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1977 DIGILAW 216 (KER)

STATE OF KERALA v. KRISHNAN

1977-08-09

K.K.NARENDRAN, V.P.GOPALAN NAMBIYAR

body1977
Judgment :- 1. The appeal is by the State and by the Director of Technical Education, Kerala, against the judgment of a learned judge allowing he writ petition filed by the 1st respondent herein, and quashing Ex. P6 order and directing the Departmental Promotion Committee to reconsider the claims of the petitioner and the 3rd respondent and decide as to who had the preferential right to promotion. 2. The short facts giving rise to this appeal are hese: By a G.O. dated 11-9-1968, the Government created a post of Administrative Assistant in the Directorate of Technical Education The counter-affidavit filed on behalf of the 1st respondent in Para.3, has referred to the said G. O. and stated that a copy of the same is produced and marked as Ext. A-1. The document, however, has neither been actually produced nor marked. One Balakrishnan Nair who was Accounts Officer, was promoted as Administrative Assistant. That mad. it necessary that the post of Accounts Officer, should be filled up. This was done by appointing the 2nd respondent to the said post. Against the said appointment O. P. No. 240 of 1969 was filed by the writ petitioner (1st respondent herein) which resulted in Ext. P5 judgment. The learned judge of this Court observed as follows: "2. Counsel on behalf of the petitioner has contended that the appointment of the 4th respondent was by an incompetent authority. Counsel on behalf of the State has pointed out from the files that the actual order promoting the 4th respondent provisionally as Accounts Officer was passed by the Director of Technical Education. Even so it is clear from Ext P1 that he was incompetent to do so as the Director of Technical Education was competent only to appoint the lowest grade gazetted officers and the post of Accounts Officer was not one such. This being so, it is further urged by Counsel on behalf of the petitioner that that incompetent acton the part of the Director of Technical Education could not have been ratified on 30-10-1968 a date on which the petitioner had also become fully qualified. It is not disputed before me that other things being equal a senior may be entitled to be preferred to a junior. If this appointment was therefore to be made on 31-10-1968, perhaps the petitioner might have had to be preferred. It is not disputed before me that other things being equal a senior may be entitled to be preferred to a junior. If this appointment was therefore to be made on 31-10-1968, perhaps the petitioner might have had to be preferred. It is unnecessary, I think to consider this matter because the appointment under Ext. P2 is only of that provisional appointment. The Departmental Promotion Committee' has not yet considered the matter. All that is necessary therefore, is to direct that the departmental promotion Committee should consider the rival claims of the petitioner and the 4th respondent in relation to the vacancy that was filled up provisionally by Ext P2 order and fresh appointment orders should be made in accordance with the recommendation of the Departmental Promotion Committee. This should be one early." 3. We might mention that the difficulty and the controversy arose because if the vacancy were to be regarded as having occurred on 12-9-1968 when the 2nd respondent was actually appointed by Ext. P2 order, the writ petitioner would not be qualified to be appointed to the said post But, for the 2nd respondent the argument put forward was that the vacancy in the post of Accounts Officer did not, and could not, properly or validly arise on 12-9-1968 when Sri Balakrishnan Nair was appointed as Administrative Officer. That appointment was by the Director of Technical Education who had no power under the terms of the delegation evidenced by Ext. P1 to make appointment beyond, or higher than, the lowest gazetted post in each category of posts in the same Department. Although the Government ratified the appointment on 30-10-1968; it was contended for the 1st respondent that the said ratification cannot relate back to the date of the appointment or of the occurrence of the vacancy viz. 12-9-1968. Therefore h was argued that in law, that there was an effective appointment of Balakrishnan Nair to the post of the Administrative Officer only on 30-10-1968, and Me cons' quential vacancy in the post of Accounts Officer would have occurred only on that date and not earlier. By that time, the 1st respondent had acquired the necessary qualification (he acquired actually on 3-10-1968) and therefore, it was said that his appointment was not liable to be interfered with. 4. After Ext. P5 judgment in pursuance of the reconsideration directed by it, the Government passed Ex. By that time, the 1st respondent had acquired the necessary qualification (he acquired actually on 3-10-1968) and therefore, it was said that his appointment was not liable to be interfered with. 4. After Ext. P5 judgment in pursuance of the reconsideration directed by it, the Government passed Ex. P6 order rejecting the 1st respondent's request for re consideration. It was thereupon that the 1st respondent filed the writ petition m this Court which was allowed by the learned Judge. The learned judge noticed that the Departmental Promotion Committee had proceeded on the basis that the vacancy arose on 12-9-1968 and on that basis excluded the writ petitioner as be was not qualified on that date The learned judge was of the view that this was not in conformity with the directions in Ext. P5 judgment, and that the said judgment had proceeded on the basis that the promotion was made only on 30-10-1968 on which date the vacancy should be deemed to have arisen. The learned judge quoted practically the same passage from Ext P5 judgment which we have extracted earlier and concluded: "From this observation it is clear that'his Court understood the date on which the vacancy arose to be 30-10-1968". We are unable to agree with this part of the reasoning and conclusion of the learned Judge. The learned judge apparently missed the import of the words "if" and "perhaps" in the relevant sentence in Ext. P5 judgment, while discussing whether the appointment could be regarded as having been made before 30-10-1968. Ext. P5 judgment did not express any concluded view on the question and left the matter for determination by the Departmental Promotion Committee. 5. While we are unable to sustain this aspect of the reasoning of the learned judge, we think that the conclusion of the learned judge is correct and does not call for any interference. On the facts, it is clear that a vacancy in the post of Accountant can validly and properly arise only when Sri Balakrishnan Nair is shown to have been properly promoted as Administrative Assistant. Only then can he legally vacate the post of Accountant. We are of the view that this could not, in the circumstances, happen on 12-9-1968, when Ex. P2 order was passed, as the Director of Technical Education who passed the order had no power to appoint Balakrishnan Nair as Administrative Assistant. Only then can he legally vacate the post of Accountant. We are of the view that this could not, in the circumstances, happen on 12-9-1968, when Ex. P2 order was passed, as the Director of Technical Education who passed the order had no power to appoint Balakrishnan Nair as Administrative Assistant. The ratification which followed on 30-10-1968 by Ext. P3 order of the Government, should, in the circumstances, take effect only as an independent order and not as ratification of an act beyond the authority of the 2nd appellant herein. Being so, the appointment could take effect only on 30-10-1968 by which date the 1st respondent (writ petitioner) had become qualified. 6. We adjourned the hearing of this appeal from yesterday to today to enable Counsel to place before us the position in law of an appointment of the type of Ex. P2 made in this case by the Director of Technical Education who had no power to make the same, followed by a ratification or approval by the Government (evidenced by Ex. P3) which was the proper appointing authority. The position was placed before us with respect to the provisions of S.196 and 200 of the Indian Contract Act, which Sections we may conveniently extract: "196. Where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratify them, the same effects will follow as if they had been performed by his authority. 200. An act done by one person on behalf of another, without such other person's authority, which, if done with authority, would have the effect of subjecting a third person to damages, or of terminating any right or interest of a third person, cannot, by ratification, be made to have such effect." 7. Counsel for the appellant (Government Pleader) cited to us the decision in The Collector of Masulipatom v. Cavaly Vencata Narrainapah (Moore's Indian Appeal Cases-Vol. 8-p. 500 at 554) and Brojesh Charan Son and Others v. Secretary of State and Others (AIR. 1939 Cal 81 at 86). These cases affirmed the general principle that an invalid act can be validated by subsequent ratification. 8-p. 500 at 554) and Brojesh Charan Son and Others v. Secretary of State and Others (AIR. 1939 Cal 81 at 86). These cases affirmed the general principle that an invalid act can be validated by subsequent ratification. But the point for our consideration is whether an appointment which is outside the power or authority of the 2nd appellant in this case, is capable of ratification by the first appellant; and whether the principle of S.200 of the Indian Contract Act should not be given effect to. Counsel for the Ist respondent invited our attention to the decision in K. Panduranga Mangalore & Others v State of Mysore & Others (AIR 1965 Mysore 244 at 247, where a Division Bench of the Mysore High Court in almost similar circumstances held that the appointment by an authority not competent to make it was invalid and incapable of being validated by subsequent ratification. Our attention was also called to the decision of the Madras High Court in T. S P. L. S. Thinnappa Chettiar by agent A. S. Arunachalam Chettiar v. Putti Krishna Rao & Others (AIR. 1941 Mad 6 at 16). The learned judge there referred to the principle of S.200 of the Contract Act and observed. "We do not think that S.200, Contract Act, or the other provisions relating to ratification affect the general principle of law of agency that the general rule as to ratification would not apply when it would affect the rights of other parties: vide the observations of Channel J. in (1901) 1 K B 683 at p. 693. In Halsbury's Laws of England Vol. I p. 181, the rule is thus stated. A ratification does not relate back when persons other than the co-contracting party have acquired interests prior to ratification." Counsel for the respondent also drew our attention to the decisions in Mohd. Dilawar Ali v. Andhra Pradesh Muslim Wakf Board & Others (AIR 1967 Andhra Pradesh 291) and Glaxo Laboratories (India) Ltd, Aligarh v. Glaxo Staff Association and Others (1974 Lab. I C 765 para 8). We are not making any detailed reference to these cases. On the authorities placed before us, we are satisfied that Ext. P2 order of appointment was beyond the authority of the 2nd appellant and therefore could not be validly ratified by Ext. P3 order of the 1st Respondent. Ext. I C 765 para 8). We are not making any detailed reference to these cases. On the authorities placed before us, we are satisfied that Ext. P2 order of appointment was beyond the authority of the 2nd appellant and therefore could not be validly ratified by Ext. P3 order of the 1st Respondent. Ext. P3 order could therefore properly take effect only from the date on which it was issued, 30-10-1968 (Although Ex. P4 shows that the date on which the Ist respondent became test qualified was 3-10-1968 in the counter-affidavit of the Ist respondent as well as in the original petition, the date is shown as 30- 9-1968). By that date the writ petitioner had become qualified; and the conclusion of the learned judge in this view was correct and requires no interference. We dismiss this appeal with no order as to costs.