MADHAVA IYER Vs. STATE

JUDGEMENT

(1.) This is an application under Art.226 of the Constitution of India praying:-

(2.) In this case the impugned order for dismissal was dated 13.8.1949 and the Original Petition for quashing it was as already stated, presented, only on 17.7.1952. Though the ground that on account of its belated character the petition ought to be dismissed was taken in the counter affidavit it was not, as already stated, pressed at the trial nor was it taken in the ground of appeal nor was it urged at the time the appeal was argued. It was only when the matter came before the single Judge in the third round that this point was pressed. Under the circumstances we consider that it is not open to the respondent to plead delay as a ground for dismissing the petition because the matter was considered by the Trial Judge and also by the Bench in appeal on the merits which might not have been necessary had the objection regarding the belated character been pressed. The order of remand made by the appellate Bench is for the purpose of the disposing of the application on its merits. The entire case has been referred to the Full Bench and the order of reference mentions the reason why the case was so referred.

(3.) The only question that need be considered is whether S.4 of the Ordinance, VI of 1124, in the matter of consultation of the Public Service Commission before the order of dismissal of the petitioner dated 13.8.1949 was passed has been violated and if so whether such violation is fatal to the validity of the order. S.7 of the counter affidavit presented on behalf of the respondent which was read in terms admits that Ordinance VI of 1124 was in force when the order of dismissal of the petitioner was passed. The Ordinance came into force on 16.7.1949 and the order of dismissal was dated 13.8.1949. S.4 of the Ordinance by the 2nd clause renders consultation with the Public Service Commission obligatory "on all disciplinary matters affecting the persons serving under the Government of the United State in a civil capacity, including memorials or petitions relating to such matters" (Clause c). Cl.2 contemplates cases where it shall not be necessary for the Public Service Commission to be consulted and that class of cases would arise when rules are made by His Highness the Raj Pramukh in consultation with the Commission specifying the matters on which either generally or in particular class of cases or in particular circumstances such consultation shall not be necessary. Learned Counsel for the petitioner submits before us that no such rule had been framed at the time. Learned Government Pleader appearing for the respondent does not controvert the truth of that proposition. The third clause of S.4 provides that:-