Mrs. Susan George v. State Opposite Party.

1. This is a petition under Article 226 of the Constitution filed by Mrs. Susan George who is an Assistant Surgeon in the Medical Department of the Respondent, Travancore-Cochin State. It calls in question certain order of Government cancelling a prior order of the Government themselves in her favour for study leave for a period of two years.

2. The facts are not disputed and are as follows: The petitioner is a graduate in medicine and surgery and was appointed as Assistant Surgeon in the State Medical Service on 20-12-1948. By Government Proceedings dated 16-8-1950, she was selected for appointment as Lecturer in Anatomy in the Medical College then started by the State. After about 3 ½ years of service as Lecturer in the College she was transferred to the Medical Department by order of Government dated 15-10-1954. She was relieved from the College in terms of the order on 23-10-1954 but even before that on 22-10-1954, she applied to Government for the grant of 2 years' study leave “on her full salary and such lodging allowance as may be fixed by Government” so as to enable her to take higher qualification in particular clinical subjects in the United Kingdom.

3. In continuation of the application she submitted a memorandum to Government on 29-11-1954 for requisite sanction for working in the Hospitals in the United Kingdom during the leave period. After due consideration of the representations made by the petitioner and in the light of the reports of the Surgeon General, the Principal of the Medical College and the Comptroller and also the rules of the Travancore Service Regulations relating to the grant of study leave, Government by order dated 14-2-1955 granted study leave to the petitioner for 2 years for reasons deatiled in the order, copy of which is filed as Ext. C in the case.

4. The order made it clear that though study leave would not ordinarily be granted to officers of less than 5 years of service, petitioner was being granted the same as a special case, and added that she should serve the Government for a period of five years after return from the study leave.

5. The petitioner had in her application for study leave based her claim for full salary during its whole period on clause 5 of the Circular Ext. A issued from the Office of the State Surgeon General inviting attention to the offer of Government relating to the terms and conditions for the appointment of Lecturers in the Medical College on foot of which petitioner had made her application for selection as a Lecturer.

6. Ext. B, the petitioner's order of appointment as Lecturer dated 16-9-1950 referred however to the provisions of the Travancore Service Regulation in that regard, which meant leave allowance as for ordinary furlough i.e half the average salary. Vide Appendix XI and Rule 213 A. Differing from both Ext. A Circular and Ext. B order of appointment, Ext. I agreement dated 22-9-1950 executed by the petitioner to Government securing the Government's advances to petitioner during her training at Madras before she took charge as Lecturer, did not refer to any detail connected with the study leave.

7. There was thus an apparent conflict with regard to the pay to which the petitioner may be entitled during the period of her study leave. There was also the question of the lodging allowance which had to be fixed in petitioner's case as provided in Rule 9 of Appendix XI of the T.S.R The petitioner accordingly made Ext. H representation to Government on 16-2-1955 about these and further matters, viz., the cost of fee to be paid by her for the course of study and for the examinations which she intended to take and also her passage money to and from the United Kingdom.

8. These two latter matters she raised in view of the condition incorporated in Ext. G order, that she should serve Government for a period of 5 years after return from the study leave. She made further clarification and elucidation by Ext. J memorandum dated 4-3-1955 of all her claims in the several matters of full salary for the two years, lodging allowances, fees for the course of study and for the passage.

9. Ultimately as if in reply to this memorandum Ext. J, Government passed orders dated 10-5-1955 purporting to cancel their prior order dated 14-2-1955 and granting instead combined leave for 2 years of which the first 4 months will be privilege leave and the balance extra-ordinary leave and refusing lodging or other allowance. In the preamble to this order it is said that Government considered that the orders contained in their prior proceedings sanctioning leave for ‘higher studies abroad’ to the petitioner, apparently referring to Ext. G order, were issued “under misapprehension of facts.” This order of 10-5-1955 is filed as Ext. L and it is this order that is impugned in these proceedings.

10. The petitioner availed herself of the privilege leave with effect from 1-7-1955 as preparatory to proceeding overseas for higher studies and has filed this application on 12-7-1955 for quashing Ext. L order dated 10-5-1955 for the purpose in effect of enforcement of the rights conferred on the petitioner in law and under the rules by the previous order dated 14-2-1955 and as claimed in petitioner's representation to Government dated 4-5-1955.

11. The main gounds taken by the petitioner in her affidavit filed along with the petition are

(i) that the order of Government dated 10-5-1955 had been issued without jurisdiction inasmuch as there is no provision of law or rule authorizing Government to cancel study leave once granted;

(ii) that the Government was incompetent to review the order of a prior Government on the ground of misapprehension of facts unless the matter had been reopened on that ground by the prior Government and left to be finally decided by it, and in reality there was no misapprehension of any kind in the prior order;

(iii) that the order in question had proceeded on a total misapprehension of the scope and purport of the prior order which was only for “study leave” and not “leave for higher studies” which made a great difference;

(iv) that the petitioner had been discriminated against to the detriment of her rights seeing that applicants with less claims had been granted the concerned rights; and

(v) that in any view of the matter the order is mala fide and in violation of the principles of natural justice in so far as the petitioner was not given a chance to be heard on her representations or at least as regards extraneous adverse matters freshly brought against her.

12. The mention of prior Government in the grounds above, it should be noted, referred to a change of Ministry during the interval between the first order Ext. G granting study leave and the later order Ext. L cancelling it.

13. The petition is opposed on behalf of the Respondent State by counter-affidavit filed by the Assistant Secretary in the Health Section of the Secretariat. The facts leading to Ext. G order were admitted but the petitioner's assertion in her affidavit that order conferred right on her for lodging allowance, fees or for other sums claimed in her re-presentation of 16-2-1955 is denied. The interpretation of the rule of the Service Regulation relevant to the matter was always within the jurisdiction and discretion of the Government.

14. That being so, Ext. L order of 10-5-1955 could not be attacked as wanting in the authority and jurisdiction. That order was passed after consideration of all relevant facts and rules and in the exercise of its executive functions by Government and as such, was not amenable to proceedings by way of judicial review of the nature prayed for. It was also claimed that there had been no discrimination or mala fides or any occasion for such on the part of the respondent towards the petitioner.

15. It should be mentioned at this stage that Mr. Easwara Iyer, learned Counsel for the petitioner, sought for and obtained leave of Court to raise an additional ground, viz., that there was in reality no order of Government dated 10-5-1955 which Ext. U had purported to communicate. For according to him the draft of Ext. L order had never in fact been submitted to the Minister in charge of the portfolio nor had the approval thereof in any form been obtained for the issue of Ext. L order.

16. The draft was no doubt approved by the Chief Secretary but that approval by itself was insufficient to sustain the issue of Ext. L. Learned Government Pleader in reply has raised the question that inasmuch as Ext. L order is expressed to be issued by the Assistant Secretary to Government by order of His Highness the Rajpramukli it was not open to the Court to question the authenticity of the order to the extent that it is an order of the Government of the respondent State.

17. He referred in this connection to a true copy of Ext. L order as found at page 73 of the concerned File maintained in the Secretariat, for Ext. L was only the copy of the order as extracted for the purpose of communication by the Surgeon General to the petitioner and failed to include the signature portion of the Government order. An affidavit has also been filed on the respondent's side by the Assistant Secretary who has sworn the main counter, to the effect that Ext. L order only embodied certain decision of the Chief Secretary dated 25-4-1955 which had been approved with his initial by the Minister of Health and therefore should be held to be duly authorised. The affidavit referred to particular pages of the file on the matter and undertook its production in court for perusal.

18. The questions that arise for consideration are:

(i) whether Ext. L cannot be said to be an order of Government in the sense that there is no supporting decision of the Minister in charge of the portfolio behind it. Whether even assuming it to be so, judicial enquiry about it is barred for the reason that the order is duly authenticated;

(ii) whether Ext. L as an order of Government is unsupportable to the extent it purports to cancel a prior order in favour of the petitioner;

(a) without jurisdiction and in total misapprehension of facts, or

(b) in mala fide exercise of discretion and against the principles of natural justice.

19. I shall take up the first question as to the authenticity of Ext. L. The preliminary point raised by learned Government Pleader in this connection is on the basis of Article 166(2) of the Constitution and need not detain us long. That provision makes the order immune from challenge on one ground only viz., that the order was not made by the Rajpramukh. It does not oust the jurisdiction of the Court to examine the validity of the order on any other ground e.g where there is a recital purporting to state as fact the carrying out of a condition (necessary for the valid making of the order, whether such condition precedent has in fact been carried out. See Emperor v. Sibnath Banarjee, AIR 1943 FC 75 at p. 92 (A).

20. Similarly where, as in this case the order is aid to embody the prior decision of the Chief Secretary as approved by the Minister and is accordingly claimed to be valid, the question whether such approved decision has really been embodied in the order, in question, can legitimately form the subject of a judicial enquiry. I hold therefore that there is no substance in the preliminary objection.

21. It will be convenient for purpose of considering the merits of the matter to extract here the Chief Secretary's decision of 28-4-1955 as approved by the Minister. It runs as follows:

“I am not in favour of any concession being shown to a person whose records are not satisfactory. In my view even the orders sanctioning leave for higher studies abroad as a special case in violation of the 5 year rule is an unmerited concession. I therefore do not recommend anything further either in the way of passage money or lodging or any other allowance.”

22. I have marked this portion of the File as Ext. II.

23. The expression “leave for higher studies abroad” occurring here is obviously a mistake for study leave, for it was study leave alone that had been already sanctioned in violation of the 5 year rule as a special case. The meaning of the passage would appear to be that in the opinion of the officer who wrote it and of the Minister who approved it, unmerited concession had been already shown to the petitioner but no further concession need be extended. The File had come back with the Finance Secretary's remarks dated 23-4-1955 as to the several matters raised by the petitioner in her representation viz.

(i) Allowances during study leave.

(ii) Passage money to and from the United Kingdom.

(iii) Lodging allowance.

(iv) Cost of fees.

24. He was for negativing (ii) and (iv) and allowing (i) as under the T.S.R and (iii) to the extent of S. 80 “as the administrative department had recommended the same”. The Assistant Secretary had thereafter noted on 25-4-1955 that the administrative department had really not agreed to (iii) and therefore that also may be negatived but (i) may be allowed as agreed to by the Finance Department. It was after this that the Chief Secretary wrote out his Ext. II decision noted above.

25. Understood in this context the matter seems clear beyond doubt that Ext. II decision was intended only against going further than the leave allowance as for furlough under the usual conditions as agreed to by the Finance Department for which the petitioner was eligible under the T.S.R without doubt.

26. Now let us take Ext. L order. It talks of cancellation of the study leave already granted and refers to a reason therefor as misapprehension of facts in connection therewith. Nothing can be farther from the idea of Ext. II as we have just seen. For while Ext. II considers, the implementation of the order for study leave with reference to the allowances that may be deserving Ext. L contemplates the extinguishment of the order with a reason invented in the bargain. There can be absolutely no doubt that Ext. L is not intended to embody the decision in Ext. II as the affidavit of the Assistant Secretary would attempt to make out and the learned Government Pleader would contend.

27. It appears, on the other hand, if I may say so to disembody Ext. II and make a travesty of it. We are not concerned with the reasons which prompted the issue of Ext. L in the form it took though it is easy to track them out. It is enough to say that it does not carry out Ext. II decision which had the approval of the Minister and besides, has not itself got also the imprimatur of the Minister. On both these grounds there can be no doubt it must go.

28. I should not omit to mention that the petitioner had availed herself, after the filing of the petition herein, of the 4 months' privilege leave she had applied for to undertake the trip to the United Kingdom for her higher studies. This leave cannot hereafter form part of the combined privilege and extraordinary leave as specifically mentioned in Ext. L. It has necessarily to be prefixed to the study leave which was intended to be granted to her and I am ordering accordingly.

29. In the light of my conclusion as above, it has become unnecessary to consider the various other questions debated at the bar, on the footing that Ext. L is a real order of Government. Mr. Easwara Iyer however wants me to say that Ext. II decision taken by the Chief Secretary and approved by the Minister had considerably misled itself by the wrong notion that the grant of study leave was at all a case of concession and an unmerited concession at that. I do not think that the question really arises in any event at this stage. For Ext. II is only a step in the course of the impelmentation of the original order for study leave and has not become even an executive order yet and anyhow is not before me.

30. Before closing, I cannot forbear from saying that a very simple matter of implementation of an order for study leave had been allowed to be unnecessarily complicated by the administrative department by the introduction of extraneous consideration so as to compel the party to invoke the extraordinary jurisdiction of this Court and without doubt to involve the party in great suspense. Petitioner might have appeared too clever and pertinacious. But she could not be denied justice on that score.

31. There was no reason in any event to seek to go back on Ext. G order granting study leave and invent reasons therefor in the course of framing a mere ministerial order as Ext. L. The executive authority may have wide powers. But it must not swerve from the limits imposed upon it by the law. Equally important, it should exercise its powers bona fide for the purposes for which they have been conferred and not for any ulterior purposes and whenever there is a transgression by the executive in these respects, let it not be forgotten that it will be pulled up by this Court. In the result I declare the order of the respondent dated 10-5-1955 and contained in Ext. L to be void and accordingly quash it. I further direct the respondent State to implement their prior order Ext. G of 14-2-1955 granting study leave to the petitioner for 2 years as and from 1-11-1955 and prefix the four months' privilege leave which the petitioner has already availed herself of. The respondent will pay the costs of the petitioner with Advocate's fee Rs. 150/-.

32. Ordered accordingly.