Manager Vanneri High School v. C. P. Chandramathi — 1973 DIGILAW 24 (KER)

JUDGMENT T.C. Raghavan, C.J. 1. The first of these appeals is by respondents 4 and 5 in the writ petition; and the other appeal is by respondents 1 to 3. The fourth respondent is the Manager of a High School and the fifth respondent is a peon therein. Respondents 1 to 3 are the State of Kerala, the Director of Public Instruction and the District Educational Officer respectively. 2. The petitioner in the writ petition, viz., the first respondent in both the appeals, was qualified to be appointed a clerk; and when a temporary vacancy arose in the High School, she was appointed to that post on 28th June 1968. And she continued in that post till 28th February 1969 (for 8 months), when the vacancy terminated and she was discharged. A permanent vacancy for clerk arose on 22nd September 1970; and the Manager appointed the fifth respondent in the writ petition, who was then a peon working in the High School, as the clerk. Some time later, the petitioner happened to know about it; and she made a representation to the District Educational Officer to direct the Manager to appoint her relying on R.51A of Chap.14A of the Kerala Education Rules read with R.7 of Chap.24B. The District Educational Officer gave a direction to the Manager asking him to appoint the petitioner. The petitioner also approached the Manager on the strength of this, when the Manager told her that the matter had been referred to the Director of Public Instruction for clarification. A few months thereafter, the petitioner was informed by the District Educational Officer (Ex. P7) that the appointment of the fifth respondent was approved in pursuance of a direction by the State Government. The petitioner then requested the District Educational Officer to give her a copy of the order of the State Government which was also furnished (Ex. P9). In the writ petition, the petitioner sought to quash Exs. P7 and P9; and a learned Judge of this Court allowed the writ petition and quashed those orders. In the appeals before us, one by the Manager and the aggrieved peon and the other by the Government and the Government officers, the correctness of the said decision of the Single Judge is being impugned. 3. P7 and P9; and a learned Judge of this Court allowed the writ petition and quashed those orders. In the appeals before us, one by the Manager and the aggrieved peon and the other by the Government and the Government officers, the correctness of the said decision of the Single Judge is being impugned. 3. At the time of admission of the first of these appeals, the counsel of the appellants therein drew our attention to another decision by the same learned Judge in T. O. Mary v. The Regional Deputy Director of Public Instruction (O. P. No. 2068 of 1972), where an almost similar question was raised and the learned Judge seemingly took a different view. The counsel also brought to our notice the decision off a Division Bench consisting of one of us and another learned Judge in appeal against the said decision in T. O. Mary's case (W. A. No. 217 of 1972), where the Division Bench dismissed the appeal in limine confirming the decision of the Single Judge. Naturally, the Bench which admitted the appeal felt that there was something to be looked into; and now the appeals have come up for final hearings. (The second of the appeals was admitted later since that was against the same decision of the Single Judge). 4. The learned Judge has considered every aspect of the case in a fairly detailed manner. The same points have been urged before us too. We do not think we need consider all the question raised, nor give rulings on all of them. At any rate, we shall consider two or three points, which, in our opinion, will be quite sufficient for disposing of the appeals. 5. In T. O. Mary's case, the learned Judge has considered the relevant question in Para.3 of his judgment. We may straightaway point out that that was a case, where the rival claimants were teachers, one of them making a claim under R.51A, and the other a claim under R.43, of Chap.14A of the Education Rules. The case before us, as we have already indicated, is slightly different, where the rival claimants are of the non teaching category. (The difference will be more apparent presently). R.51A was added to the Rules on 12th July 1966, while R.43 was in the statute book from the commencement of the Rules, viz., 1959. The case before us, as we have already indicated, is slightly different, where the rival claimants are of the non teaching category. (The difference will be more apparent presently). R.51A was added to the Rules on 12th July 1966, while R.43 was in the statute book from the commencement of the Rules, viz., 1959. Both these rules are in Chap.14A relating to conditions of service of aided school teachers. Chap.24B relating to non-teaching staff of aided schools was added to the Rules on 23rd February 1965; and R.7 of the said chapter was amended on 6th January 1970 by the substitution of the words "discipline, maintenance of service records, confirmation, promotion, seniority and maintenance of seniority list" (the underlining is ours) in the place of "and discipline". The result of the addition of Chap.24B with the original R.7 therein was that the rules regarding "appointment and discipline" contained in Chap.14A applicable to teachers became applicable to non teaching staff as well: and the result of the substitution of the words mentioned above in R.7 on the 6th January 1970 was that the non teaching staff came within Chap.14A not for purposes of "appointment and discipline" alone, but for purposes of "appointment, discipline, maintenance of service records, confirmation, promotion, seniority and maintenance of seniority list": of course, these results could originate only on the respective dates mentioned above. Consequently, from 6th January 1970, a person like the fifth respondent, who was a peon in the High School (a member of the non teaching staff), could have also claimed to be promoted as clerk in the institution. The claim now is that, when the permanent vacancy for the clerk arose in this institution, the fifth respondent was eligible to be promoted to that post by virtue of the amendments pointed out above, so that his claim should have had preference over the claim of the petitioner who worked for eight months as temporary clerk in the institution previously. We would stress that the difference between the case before us and T. O. Mary's case is that the claim in this case is by a member of the non teaching staff who obtained a right to the claim only on 6th January 1970, when R.7 of Chap.24B was amended, against another member of the same category, who obtained her right before that date, while in T. O. Mary's case the rivals were both teachers who obtained their rights while both R.43 and 51A were in force. 6. In the light of these facts we shall scrutinise the reasoning of the Single Judge in T. O. Mary's case. The reasoning is that the question of application of R.51A can arise only in a case where the recruitment is from outside, and in a case where the post has to be filled by promotion from the same institution, R.51A cannot apply and the rule that applies in R.43 read with R.7 of Chap.24B. Seemingly (we use this word advisedly), in the case before us, the question of application of R.51A can arise only if there is no qualified person available in the institution to be promoted to the post of clerk, and as long as the fifth respondent, a peon of the High School, is available, the question of application of R.51A cannot arise. 7. But, the reasoning of the same Single Judge in the judgment in appeal before us may also be noted in this connection. (We wish to point out that these cases were decided by the same learned Judge within days of each other.) In the present case, the learned Judge has reasoned that the right of the petitioner to have herself appointed to the permanent vacancy vested in her prior to the substitution of the relevant words in R.7 of Chap.24B (we mean the amendment of that rule) which added its effect on R.43 of Chap.14A too. The learned Judge has proceeded further to reason that, in such a case where a person like the petitioner had already obtained a vested right, R.43, after the amendment of R.7 of Chap.24B, cannot have any application. The learned Judge has proceeded further to reason that, in such a case where a person like the petitioner had already obtained a vested right, R.43, after the amendment of R.7 of Chap.24B, cannot have any application. The Single Judge has given good and cogent reasons in support of this: for instance, the amendment of R.7 of Chap.24B could not have retrospective effect to enable R.43 of Chap.14A to be applied retrospectively so as to affect the operation of R.51A of the same Chapter before the date of the amendment. Our learned brother has also referred to the earlier decision of a Division Bench of this Court in P. R. Sarojini v. Assistant Educational Officer, Mullasserry (W. A. No. 175 of 1970), where the learned Judges have followed their own earlier decision in Manager, Aided Lower Primary School, Kalathode, Ollurkara v. F. Omana (W. A. No. 44 of 1970). In those decisions, the Division Bench has indicated that the expression 'shall have preference for appointment to future vacancies' in R.51A has the meaning 'shall have the right for appointment to future vacancies'. It must then follow that such right crystallised (vested in the petitioner) before R.7 of Chap.24B was amended by the addition of certain words thereto, whereupon alone the claim of the fifth respondent could have originated. It is in this view that the learned Single Judge has held that the petitioner obtained a vested right prior to the amendment of R.7 of Chap.24B. 8. The counsel of the petitioner (the contesting first respondent in these appeals) has also requested us to consider the question in a slightly different fashion. He has urged that Chap.14A contained conditions of service, and at the time when the petitioner acted in the temporary vacancy and left the institution on the termination of the vacancy, one of the conditions of her service was that she should be appointed to a future vacancy in the institution. She secured that condition of service when she acted in the temporary vacancy: or that was a condition of her temporary service. At that time, viz., at the time when the petitioner temporarily worked in the institution and also left the institution, R.7 of Chap.24B did not have the substituted words, so that the claim made by the fifth respondent under R.43 of Chap.14A was not then available to him. At that time, viz., at the time when the petitioner temporarily worked in the institution and also left the institution, R.7 of Chap.24B did not have the substituted words, so that the claim made by the fifth respondent under R.43 of Chap.14A was not then available to him. The result is that a claim (the position will be the same even if this is a right), which became available to the fifth respondent subsequently could not have had the effect of wiping out a right (we use the word 'right' as interpreted by the Division Bench in P. R. Sarojini's case) secured by the petitioner earlier or a condition of the petitioner's earlier temporary service untrammelled by any rival claim at the time. In this view also, the decision of the Single Judge has to be sustained. 9. There is yet another aspect in these appeals. We have pointed out that ' the prayer in the writ petition was to quash Ex. P7 and P9. Ex. P9 is the order passed by the Government setting aside the direction of the District Educational Officer and directing the approval of the appointment of the fifth respondent as clerk. What happened was that, when the appeal by the Manager was pending before the Director of Public Instruction, the fifth respondent approached the Minister for Education and as a consequence the State Government passed Ex. P9 directing the approval of the appointment of the fifth respondent. It was urged before the Single Judge that Ex. P9 was vitiated by the failure to observe the principle of natural justice of audi alteram partem. Admittedly, the Government did not give an opportunity to the petitioner to be heard before it passed Ex. P9 on the representation of the fifth respondent. The Single Judge has found that Ex. P9 was, for that reason, vitiated and liable to be struck down. As we have already indicated, by the petitioner's working in the institution in a temporary vacancy for eight months, she obtained a right; and if that right were to be set at naught, principles of natural justice required that she should be heard before any order was made against her. This again is a reason for setting aside Ex. P9: and if Ex. P9 goes, Ex. P7 based on Ex. P9 will also fall to the ground. 10. This again is a reason for setting aside Ex. P9: and if Ex. P9 goes, Ex. P7 based on Ex. P9 will also fall to the ground. 10. We do not think we need consider any other ground in these cases; and we do not also think we need give rulings on the other aspects urged before us. Each one of the three grounds mentioned hereinbefore is sufficient by itself to justify the order of the Single Judge. The result is that both these appeals are dismissed. However, we do not pass any order regarding costs.