ORDER : 1. This is a petition under Art. 226 of the Constitution filed by N. P. Subramania Iyer, who was a Municipal Commissioner in the service of the 1st respondent-Travancore-Cochin State, and has, on the formation of Kerala State subsequent to the filing, opted for Madras. The complaint is in respect of the rank assigned to him as among the Municipal Commissioners in the State, in the gradation list as on 1-4-1953. 2. The Travancore District Municipalities Act 23 of 1116 by S. 13 (i) provided for appointment by Government, of a Commissioner for any municipality in the State. Prior to 1945 only four major municipalities of the Travancore State had commissioners so appointed and they were also all deputed from the State service. By Government Order dated 19-9-1945, Government sanctioned the appointment of municipal commissioners for eleven more municipalities tentatively for a three years’ period. Re-appointments were made in respect of all the commissioners at the expiry of the three years in 1948. Similar re-appointments were made in 1951, the notification concerned being Ext. D dated 15-9-1951. 3. On 8-6-1953, Government issued notification, prescribing certain rules relating to the conditions of service of municipal commissioners. Under these Rules, published at page 934 of Vol.II of the Statutory Rules and Notifications, 1953, the municipal commissioners were constituted officers under the service of Government belonging to a separate cadre, but not ordinarily entitled to transfer to or interchangeability with, other services under the Government. The cadre was to consist of 25 officers, divided into four grades in descending order of scales of pay, with particular numbers attached to each grade. Government however, reserved power in themselves to vary the total number of officers and the number of officers in each grade as and when found necessary. Rules 4 and 5 which are material for our purpose ran as follows : - “4. Appointments of the cadre of Municipal Commissioners shall ordinarily be in the last grade, promotions to the higher grades being made from the next lower grade on considerations of merit and past record and not merely of seniority. “5. Appointments shall ordinarily be made by direct recruitment and by promotion of persons already, in Municipal service possessing the prescribed qualifications in equal proportions. “5. Appointments shall ordinarily be made by direct recruitment and by promotion of persons already, in Municipal service possessing the prescribed qualifications in equal proportions. It shall however be open to Government to vary this proportion if, on the occurrence of vacancies in the cadre, suitable persons with the prescribed qualifications are not available for promotion from Municipal Service or in exceptional cases, to appoint as Municipal Commissioners suitable persons in Government service on foreign service conditions. The present Municipal Commissioners recruited to the cadre otherwise than from Government service may subject to suitability on consideration of past service and subject to the approval of the Public Service Commission, be treated to be substantive in the respective posts from the dates of their appointment as such” 4. On 16-11-1953 Government increased the number of Municipal Commissioners in the 2nd and 4th grades by four temporary posts and on the same date they issued notification Ext. B, absorbing all the existing municipal commissioners in the State provisionally in the cadre and assigning rank to them on certain principles mentioned. A gradation list prepared on the above basis and intended to he finalised later, was published along with the notification. The petitioner was first entertained as a municipal commissioner on 18-9-1945. The 3rd respondent C. Appukuttan Pillai was taken later, on 24-9-1945 on the same grade as the petitioner. But by Government Proceedings dated 24-9-1952, the 3rd respondent was allowed to officiate in a senior grade in a major municipality. As a result of this preferment of this 3rd respondent, his name was placed as the 2nd in the 3rd grade, while petitioner was given only the next place in the grade, in the grade list above. Appeal had been taken by the petitioner against the deputation of the 3rd respondent to act in higher grade then and there. He also took appeal on the higher ranking of the 3rd respondent under the gradation list as above, as allowed under the notification itself. Nevertheless, the higher ranking of the 3rd respondent was perpetuated in the final list which was issued under Ext. C Notification dated 10-11-1955. One of the two matters of complaint in this petition is this” precedence granted to the 3rd respondent. 5. Nevertheless, the higher ranking of the 3rd respondent was perpetuated in the final list which was issued under Ext. C Notification dated 10-11-1955. One of the two matters of complaint in this petition is this” precedence granted to the 3rd respondent. 5. The 2nd respondent K. Ananthan Pillai was the Tahsildar at Neyyattinkara on 8-7-1954, outside the special cadre of Municipal Commissioners constituted by the Notification of 8-6-1953 above referred to. His services were however requisitioned as Commissioner, Trivandrum Corporation for purpose of relieving the confusion prevailing there. This appointment resulted in the introduction of a “foreigner” into the top most place in the cadre. This is the second matter for complaint herein. 6. The petition avers that the preferment granted to and the precedence in the cadre so gained, by the 3rd respondent and the granting of a place to the 2nd respondent in the cadre at all, are violative of the petitioner’s rights guaranteed under the Notification of 8-6-1953 and that petitioner had been denied opportunity of being heard. The prayer is therefore made for the issue of a necessary writ or direction, so as to secure for the petitioner his rightful place and consequent benefits of higher pay and increments etc. 7. The petition is resisted by the respondents 1 and 3 by separate objections The 2nd respondent having retired by 1954 did not appear. Respondents 1 and 3 have taken the common ground that there has been no violation of any of the Rules governing the matter and that in any event, the complaint of the petitioner is not to any extent justiciable 8. On the petition being taken up, learned counsel for the respondents raised preliminary objection that the petitioner had since the date of the petition left the service of the 1st respondent-State and that on that ground alone, the petition should be struck off. Petitioner’s learned counsel replies that the position of the petitioner in the new State of his service, depends considerably on the disposal on the merits of the Petition herein and there was any how no merit in the preliminary objection. As however, I have heard fully and I am clear the petition fails on the merits, I do not desire to dispose of the petition on the preliminary objection. 9. As however, I have heard fully and I am clear the petition fails on the merits, I do not desire to dispose of the petition on the preliminary objection. 9. Taking up first, the appointment of the 2nd respondent, there is no doubt that his appointment as Municipal Commissioner was in departure from the ordinary rule as to appointment by way of promotions in the municipal service and did diminish the chances of promotion of the Petitioner and others already employed in that service. But it could not be a matter for complaint. For Government had reserved power in themselves in exceptional cases to appoint as Municipal Commissioners, suitable persons in Government service on foreign service conditions. It would appear that there was confusion prevailing in the administration of the Trivandrum City Corporation and the appointment of the 2nd respondent was intended solely as a temporary expedient to restore order and stability in the financial affairs of that institution. The order passed by the then Minister as quoted in the counter-affidavit, expresses clearly this object behind the appointment. There can therefore be no legal objection taken to the appointment of the 2nd respondent. Learned counsel says that there were persons of equal experience and competency among the municipal commissioners and the matter was therefore one for previous consultation with them. But this was a matter for the Government to decide and the fact that they went out a field must give the matter a quietus. Nor does the fact that Government did not hear the petitioner or others personally, before they came to their decision and again that they did not use the expression ‘exceptional’ in the particular case, affect the position. 10. Taking up next, the ranking of the 3rd respondent higher than the petitioner. That depended on his earlier selection for appointment in higher grade. And when the Government say they made the selection because of his greater experience and efficiency, there must here also, in my opinion, be a quietus. The appraisal does not require a viva voce. Personal non-consultation which alone can be and is relied on by the Petitioner is therefore of no consequence. 11. It follows accordingly that there is no merit in either of the matters raised by the Petitioner. This is enough to dispose of the. Petition. The appraisal does not require a viva voce. Personal non-consultation which alone can be and is relied on by the Petitioner is therefore of no consequence. 11. It follows accordingly that there is no merit in either of the matters raised by the Petitioner. This is enough to dispose of the. Petition. But as the question of justiciability was elaborately argued on either side, I will deal with that also. The question then is, whether a violation of service conditions under the Notification of Government dated 8-6-1953 will furnish a civil servant wronged by such a contravention, with a cause of action for redress in the Municipal Courts. Learned counsel is willing to concede that if the Notification in question is taken to be merely executive or administrative directions, he has no case to argue, in view of the rule well established in this court under the decisions ending with Mary v. State of T.C., 1957 K.L.T. 938. But he says that the Notification here has got the force of a statutory enactment and if so, its violation was amenable to Judicial review under Art. 226. Learned Government Pleader in reply refutes the assumption that we have here any Statutory Rules at all as to service conditions and he says further that even so, the courts have no jurisdiction in the matter. 12. On the first aspect as to the character of the Notification we have to notice that it purports to be issued under S. 13 (i) of the District Municipalities Act, 23 of 1116. Now S. 13 (i) says: “Our Government may, by notified order, appoint a Commissioner lor any municipality and may, by a like order, cancel such appointment. Every order appointing a commissioner shall specify the reasons therefore” Obviously there is no provision herein for fixation of service conditions governing municipal commissioners appointed for all the various municipalities. To the extent therefor that the Notification provides for service conditions of Municipal Commissioners it cannot be viewed as subsidiary legislation under Part V of the Act. For it is only where the Rules or Notifications carry out all or any of the purposes of the Act, that S. 323, falling under Part V is attracted. The argument of learned counsel on this aspect fails. 13. But even assuming it is a case of Statutory provisions, how does the matter stand. For it is only where the Rules or Notifications carry out all or any of the purposes of the Act, that S. 323, falling under Part V is attracted. The argument of learned counsel on this aspect fails. 13. But even assuming it is a case of Statutory provisions, how does the matter stand. This precise question came up for consideration before Rajagopala Iyengar, J., in Devasahayam v. State, 1958 M.L.J. 38. After elaborate discussion of the position in all its historical perspective, the learned Judge observed at page 58, “On the language of the Article (310) of the Constitution, the argument scarcely seems open that the “pleasure” is qualified or conditioned by the observants of the rules framed under Article 309 or other similar provisions or continued under Article 313. If I am right so far, the violation or infraction of a Statutory rule would give rise to a cause of action for being agitated in Courts only if the nature of the infringement brought it within the jurisdiction of the courts or their competency to afford relief. If the violation of a statutory rule governing governmental action caused an injury to a right enforceable in court, say a right to property or a right to carry on business or trade, apart from the right being guaranteed by the Constitution, the established Courts of law would be competent to afford relief In such cases, if the jurisdiction of a High Court under Art. 226 were invoked, there would be ample power vested in the court to redress the grievance. The right, however, that was infringed in the case on hand, viz., the reduction in seniority was an injury in relation to an office that was constitutionally declared to be held at the ‘pleasure’ of the Governor.”- (The underlining is mine). 14. Reference may also be made to the decision of Rajagopalan, J., in Sambandhan v. R.T.S. Southern Railway, (1957) 2 M.L.J. 541 . That was a case where the conditions of service of railway employees were governed among other things by statutory rules in the Indian Railway Establishment Code and the petitioner employee challenged the validity of an order alleged to be in violation of such rules, by petition under Art. 226 of the Constitution praying for a writ of mandamus or other appropriate writ. The learned Judge in the course of his order, observed: “The effect of Article 310 (i) of the Constitution would be to allot to the exclusive domain of the Executive the right to employ civil servants at its pleasure, subject, of course, to any other express provision made in that behalf by the Constitution itself. Legislative competence to legislate on that subject was specially conferred by Article 309 of the Constitution. Item 70 of List I and Item 41 of List II of the Seventh schedule of the Constitution are in conformity with the provisions made in Article 309. But even without the provision made in the Proviso to Article 309, the Executive would have had the power to regulate conditions of service by rules made by it from to time. But violation of any of the service rules by which the seniority or other status or incident of a civil servant is regulated is not justiciable, although violation of the guarantees afforded by Article 311 is actionable in the sense that recourse can be had to court to redress the wrong.” Further down, the learned Judge said:- “The rules promulgated under Article 309 of the Constitution do not, of their own force, become part of the Constitution, so as to fall within the scope of the expression “except as expressly provided by the Constitution” in Article 310 (i); nor can the rule be viewed as terms of any contract between the civil servant and the Government. Though service rules framed under S. 241(2) of the Government of India Act, 1935, & continued in force by Article 313 of the Constitution have been comprehended within the scope of the expression ‘laws in force’ in Art. 313, violation of service rule, rule of seniority of a railway servant for instance, even as a “law in force” is not enough to make it justiciable. It is still the exclusive domain of the executive to grant redress and it is not an actionable wrong for which the court could grant redress.” 15. Learned counsel referred to two cases in S.D. Mathur v. Municipal Board, Agra, A.I.R. 1956 All. 181 and Banmali v. Dist. Board, Jhansi, A.I.R. 1956 All. 460. But these cases concern statutory bodies whose powers are limited by the provisions of the Statute concerned, e. g. the Municipal Corporation in the one case and a District Board on the other. Learned counsel referred to two cases in S.D. Mathur v. Municipal Board, Agra, A.I.R. 1956 All. 181 and Banmali v. Dist. Board, Jhansi, A.I.R. 1956 All. 460. But these cases concern statutory bodies whose powers are limited by the provisions of the Statute concerned, e. g. the Municipal Corporation in the one case and a District Board on the other. The decisions held that in discharging their servants the positive Rules laid down in Statute should be conformed to. These have hardly any bearing on the powers of the State under Art. 310 which we have on hand. It follows, therefore, that even assuming that Ext. C Notification is of legislative origin, even then there is no help for the petitioner. 16. The petition fails in the result and is therefore dismissed. There will be no costs however in the circumstances. Dismissed.