P VENKATESWARARAO Vs. STATE OF MADRAS

JUDGEMENT

(1.) This is an application tinder Article 226 of the Constitution of India for issuing a Writ of Certiorari to quasnithe order of the Government removing the petitioner from the office of Sub-Magistrate. In or about the end of 1951 the Madras Public Service Commission invited applications from the Members of the Bar and others for six appointments of Sub-Magistrates In the Madras Supordinate Magisterial service. The petitioner along with others applied for the post. On 20-3-1952 the Madras Public Service Commission interviewed the candidates. On 29-3-1952 the petitioner received a communication from the Madras Public Service Commission informing him that subject to his being found to be physically fit he had been selected provisionally for appointment as a Subordinate Magistrate. He was also asked to send a medical certificate showing his physical fitness before 15-4-1952. In the list of the selected candidates he was placed first in rank. On 30-4-1952 the High Court issued an official memorandum to him informing him that he was selected for appointment as Sub-Magistrate. He was also directed to report himself to the Collector of Kistna peremptorily on 15-5-1952 to undergo the training prescribed in G. o. No. Ms. 2021, Public (Separation) Department, dated 28-41951, The petitioner received the communication on 8-5-1952 and he reported himself to the Collector of Kristna and commenced his training on 15-5-1952. On 39-5-1952 the High Court sent to him another communication whereby the petitioner undergoing training in Kistna was withdrawn from training and posted as Additional Sub-Magistrate, Nellore. He was directed to join forthwith. The petitioner immediately proceeded to Nellore and joined duty on 6-6-1952.

(2.) On 29-6-1952 he received from the High Court an order to the effect that his posting was cancelled. The applicant then addressed a petition to the High Court asking for elucidation of the previous order. On 20-8-1952 the High Court informed him that the Government in consultation with the Public Service Commission had ordered the removal of his name from the list of candidates selected for appointment as Sub-Magistrates, He then sent petitions dated 25-81952 to the High Court as well as to the Government to reconsider his petition. He received a communication dated 25-11-1952 from the Government informing him that the Government declined to reconsider the orders already passed. He filed the aforesaid writ for quashing the order of the Government. Learned-counsel for the petitioner raised before me two points:

(3.) For can I accept the second preliminary objection taken by Advocate General. It is not really a preliminary objection. In effect he argued that this Court will not issue a writ of certlorari when in view of the previous decisions of the Judicial Committee the Government cannot be compelled to take back the dismissed servant. In this case if the contention of the petitioner is sound, the High Court would not be passing any infructuous order. It would be directing the Government to pass a legal order after complying with the provisions of the Constitution of India. To that extent it would be performing its duty to see that no authority in this State exercised its powers in derogation of the provisions of the Constitution.