Sharma, J. - (1.) THESE are two petitions, one by Shivcharan Lal and other by Chandra Dutta, both dismissed teachers of Rajasthan, against the State as well as the Director of Education, Rajasthan. Petition No. II has been made by Shivcharan Lal for a writ of mandamus, certiorari, quo-warranto or any other appropriate writ directing the State and the Director of Education, Rajasthan to reinstate him on his previous post. An alternative prayer has been made that in case the court be of opinion that consultation of the Rajasthan Public Service Commission is necessary for reinstatement the Government be directed by an appropriate writ, order or direction to refer the matter to the Public Service Commission. Petition No. 46 of 1950 has been made by Chandra Dutta with a prayer that a writ of mandamus be issued directing the Government of Rajasthan to reinstate him on previous job and that in case the court be of opinion that consultation of the Rajasthan Public Service Commission is necessary for his reinstatement the Government be directed by a writ of mandamus to refer the matter to the Public Service Commission. Petition No. 11 was made on the 16th May, 1950 and Petition No. 46 on the 28th September, 1950. The facts giving rise to both these petitions are the same and are given below.
(2.) BOTH the petitioners were teachers in the Government High School, Jhunjhunu, in October, 1949 and were thus in the service of Rajasthan. On the 4th October, 1949 a telegram purporting to be from the Education Secretary was received by the Heal Master of the School with the following contents : - "messrs Shivcharan Lal, Chandra Dutta Sainik and Mahavir Prasad Shukla suspended. They and Chand Mal Jain with Teachers' Attendance Register must appear before undersigned on Wednesday October 5 after noon. " The petitioners did not attend as required and on the 9th October, 1949 they were dismissed by an order of the Director of Education, Jaipur which reached the School on 19th October, 1949. This order ran as follows : - "messrs. Shivcharan Lal, Chandra Dutta Sainik and Mahavir Prasad Shukla Assistant Teachers Government High School, Jhun-jhunu under suspension are dismissed for non-compliance of orders asking them to present themselves before the Education Secretary on October 5th, 1949. " The petitioners' contention is that the aforesaid order of their dismissal was in violation of Rule 7 of Jaipur Civil Service Appeal Rules published in appendix L in Jaipur Civil Service Regulations as according to the said rule it was necessary that the petitioners should have been informed in writing of the definite charge or charges together with a statement of the allegations on which each charge was based and should have been required within a reasonable time to put in written-statements of their defence and to state whether they desired to be heard in person. In case they desired to be so heard oral enquiry should have been held and evidence should have been heard and the petitioners should have been allowed to cross-examine the witnesses produced against them. As this procedure was not followed the order of dismissal was illegal. They also allege that on the 14th October, 1949 each of them filed an application for reconsideration of the order of dismissal to the Director of Education, but when no reply was received each of them filed an appeal to the Government on the 14th November, 1949 and also made representation to the Raj-pramukh. Under Art. 320 (3) (c) the appeal could not be disposed of unless a reference was first made to the Public Service Commission of Rajasthan. They consequently pray that either the Government be directed to reinstate the petitioners on their respective jobs as the order of dismissal was illegal or in case the court be of opinion that consultation of the Rajasthan Public Service Commission is necessary for the reinstatement of the petitioners the State be directed to refer the matter to the Rajasthan Public Service Commission. The petitions were supported by affidavits and in case No. 11 Ranawat and Mehta JJ. issued a rule nisi returnable by the 20th July 1950 to the opposite party to show cause why a writ of mandamus be not granted as prayed. In case No. 46 a rule nisi was issued on the 17th October 1950 by the Acting Chief Justice and Mehta, J. and it was ordered that the case be put up with that of Shiv Charanlal. On behalf of the opposite party replies were filed to both the petitions on 7th November 1950. They admit the allegations made in the petitions so far as the sending of the telegram of suspension dated 4th October, 1950 and the order of dismissal dated 9th October 1950 are concerned. They also admit that application dated 14th October, 1949 and 14th November 1949 and representation to the Raj Pramukh were received. They further admit that the application dated 14th November 1949 was addressed as an appeal. They however contend that the petitioners were the servants of the State at pleasure and Jaipur Civil Service Regulations were mere rules for the guidance of offence and had no legal force. Moreover they ceased to have any force with the formation of the United State of Rajasthan. They also contend that no illegality was committed in the suspension or dismissal of the petitioners and that they were rightly dismissed as they committed acts of violence in the School. They further contend that the application dated 14th October 1949 for the reconsideration of the order of dismissal was filed as no change in the order was deemed necessary and that no appeal lay to the Chief Secretary against the order of the Director of Education and so no action was taken on the appeal filed by the petitioners. They deny any reference was necessary to the Public Service Commission in the circumstances of the case. They also contend that even if the Jaipur Civil Service Regulations were deemed to have the force of law the case came within the exception to rule 7. They lastly contend that the Constitution of India did not govern the facts of the present case and that no writ or direction or order could be issued specially as there was an alternative remedy by way of an appeal under rule 8. On behalf of the petitioners we were referred by their learned counsel to Article 16 (i) of the Covenant relating to the United State of Rajasthan, rule 7 and 8 of appendix L to Jaipur Civil Service Regulations, sec. 3 of Rajasthan Public Service Commission Ordinance No. 23 of 1949 and Article 320 (3) (c) of the Constitution of India. It was argued that the Civil Service Regulations of Jaipur had the force of law in the erstwhile Jaipur State. Rule 7 of these regulations laid down that no order of reduction or dismissal etc. could be made without serving the State employee to be affected, with definite charges in writing and giving such employee a reasonable opportunity to file and produce his defence and cross-examine the witnesses against him unless there were special circumstances which made the following of this procedure impracticable. Sec. 3 of Rajasthan Administration Ordinance lays down that all laws in force in any covenanting State immediately before the commencement of the said Ordinance shall until altered or repealed or amended by a competent legislature or other competent authority continue in force in that State and sub-sec. 2 of the said section defines law to include any regulation, rule, order or bye-law. As Jaipur Civil Service Regulations were not altered or repealed or amended before the date of the petitioners' dismissal, they continued in force in the area formerly comprised in Jaipur State. As the mandatory provision laid down by rule 7 was ignored the order of dismissal was altogether illegal. The order was in the nature of a quasi-judicial if not a judicial order and could be quashed by a writ of certiorari. Even if the order be considered to be an administrative or executive order it could be quashed and the opposite party could be compelled by a writ of mandamus to follow the procedure laid down by rule 7 before making any order of dismissal against the petitioners. It was next argued that rule 8 (3) of the Civil Service Regulations provided an appeal against the order of a Head of a Department. The Director of Education being a Head of a Department an appeal against the order of the petitioners' dismissal was filed and before it was decided Rajasthan Public Service Commission Ordinance and the Constitution of India came into force. Both according to sec. 4 (2) (c) of the said Ordinance and Article 320 (3) (c) of the Constitution it was mandatory for the appellate authority to consult the Rajasthan Public Service Commission before making any final orders. This was not done. Therefore, even if the order of dismissal be not quashed a writ of mandamus be issued to the State to decide the appeal a fresh after consulting the Public Service Commission. On behalf of the opposite party it was argued that the Civil Service Regulations of Jaipur State were mere rules for the guidance of the authorities. They had no legal force as they were neither embodied in a statute nor made under an authority conferred by any statute. The petitioners were merely servants of the State at pleasure and they could not insist upon being retained in State service against the will of the competent authorities. It was further argued that even if the regulations were deemed to have the force of law, there were exceptional circumstances in the case entitling the authorities not to adopt the usual procedure under Rule 7. It was further argued that Article 18 (1) of the Rajasthan Covenant only guaranteed that whosoever was in the permanent service of any of the covenanting States when the present Rajasthan State came into being shall either continue in the service of the newly formed State on conditions not less advantageous than those on which he was serving on the 1st November 1948 or shall be entitled to payment of reasonable compensation or retirement on proportionate pension. It did not lay down that such an employee will never be dismissed after the formation of the new State on any grounds whatsoever. It was next argued that the order of dismissal was merely administrative and not a judicial or quasi-judicial order. Moreover there was a specific remedy by way of appeal under the very regulations. There was therefore no case for the issue of a writ of certiorari. As regards the writ of mandamus it was argued that it could not issue after the order of dismissal was passed and there was a further reason for not issuing it because Jaipur Civil Service Regulations had no force of law and also because the petitioners had an alternative remedy by way of an appeal under rule 8 or a Civil Suit. Further it was argued that the Rajasthan Public Service Commission Ordinance and the Constitution of India could not govern the present case as they came into force after the date of dismissal and the date of the filing of the appeal. No writ of mandamus could therefore be issued directing the appellate authority to decide the appeal a fresh after consulting the Public Service Commission. I have considered the arguments of the learned Counsels for both the parties. As the facts are the same both the petitions can be disposed of by one judgment. Although the petitioner Shiv Charanlal has prayed for the issue of a writ of quo-warranto or any other appropriate writ, yet at the time of the arguments the learned counsel for the petitioners did not press for the issue of any such writ. I, therefore, confine myself to the question of the issue either of a writ of certiorari or of mandamus. Before coming to a decision as to whether these writs can be issued in the present case, it would be profitable to examine what is their nature and scope. Both the writs are very well known to English Common Law and are of great antiquity. Some other progressive and democratic countries have borrowed the idea from English Common Law and have provided for their issue in appropriate cases in their constitutions. This has been done in our own Constitution and so far as the Rajasthan State is concerned the provision for the issue of such writs had been made by sec. 28 of the Rajasthan High Court Ordinance 15 of 1949 even before the present Constitution came into force. The greatest guidance, therefore, in the matter can be obtained from English Common Law. There is no dearth of authorities on the subject of these two writs in England. On the basis of numerous English decisions Lord Halsbury has crystallised the law on the subject in his memorable work, the Laws of England. The following extracts are given from Hailsham Second Edition, Volume 9 : - (The numerical denote the paragraphs ). Certiorari - 1420 - The writ of certiorari issues out of a superior court, and is directed to the Judge or other officer of an inferior court of record. 1436 - Where the judgment of an inferior court is removed by writ of certiorari, or by an order in the nature of the writ, into the High Court. . . . . . . . . . . . . . . . . . and it is shown that the court below was without jurisdiction, or that the judgment may be set aside upon motion,. 1449 - Certiorari lies only in respect of judicial, as distinguished from administrative, acts. Where-ever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the king's Bench Division exercised in the writ. Mandamus - 1269 - The writ of mandamus is a high prerogative writ of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice directed to any person, corporation, or inferior court requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to supply defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing such right; and it may issue in cases where, although there is an alternative legal remedy, yet such mode of redress is less convenient, beneficial and effectual. 1270 - The grant of a writ of mandamus is, as a general rule, a matter for the discretion of the court. 1279 - A writ of mandamus will be granted ordering that to be done which a statute requires to be done. In order, however, for a writ of mandamus to issue for the enforcement of a statutory right, it must appear that the statute in question imposes a duty, the performance or non-performance of which is not a matter of discretion, and if a power of discretion only, as distinct from a duty, exists a writ of mandamus will not be issued by the court. 1305 - The legal right to enforce the performance of a duty must be in the applicant himself. The court will, therefore, only enforce the performance of statutory duties by public bodies on the application of a person who can show that he has himself a legal right to insist on such performance. 1309 - The Court will, as a general rule, and in the exercise of its discretion, refuse a writ of mandamus, when there is an alternative specific remedy at law which is not less convenient, beneficial and effective. I shall first examine whether a writ of certiorari can be issued to quash the order of dismissal of the petitioner Shiv Charanlal. So far as Chandra Dutta is concerned he does not pray for the issue of such a writ. The writ of certiorari as will appear from paragraph 1420 of Halsbury's Laws of England given above is directed to the Judge or other officer of an inferior court of record. Inferior court in this context does not mean only the judicial courts properly so called but any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially. It; has been held by the Supreme Court in Province of Bombay vs. Kushal Das 8. Advani (A. I. R. 1950 S. C. 222) that if the law, under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi judicial. Prescribed forms of procedure are not necessary to make an enquiry judicial, provided in coming to a decision well recognised principles of approach are required to be followed. It was argued by learned counsel for the petitioners that under rule 7 of Jaipur Civil Service Regulations a duty was cast upon the authority before making an order of dismissal, removal or reduction against a subordinate employee to serve him with the specific charge or charges and give him a reasonable opportunity of filing and producing his defence and cross-examining the witnesses produced against him. The proceedings must contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. Such proceedings are therefore quasi judicial even if not judicial. The learned advocate appearing for the opposite party however contends that rule 7 has not the force of law and therefore the Director of Education was under no legal obligation to follow the procedure required by rule 7. There can be no doubt that according to the decision of the Supreme Court quoted above the tribunal or the authority whose decision is questioned by this particular kind of writ must be under a legal obligation to act judicially. In the present case the Civil Service Regulations on which reliance has been placed by the learned counsel for the petitioners can neither be said to be statutory law nor rules made under the authority of a statute. They are simply rules for the guidance of the authorities. It cannot be said that whatever is contained in rule 7 of appendix L casts a legal duty upon the Heads of the Departments or other authorities to adopt the particular procedure laid down therein. Of course it is in the interest of fair play that the superior officers should not ignore the procedure which has been prescribed for their guidance. If however they ignore it, it cannot be said that they have acted in breach of some legal duty. Mere rules do not possess the force of law. It was held in Secretary of State vs. Surendra Nath Goswami (A. I. R. 1938 Calcutta page 759) that all service under the crown is public service, that is for public benefit. Continued employment of a civil servant might in many cases be detrimental to the interest of the State just as much as continued employment of a military officer. An act of indiscretion on the part of a civil servant may involve His Majesty in war. It is therefore a fundamental principle based on public policy that the Crown should have the unfettered discretion to remove a public servant at pleasure and even a contract to engage him on a fixed term, if there be no statute law authorising it would not be available to him, such a contract being void as against public policy. The power to dismiss at will can only be controlled by a statute but cannot be abridged or controlled by rules or regulations of service even if those rules or regulations are framed under powers given by a statute. Such rules and regulations would be regarded as directions given by the Crown for general guidance and dismissal or discharge of a servant in violation of them would not entitle him to an appeal to the civil courts but would leave him to appeal only to the administrative authorities. Thus a writ of certiorari could issue only if the Director of Education were bound by law to fellow the well recognized principles of approach, as held by the Supreme Court in A. I. R. 1950 S. C. 222 referred to above, or in other words he were legally bound to act in a judicial or quasi judicial manner. As there is no such statutory provision, a writ of certiorari cannot be issued. In the present case, I need not go so far as to hold that even if Jaipur Civil Service Regulations had been made under an authority given by a statute, they would not have had the force of law because they have not been shown to have been made under any statutory authority and this question does not arise. I may add that even the Bench, which issued the rule nisi was evidently not satisfied that a writ of certiorari could properly issue as the rule nisi was directed to the issue of mandamus only and not of certiorari. I now proceed to examine the question whether a writ of mandamus can be issued in these cases and if so in what terms. Both the petitioners have prayed for such a writ. It will appear from paragraphs 1279 and 1305 of Halsbury's Laws of England quoted above that a writ of mandamus is granted ordering that to be done which a statute requires to be done and the applicant for a writ of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought. In the present cases it was neither the legal duty of the Director of Education to adopt the procedure prescribed by rule 7 nor the legal right of the petitioners that they should not be dismissed unless the said procedure is followed. A writ of mandamus cannot therefore be issued compelling the Director of Education to decide the case afresh after following the procedure prescribed by rule 7. Again the writ of mandamus is normally a discretionary writ and should not be issued when there is a specific remedy which is convenient, adequate and effective, vide paragraph 1309 of Halsbury's Laws of England quoted above. Even if therefore the provisions of rule 7 were to have the force of law there is a specific remedy by way of appeal under rule 8 which is not less convenient, beneficial and effective. On this ground also the writ of mandamus compelling the Director of Education to decide the case after following the procedure prescribed by rule 7 is liable to be refused.
(3.) COMING lastly to the alternative prayer of the petitioners that in case their first prayer is not granted, a writ of mandamus be issued to the State of Rajasthan for deciding the appeals afresh after consultation with the Public Service Commission, it is to be seen whether such a writ can be issued. Rule 8 of Jaipur Civil Service Regulations, Appendix L, provides an appeal against an order under Rule 7. Such an appeal was presented by each of the petitioners on the 14th November, 1949 to the Chief Secretary, Rajasthan Government. No orders were passed on either of the two appeals before the 16th May, 1950 when petition No. 11 was filed jointly by Shiv Charanlal, Chandra Dutta and Mahavir Prasad. No orders on appeals were communicated to either of the two petitioners before Chandra Dutta made his separate application No. 46 when it was decided by a Bench of this court that the two applicants could not file a joint application. On the 15th of December, 1950, however, information was received by the petitioners that the appeals had been rejected on the 23rd May, 1950. By the last mentioned date Rajasthan Public Service Commission Ordinance, 1949, and the Constitution of India had come into force. The Public Service Commission Ordinance came into force on 17th December, 1949 and the Constitution of India on the 26th January, 1950. By the Notification No. F-10 (30), Appts. (c) / 49, dated the 17th December, 1949 published in the Rajasthan State Gazette, Extra Ordinary, dated the 22nd December, I949, Shri Sharat Kumar Ghose was appointed as Chairman, and Pt. Devi Shanker Tiwari and Shri N. R. Chandorkar were appointed as Members of the Rajasthan Public Service Commission till the 25th January, 1950. Again after the Constitution of India came into force, Pt. Devi Shanker Tiwari and Shri N. R. Chandorkar were appointed as members of the Rajasthan Public Service Commission by Notifications Nos. F.-1 (8), Appts. (c)/5o and F.-1 (9), Appts. (c)/50 respectively, dated January 26, 1950, published in the Rajasthan Gazette, Extra Ordinary, of the same date. Thus the members of Rajasthan Public Service Commission had been appointed before the appeals of the petitioners were rejected on the 23rd May, 1940. The appeals ought, there-fore,to have been decided in accordance with Art. 320 (3) (c) of the Constitution which runs as follows; - "the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters. " There can be no doubt that a disciplinary action had been taken against the petitioners in as much as they were dismissed for noncompliance with certain orders of the Education Secretary. It cannot be seriously contended that the petition of appeal did not come under the words memorials of petitions which find place in Art. 320 (3) (c ). The appeals could not, therefore, be rejected without first consulting the Public Service Commission as required by Art. 320 (3) (c ). I was the statutory duty of the Government of Rajasthan to consult the Public Service Commission before making any final orders and they failed to carry out that duty. It was argued by the learned Advocate appearing for the opposite party that the appeals were made to the Chief Secretary who had no right to entertain appeals against the orders of Heads of Departments and therefore the appeals were rightly rejected and there was no necessity to consult the Public Service Commission before deciding such incompetent appeals. This is too technical an objection and I find it difficult to accept it. All communications to the Government are ordinarily addressed to the Chief Secretary. The fact that the appeals were addressed to the Chief Secretary in the present case did not mean that it was the Chief Secretary who was required to make final orders thereon. The appeals ought to have been submitted by the Chief Secretary to the Government who alone could make final orders. The Government before making final orders was under a statutory duty to consult the Public Service Commission. It was contended that there is no question of consultation with the Public Service Commission after the appeals have been rejected & the question could only arise before final orders were passed on the appeals. This argument does not possess any force. The petitioners came to know that their appeals were decided without consulting the Public Service Commission only after the decision of the appeals. Before they were decided, they could not definitely know whether the appeals would be sent for consultation to the Public Service Commission or not. They cannot be denied the statutory right of their appeals being decided after consultation with the Public Service Commission simply because their appeals have been rejected. In Alcock Ashdown and Company Limited vs. The Chief Revenue Authority, Bombay (A. I. R. 1923 Privy Council 138), the Company filed a petition for the issue of a writ of mandamus to the Chief Revenue Authority of Bombay ordering, the said authority to refer to the court for its decision certain questions stated in the petition presented by the Company. The Chief Revenue Authority was bound by the provisions of the Indian Income-tax Act, 1918, made applicable to the cases under the Excess Profits Duty Act to state the cases for the opinion of the High Court under certain conditions when required by an assessee. The Company requested the revenue authority to state the case, but he did not do so and dismissed the application and decided the appeal. After the decision of the appeal, the application for writ of mandamus was made. Their Lordships issued the writ ordering the Chief Revenue Authority to refer to the court for decision the questions stated in the petition presented by the Company. The ground raised by the learned counsel for the opposite party, therefore, has no force. I would consequently allow both the petitions and make the rule absolute to this extent that the opposite party Rajasthan State be directed to decide the appeals of both the petitioners afresh after consultation with the Public Service Commission, as required by Art. 320 (3) (c) of the Constitution of India. Under the circumstances of the case I would make no order as to costs in either of the two cases. Wanchoo, C. J.- I have read the judgment of Sharma J and generally agree with him. I agree further with the order proposed by him and also about the order as to costs. .;