S. Murugesan vs The Government of The Union Territory of Pondicherry and Another

K. Veeraswami, C.J.—This Letters Patent Appeal is directed against a judgment of Ramakrishnan J., who allowed the first Respondent''s appeal. The Appellant was a permanent teacher in the service of the Pondicherry Government. By a petition, dated 2nd July 1960, addressed to the Director of Public Instruction, Pondicherry, he wanted that he should be admitted into the cadre of Professeur Adjoint without the written test. The'' Director of Public Instruction accepted the application and proposed him for appointment to the cadre of Professeur Adjoint without any test. The Government of Pondicherry, however, rejected the. Appellant''s request inviting his attention to the Department''s letter, dated October 24, 1960. It was, however, mentioned in the communication that the Appellant may be promoted and appointed as graduate teacher on Madras scales of, pay and allowances, if the Director of Public Instruction was satisfied about his competence to bold the post. Thereafter, the Appellant moved the President and members of the Counsel due Contentious administrative of Pondicherry State for an order declaring that he had a right for his integration into the cadre of Professeur Adjoint Bachelier by virtue of the provision of Arrete No. 61 of 12th January 1950 and to invite the Government to take a decision for his admission in the cadre as early as possible, with effect from 2nd July 1960, the date of his petition to the Director of Public Instruction. He also wanted quashing of the order of the Pondicherry Government refusing to put him in that cadre. By a decree, dated 10th January 1962, the Administrative Tribunal declared that the Arrete had the force of law and therefore, notwithstanding the letters, instruction and circulars emanating from the Central Government, the Appellant''s request in his petition to the Tribunal should be granted. The appeal to Ramakrishnan J., was against that order. The learned Judge elaborately went into the matter and posed the question whether the new administration in Pondicherry was justified in treating the vacancies in the old cadre of Professeur-Adjoint- Bachelier as not available for being filled up in view of their proposal to alter the scale of pay of posts in the cadre to conform to the conditions of Pondicherry Territory after its transfer to the Indian Union and came to the conclusion that in the instant case, the Administration could not be compelled to fill up the posts in the cadre of Professeurs-Adjoint- Bacheliers by appointing the Appellant. On that view, he allowed the appeal of the Government of the Union Territory of Pondicherry. The appeal before us has been preferred under the Letters Patent against the order of the learned Judge.

One of the questions which we are called upon to decide at the outset is as to whether the appeal lies under the Letters Patent. It seems to us that it does. By Section 9 of the Pondicherry (Administration) Act, 1962, the jurisdiction of the High Court stood, as from 6th November 1962, extended to Pondicherry. The conferment of such jurisdiction is not limited to any particular field. Prima facie, there can be no doubt, therefore, that whatever jurisdiction this Court possesses would apply and extend to Pondicherry and that would include also the jurisdiction, of this Court to entertain appeals under the Letters Patent. Section 10 of the Pondicherry (Administration) Act, 1962, more specifically provides that without prejudice to the general conferment of jurisdiction u/s 9, this High Court shall have, in respect of Pondicherry, all such jurisdiction as under the law in force immediately before the appointed day was exercisable in respect of former French Establishments by the Court de Cassation, the Court Superiour d'' and the Counseil de Etat of France. This section has a proviso, which reads:

Provided that while determining appeals from decisions of courts and tribunals in Pondicherry, the High Court shall, as far as may be, follow the same procedure and have the same power to pass any judgment decree or order thereon, as it follows and has while determining appeals from decisions of courts in the State of Madras.

Apart from the general conferment of power by Section 9, which is wide enough to cover the procedure under the Letters Patent, the proviso, which we have extracted, makes it specifically clear that while determining appeals from decisions of Courts and Tribunal in Pondicherry, the High Court shall follow the same procedure and have same power as it has with reference to appeals from decisions of Courts in the State of Madras. The proviso does not make a reference to the Counseil d'' Etat of France, but only Courts and Tribunals in Pondicherry. Learned Government Pleader for Pondicherry argues that since the Counseil d'' Etat of France was the final Court of appeal for Pondicherry and it was in substitute of that final Court of appeal the High Court exercised its power of entertaining appeals from the said tribunal, there could be no further appeal from the judgment of Ramakrishnan J. In effect, the argument is that although the jurisdiction of this High Court will extend to Pondicherry, the procedure applicable to this Court under the Letters Patent will not extend to decisions of this Court in appeal equivalent to those before Counseil d'' Etat of France. We are unable to accept this contention as sound. It is no doubt true that Letters Patent as originally enacted in 1865, applied to orders, decrees and judgment of Courts in the Province of Madras. Clause 15 of the Letters Patent provides for appeals from Courts of original jurisdiction to the High Court in its appellate jurisdiction. The first part of this section says that an appeal shall lie to the High Court from the judgment of one Judge of the same Court. Belying on this provision, it is rightly pressed for the Appellant that the appeal from the judgment of Ramakrishnan J., is maintainable as a matter of right. In our opinion the first part of this section will clearly be applicable to appeals arising from the judgment of a single Judge of this Court, which has been rendered in the exercise of his appellate jurisdiction against original judgments. The next section constitutes the High Court as a Court of Appeal from the Civil Courts of the Presidency of Madras, and from all other Courts, subject to its superintendence and it shall exercise appellate jurisdiction in such cases as are subject to appeal to the High Court by virtue of any laws or regulations now in force. It follows from this provision that the jurisdiction of this Court under the Letters Patent, though confined in the first instance to the Presidency of Madras, would extend over to other Courts as well which are subject to its superintendence by virtue of any special law or regulation in force at the time the Letters Patent were made. Clauses 15 and 16 read together appear to confer jurisdiction on this Court even over Courts outside the Presidency of Madras, provided such jurisdiction is authorised by the special laws or regulations in force at the time the Letters Patent were made. We are inclined to think that when Section 9 of the Pondicherry (Administration) Act extended the jurisdiction of this High Court to Pondicherry, the Courts there, under that provision read with Article 227 of the Constitution automatically become subject to the superintendence of this Court which, by reason of it, can exercise appellate jurisdiction over the Courts in that territory. The jurisdiction of this Court so extended to Pondicherry being untrammelled or unlimited, we fail to see why the entire procedure which applies to appeals in this Court, should not also extend to appeals arising from Pondicherry.

The fact that the first appeal jurisdiction exercised in this case is in substitution of the jurisdiction of the Counseil d'' Etat of France does not necessarily make the decision in the first appeal final because the special law contained in Section 9 in effect extends the power of this Court under all the procedural laws including the Letters Patent to such appeals as well. The finality attached to the decision of the Counseil d'' Etat of France can no longer apply or have force in the altered circumstances brought about by sections 9 and 10 of the Pondicherry (Administration) Act read with the Letters Patent and Article 227 of the Constitution.

Viscount Haldane L.C., in National Telephone Co. Ltd. v. Postmaster-General L.R. [1931] A.C. 546 observed that

When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewise attaches.

The principle of this decision as stated by the Viscount has been adopted with approval by the Supreme Court in National Stewing Thread Co. v. J. Chadwick Bros (1963) S.C.J. 509. When an appeal is provided to this Court from an order made by any Court or Tribunal in the Pondicherry State, it means that the entire incidents of the procedure of this Court, in so far as they are relevant, would govern the appeal and that means just like any other judgment of a single Judge of this Court on the Original Side, it will be open to a further appeal under the Letters Patent.

But the question is whether we can regard the appeal before Ramakrishnan J., as one from the judgment of a Court of original jurisdiction for purposes of the Letters Patent. In our pinion, Court in Clause 15 of the Letters Patent includes also a Tribunal of original jurisdiction. Also the Tribunal in this case seemed to possess all the indicia of a Court. We hold, therefore, that the appeal before us is maintainable under the Letters Patent.

We are, however, of opinion that the conclusion of Ramakrishnan J., on the merits is unexceptionable. There is no doubt that the Arrete referred to above did have the force of law and its operation could not in any way be affected by any administrative directions or instructions. But the Arrete, in so far as it is relevant and as amended in 1950, read:

However, the teachers belonging to the Public Instruction and holder both of the "Beocalauriat" do ''I'' enseignement secondair''s and B.A., or B.Sc. or B.O.L. or Vidwan degree of the Universities of Indian Union can be, if proposed by the director of Public Instruction, admitted without any test, in the scale of the "Professeurs adjoint " according to their specialisation and in the limit of the pests available.

The appointment to the cadre of Professeur adjoint , which, we are told, is equivalent to the post of Assistant Lecturer in this State, is by selection through a competitive examination. The amendment to this provision is now what we have just set out, which is in the nature of an exception. Where a teacher holds the qualification mentioned therein and if the Director of Public Instruction is satisfied about it and makes a proposal to the appropriate authority for his admission without any test to the cadre, the Indian Union may consider it and make the appointment. The language used by the Arrete, as amended, can be admitted without any test. We consider that is clear from this phraseology that the teacher who holds the necessary qualification for admission to the cadre without any test is not entitled to admission as a matter of right. The language of the amended provision is only permissive and not mandatory. It entrusts the Indian Union with the discretion to admit a teacher without test, provided the requisites therefore are satisfied. But it does not follow that wherever the requisites are satisfied, the Union Government is obliged or is under a compulsion to make such admission.

It is strenuously argued before us that where a discretion is vested in a public authority which is coupled with an obligation, it is always meant for exercise and not refusal. As an abstract proposition of law it is correct. We do not think that discretion vested in the Indian Union by the amended provision is of that type. Once it is clear that it does not clothe the Appellant with a right to admission, correspondingly we can read no obligation in the Indian Union to grant him admission.

It is then said for the Appellant that the Indian Union in refusing admission was led by extraneous or irrelevant consideration, namely, that the post should not be filled up in view of a proposal to alter the scale of pay of posts in that cadre in order to conform to the conditions of Pondicherry Territory after its transfer to the Indian Union. Obviously, that was a matter of policy which the Union Government wanted to adopt and not a direction to the Pondicherry Government that, in the case of the Appellant, admission should be refused. We are, therefore, not impressed by the contention that the order of the Pondicherry Government was vitiated on account of its taking into account some extraneous or irrelevant matter.

The appeal is dismissed. No. Costs.