MUTHUKRISHNAN Vs. SUSEELAN

JUDGEMENT

(1.) This is an appeal from the order allowing original petition No. 310 of 1959 of this Court. The petitioner who is the first respondent in this appeal is a conductor in the Kerala State Transport Department, having been appointed to that post in 1951. His case was that he was not given due promotion on service. He was an undergraduate when he entered service and under the rules in force at that time, only conductors who were graduates were promoted to higher grades. This rule was modified later and the proportion between graduates and undergraduates was fixed as 3:1. This was further relaxed on 6th August, 1951, by G.O. No. 12/5874/51/PWC which fixed the ratio between graduates and non graduates as 1:3. However another order was passed on 5th June, 1952, abolishing the distinction between graduates and non graduates and promotions were being made thereafter on that basis. The petitioners case was that the order of 5th June, 1952, was not valid inasmuch as it did not satisfy the requirements of Art.309 of the Constitution. Reference was also made to a rule made on 1st November, 1957, fixing the ratio as 1:1 but this is not material for the purpose of this case. According to the petitioner who became a graduate in 1958 he was entitled to promotion on the strength of the order of 1951 but his claims were overlooked and his petition to the Government in this behalf was not considered favourably. He prayed for the issue of a writ of mandamus or other appropriate writ, direction or order to respondents 1 and 2, the Director of Kerala State Transport Department and the State of Kerala respectively, to give one of the ten vacancies filled up on 1-1-1959 by the memorandum of 1-1-1959, to the petitioner in enforcement of the rule relating to ratio of 1:3 or 1:1 between graduates and non graduates in the matter of promotion to the higher posts of a supervisory nature. Respondents 1 and 2 as well as the additional third respondent, who intervened on the ground that he would be affected by the decision in the original petition, opposed the petition. The learned Single Judge held that the rule in force was the one embodied in the G.O. of 1951, that the G.O. of 1952 was invalid and that the later G.O. of 1957 was not applicable to the petitioner. The petition was accordingly allowed directing the issue of a writ of mandamus as prayed for. The third respondent in the original petition has therefore preferred this appeal. The State, the third respondent in this appeal, supported the appellant.

(2.) The main point urged by the appellant is that the question whether the matter is justiciable has not been considered by the learned Single Judge. It is contended that even assuming that all the findings recorded are correct, the petition is not maintainable especially as the petitioner has no case of infringement of fundamental right guaranteed by Art.16 of the Constitution. This Court as well as the High Court of Travancore-Cochin have been consistently holding the view that violation of service rules is not justiciable (see the decisions reported in AIR 1953 TC. 140, 1957 KLT 693 , 1957 KLT 938 and 1958 KLT 1074 ). Though the High Courts of Madras and Andhra Pradesh had held a different view earlier, the later decisions of these Courts accord with the view taken by this court (see N. Devasahayam v. State of Madras ( AIR 1958 Mad. 53 and 1959 Mad. 1 and Dr. G. V. Pantulu v. Government of Andhra (AIR 1958 Andhra Pradesh 240). In our opinion, contravention of rules made under Art.309 of the Constitution does not make the decisions of the Government justiciable and the jurisdiction of this court under Art.226 cannot be invoked except in cases covered by Art.311. This aspect of the case was not considered in the order under appeal. Consistent with the view held by this court in the cases referred to above, we hold that this is not a case in which this court should issue a writ. The order under appeal must be set aside on this ground.

(3.) The above conclusion is sufficient to dispose of the appeal. We may however observe that the petitioner did not care to implead persons who would be affected by an order allowing the petition, as required by the rules framed by this court.