving a direction with respect to the petitioner in that case viz., Venkataramana.
22. The Government was therefore not precluded from readjusting the position in the fight of the decision of the Supreme Court which cut at the very root of the communal G.O by declaring it to be unconstitutional. That being so, the Government by G.O.Ms 2432 dated 27-9-1951 after setting out the considerations impelling them to change the basis of the appointments, directed necessary amendments to the rules and it is on the basis on the principles laid down therein that the dates on which the probation was to commence were readjusted.
23. It is submitted that even if the Government did not expressly say that appointments did not carry probationary rights, the Government could, whether the appointments were regarded as temporary or under Rule 10, readjust the probationary period having regard to the fact that the basis of the appointment was held to be invalid. The contention is that the Government could have easily cancelled all the appointments and re-advertised and selected, but what they did in fact was equitable and fair not only by implementing the decision of the Supreme Court but by causing little hardship to the persons already selected.
24. The learned Advocate General argues that no vested rights could accrue under a G.O which has been held to be void as offending the provisions of the Constitution, that the power of appointment is inherent in the sovereignty of the State and is not governed by any of the provisions of the Constitution, but what is provided is that once an appointment is made it should be during the pleasure of the State subject to the constitutional safeguard against removal, dismissal or reduction in rank and that, at any rate, the fixation of seniority does not come within the safeguard provided under Article 311 of the Constitution. Finally, he contends that these writs have been filed 4 years and 6 months after the impugned G.O and ought to be dismissed as being barred by limitation and laches.
25. The main question in these petitions is whether the appointments are temporary and whether they carry with them the rights of probation. The learned Advocate for the petitioners does not deny that the Government has a right to make such appointments under Rule 7-A and if those appointments are to be considered as being made under that Rule, he concedes that the petitioners cannot claim any probationary rights and cannot therefore validly question the impugned order.
26. Before considering the several other contentions, it would be appropriate first to deal with this main question. In order to enable us to do so, we may briefly examine the relevant provisions of the Rules. Under Rule 1(b) a person appointed to the service has been defined as one who in accordance with these rules discharges for the first time the duties of a post borne on the cadre of the service or commences the probation prescribed for members thereof.
27. An approved candidate is one who is included in any list or lists prepared by the Madras Public Service Commission under sub-section (2) of Section 255 of the Government of India Act, 1935 and an approved probationer has been denned as a member of the service who is declared under sub-rule (d) of Rule 12 to have satisfactorily completed his probation. Probationer in service is one who is neither a full member nor an approved probationer. R. 3-A provides for training of the approved candidates who are required to undergo before appointment to the service such training as may be prescribed by the Government.
28. Rule 5 lays down that a vacancy in a category of the service shall not be filled by the appointment of a person who has not yet commenced his probation in such category when an approved probationer or a probationer therein is available for such appointment. In other words, where there are approved probationer or probationers, other persons cannot be appointed. The rule is in the negative, prohibiting the Government from doing a particular thing unless certain categories of persons are not available. Rules 6 and 7-A are in the following terms:
RULE 6: “Communal Representation:— (a) Appointment of District Munsifs (including the Registrar of the Small Causes, Madras) shall, so far as qualified and suitable candidates of the communities are available, be made in the following order: viz.
One Non-Brahmin (Hindu). One member of the Schedule Castes. One Muhammadan One Non-Brahmin (Hindu). One Non-Brahmin (Hindu). One Muhammadan. One Anglo Indian or Christian or Non-Asiatic. One Non-Brahmin (Hindu). One Brahmin One Anglo-Indian or Christian or Non-Asiatic. One Non-Brahmin (Hindu) One Brahmin.
Explanation: The expression “Non-Brahmin (Hindu)’ shall include every community other than the Brahman, the Muhammadan, the Anglo-Indian, Christian or Non-Asiatics, and the Scheduled Castes.
(b), If a qualified and suitable candidate belonging to any community is not available for appointment in the turn allotted to that community under sub-rule (a) or under this sub-rule, a qualified and suitable candidate belonging to the community next in the order specified in sub-rule (a) shall, if available, be appointed; but the former community shall have a preferential claim for consideration when any subsequent appointment is to be made, until a suitable and qualified candidate belonging to that community has been appointed against that claim.
(c) Where a probationer belonging to any community is discharged under sub-r. (e) or (f) of R. 12 such community shall have a preferential claim for consideration when any subsequent appointment is to be made, until suitable and qualified candidate-belonging to that community has been appointed against that claim.
(d) If, when an appointment is to be made, there are two or more communities having a preferential claim under sub-rule (b) or (c) that community shall receive first consideration whose preferential claim arose first.
(e) Nothing contained in these rules shall apply to appointments to the vacancies which under the Madras Civil Services (War Service Personnel) Recruitment Rules, 1941, have been reserved to be filled by persons who have rendered war service.”
7-A. “(1) Temporary appointments of District Munsifs — Notwithstanding anything contained in Rules 5 and 6 where the appointment of a person in accordance with those rules would involve excessive expenditure on travelling allowance or exceptional administrative inconvenience, any other person in the list of candidates selected by the Madras Public Service Commission may be appointed. A person appointed under this rule shall not be regarded as a probationer in the service or be entitled by reason only of such appointment to any preferential claim to future appointment to the service.
(2) Where it is necessary to fill a short vacancy in a post borne on the cadre of a higher category in the service by promotion from a lower category and the appointment of the person who is entitled to such promotion under the rules would involve excessive expenditure on travelling allowance or exceptional administrative inconvenience, the appointing authority may promote temporarily any other person who is qualified. A person so promoted shall not be regarded as a probationer in the higher category or be entitled by reason only of such promotion to any preferential claim for future promotion to such higher category.”
29. As will be seen from Rule 7-A(1) temporary appointments of District Munsifs can be made in two eventualities; (1) if it is likely to involve excessive expenditure on travelling allowances; or (2) exceptional administrative inconveniences. If an appointment is made for any of these reasons., the person so appointed is not to be regarded as a probationer in the service or be entitled by reason only of such appointment to any preferential claim to future appointment to the service. The power to be exercised under this rule is not any way fettered by Rules 5 and 6.
30. It is admitted that the appointments were not conditioned by any consideration of excess of expenditure of T.A because the new recruits had to join duty at their own expense. The contention of the Government, however, is that the initial appointments were made under Rule 7-A because of administrative inconvenience which may result from communal G.O being declared illegal or void and that the question whether there was administrative inconvenience or not for the purpose of exercise of powers vested under Rule 7-A is one which must be determined upon a subjective consideration, and is not justiciable. At any rate, the stand taken by the Government, it is said, is itself proof of the administrative inconvenience, which was felt at the time when the temporary appointments of District Munsifs were made.
31. We now propose to examine these contentions. In G.O.Ms No. 2332, it is stated in paragraph 1 that the Government after carefully examining the Judgment of the Supreme Court in 1951 SCJ 318 : (AIR 1951 SC 229) regarding the validity of G.O 3437, Public (Services) dated 21-11-1947 according to which appointments to the public services in the State were reserved for qualified and suitable members of the communities specified in the G.O considered that appointments cannot be reserved under Article 16 of the Constitution for any community other than the Harijans and Backward Classes.
32. In view of this, the Government decided to change the basis of recruitment which was henceforth to be based on the results of a competitive examination comprising of a written test or an oral test, in the shape of an interview only, or both written and oral tests, as the case may be, as may have been prescribed for selection to the services and posts concerned and in other cases on the basis of the previous record of the candidate taking into consideration also the recommendation of the Head of the Department concerned.
33. Where selection is made on the basis of a competitive examination including an interview, the selecting authorities will also take into account the activities of a candidate in sports and in the National Cadet Corps and also his general physique and aptitude for the service or post concerned. In paragraph 2, they stated that recruitment to some of the services and posts in the State was heretofore made on a rotation basis, but consequent on the change in reservations ordered in paragraph 1, it has become necessary to change the order in which appointments by rotation have to be made.
34. The Government decided to change the order or rotation as shown therein in every cycle of 20 vacancies. The orders set out above were to come into force immediately and that in the case of representation by rotation the rotation should start afresh, the start being made with the first selection or appointment to be made after the date of the order and begin at the first turn in the cycle, namely, the turn reserved to be filled by open competition. It is unnecessary to deal with the further details except to say that it was notified that necessary amendments to the service rules would be issued separately.
35. The learned Advocate General submits that the principles adumbrated in the G.O referred to above though applicable to future cases were nonetheless applied by the Government to the appointments already made. It appears that the Government before finalising orders in the impugned G.O consulted the Public Service Commission and High Court and acted according to their advice, as such we do not find any cause for assuming that the Government has attempted to exercise an uncontrolled and unbridled power, but it was purported to be made in compliance with certain policies which the Government adopted in the light of the judgment of the Supreme Court.
36. The appointments made were temporary and the only temporary appointments contemplated under the Rules are those under R. 7A. No other temporary appointment is envisaged nor have the learned advocates of the parties been able to show that the word ‘temporary’ has been defined anywhere for purposes of these rules; or that the word ‘temporary’ in relation to the persons appointed would imply that these persons would be probationers.
37. It is true that the relevant paragraphs in the respective Government's G.Os stating that no probationary rights would accrue to the appointees or that they would be entitled by reason only of such appointment to any preferential claim to future appointments to the service, were not published in the Gazette Notification, nor were these communicated to the concerned candidates. But as we said, there is nothing to show in any of the rules that the appointments as gazetted, namely, that they were temporary, gave them any right of probation.
38. Temporary appointment specified in the Gazetted orders could in our view imply that those appointments were made under R. 7-A and it made under that order, the persons so appointed “were not be regarded as probationers in the service or be entitled by reason only of such appointment to any preferential claim to future appointment to the service.”
39. There is no doubt in our minds that the Government when it specified in the relevant paragraphs of the G. Os., referred to above that the persons appointed under those G. Os shall not be regarded as probationers in the service or be entitled to any preferential claim to future appointment to the service was merely repeating the last sentence of Ride 7-A(1) and consequently manifesting a clear intention to exercise powers under R. 7-A.
40. When there is a power under any rule and an appointment is made which relates to that power, in our view, that appointment must be deemed to have been made under that power and is a valid one if the conditions set out therein are complied with. The conditions set out in R. 7-A for making temporary appointments are (a) that it should involve expenditure on travelling allowance or (b) exceptional administrative inconvenience.
41. But the learned Advocate for the applicants contends that these are justiciable matters and nowhere has the affidavit filed on behalf of the Government stated that those appointments were made due to administrative inconvenience, consequent on the outcome of the challenge of the communal G.O The question is — Does Rule 7-A impose exercise on the Government of a judicial function or whether the conditions imposed are jurisdictional facts?
42. The learned Advocate General submits that the functions envisaged under Rule 7-A are administrative functions, the act of the Government is not a judicial act; nor is there any duty cast to act judicially and consequently the question whether there are exceptional administrative conveniences or not is not a justiciable matter.
43. The learned advocate for the petitioners has referred to certain American and English Cases J. United States of America v. State of West Virginia, (1935) 79 Law Ed 1546. Wichita Railroad and Light Co. v. Public Utilities Commission, (1923) 67 Law Ed 124 at p. 125 and R. v. Board of Control, 1956-1 All ER 769 at p. 771 and Narayanaswami Naidu v. Inspectol? of Police, Mayavaram, 1949-1 Mad LJ 1 at pp. 33 and 34 : (AIR 1949 Mad 307 at pp. 332 and 333). (FB) and Smith v. East Elloe Rural District Council, 1956 AC 736.
44. He has further referred to certain passages from the Principles of Administrative Law by Griffith and Street and the Introduction to Administrative Law by James Hert to show that the administration cannot do what it pleases; it can only do that which it has power to do and in this sense its power is not arbitrary. It is the law that binds the administration.
45. None of the cases cited, in our view, can be of assistance because all those cases either deal with delegated legislation or orders of arrest and detention or orders of reception which depend upon the existence of certain jurisdictional facts. The case of (1935) 79 Law Ed. 1546 is one that deals with the question of delegated power, which necessitates an enquiry as to whether the exercise of the power was within the limits of delegation. (1923) 67 Law Ed 124 at p. 125 involves the consideration of rights, that is, it is a case of imposing a liability by substituting new rates for old rates and the power have to be exercised after due inquiry and after a finding. 1956-1 All ER 769 at p. 771 is again a case where the Statute imposed (a duty?) upon the authority exercising the power to first give a finding on the question whether the person to be committed to the mental house was ‘found neglected.’
46. This is a case where the reception order made under the Mental Deficiency Act in England on the ground of the person “being found neglected” within the meaning of the enactment was challenged. The Judicial Authority who was vested with that power had before him by way of evidence not only the statutory declaration stating that the applicant was subject to the Acts because she was “found neglected” but also such facts concerning her as the petitioner put before the judicial authority to substantiate the allegation on the occasion when the order was made.
47. It was held that there was no evidence before the judicial authority on which he could properly have decided that the applicant was found neglected and her discharge would be ordered. That was a case in which the liberty and freedom of a subject was involved and the Act authorised the detention and deprivation of that liberty in the case of only such mental defectives as were specified therein. It did not propose to authorise detention of all mental defectives however circumstanced.
48. The exercise of the power of making a reception order was dependent upon the judicial authority satisfying himself that the person to be detained was found neglected. The enquiry was therefore to be by a judicial enquiry and involved the duty to decide whether the circumstances of the petitioner who was the subject of the petition were such that on a proper construction of the words in the Statute that person ought to be found to come within the ambit of those words.
49. The case of 1949-1 Mad LJ 1 at p. 33 : (AIR 1949 Mad 307 at p. 332) (FB), is also one which involved the deprivation of the liberty of the subject under the Madras Maintenance of Public Order Act. But even in that case the Full Bench held that once duly authenticated order or detention was produced, it must be taken prima facie to have been properly made and that the requisite as to the belief of the Government or the detaining authority was complied with.
50. 1956 AC 736 is a case of the administrative authority exercising delegated powers of compulsory purchase. This case also does not assist the petitioner. There is no question of deprivation of liberty or exercise of delegated power or detention order or reception order which is under consideration. In our view, no question of any vested right also arises in this case inasmuch as it cannot be said that the appointments even if made could be questioned on the basis of the communal G.O which has been declared to be invalid by the Supreme Court.
51. Their Lordships no doubt observed that as a result of their judgment, they do not direct the Public Service Commission to cancel the selections already made in so far as the candidates selected have already taken charge of their posts. The order had necessarily to be in these terms because persons who have already taken charge were not before their Lordships and no order passed in that case could have affected them as they were not heard.
52. That is quite a different thing from saying that their Lordships approved of their appointments as being valid. At any rate, when the petitioners come to this Court basing their vested rights upon appointments made under a communal G.O which has been held invalid, we cannot, having regard to the basis of the judgment which holds the communal G.O to be invalid, declare that the appointments made under the G.O are valid. That would have the effect of quashing the G.O of 7th June, 1954 and directing the Government to restore appointments made under the communal G.O
53. Secondly the power which has been conferred upon the Government under Rule 7-A to make temporary appointments is an administrative power depending upon the subjective consideration of the Government, which is not justiciable. Learned Advocate for the petitioner, Shri Lakshmaiah, contends that there is no administrative inconvenience, because the communal G.O which was attacked at the time when the appointments were made was not the communal G.O relating to appointments, but was merely confined to admissions to educational institutions, nor was the G.D attacked as offending Article 16, but was challenged under Articles 15 and 29(ii).
54. This contention, in our view, does not fully comprehend the position taken by the Government, in that, what is sought to be contended is that the policy underlying the communal G.O, whether it related to educational institutions or services, was under fire and there was a likelihood of its being held void and invalid by reason of the provisions of the Constitution which secured certain fundamental rights to the citizens of this country.
55. It is, therefore, immaterial whether the attack was on the communal G.O relating to admissions or that relating to services. The apprehension of the Government was real and therefore it constituted an administrative inconvenience. Apart from this clearly visible exigency which might have impelled the Government to make temporary appointments, the Government has always the right to appoint persons temporarily for administrative reasons or convenience.
56. It is seen that this practice of appointing persons temporarily continues even now, and it is not denied that such appointments were made in the past without any demur. The policy appears to have been to appoint all direct lecruits or service recruits temporarily in the first instance under R. 7-A. The exercise of the executive authority in relation to appointments under Rule 7-A depends upon the satisfaction of the Government as to the existence of administrative convenience. In the famous case of Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222, it was stated that it cannot be said that merely because the determination of a fact affects right of parties, the decision is a quasi-judicial one.
57. The word ‘quasi-judicial’, their Lordships stated, necessarily implies the existence of judicial approach in the process leading to the decision. Because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. Where the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative nature and are not amenable to the writ of certiorari.
58. The position seems to be that when the law under which the Court is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. In that case the existence of a public purpose for requisitioning of property under Sec. 3 of the Bombay Land Requisition Ordinance V of 1947, was held not to be a judicial or a quasi-judicial decision, but that it was executive.
59. Mahajan and Mukherjea, JJ. dissented from the conclusions of the majority judgment of Kania, C.J and Fazl Ali, Patanjali Sastri and Das, JJ. Mahajan, J. approving the observations of Das, J. in Re: Banwarilal Roy, 48 Cal WN 766 that the nature of the act under consideration depended mostly on the scope and effect of the particular power conferred in exercise thereof and that the exercise of the jurisdiction to issue a writ of certiorari in application of the abstract proposition to the circumstances of each case varies according to the foot of the Chancellor, laid down that the question whether any act is ministerial or judicial depends on the facts and circumstances relating to each case.
60. Mukherjea, J. said that “Leaving aside the cases, where the existence of a duty to act judicially is sought to be inferred from the provisions of a statute relating to holding of enquiry or hearing objections the general rule that all the cases lay down is that if the foundation of the exercise of the powers by an authority is his personal satisfaction or subjective opinion about certain facts, the function is to be regarded as executive and not judicial”. In the Full Bench decision of Ahmedun-nissa Begum v. State of Hyderabad, ILR 1952 Hyd 595 : (AIR 1952 Hyd 163) which considered the several cases, one of us observed at page 657 (of ILR Hyd): (at p. 182 of AIR) as follows:
“——The definitions laid down by Atkin, L.J and Slesser, L.J and as approved by Kania, C.J in AIR 1950 SC 222, restrict rather than define the two main questions, viz., what is a right and when has an authority a duty to act judicially. In Nakkuda Ali v. Jayaratne, 54 Cal WN 883 (PC) their Lordships of the Privy Council in a restatement of the rules of English Common Law relating to the prerogative writs, held that a decision of a Textile Controller cancelling a Licence without appeal and which was not subject to an appeal, was an administrative and not a quasi-judicial action. It is not easy in these circumstances to reconcile the decision in Rex v. Electricity Commissioners, 1924 KB 171 with the decision of the Privy Council. If the decision of the Electricity Commissioner affected an individual right, then a fortiorari the decision of the Textile Commissioner affected far more directly the right of a textile dealer to trade. However, the criterion which was held to apply in the above decision of the Privy Council is not the general status of the person or body of persons by whom the impugned decision is made but the nature of the process by which he or they are empowered to arrive at their decision. Their Lordships held that the requirement for the controller to have reasonable grounds of belief for cancelling a licence are insufficient to oblige him to act judicially and were of the opinion that the decision in Liversidge v. Anderson, 1942 AC 206 did not lay down any general rule as to the construction of such phrases “has reasonable grounds to believe” and that no general principle was involved in that case.”
61. In the latest case of Radheshyam Khare v. State of MP, 1959 SCJ 6 : (AIR 1959 SC 107) where the action of the State Government under Section 53-A of the C.P and Berar Municipalities Act (11 of 1922) suspending the Municipal Committee on the ground that the Committee was not competent to perform the duties imposed on it or undertaken by it, was challenged. The question was whether the exercise of the power by the Government under Sec. 53-A in suspending the Committee was administrative or quasi-judicial and whether a writ of certiorari would lie.
62. Bhagwati, J. thought that it was not necessary to determine this question, because in fact the Government had instituted an inquiry against the Committee and its President and gave full opportunity to both of them to defend themselves. Das, C.J.S.K Das and Kapur, JJ. held that the Government was only discharging an administrative function.
63. It was argued before their Lordships that action under Sec. 53-A can only be taken if (1) the Municipal Committee is not competent to perform its functions, and (2) the State Government considers that a general improvement in the administration on the municipality is likely to be secured by the appointment of a servant of the Government as the Executive Officer of the Committee, and that when both these conditions are fulfilled, then and then only the State Government can make an order under that section.
64. The several tests repeatedly laid down for determining as to what constitutes a quasi-judicial act and what constitutes an administrative act, arises in widely different circumstances and are not susceptible to a clear cut or precise definition. A great deal depends upon the approach that is required in exercising a particular function, such as, as pointed by S.K Das, J., whether there is a his inter partes, whether there is a claim (or propositon) and an opposition, whether a decision has to be found on the taking of any evidence or on affidavits, or whether the decision is actuated in whole or in part by questions of policy of expediency and if so whether in arriving at the decision, the statutory body has to consider proposals and objections and evidence, or whether in arriving at its decision the statutory body has only to consider policy and ex-pendiency and at no stage has before it any form of lis.
65. These are some of the considerations which are taken into account based on the dicta of English cases where fundamental rights such as have been written into our constitution do not fall for decision and whether Parliament alone is supreme. Even so, applying any of these tests it can hardly be said that the Government were called upon to determine any lis or to make any enquiry, nor was there any obligation to judicially determine any jurisdictional facts before temporarily appointing persons under Rule 7-A.
66. Learned Advocate further contends that if the appointments were made under Rule 7-A, there was no necessity for relaxing the rules regarding training and special qualifications; but we are unable to understand the force of this contention, because under Rule 7-A temporary appointments can be made notwithstanding anything contained in Rules 5 and 6. In spite of that, there is nothing that prevented the Government from appointing persons temporarily following the chain of rotation under this Rule 6 prior to its being declared void or the inhibition under Rule 5.
67. The power under Rule 7-A was merely conferred on the Government in order to facilitate its exercise whenever it found it necessary to avoid conferring rights upon the appointees which would accrue had the appointments been made under the other relevant rules. In these circumstances if the Government waived the qualifications under Rule 3-A or the qualification bar under Rule 8 that by itself could not preclude it from appointing them under Rule 7-A.
68. Learned Advocate General contends that apart from the power of the Government to make appointments under Rule 7-A they have a prerogative right to appoint a servant which is inherent in the sovereign power of the State and that no rule is necessary to confer the power of appointment upon the executive. In support of this he referred to the cases of Nohiria Ram v. Union of India, AIR 1958 SC 113 and Ram Jawaya v. State of Punjab, (S) AIR 1955 SC 549. He further contends that there is nothing in Articles 309 and 310 which has the effect of conferring any power of appointment upon the executive and that once an appointment is made, it is during the pleasure of the Government subject to the safeguard provided in Article 311 of the Constitution.
69. This argument in effect raises the question whether the executive in India possesses the inherent power under the Constitution. Shri Lakshmaiah on the basis of the Steel Seizure Case — Youngstown Sheet and Tube Co. v. Charles Sawyer, (1952) 96 Law Ed 1153 contends that unless the executive was authorised by law, it has no inherent power and cannot act or appoint any person. In other words, his argument is that the executive cannot arrogate to itself any power for which there is no specific legal authority.
70. In any case, Article 309 itself would in his submission, show that the appointments should be made under rules or a statute of the appropriate legislature, and in so far as the judiciary is concerned the appointment other than District Judges should be made in consultation with the State Public Service Commission and the High Court exercising jurisdiction in the State, so that appointments according to him, are not within the unfettered or prerogative right of the Government.
71. These are to be made in accordance with rules or statutory provisions if any, made by the appropriate legislature in consultation with the Public Service Commission or the High Court. It is further contended that Rule 7-A is only applicable to service candidates and if it is deemed to be applicable to direct recruits, the exercise of the power being inconsistent with Article 234, must be struck down. In the case of (S) AIR 1955 SC 549 the Supreme Court after adverting to the functions of a modern state, pointed out that there is nothing in Article 162 or Article 73 which indicates in any manner what the executive function is and what activities would legitimately come within its scope.
72. They are primarily concerned with the distribution of the executive power between the Union on the one hand and the State on the other. There is nothing in these articles which restricts the power of the executive; but on the other hand these articles clearly indicate that the power of the State executive did extend to matters upon which it is either the Parliament or the State Legislature that is competent to pass legislation. Dealing with the dissent expressed by G. Agarwal, J. in Motilal v. Government of the State of Uttar Pradesh, AIR 1951 All 257 (FB) it was observed that his view that the State Govt., had no power to carry on the trade or business of running a bus service in the absence of a legislative enactment, was too narrow and unsupportable. Mukherjea, C.J at page 555 spoke thus:
“It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.
‘The Indian Constitution has not indeed recognised the doctrine of separation of powers in the absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature.
“It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the Constitution, but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws.”
73. The case before the Supreme Court was concerned with the state carrying on trading activities and in fact to be more precise, it dealt with carrying on of business of printing, and publishing of text books by the State of Punjab. There was no legislation authorising the State to set up trading in books. The reasoning of the Supreme Court as stated by Mukherjea, C.J was that under Article 298 of the Constitution the power to trade is expressly vested in the Government; as such without any legislation authorising, the Government can enter into contracts with others for carrying out the work concerned.
74. If the printing of books involves the expenditure of money and the Appropriation Act for that year shows this item of expenditure, that affords a complete answer to the objection that monies out of the Consolidation Fund cannot be expended without the law under Article 263 of the Constitution. In dealing with the question of the executive exercising its right of setting up trading activities, the learned Chief Justice observed:
“…….It is true that the Appropriation Acts cannot be said to give a direct legislative sanction to the trade activities themselves. But so long as the trade activities are carried on in pursuance of the policy which the executive Government has formulated with the tacit support of the majority in the legislature, no objection on the score of their not being sanctioned by specific legislative provision can possibly be raised:
“Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business.”
75. If this reasoning is right, then it is in a way conceding that the executive has no inherent right because the postulate is that the Government has formulated a policy with the tacit support of the majority in the Legislature, which ultimately will be confirmed, in that the expenditure relating to the carrying on of that business finds a place in the appropriation bill which ultimately becomes law. In other words, it is the law that really enables the Government to trade by providing it with the necessary funds. This aspect of the case, however, was considered to be “to some extent academic.”
76. Probably as a consequence of this decision, the Constitution was amended to permit trading by the State. The hope of the protagonists of the doctrine of Rule of Law as negativing the inherent powers of the executive, is thus kept alive, and the reference to the decision and the dicta in the Steel Seizure Case, (1952) 96 Law Ed 1153 has been persuasively relied upon as negativing any such right under the Indian Constitution. In that case on the 8th April, 1952 President Truman directed his Commerce Secretary to take over all steel industries or the entire nation and operate the same in view of the threatened strike which was likely to jeopandise the war effort in Korea.
77. The steel industry challenged this action as not being authorised by law, while the administration sought to support it on the basis of its inherent right of the President as Commander-in-Chief of the Armed Forces. The further contention was that the executive power was restrained only by the Constitution and by the laws of the Congress and that in the absence of restrictions or prohibition of this nature, the President could rely on inherent power.
78. This contention was categorically rejected by the Supreme Court which empahatically laid down that there was no inherent power vested in the President to take possession of property without paying compensation. The president's power, if any, to issue an order stems either from an Act of the Congress or from the Constitution itself or must arise as a direct implication from any of these provisions.
79. Shri Lakshmaiah has further cited a number of English and American authorities including passages from famous authors like Allen, Willoughby, Mc Laughen, Mcwain, Jennings, Griffiths, Black-stone, Halsbury's Laws of England and Stevens Commentaries on the Law of England. Apart from the need to be wary and cautious while considering English and American decisions and the observations of eminent authors pertaining to those Constitutional Provisions, inasmuch as the provisions of our Constitution vary in several respects, in our view, however interesting, novel and new a Constitutional argument may be, and whatever be the mesmeric influence over the popular mind, an expression of opinion should be avoided if the matter can be disposed of ‘within the narrow domain of appropriate adjudication.’
80. We cannot do better than to adopt the iorcelul expression of Felix Frankfurter, J. in the Steel Seizure case, viz. that
“the basic rule is the duty of the Court not to pass on a Constitutional issue at all however narrowly it may be confined, if the case may as a matter of intellectual honesty, be decided without even considering the delicate problems of power under the Constitution…… Rigorous adherence to this narrow scope of the judicial function is especially demanded in controversies that arouse appeals to the Constitution.”
81. In the circumstances, having regard to our views already expressed, it is in our opinion unnecessary to embark upon an enquiry as to whether the executive has an inherent or residual power inasmuch as in this case the rules made under the statutes which are saved by the Constitution, empower the Government to exercise certain powers of appointment and that the impugned appointments were made under those rules.
82. The further contention that there being a conflict between Rule 7-A and Article 234, the, former should be struck down, cannot be accepted inasmuch as there is nothing in Rule 7-A which prohibits the Government from conforming to the provisions of the Constitution. As such the rule is not inconsistent with Article 234. The manner in which the Government sought to implement this policy was to take merit into consideration and for this purpose the Public Service Commission and the High Court were consulted and there was material before the Public Service Commission to draw up a list of candidates according to their merit and in consultation with the Public Service Commission and the High Court, the Government revised the dates of commencement of their probation.
83. When a general principle such as the above has been adopted by the Government aimed at achieving a just and equitable treatment to all those that appeared at the interview and selected, ignoring any special privileges by reason of their belonging to any particular caste, it cannot be said that such an action offends Article 14 of the Constitution.
84. In view we have taken that the appointments were made under Rule 7-A on a temporary basis without conferring any probationary rights, the Government could vary the dates of commencement of the probation, which it did in order to give effect to the new approach and outlook envisaged by the Constitutional provisions conferring fundamental rights.
85. Learned Advocate General submitted that even in cases where appointments are permanent, fixation of seniority inter se does not amount to a punishment within the meaning of Article 311. In support of this contention he cites the cases of Devasahayam v. State of Madras, 1958-2 Mad LJ 879 : AIR 1959 Mad 1, and Sambandhan v. R.T Suptd. S. Rly., AIR 1959 Mad 68 but in the view we have taken, it is unnecessary and immaterial to determine this issue.
86. Lastly, an argumentum ad miseri cordium was advanced namely, that the appointees would lose all their service if their probation is to start from a date long after they took charge. Representation of a similar nature made by the appointees to the Madras Government resulted in a re-examination of the orders passed in the light of the letter received from the High Court of Madras.
87. The Government of Madras in G. Os. Ms. No. 3561 dated 15th December, 1955 and 2297 dated 11th August, 1956 said that while they considered that the ranking fixed in the list prepared by the Madras Service Commission should not be interfered with, in order that the persons recruited may not suffer, the past service of candidates recruited as District Munsifs in 1950 and 1951 be counted for purposes of increment without prejudice to their seniority already fixed.
88. That the Government of Andhra Pradesh would extend a similar concession to the Munsifs recruited at that time and transferred to the Andhra Service, we have no doubt. The Advocate General at the very outset stated that if such a concession was the only thing, the Government would consider it. At any rate, so far as pension is concerned, we have been referred to pages 370-71 of the Madras Pension Code which say that the Munsifs are allowed to count as service qualifying for pension the periods, whether continuous or not during which they have held temporary appointments or acting appointments prior to confirmation. In the result, for these reasons as well as for the reason that there are considerable laches, on the part of the petitioners, these writ petitions are dismissed with costs. Advocate's fee Rs. 100/- in each.
JD/R.G.D
89. Petitions dismissed.
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