K. Mruthynjaya And Others v. The Town Municipal Council Shiralkoppa And Others

Jagannatha Shetty, J.:— These are three connected petitions in which the common question is about the validity of the order by which the services of the petitioners were terminated.

2. The petitioners were appointed as Teachers in the Municipal High School, Shiralkoppa, Shimoga District. Mruthynjaya the petitioner in W.P No. 4767/1969 was appointed on 15th July, 1966, Shivappa the petitioner in W.P No. 4768/1969 was appointed on 19th July, 1965 and Veerabasappa the petitioner in W.P No. 4769/1969 was appointed on 9th December, 1966. All these appointments were as local candidates. The Municipal Council passed a resolution dated 22nd of July 1968 terminating their services with effect from the fore-noon of 23rd July, 1968. That said resilution was stayed by the Deputy Commissioner on the re-presentation from the petitioners. Consequently, the petitioners were allowed to continue in their posts. But again another order dated 29th July, 1969 was passed terminating their services. The latter order is impugned by these petitions.

3. On the contention raised by respondent-1, that the Municipal school was since taken over by the Government, the petitioners impleaded the State of Mysore as a party respondent. Mr. Dodda Kalegowda, learned High Court Government Pleader however, is not able to say as to whether the school was actually taken over by the Government.

4. Mr. Ramajois counsel for the petitioners said that the Government had issued a direction dated 6th December, 1967 to all the municipal authorities not to terminate the teaching and non-teaching staff under their control and to continue them until further orders. This was followed by the rules made under Section 323(2)(g) of the Municipalities Act. The rules called the Mysore Municipalities (Recruitment of Officers and Servants Special) Rules, 1972 came into force on 8th May, 1972, Providing for regularising the services of local candidates. Counsel added that the impugned order was in contravention of the statutory direction issued by the State Government and therefore it was illegal.

Mr. Dodda Kalegowda, learned High Court Government Pleader submitted that the said direction was only an executive instruction of the Government conferring no right on the petitioner to maintain these petitions.

5. The order dated 6th December, 1967, reads as follows:

“Government are pleased to order that the local candidates working in the Municipal High School both in teaching and non-teaching cadre under the control of Local Bodies in the State should be continued until further orders or until the vacancies are filled up by the candidates selected by the Public Service Commission or by the Recruitment Committee constituted for the purposes, whichever is earlier, as has been done in the case of Government servants as per Memo No. 2.16 APT. 124-66-67, dated 22nd March, 1967, issued by the Director of Public Instructions, Bangalore. In case the local candidates are to be relieved for want of vacancies, the Junior most person/persons should only be relieved. No local candidates should be relievd, if he could be continued by suitable adjustment.”

By persuing the order and the statutory Rules followed thereupon, it seems to us, that the said order conferred justiciable rights upon the petitioners. It is true that an administrative order ordinarily confers no justiciable right, but there are orders and orders and the Court cannot blindly apply the general principle without closely examining the nature of the order and the purpose for which it is issued. If the Government has got statutory power to make rules regulating the service conditions of their employees or others and before making the rules any order or direction is issued regulating their conditions of service, we fail to see why such order or direction cannot confer an enforceable right. The order in question was a mandate issued to the local bodies not to terminate the services of the teaching staff like the petitioners, and conferring a corresponding right on them to remain in service.

Reference may be made in this context to the judgment of the Supreme Court in Union of India v. K.P Joseph(1) where Mathew J. said—

“The appellant, however, contended that the Order being an administrative direction conferred no justiciable right upon the first respondent which could be enforced in a Court by a Writ or order in the nature of mandamus. The appellant submitted that the very foundation for the issue of a writ or an order in the nature of mandamus is the existence of a legal right and as an administrative order could confer no justiciable right, the High Court was wrong in issuing the order directing the second respondent to fix the pay of the first respondent in accordance with the Order.

Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan(2) that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.”

The learned Judge further said:

“To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties.”

6. In our view, having regard to the facts of this case and the nature of the direction issued by the Government on 6th December, 1967, it did confer upon the petitioners a right to remain in service. They had the right to continue in service, until the Government passed another order or till the Public Service Commission or Recruitment Committee selects suitable candidates to their places. The impugned orders was made in clear disobedience to that said Government orders' and therefore must fall to be struck down.

7. In the result, we allow these petitions and quash the impugned order. In the circumstances we make no order as to costs.