Ponnamma v. Manager K A M U P School Muthukulam — 1972 DIGILAW 102 (KER)

JUDGMENT Isaac, J. 1. The 3rd respondent was appointed as a teacher in an aided upper primary school under the management of the 1st respondent on 16th July 1969 in a regular vacancy. The 1st respondent sought the approval of the Assistant Educational Officer for that appointment; but the approval was delayed, since another person made a preferential claim for being appointed in that vacancy. When that matter was pending, a temporary vacancy arose. The petitioner was appointed in that vacancy on 14th October 1969; and the manager sought approval of the Assistant Educational Officer for that appointment also. He granted approval for both appointments, on 15th October 1969. On 19th December 1969, the petitioner was relieved from service, on the cessation of the vacancy in which she was appointed. The 3rd respondent continued in service till the end of the academic year in March 1970. In the following academic year 1970-71, the 3rd respondent was again appointed as a teacher in a regular vacancy; and the manager sought the approval of the Assistant Educational Officer. He declined to grant approval, stating among other things that the petitioner was entitled to that appointment, since she was senior to the 3rd respondent by virtue of Rule 37 (2) in chapter XIV-A of the Kerala Education Rules, 1959 (hereinafter referred to as the Rules). The 3rd respondent filed an appeal from that decision to the District Educational Officer. The petitioner also put forward her claim before the District Educational Officer. The appeal was rejected by him by his order Ext. P-1, dated 10th March 1971, upholding the decision of the Assistant Educational Officer. The 3rd respondent filed a second appeal before the Director of Public Instruction, 2nd respondent, who by his order, Ext. P-3, dated 10th November 1971, allowed the appeal holding that the 3rd respondent was the legitimate claimant for the appointment. This writ petition has been filed to quash Ext. P-3 as illegal and contrary to the /provisions of the Rules and for incidental reliefs. 2. The whole contention of the petitioner before the departmental authorities as well as before me was that the petitioner was senior to the 3rd respondent by virtue of Rule 37 (2), in chapter XIV-A of the Rules, and that she was, therefore entitled to preferential appointment. Rule 37 reads: "37. 2. The whole contention of the petitioner before the departmental authorities as well as before me was that the petitioner was senior to the 3rd respondent by virtue of Rule 37 (2), in chapter XIV-A of the Rules, and that she was, therefore entitled to preferential appointment. Rule 37 reads: "37. (1) Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post. (2) In the case of teachers in the same grade in the same unit, whose date of first appointment is the same, seniority shall be decided with reference to age, the older being senior." The above rule deals with determination of seniority of teachers in an aided school. It has absolutely no application, to the question of preferential appointment. The question of seniority also does not arise in the case of the petitioner and the 3rd respondent, since neither of them was a teacher in the school, at the time the vacancy arose. 3. The rule that relates to preferential appointment is rule 51-A in chapter XIV (A) of the rules. That rule reads: "Qualified teachers who are relieved as per rule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Educational Agency provided they have not been appointed in permanent vacancies in schools under any other Educational Agency." It lays down a rule of preference in favour of persons who fall within its ambit as against those who do not. It does not deal with any preference as among persons who fall within its ambit. It was therefore, contended on behalf of the respondents that the manager of a school is entitled to choose any one from among such persons, irrespective of the question of earlier appointment or longer period, of service under an early appointment. I refrain from expressing any opinion on this question, since even on the assumption that, the preference is to be given to a person having earlier appointment or longer period of service, the petitioner is not entitled to succeed. Admittedly, the 3rd respondent was in service from 16th July 1969 till March 1970, while the petitioner was in service only from 14th October 1969 to 19th December 1969. Admittedly, the 3rd respondent was in service from 16th July 1969 till March 1970, while the petitioner was in service only from 14th October 1969 to 19th December 1969. The contention of the petitioner is that both the appointments became effective on the same date, namely 15th October 1969, when they were approved, and that the petitioner was senior to the 3rd respondent by virtue of rule 37 (2), since she is older in age than the 3rd respondent. The question of age in determining seniority arises only in the case of persons who were appointed on the same date. The contention that the appointment takes effect only on the date of approval by the educational authority cannot be sustained in the light of rule 7 in chapter XIV (A) of the rules. It reads: "As soon as a teacher is appointed in a school, the Manager shall immediately issue an appointment order to the teacher (in Form 27) and the appointment shall be effective from the date on which the teacher is admitted to duty, provided the appointment is duly approved." It is clear from the above rule that the appointment shall be effective from the date on which the teacher is admitted to duty. In other words, the approval will take effect from the date on which the teacher joins duty." So, the 3rd respondent had much longer previous service than the petitioner; and even assuming that the appointment should be made on the basis of seniority under past service, the third respondent would be entitled to preferential appointment. The Assistant Educational Officer was, therefore, bound to approve the 3rd respondent's appointment. It follows that his order declining approval, for the said appointment, and the affirmation of the order by the District Educational Officer were both wrong and contrary to the Rules; and that the order passed by the 2nd respondent is correct. 4. A contention has been raised by the petitioner before the 2nd respondent as well as before this Court that the 2nd respondent has no jurisdiction to entertain an appeal from the order of the District Educational Officer. According to the petitioner, the question that arises for decision is one of seniority, between the petitioner and the 3rd respondent, and an appeal in respect of such a matter is governed by rule 38 (2) in chapter XIV (A) of the Rules. According to the petitioner, the question that arises for decision is one of seniority, between the petitioner and the 3rd respondent, and an appeal in respect of such a matter is governed by rule 38 (2) in chapter XIV (A) of the Rules. Under that rule, the appeal from an order of the District Educational Officer lies to the Regional Deputy Director and not to the Director. I have already held that the question of seniority does not arise in this case; and therefore this argument cannot stand. It was alternatively contended by Counsel for the petitioner that the case would fall within rule 8 of chapter XIV (A), that the appeal filed by the 3rd respondent before the District Educational Officer was one under sub-rule (5) of that rule from an order of the Assistant Educational Officer, declining approval for the appointment, and that the order of the appellate authority is final under sub-rule (5). It was, therefore, submitted that there was no scope for a further appeal to any authority, much less to the Director of Public Instruction. Rule 8 (5) reads : "An appeal shall lie against the order declining approval o appointment issued by the Assistant Educational Officer, or the District Educational Officer to the District Educational Officer, or the Regional Deputy Director as the case maybe. The decision of the appellate authority shall be final." It appears to me that the above contention is entitled to succeed. The only remedy for a person aggrieved by an appellate order passed under sub-rule 5 of rule 8 is to invoke the revisional jurisdiction of the Government under rule 92 in chapter XIV-A of the Rules. 5. The second respondent overruled the above contention holding that the case fall within Rule 64 in chapter XIV”A. The same position has been taken up by the respondents before me. That rule reads: "Disputes between the teacher and the manager.”An appeal shall lie to the District Educational Officer against the orders of the Assistant Educational Officer in regard to any dispute between the teacher and the manager that, might be referred to him and an appeal on the orders of the District Educational Officer shall lie to the Director. That rule reads: "Disputes between the teacher and the manager.”An appeal shall lie to the District Educational Officer against the orders of the Assistant Educational Officer in regard to any dispute between the teacher and the manager that, might be referred to him and an appeal on the orders of the District Educational Officer shall lie to the Director. Such appeal shall be preferred within thirty days of the receipt of the Educational Officer's orders." It is contended that the order appealed from was an order in regard to a dispute between the teacher and the manager, and that the Director is therefore the proper authority to entertain an appeal from the decision of the District Educational Officer. On the facts of the case lam unable to accept this contention. The Assistant Educational Officer's order declining approval for the appointment of the 3rd respondent was accepted and acted on by the manager. He did not raise any dispute. The dispute that arose before the Assistant Educational Officer was between the petitioner and the 3rd respondent, not even between two teachers, but between two candidates for the post. Therefore, the case cannot attract the above rule. As already stated, it falls squarely within sub-rule 5 of rule 8. However, I decline to interfere in this case, though the order; passed by the 2nd respondent is one without jurisdiction. The impugned order is a correct order according to law. The order of the Assistant Educational Officer, declining approval for the appointment of the 3rd respondent and its affirmation by the District Educational Officer were patently wrong and even perverse. Those orders would have been quashed by this Court, if such a relief was sought under Article 226 of the Constitution. The effect of quashing the order of the second respondent would be to give effect to such illegal orders passed by the subordinate authorities, and it would be an abuse of the extraordinary jurisdiction vested in this Court. 6. In the result, I dismiss this writ petition. But in the circumstances of this case, I make no order as to costs.