LAWS(KER)-1960-1-28

K R SADASIVA IYER Vs. STATE OF KERALA

Decided On January 05, 1960
K.R.SADASIVA IYER Appellant
V/S
STATE OF KERALA Respondents

JUDGEMENT

(1.) This is a petition under Art.2 26 of the Constitution to quash Exts. R-1, R-2, P-11 and P-12, orders. The petitioner was appointed as the Headmaster of Oriental High School under the management of the third respondent, Devaswom, by order, Ext. P-1, dated May 17, 1957, and he took charge as Headmaster three days later. The period of appointment was one year from the date of taking charge. Normally, this would have expired on May 20, 1958; but by virtue of subsequent orders, Exts. P-4, P-5 & P-6, passed pursuant to Madras Educational Rules, it is the petitioners case, that he had a right to continue in employment until April 2, 1959. On April 17, 1958, the 3rd respondent terminated the service of the petitioner with effect from May 20, 1958. This, it was complained, was in contravention of orders, .Exts. P-4, P 5 and P-6. It is seen, that, the second respondent, the Director of Public Instruction, made a clarification by Ext. P8 on April 27, 1958, that the orders aforesaid had allowed no option to the management to terminate the services of persons like the petitioner who had been re-employed, and that the petitioner may therefore be reinstated in service. There had been subsequent petitions by the petitioner to the second respondent complaining of his termination of service; the third respondent took the matter also to the first respondent, the Government, and finally, Ext. R-2 was passed by the second respondent on July 10, 1958 holding, that the provisions in Exts. P-4, P-5 and P-6 are not mandatory, and that the petitioner will be appointed as an Assistant in the school. There had been a communication by the first respondent to the second respondent on July 8, 1958, placing this interpretation on the relevant orders on the subject. The first respondent also passed an order, Ext. R-l on July 14, 1958, stating that the petitioner may be reinstated in service as an Assistant, if the management agreed to do so. Thereupon the third respondent passed an order, Ext. P-11 on July 24, 1958, appointing the petitioner as an Assistant in the school, subject to certain conditions which were not fulfilled by him. The petitioner then preferred an appeal against Ext. P-11 to the first respondent, on August 27, 1958, which was decided against him by Ext. P-12 on July 27, 1959. It is in these circumstances, that the petitioner has come up to this court for the relief aforesaid.

(2.) A preliminary objection was raised on behalf of respondents 1 and 2 by the learned Government Pleader, that the orders, Exts. P-4, P-5 and P-6, are merely executive instructions, a breach of which is not amenable to judicial review under Art.226. It has been ruled by a division bench of this court in Fr. Joseph Valamangalam v. State of Kerala, 1958 KLT 233 , that the Madras Educational Rules, under which the aforesaid orders were issued, are only a body of executive orders and instructions. A similar view was taken of the Travancore Education Code in T.M. Dasius v. State, 1956 KLT 238 where the learned Judge observed as follows:-

(3.) It is no doubt true, that even administrative orders may shed their character-as such and may assume the garb of quasi judicial orders at a later stage, where appeals are provided, and a prescribed procedure set for hearing them. The learned counsel for the-petitioner relied on Nagendra Nath Bora v. Commissioner of Hills Division A. I. R 1958 S. C. 398, but that was a case in which, a right of appeal was conferred by S.9 of the concerned statute, and elaborate rules of procedure were framed under S.36 for hearing appeals. On a consideration of the provisions in the statute, and particularly of the rules framed thereunder, Their Lordships came to the conclusion, that the authorities mentioned in S.9 of the statute, were exercising quasi judicial powers. The rule evolved was stated in these terms:-