Case: Ganesh Prasad Dube Vs. State Of Bihar And Others

2. The appellant was appointed by the order, dated March 21, 1968, by the State of Bihar temporarily to act as Director of public instruction, On the date of the said appointment the appellant was the Director of State Institute of Science. In the endorsement in this order, it was stated that the appellants appointment as Director of Public Instruction has been made by promotion on a temporary basis for a period not exceeding six months in anticipation of the concurrence of the Public Service Commission. By order, dated November 18, 1968, the State Government passed an order posting the appellant as Director of State Institute of Education. It is stated in the said order that the appellant had been officiating in the post of Director of Public Instruction by virtue of the order, dated March 21, 19683. The appellant filed C.W.J.C. No. 153 of 1969 before the High Court challenging this order of November 18, 1968 on various grounds. He had also alleged mala fides in the passing of the said order. In the view that we take that the order of the High Court granting the certificate has to be remitted for fresh consideration, we do not propose to refer to the various grounds of attack made by the appellant in his writ petition before the High Court. The High Court by its order, dated February 17, 1969 has taken the view that as the appellants appointment as Director of Public instruction was on a temporary basis for a period not exceeding six months in anticipation of the concurrence of the Public Service Commission, the Public Service Commission, which was subsequently consulted did not give its concurrence to he appointment of the appellant as Director of Public Instruction and therefore, the Government passed the impugned order, dated November 18, 1968, posting the appellant as Director, State institute of Education. As the appellant was appointed purely on a temporary basis, he has no right to claim the post. The High Court has further expressed the view that it is not satisfied prima facie that there was any mala fides on the part of the Government in not appointing the appellant as Director of public Instruction. A further contention taken on behalf of the appellant that the impugned order was not in conformity with the decision of the Council of Ministers, was rejected by the High Court, on this reasoning the High Court held "as no prima facie case has been made out for interference with the order of the Government, as contained in Annexure 1, this application is summarily rejected". Annexure 1, in the above quotation was the impugned order, dated November 18, 1968. It may be noted that the writ petition was dismissed without issuing notice to the State and other respondents therein.

Court's reasoning:
Though the concluding part of the order granting the certificate states that it has been granted under Article 133(1), in the circumstances mentioned above, it is clear that the certificate has been granted only under article 133(1)(b). This is on the ground that the appellant claimed his right to the office of the Director, public Instruction, which would have brought him the emoluments referred to by him for a period of 3 years and three months, if the impugned order had not been passed. This method of valuation for the purpose of clause (b) is not correct12. We are not inclined to agree with Mr. Desai that if the certificate granted by the High Court is not valid, in this Court can proceed to hear the appeal on merits. Mr. Desai relied on the decision of this Court reported in Century Spinning and manufacturing Company Ltd., and Another v. Ulhasnagar Municipal Council and Another (1970 (1) SCC 582.)  in support of his contention that the High Court was not justified in dismissing the writ petition summarily. It is no doubt true that in the above decision it has been held that though the High Court has a discretion to decline to exercise its extraordinary jurisdiction under Article 226, nevertheless, the discretion is to be judicially exercised and if the petitioner makes a claim which is frivolous, vexatious or prima facie unjust, the High Court may decline to entertain the petition. But if a party claims to be aggrieved by the unlawful, arbitrary or unjust order of a public body or authority, he is entitled to a hearing of his petition on merits and the High Court will not be justified in dismissing such a petition on limine14. If the certificate granted by the High Court, as contended by Dr. Singhvi, is invalid, then the appeal before us is an incompetent appeal and no direction on merits can be given by this Court on such an incompetent appeal. There can be no controversy that if the certificate is not valid, the only course open to this Court will be to dismiss the appeal. Dr. Singhvi urged that the grant of certificate under Article 133(1)(b) in this case is not justified because the method of valuation adopted by the High Court is not correct16. It is not necessary at this stage to consider whether correct principles have been applied by the High Court in granting the certificate under Article 133(1)(b). As we have pointed out earlier, it has expressed doubts here and there and it has granted the certificate under that clause on the ground that the Patna High Court has granted certificate under similar circumstances. As the High Court is being required to consider this matter afresh, we do not him it necessary to express any opinion on this aspect. Admittedly the High Court has not considered the question whether the appellant will be entitled to a certificate under Article 132(1) or Article 133(1)(c). It was pointed out to us on behalf of the respondents that the High Court did not consider the grant of a certificate under clause (c) of Article 133(1) as no argument was advanced by the appellant that the case involves a substantial question of law as to the interpretation of the Constitution. No doubt there is such a passing remark in the order of the High Court; but as the matter has to be reconsidered by the High Court, it is desirable that the claim of the appellant under this clause is also considered by the High Court. We have already referred to the fact that even clause (b) has been considered only in a very halting manner by the High Court. Therefore, the position is that the certificate as granted by the High Court is not a valid certificate and as such the appeal must be held to be incompetent. But the matter does not rest there. In cases where the claim for certificate made on other clauses or under other Articles have not been considered at all, this court has directed the High Court to consider the question whether a case has been made out for issue of a certificate under such other provisions17. As the High Court has not properly considered the application filed by the appellant, that is Supreme Court Appeal No. 42 of 1969, before the High Court for grant of the certificate, the application will be taken up by the High Court afresh. The High Court will consider whether the appellant is able to satisfy the Court that he is eligible to get a certificate under Article 132(1) or under Article 133(1)(b) or (c) of the Constitution. It is not granted under clause (a) of Article 133(1) as that question is already concluded against the appellant in its order, dated March 13, 1969. The High Court in the fresh order to be passed must clearly indicate under what particular Article or clauses of the Article, the certificate is granted. We are constrained to make this remark because in the present order the High Court has merely stated that the certificate is used under Article 133(1).