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1975 DIGILAW 314 (KER)

P. G. THANKAMMA v. V. S. KUNJAMMA

1975-12-04

P.GOVINDA NAIR, T.KOCHU THOMMEN

body1975
Judgment :- 1. Under R.51A of Chapter XIV(A) of the Kerala Education Rules, 1959, a prior appointee as a temporary teacher in a school has no prior title has been ruled in Smt. Mary Oomman v. The Manager, M. G. M. High School and others (1973 K.L J. 290) and it was so ruled notwithstanding the observations (obiter) of the learned Chief Justice, Raman Nayar, in Writ Appeal No. 175 of 1970. We would therefore proceed on the basis that R.51A does not give any prior title to the appellant who had an earlier appointment in a temporary capacity. The 1st respondent, the other contestant for the post was appointed only later, and also in a temporary capacity. The refusal of the Assistant Educational Officer to recognise the appointment of the 1st respondent by the Manager by the order Ext. P3, and by the appellate authority by dismissing the appeal taken by the Manager by Ext. P5 order, and by the revisional authority by dismissing the revision also taken by the Manager by Ext. P7 order are clearly erroneous. The learned judge has set aside these orders and we will have to hold that the view taken by the learned judge in setting aside those orders is correct as it is supported by the decision in Smt. Mary Oomman v. The Manager. M.G.M. High School and others (1973 K.L.J. 290). Notwithstanding this position, counsel for the appellant contended before us that this Court should not have interfered because there has been no miscarriage of justice, or manifest injustice calling for the exercise of our extraordinary jurisdiction under Art.226 of the Constitution. This submission was made on the basis of an observation made in the judgment to which we have already referred in Smt. Mary Oomman v. The Manager, M.G.M. High School and others (1973 KLJ. 290) to the following effect, "We also thought that it is very arguable that the earlier appointee must have preference". But having said so, we considered the scheme of the Act and its purpose and object and held that the Act and the Rules merely imposed restrictions and subject to such restrictions the Manager had full freedom of choice. 290) to the following effect, "We also thought that it is very arguable that the earlier appointee must have preference". But having said so, we considered the scheme of the Act and its purpose and object and held that the Act and the Rules merely imposed restrictions and subject to such restrictions the Manager had full freedom of choice. We therefore held that if there was no clear provision in R.51A giving a prior title to a prior temporary appointee, the Manager was free to appoint any one of the two or more that fell under R.51A. When such an appointment was made, as we see it, two consequences follow; firstly, the Manager who appointed exercised his right to choose and the person appointed gets a right to the post. If that post rightly given to that person is taken away it will b2 injustice and it will be certainly open to that person to come forward and challenge impediments that have been placed in the way of that person in continuing in service. We discern such impediments in Exts. P3, P5 and P7 and these, we think, have rightly been vacated by the learned judge. 2. Counsel for the appellant referred to a number of decisions of the Supreme Court starting from the decision in D. N. Banerji v. P. A. Mukherjee (AIR. 1953 S.C. 58) and running through those in Sangram Singh v. Election Tribunal, Kotah and another (AIR. 1955 S.C. 425), A. M. Allison and another v. B. L. Sen and others (AIR. 1957 S.C. 227) and Godde Venkateswara Rao v. Government of Andhra Pradesh and others (AIR. 1966 S.C 828). He particularly drew our attention to three of the decisions; D. N. Banerji v. P. R. Mukherjee (AIR. 1953 S.C. 58), A. M Allison and another v. B. L. Sen and Others (AIR. 1957 S.C. 227) and Godde Venkateswara Rao v. Government of Andhra Pradesh and others (AIR. 1966 S.C. 828). D. N. Banerji v. P. R. Mukherjee (AIR. 1953 S.C. 58) dealt with the case of the dismissal of an employee which was found by the Tribunal to be wrongful and a clear case of victimisation. 1957 S.C. 227) and Godde Venkateswara Rao v. Government of Andhra Pradesh and others (AIR. 1966 S.C. 828). D. N. Banerji v. P. R. Mukherjee (AIR. 1953 S.C. 58) dealt with the case of the dismissal of an employee which was found by the Tribunal to be wrongful and a clear case of victimisation. The Supreme Court observed in Para.S: "Whether on the facts of a particular case the dismissal of an employee was wrongful or justified is a question primarily for the Tribunal to decide, and here the Tribunal held that the dismissals were clear cases of victimisation and hence wrongful. Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Art.226 and 227 of the Constitution to interfere". These observations made in the circumstances of the case have no application in deciding the question before us. 3. In the decision in A. M. Allison and another v. B. L. Sen and others (AIR. 1957 S.C. 227) the question was whether the Deputy Commissioner who fixed the minimum wages had jurisdiction to fix the minimum wages. The High Court on the facts found held against the person who sought the writ and that was the finding of the Deputy Commissioner as well. It was in those circumstances that the Supreme Court remarked in Para.17 of the judgment that "Proceedings by way of certiorari are "not of course". (Vide Halsbury's'Laws of England', Hailsham Edition, Vol. 9, para 1480 and 1481, pp. 877-878). The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice, and in these appeals which are directed against the orders of the High court in applications under Art.226, we could refuse to interfere unless we are satisfied that the justice of the case requires it" These observations have to be understood in the light of what has been stated in the earlier paragraph, Para.16 thus: "Whatever infirmities might possibly have attached to the orders passed by the Dy. Commissioner, Sibsagar, on the score of want of jurisdiction, we feel that, having regard to the circumstances that the matters have been pending since September, 1952, right up to the end of the year 1956, no useful purpose will be served by our interfering at this stage, as the Deputy Commissioner, Sibsegar and the High Court both came to the same conclusion, a conclusion which we also have endorsed above, that the labourers are entitled to be paid the basic wages of as. 12 per day for male labourers and as. 11 per day for female labourers for the work-load or task of plucking 16 seers and 12 seers of green leaves respectively and they are entitled to extra wages for every seer of green leaves plucked by them over and above these quantities of 16 seers and 12seers respectively, at the computation of 6 ps. per seer". These observations are also not helpful for deciding the issue raised before us. 4. Passing on to the decision in Godde Venkateswara Rao v. Government of Andhra Pradesh and others (A.I.R.1966 S.C. 828) the question considered therein was whether there could be interference with an order passed by a Panchayat in relation to the location of primary health centre. The effect of interference would have been to perpetuate an illegal order against a resolution passed by the Panchayat. The Supreme Court observed: "In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18,1963? If the High Court had quashed the said order, it would have restored an illegal order it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi". 5. We need hardly stress that these observations amply show the reason for declining jurisdiction under Art.226 of the Constitution. We do not think that the decision in Kantilal Babulal and Bros v. H.C. Patel, Sales Tax Officer, Surat and others ( (1965) 16 S.T.C. 973) relied on by counsel is helpful for deciding the question before us. In that case the High Court did interfere under Art.226 of the Constitution. Reference was also made to the decision of this Court in lyyappan Mills Ltd v. lyyappan Mills Workers' Union and others (A.I.R.1962 Kerala 11). It will be useful to remember the facts of the case. In that case the High Court did interfere under Art.226 of the Constitution. Reference was also made to the decision of this Court in lyyappan Mills Ltd v. lyyappan Mills Workers' Union and others (A.I.R.1962 Kerala 11). It will be useful to remember the facts of the case. A reference to the head-note would make this clear: "Where the tribunal recorded a finding that the closure of certain sections of the Mills though bona fide and justifiable, amounted to retrenchment and, therefore, the workers were entitled to retrenchment compensation under S.25F, Industrial Disputes Act, the order directing payment of retrenchment compensation though in excess of the jurisdiction of the Tribunal would not be interfered with in the exercise of discretionary powers under Art.226 when it has not resulted in substantial miscarriage of justice inasmuch as what the Tribunal has granted as retrenchment compensation are only the amounts offered by the management in its notice at the time of the closure". It was in these circumstances the court declined to interfere. Here as we see it, two questions are involved as we indicated earlier. By Exts. P3, P5 and P7 orders, there has been interference, a wrongful interference, an illegal interference, with a right of choice of the Manager. The Government Pleader is partly right in his submission that it is for the Manager to complain and that the Manager not having complained, this Court should not interfere. But the choice made by the Manager had resulted in the appointment of the 1st respondent. When that appointment was wrongly interfered with this Court removed the interference. This is in accordance with the decision of this Court in 5ml. Mary Oomman v. The Manager, M.G.M. High School and others (1973 KLJ. 290). 6. We cannot accept the contention that by passing Ext. P5 order the Manager should be taken to have changed his mind and later chosen the appellant instead of the 1st respondent. A mere reading of the order Ext. P3 would indicate that the Manager had no alternative but to send out the 1st respondent. He tried his best however to defend his appointment by appealing and by taking the matter in revision. These actions on the part of the Manager would clearly indicate that this is not a case of volition but a case of compulsion that resulted in the appointment of the appellant. 7. He tried his best however to defend his appointment by appealing and by taking the matter in revision. These actions on the part of the Manager would clearly indicate that this is not a case of volition but a case of compulsion that resulted in the appointment of the appellant. 7. We would like to add one other point. A learned judge of this Court having exercised his discretion in favour of the 1st respondent, unless we are able to say that it was a completely wrong exercise of discretion, we would not interfere in appeal. We therefore dismiss this appeal but direct the parties to bear their costs. Dismissed.