Judgment :- 1. These two petitions are by the same person in respect of the same matter and substantially for the same relief. The later petition, O.P. 123 of 1959, is more or leas a repetition of the earlier petition, O. P. 324 of 1958, excepting that it takes note of an event subsequent to the institution of the earlier petition and asks for an additional relief on that account. Therefore the earlier petition may, for all practical purposes, be ignored. 2. The petitioner entered the service of the 2nd respondent Municipal Council in August 1932 in some subordinate capacity or other. He had not passed the S.S.L.C. Examination but had only completed the course, and he held a certificate to that effect. It would appear that a pass in the S. S. L. C. examination was not a necessary qualification for the particular appointment. The petitioner produced his S.S.L.C. book before he joined duty, and his service book which was prepared by some other person in the office (that was duly signed by him) contained the entry, "Secondary School Leaving Certificate" to indicate the petitioner's qualification. The return of appointments sent by the Municipal Council that year showed the petitioner only as the holder of a Secondary School Leaving Certificate and not as a person who had passed the examination. It would appear that a pass in the examination is a necessary qualification for promotion and presumably on his own application, Government by G. P., D. Dis. 95882/53/E.H.L.S.G.dated 14-8-53 gave the petitioner the necessary exemption and declared him eligible for promotion. In pursuance of this order the petitioner got his promotion in due course. 3. This notwithstanding, it would appear from the affidavit of the 2nd respondent Council, that on 13-12-1956 its Commissioner (the 3rd respondent) reported to the 1st respondent State Government that the petitioner had "secured promotions on the basis of an incorrect representation that he had passed the S.S.L.S. Examination and that the petitioner was responsible for a false entry to that effect in his service book". By a memorandum dated 23-9-1957 the Government directed the Commissioner to frame charges against the petitioner and proceed against him according to law. It would also appear that the Commissioner was directed to place the petitioner under suspension pending enquiry. By a memorandum dated 23-9-1957 the Government directed the Commissioner to frame charges against the petitioner and proceed against him according to law. It would also appear that the Commissioner was directed to place the petitioner under suspension pending enquiry. Accordingly, the petitioner was placed under suspension on 25-9-1957 and after holding an enquiry, Commissioner found the petitioner guilty and by the order, Ext. P.1 dated 16-1-1958, directed his compulsory retirement from service with effect from 25-9-1957, the date of his suspension. In doing so the Commissioner acted under S.72 of the Travancore District Municipalities Act, 1116, which, subject to such control as may be prescribed by the Government, invests the executive authority (namely, the Commissioner) with the power of punishment (extending up to dismissal) over municipal servants of the rank of the petitioner. 4. Under S.3 (21) of the Act, "Prescribed" means prescribed by Government by rules made under the Act, and by its notification No. R. Dis. No.835/48/L.G.A. dated 9-9-1948 published in the Gazette of the 14th September 1948, Government had made certain rules "relating to the appointments, punishments, etc. of officers and servants of the Municipal Councils". The preamble to these rules mentioned that the rules were made after previous publication as required by S.324 of the Act which section lays down how the rule-making power given by S.323 is to be exercised. The preamble however, expressly referred only to S.69 of the Act (which vests in the Chairman and the executive authority the power to make appointments subject to any rules which the Government may make) as the provision under which the rules were made, and did not refer either to S.72 which deals with punishments or to S.323 which confers the rule-making power on the Government. 5. Under R.28(1) of these rules, an appeal lies to the Government from the more severe forms of punishment imposed by the executive authority, and under R.28 (ii), the Government, or such officer as the Government may empower, may call for the records relating to the punishment of any municipal servant and pass such orders as may be deemed fit. By Notification No. L. S.5/ 25433/55/L. S. G. dated 22-9-1956 published in the Gazette dated 25-9-1956 the Government had, acting under S.387 of the Act, authorised the Director of Local Bodies to exercise the above powers of appeal and revision. 6. By Notification No. L. S.5/ 25433/55/L. S. G. dated 22-9-1956 published in the Gazette dated 25-9-1956 the Government had, acting under S.387 of the Act, authorised the Director of Local Bodies to exercise the above powers of appeal and revision. 6. On the 23rd January 1958 the petitioner appealed to the Director of Local Bodies against the punishment awarded to him by the 3rd respondent Commissioner by his order Ext. P1, dated 16-1-1958. On the 20th May 1958, the Director of Local Bodies passed the order, Ext. P2, allowing the appeal, setting aside the order of the Commissioner, and directing that the petitioner be restored to duty and that he be given all emoluments from the date on which his services were dispensed with. In doing so, the appellate authority drew pointed attention to what must have been apparent to all but those who would not see, namely, that the petitioner had made no false representation regarding his qualification and that, in fact, he had secured promotion only after obtaining an exemption from the Government. 7. Under R.28 (iii) of the rules referred to, the executive authority is bound to give immediate effect to all orders passed in appeal under R.28(1) or in revision under R. 28(ii). But, when on 24-5-1958 the petitioner reported for duty, the 3rd respondent Commissioner would not allow him to join, but served on him the memorandum, Ext. P3, to the effect that the matter had been referred to the Government and that the final orders of the Government were awaited. This is notwithstanding the clear duty enjoined on him by R.28(iii) and it is said in the affidavit sworn to by the 3rd respondent on behalf of the 2nd respondent Council that he did this because the Chairman (who, it may be remarked, has no power whatsoever in the matter either under the Act or the Rules) had informed him (presumably orally) that further action should be taken only after referring the matter to the Government. 8. On the 29th May 1958, the petitioner came to this Court with O.P. 324 of 1958 praying for a writ or order under Art.226 of the Constitution cancelling the order of the Commissioner, Ext. P3 dated 26-5-1958, and directing the Commissioner to implement the order Ext. P2, of the Director of Local Bodies and restore the petitioner to duty in terms of that order. P3 dated 26-5-1958, and directing the Commissioner to implement the order Ext. P2, of the Director of Local Bodies and restore the petitioner to duty in terms of that order. On this petition notice was directed to the Government. The Advocate-General appeared for the Government and on 4th December 1958 the court, without deciding the question whether the Government had any right to deal with the matter in any manner, said that Government could, if it thought it had the power, pass appropriate orders within three weeks from that date and observed further that it would be open to the petitioner to challenge any order that Government may make if that order was against him. On the 29th December 1958, Government passed the order Ext. P. 4 by which it held that the order Ext; P.1 passed by the Commissioner directing the compulsory retirement of the petitioner was illegal and of no binding force since compulsory retirement was not one of the punishments mentioned in S.72 of the Act. It further held that the rules relating to appointments, punishments, etc. made by the Government by its notification of the 9th September, 1948, were ultra vires in so far as they related to punishments, "since S.69 of the Act under which the rules were framed relates to appointments and does not authorise the framing of rules regarding punishments of municipal servants." The rules under which he acted being ultra vires, the order Ext. P2 dated 20-5-1958 passed by the Director of Local Bodies allowing the petitioner's appeal and restoring him to office was also ultra vires. In this view, the Government instructed the Commissioner to take "denovo proceeding against the clerk according to the rules relating to the case at the time of taking action" and by a notification dated 21st January 1959, Government proceeded to "cure the defect" in the notification of the 9th September 1948 by reading into the preamble S.72 and 323 of the Act in addition to S.69. On the 30th January 1959 the petitioner came forward with O. P. 123 of 1959 under Art.226 and 227 of the Constitution, praying for a writ or order cancelling the Government's order Ext. P. 4 and prohibiting the taking of denovo proceedings against him, in addition to the reliefs claimed in his earlier petition, O. P. 324 of 1958. 9. On the 30th January 1959 the petitioner came forward with O. P. 123 of 1959 under Art.226 and 227 of the Constitution, praying for a writ or order cancelling the Government's order Ext. P. 4 and prohibiting the taking of denovo proceedings against him, in addition to the reliefs claimed in his earlier petition, O. P. 324 of 1958. 9. It is apparent from this bare statement of the facts that the petitioner has been most unjustly treated. For, although it is clear that, as held by the appellate authority, he was innocent of the charge on which the Commissioner awarded him the punishment of compulsory retirement, he has now to face a fresh enquiry on the same charge with the risk of suffering the more severe punishment of dismissal. 10. The affidavit sworn to by the 3rd respondent Commissioner on the 23rd March 1959, shows that on a representation made by the petitioner to the Minister concerned on 29-12-1958 through the President of the Alleppey Municipal Association, Government have ordered that the petitioner "may be allowed to join duty subject to the conditions that no pay for the period for which he was out of duty would be paid, that no other loss of rights would be imposed and that his prayer to give him exemption from retirement shall not be granted." Accordingly on the 16th February 1959, the Commissioner issued a memorandum to this effect to the petitioner and the petitioner replied on the 7th March to the effect that he bona fide believed that he was entitled to join duty without any such conditions as mentioned in the memorandum. He also expressed his willingness to join duty without those conditions. To this the petitioner got no response, and he is still out of office. All that we need say about this episode is that it is not calculated to establish the bona fides of the respondents in respect of the action they have thought fit to take with regard to the petitioner. 11. The contention of the respondents is that their action is not open to judicial review and that, even if they erred or acted unjustly, we are helpless to set matters right and remedy the injustice. We do not subscribe to this view, for, we have no doubt that the order passed by the appellate authority under Ext. 11. The contention of the respondents is that their action is not open to judicial review and that, even if they erred or acted unjustly, we are helpless to set matters right and remedy the injustice. We do not subscribe to this view, for, we have no doubt that the order passed by the appellate authority under Ext. P. 2 was a perfectly valid order which still remains in force notwithstanding the order Ext. P. 4 passed by the Government. This conclusion we reach by holding that the rules made by the Government on the 9th September 1958 are perfectly valid rules made in exercise of the rule-making power in the Act and having, by reason of S.324 (c) of the Act, the same effect as if enacted in the Act. The rules having the force of law, by reason of R.28 (iii) thereof, the 3rd respondent Commissioner who is a public officer is by law enjoined to give effect to the order passed by the appellate authority in Ext. P3 and restore the petitioner to office with emoluments from the date on which his services were terminated. The Commissioner having refused to do this - his memorandum Ext. P. 3 dated 26-5-1958 that he was awaiting the orders of the Government, and his failure to respond to the petitioner's request of the 7th March 1959, that he may be allowed to join duty without any conditions, are nothing short of refusal - and his refusal having resulted in grave injustice, this seems to us eminently a case where we should, by a writ of mandamus, compel him to do his duty. For, the Petitioner has no other remedy. A suit for damages for wrongful dismissal will not lie, for, he has not been dismissed; and in any case that would not be an adequate remedy. 12. We shall briefly examine whether the view taken by the Government in its order Ext. P4, for the purpose of upsetting the petitioner's acquittal by the appellate authority and subjecting him to a retrial, is correct. We are afraid that it is altogether unsupportable. 12. We shall briefly examine whether the view taken by the Government in its order Ext. P4, for the purpose of upsetting the petitioner's acquittal by the appellate authority and subjecting him to a retrial, is correct. We are afraid that it is altogether unsupportable. We are not really concerned with the legality or otherwise of the Commissioner's order of punishment-what we are really concerned with is the legality of the appellate authority's order of acquittal - but we might, in passing, observe that under S.72 of the Act, the executive authority may reduce, suspend, remove or dismiss a municipal servant. Compulsory retirement is a form of removal, and the view expressed in Ext. P. 4 that such a punishment is not permitted by the Section seems to us wrong. 13. Now, to consider the rules of the 9th September 1948, which Ext. P. 4 pronounces to be ultra vires in so far as they relate to punishments, it will be observed that under S.72 the powers of punishment of the executive authority are subject to such control as may be prescribed by the Government by rules made in that behalf. A provision for appeal and revision is such controls and under S.323 (2) (a) the Government may, without prejudice to the generality of the power given in S.323 (1) to make rules to carry out all or any of the purposes of the Act make rules with reference to all matters expressly required or allowed by the Act to be prescribed. That the Government fully intended to make such rules with reference to punishments in exercise of the power under S.323 read with S.72 is quite apparent from the preamble to the notification of the 9th September 1948 which says that the Government are pleased to make the following rules "relating to the appointments, punishments, etc., of officers and servants of the Municipal Councils." And the title of the rules that follow is "Rules relating to the appointments, punishments, etc. of officers and servants of Municipal Councils." The preamble further says that the rules have been previously published as required by S.324(a) of the Act, and this is further indication, if such indication were necessary, that the rules were made under S.323. It is not and indeed cannot be disputed that in making the rules, the Government were acting as a subordinate legislature and not as an executive authority. It is not and indeed cannot be disputed that in making the rules, the Government were acting as a subordinate legislature and not as an executive authority. The intention to make rules to provide for punishments being manifest, and the power to make such rules under S.72 read with S.323 being indisputable, it would follow that the rules actually made were rules validly made in exercise of this power notwithstanding the omission to refer either to S.72 or to S.323 in the preamble as the Sections from which the power is derived. This seems to us self evident, but if authority were necessary, it is to be found in the observation of the Supreme Court (in P. Balakotaiah v. Union of India and others, A.I.R. 1958 Supreme Court, page 232, at page 236 of the report), that no exception could be taken to the proposition that when an authority passes an order which is within its competence, it cannot fail merely because its purports to be made under a wrong provision, if it can be shown to be within its power under any other provision. More specific authority is to be found in A.I.R. 1924 Madras 92, A.I.R. 1930 Madras 648 and 1957 K.L.T. 411. 14. There can be no doubt that the rules are valid and that the order, Ext. P. 2 of the appellate authority made under the rule's is a valid order' which the 3rd respondent Commissioner, is bound to obey. We might perhaps observe that, consistent with its: stand that the rules in question are void, Government have no pretence that its order Ext. P 4 is an order in exercise of its powers of revision under R.28 (ii). In fact its case is that Ext. P4 is not an order of the Government, but is only a memorandum issued in pursuance of S.36(2)(d) of the Act which enables the Government to record in writing for the consideration of the executive authority any observations that it may think proper in regard to its proceedings; or duties. Whether Ext. P4 can properly office within this Section and whether having delegated its powers under R.2(iii), Government cam still exercise these powers, are questions which have argued before us but which it is not necessary for us to consider. 15. The stand taken by the respondents that Exts. Whether Ext. P4 can properly office within this Section and whether having delegated its powers under R.2(iii), Government cam still exercise these powers, are questions which have argued before us but which it is not necessary for us to consider. 15. The stand taken by the respondents that Exts. P. 3 and P. 4 are not liable to be by judicial review is perhaps correct. But it is not necessary to quash them. They are of no effect and have to be completely ignored. 16. In the result we allow O. P. 123 of 1959 and, by a writ of mandamus, direct the 3rd respondent Commissioner to ignore the order Ext. P.4 dated 29-12-1958 of the 1st respondent State Government and to obey the order Ext. P.2 dated 20-5-1958 of the appellate authority and restore the petitioner to office forthwith in terms thereof. The petitioner will get his costs from the respondents. Advocates fee Rs. 150/ 17. There will be no separate orders in O. P. 324 of 1958.