Mohmed Hussain and Others vs The State of Hyderabad

Mohammad Ahmed Ansari, J.—A large number of the teachers of primary schools, in all one hundred and twelve persons, have filed four applications for Writs of Certiorari, Mandamus and Prohibition, or for any other appropriate order, or direction against Circular No. 1864 / 1887, of the Director of Public Instruction.

The circular is dated 19-5-1950 and relates to the passing of the Regional Language Test by the teachers. It is addressed to all the Divisional Inspectors and Inspectors of the Schools and states that on receipt of several enquiries by subordinate officers on the aforesaid subject, a Committee of officers was convened, in which, after discussing all the relevant points, the following decisions were reached:

(1) Teachers appointed in or after 1354 F. (1945) should appear for the Regional Language Test, taking compulsorily such leave as they might be entitled to, and where the District Inspectors of Schools think it necessary they be sent on leave to pass the Test;

(2) The teachers must be below the age of 45t and such of them as are on leave for the -purpose of passing the Test should not be allowed to join duty until they had passed;

(3) Those, who had not obtained leave for the preparation and have failed, should also be sent on leave from 17-6-1950, and not allowed to join duty until they get through; and

(4) The Test should be held as previously at the end of October 1950, and the date should be fixed so as to allow ample time for preparation.

Later a Press Note was issued explaining that the Regional Languages have always been the medium of instructions, as well as additional subjects of study at the primary stages of instruction, and primary school teachers were formerly required to pass a test culled ''Zaba''ndani examination; that with the introduction of such languages as the medium of instruction, teachers of the primary schools have been found wanting in the knowledge of these languages and unable to discharge their duties; that this deficiency should be made good quickly and that the (SIC) surcs (SIC) for their work. The Note then gives the fallowing arrangements as having been made for the purpose:

(i) During the current year 1950-51. two examinations will be held;

(ii) Study-leave on half pay will be sanctioned till the results of the second examination are published; and

(iii) Special classes free of charge will be opened for teachers appearing for the examination.

Another Circular was then issued forwarding copies of the Press Note for compliance and exempting drawing and drill masters from the Test, as well as the teachers who had completed the course of the 7th class in the regional languages. Several other modifications in the rules relating to the Test have been made from time to time. For example, the period for getting through the examination has been extended from time to time, and finally October 1953 has been fixed as the last, date. Then the loss or the lien which would according to the Press Note follow the earlier failure in the examination has been also relaxed, and names of several applicants in the four applications have been struck off, because they had passed the Test and ceased to have any interest in pressing for the Writs. In view of our conclusions about the legal nature of the rules, which appear later in this judgment, we do not think it necessary to mention all of them here.

However, one Notification is important, and this is dated 18-12-1951. It bears No. 3496 and was published in the Gazette of 20-12-1951. It says that H. E. H. the Nizam is pleased to direct that the rules made and instructions issued by the Director, Public Instruction, in Circular No. 1364/1887 of 19-5-1950 & the press Note No. 1173 of 1G-7-1550, as further clarified, amended, or modified by the Circulars and letters specified in the Schedule here to annexed shall with effect from the respective dates of the said Circulars etc., apply to all primary school teachers and they shall further be deemed to have always applied to them. Having regard to the clear wordings of the Notification, we think that no useful purpose will be served by adjudicating upon the controversy raised by the applications about the original Circular not having been issued by the proper authority; for the Rajpramukh of this State has, under the proviso to Article 309 of the Constitution, the power to frame rules regulating the conditions of service of persons appointed to the public services of the State, and in exercise of such power he has sanctic the Circular with retrospective effect. The (SIC) question, which now requires consideration, is there the Circular with its later modification inconsistent with the other provisions of the situation or with some other mandatory enact me:

We shall first give a brief summary of remaining grounds, on which the four applicant challenge the legality of the Circular. Paragraph 3 to 5 state that the several directions contain in the Circular are contrary to the Hyderabad Civil Service Rules, under which public servant can while on duty, sit for the regional language test within two years of their employments and (SIC) failure to pass entailed only stoppage of future increments; whereas under the Circular the failure to get through the Test results in the dismissal from the service; again the directions in the Circular are contrary to, the later Rules for the Regional Languages Examinations, which have been published in the Gazette on 4-12-1950, and therefore invalid the teacher acquainted with the lan-(SIC) of one (SIC)transferred to another having a (SIC) which is against the interest of the State; at the time of the employment no stipulation was entered into that the employee would have to sit in such a Test, and the failure to pass would entail dismissal from service the giving of compulsory leave is also contrary to the law and affects the right of leave of the applicants.

Then in para. 6 it is said that nearly 3,000 persons are adversely affected, there has been a case of suicide, and representatives of the teachers had tried to get the cancellation, but had failed. In the prayer the provisions relating to the compulsory leave and half pay are particularly asked. to be declared as void.

In the replies the Government have raised severa. objections. One is about so many persons joining as applicants without furnishing particulars as to how each has been adversely affected by the directions contained in the Circular. Another that the matter being entirely ministerial, no Wry of Certiorari or Mandamus can be issued. As regards the circumstances under which the Circular was issued, it is said that the mother tongue as the medium of instructions in the primary (SIC) has long been the education policy in the (SIC) and consistently with it teachers in the primary schools should be acquainted with the language of the region in which they are employed to teach Then the constitutional issue is raised that (SIC) servants under the Constitution hold office during the pleasure of the Rajpramukh and it is (SIC) to him to frame rules, or change them in (SIC) of the Government policy so long as they (SIC) not inconsistent with the provisions of the Constitution. In these circumstances, it is plead neither Writs of Certiorari nor Prohibition (SIC) Mandamus should be issued.

The first objection, that .too many person have joined in the application, has lost much its force, as the names of many applicants has been struck off or deleted since the applicat (SIC) were filed. This leaves very few applicants, prefer to dispose the petitions on merits.

The main complaint, shorn of its (SIC) is that the conditions of the service of the (SIC0 in the primary schools are illegally varied by (SIC)Circular. Now the Writ of Certiorari is not a (SIC) per redress for such a complaint; for it is now set (SIC) that the Writ can only be issued against (SIC) or quasi-judicial decisions. This has been held by the Supreme Court in the case of - ''Province Bombay v. Khushaidas Section Advani AIR 1950 222(A), where the majority view is that the (SIC) of the Provincial Government as to the public (SIC) contains no judicial element, and further (SIC)the executive authority has to form an (SIC) about a matter, as a preliminary step to the (SIC) of a certain power, the determination and exercise of the power are alike matters of an mninistrative character and not amenable to the (SIC)of Certiorari. The conclusions about the (SIC) cessity of a change in the conditions of the (SIC)of primary school teachers are so obviously of Administrative nature that the prayer for a Writ of Certiorari in the applications appears to us to (SIC) unjustified and cannot be grunted.

Then as regards the prayer for the Writ of Mandamus it is clear that before such a Writ can be issued to a public servant it must be shown that a duty towards the applicant has been imposed by the Constitution or by a Statute upon the public servant, so that he can be charged thereon independently of any duty, which he may owe to the State as his principal. We have therefore to ascertain how far the applicants have succeeded in establishing a duty cast upon the executive not to vary the (SIC) of their service.

They have first relied on certain provisions of the Hyderabad Civil Service Rules made before the integration of the State, and have argued that they have been continued by the Constitution. But the error in the argument is that it overlooks the provisions of Article 310 which makes the holding of the civil posts at the pleasure of the President Governor or the Rajpramukh. Now the phrase "service at the pleasure" has certain well-defined implications and one of them is that infringements of the Rules relating to the public servants do not give rise to any cause of action. (SIC) Shenton v. Smith (1895) AC 229(B), Dr. Smith, (SIC) office in the Government Medical Service of Western Australia and was dismissed; he brought a suit for damages relying upon certain rules and regulations of the service as an essential part of his service contract. When the case went before the Privy Council Lord Hobhouse said:

....They consider that, unless in special cases where it is otherwise provided. servants of the Crown hold their offices during the pleasure the Crown; not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well understood throughout the public service. If any public servant considers that he has been dismissed unjustly, his remedy is not by a law suit, but by an appeal of an official kind As for the regulations their Lordships again agree with Stone J. that they are merely directions given by the Crown to the Governments of Crown Colonies for general guidance and that they do not constitute a contract between the Crown and its servants.......

(SIC)of the disregard of the service rules, when the employment is at the pleasure, do not furnish any (SIC) of action for damages, ''a fortiori'' it cannot made the basis of an application for a Writ of (SIC). In both cases the reason is common. (SIC) the rules being directory do not create any (SIC) in favour of the employee. Therefore, the (SIC) of the provisions in the Circular being con-(SIC) to the Hyderabad Civil Service Rules do No. (SIC) our opinion justify the granting of the Writ of (SIC)

Then it is mentioned that the Circular is (SIC) to certain other general rules. It appear that prior to the filing of the applications,(SIC Languages Examination Rules were, on 4-12 1950, framed and published by the order of H. E. H the Nizam. This was done in exercise of the power under the proviso to Article 309 of the Constitution. Rule 5 of the new Regulation says that every member of the State Service shall pass an examination in one of the three languages within a period of two years from certain dates mentioned in tire rate; and Rule 7 provides that the failure to get through the examination by a public servant will only stop his future increments. It was argued that the Circular is amended contains directions inconsistent with the aforesaid Rules and are therefore void. There is this difference between the earlier Hyderabad Civil Service Rules and those contained in the new Regulation, that the promulgation of the new Regulation has been in exercise of power under the Constitution, and we have to ascertain whether the provisions of the new Regulation are mandatory and so amenable to a Writ of Mandamus.

Now the proviso to Article 309 authorises framing of Regulations subject to the other provisions of the Constitution, which means that the new Rules are also subject to the general provisions contained in Article 310 of the Constitution about the civil employments being at the pleasure. We are notconcerned here with the officers whose tenures of office are guaranteed by the Constitution. Nor any act has been passed by the appropriate legislature regulating the conditions of public services in this State. The position therefore is that there is. the constitutional provision about the civil posts being held at the pleasure along with certain rules relating to the conditions of the services. In these'' circumstances, it appears to us that the position is no better than the one u/s 96-B, Government of India Act, 1919, and the Rules framed thereunder, which the Privy Council had to consider in the case of - ''Venkata Rao v. Secretary of State AIR 1037 PC 31 (C).

There the Appellant held office in the civil service as a reader in the Government Press, Madras, fell under suspicion of being concerned in leakage of information in respect of certain examination papers, and was dismissed from the service. He claimed damages for wrongful dismissal being contrary to the rules framed for conducting enquiry, and the Privy Council held that his employment being by the express terms of Section 96-B during the pleasure no right of action as claimed by him existed, the terms of Section 96-B assured the tenure of office though at pleasure to be not subject to capricious or arbitrary action and to be regulated by the rules; but they carried no right enforceable by action to hold office in accordance with the rules.

Since then constitutional guarantees have been incorporated in Article 311 against dismissal or removal by an authority subordinate to that appointing or against reasonable opportunity not being given to show cause against the action to be taken. But apart from these guarantees and the fundamental rights contained in Part III, we do not think that the rules framed under the Constitution for regulating the conditions of the public service arc mandatory, and in no circumstances liable to variation.

We are supported in this view by several authorities of different High Courts in this country. In (SIC) Singhi v. Heta Ram AIR 1952 (SIC) 17 (D), the applicant was serving as the section superintendent in the audit department of the former State of Jodhpur and under the Rules of the State he was entitled to continue in service till completion of the age of 55 years in May 1949, the Government of Rajasthan laid down certain procedure to be followed in carrying out the programmer of integration and under it ail Government servants who had completed 53 years of age, or 30 years of qualifying service on 1-5-1949, war to be retired; under it the applicant''s (SIC) was ordered after the Constitucion came into force, and he applied against the order under Article 226. Wanchoo C.J. held that if it pleases the authority to frame a rule like the one challenged there would be nothing illegal, whatever may be the moral obligation of the . State in this connection.

Then in - ''Mrs. Lilawati Mutatkar v. State of M. B. AIR 1952 MP 105 (E), the Petitioner was employed as a Stenographer in the health ministry of the State, was suddenly suspended and later dismissed. It was urged on her behalf that her services were not terminated as provided by the Civil Service Rules and in accordance with the procedure laid in Rule 8. Dixit J. rejecting the argument held:

These rules are merely administrative rule for the guidance of officers of the Government ....The dismissal, removal or reduction in (SIC) of a civil servant (SIC) of the Rules would not by itself entitle him to come to this Court but would leave him to appeal to the administrative authorities. It is only a breach of Article 311 that furnishes to a civil servant adversely affected to come to this Court.

Again in - ''Vardaraja v. The State of Travancore Cochin AIR 1953 Trav. C. 140 (F) the Petitioner asked for quashing the order of the Government which has sanctioned the retirement from service of the Petitioner who was an Additional Sessions Judge; the retirement was directed in pursuance of a Press Note giving the Government policy that Gazetted Officers over 25 years service would be compulsorily retired. Among other things it was urged that the order was ultra vires as it offended against the Cochin Service Regulation which notwithstanding the integration continued to govern officers of the erstwhile Cochin State. Koshi C.J. rejecting the application, which was under Article 226, says:

Government have the right to evolve such a rule or regulation or policy, whatever name one might give to it, and determine when a particular officer should retire, from service on superannuation in accordance with it. It cannot be said it is a disciplinary measure. It is not one aimed at any individual officer. It is something done in the exercise of the inherent right which a Government has This right of Government to regulate or determine the tenure of their employees in part and parcel of, or implicit in, the theory that the civil servants hold office during the pleasure of the President or the Governor or the Rajpramukh as the case may be As long as the statutory inhibitions, if any, are not contravened the civil servants have no right to complain or any cause of action against the Government for or on ac-count of the Government terminating their ser-vices. We have such inhibitions in Clauses (1) and (2) of Article 311 of the Constitution. An order for compulsory retirement pursuant to a policy of the Government, or by the application of a new rule does not, however, in our opinion amount to removal within the meaning of that Article.

These authorities do establish that the regulations relating to the public services under the Constitution are directory, liable to be changed to suit the public policy of the State, and such variations are not amenable to Writs or directions under Article 226. The executive of this State in pursuance of the policy of making; regional lan gauges the medium of instruction in all primary schools have varied as regards teachers in such schools, the Rules of examination of these languages for public servants in general; but by doing so no duty towards the teachers had been violated. Indeed, the variation has been made in exercise of the inherent right of the Government as observed by the learned Chief Justice of Travancore Cochin High Court. We as Courts of law have no concern with the correctness or otherwise of the policy. All we are interested in is to safeguard the constitutional rights or enforce the duty to the applicants under any enactments. As no such duty is established, no Writ of Mandamus can be issued. The second ground in the application for seeking the Writ, therefore, fails.

The third reason urged in the application for declaring void the directions issued for enforcing the passing of the Test, mentioned in the Circular is that no stipulations of this nature were ever entered into when the (SIC) were employed. We think no express stipulations of this nature are necessary. Whatever may have been the terms of their employments, the applicants are public servants and the terms of their service are always subject to the qualifications dictated by the public policy. No matter to what service the servant may belong and no matter what position he holds in the service, such qualifications are always implied in the engagement. It is enough that a citizen is a public servant and the qualification is directed by the public, no matter on what grounds it is based. Therefore, the applicants'' employments as the teachers of primary schools contain by implication the stipulations that they are to conform to the rules framed on public policy for the efficient discharge of their duties At any rate we do not think that they can claim that the rules prevailing at the time of their employment are to be observed for all time to come.That cannot be reconciled with the principles of being employed at the pleasure of the President or the Rajpramukh. For these reasons, the (SIC) must be rejected.

It was argued before us that this Circular violates Article 18 of the Constitution; but in our opinion, the power of selection and rules framed for purposes of choosing candidates to fill public services are not excluded by the Article. The casdirectly on point is - ''Vishnu Krishan V. K. N Kripal AIR 1952 Trav-C. 7 (G). There officer of certain Part-B States forces were subjected to the screening by the Selection Board and those who were graded as acceptable were alone given commissions as officers in the regular Indian Army.It was held that the discrimination as between those acceptable and those unacceptable was inevitable in any process of selection and grading and there can be nothing wrong in such a discrirnination; so that those who were graded as unaccept able because of such screening cannot complali about any discrimination violating the fundamental rights guaranteed by Article 16. This arguments also fails.

We also think that Article 14 has not (SIC) violated. The test of rational classification generally applied for ascertaining whether any order is violative of the Article. This classification means a differentia between the persons covered by the orders and those excluded, an object for which the order was passed and a nexus between the differentia and the object. Applying the, aforesaid test to the Circular, it appears to us that its object is to carry effectively the policy of education in its primary stages being given through regional languages. The differentia between the public servants entrusted with giving effects to the (SIC) policy and those entrusted with the other functions of the State is obvious. Then the provisions that the teachers must satisfy the test knowing the languages within a reasonable time with a view to give the instructions appears to us be a rational nexus, and the impugned Circular, these circumstances, cannot be held as violating (SIC) guarantee.

In these circumstances, we have come to the conclusion that the Circular which has been later confirmed by the Order of the Rajpramukn is not such as should be interfered with by exercise of powers of this Court under Article 225 and the applications should be rejected. Accordingly the applications are dismissed. This judgment will govern each of the four petitions.