MKAMALAMMA Vs. STATE OF MYSORE

JUDGEMENT

(1.) This is a petition under Arts. 226 and 227 of the Constitution of India for issue of a Writ of Certiorari cancelling the order dated 5th June 1956 passed by the State of Mysore directing that the third respondent should be treated as senior to the petitioner in the cadre of lecturers in the University of Mysore.

(2.) The facts that led to the presentation of this writ Petition by the petitioner are as follows : The petitioner M. Kamalamma took her Master in Science degree of the University of Mysore in 1937. She was appointed as a temporary III Grade lecturer in Zoology by the then Vice-Chancellor of the University of Mysore on a salary of Rs. 75/- per mensem on 11th of August 1939. The third respondent T. P. Vanajakshi who is also a Master of Science having passed the Examination in 1934 was applying for a post of a lecturer in Zoology in the University of Mysore from the date she passed her M.Sc. Examination. The Registrar of the University of Mysore sent replies to her to the effect that there was no vacancy and that her claims would be considered when a vacancy occurred. These endorsements were issued to the third respondent prior to 9th of July 1938. It may be stated here that the third respondent belongs to a Backward Community and as per the rules of recruitment in force at the relevant period she was entitled to be appointed as a lecturer in preference to the petitioner, who belonged to the Advanced Class. It appears that the Vice-Chancellor appointed the petitioner as a temporary lecturer on 11th of August 1939 ignoring the claims of the third respondent and quite against the assurance given to her in the endorsements issued to her on and prior to 9th of July 1938. This fact that the petitioner had been appointed to act as a temporary lecturer was not placed before the University Council which was the appointing authority. Similarly the Council was not apprised of the fact that the third respondent who belonged to the backward Community and who had the requisite qualifications for appointment in preference to the petitioner had sought for the temporary post. The third respondent felt aggrieved and made representations to the Government of Mysore which was controlling the affairs of the University that her claims for an appointment as a lecturer had been over-looked and that the petitioner, who belonged to the Forward Community had been preferred by the Vice-Chancellor and sought for redress. The Government called for a report from the University as to the allegation made by the third respondent. A temporary post of a full time lecturer in Zoology in Bangalore occurred consequent upon the transfer of Miss. R. Samuel to the College at Mysore. The petitioner was appointed as a lecturer in this vacancy. In the meanwhile the University sought for sanction of two posts of lecturers in Zoology (1) for the appointment of a whole time lecturer in the temporary vacancy of Mis Samuel's post and (2) for the conversion of a part-time post into a whole time post. Out of these posts one was permanent and the other was temporary. The Government sanctioned the two posts and directed the University to appoint the third respondent as against the permanent post without advertisement. This direction of the Government was given on 3rd of January 1940. But the Vice-Chancellor passed an order on 11th January 1940 appointing the petitioner Smt. Kamalamma on probation for two years as against the permanent vacancy and appointing the third respondent as against Miss Samuel's vacancy which was a temporary vacancy. No report was sent to the Government by the University about the order in which the appointments of the petitioner and the third respondent were made by the Vice-Chancellor. The third respondent being aggrieved by the order passed the Vice-Chancellor appointing her as against the temporary vacancy while the Government AHD specifically directed to appoint her as against the permanent vacancy made a representation to the Government. On receipt of this representation the Government called for a report from the University in the matter. The then Vice-Chancellor placed the entire matter before the University Council at a meeting held on 9th of May 1942. After hearing the outline of the history of the appointment of the petitioner and that of the third respondent, the University Council resolved that a recommendation should be made to the Government to appoint the third respondent to the lecturership in Zoology in preference to the petitioner. The Vice-Chancellor recommended in his letter D. O. No. F3-Mis/- 41-62 dated 7th June 1942 that since the petitioner had not yet been confirmed and that the effect of the resolution of the University Council was that the third respondent should be transferred to the appointment in which Smt. Kamalamma had been wrongly appointed orders accordingly may be issued. In spite of the resolution of the University Council it appears no action was taken by the University Council it appears no action was taken by the University to make alterations in the appointment of the petitioner and the third respondent. In the meanwhile an order was issued by the University on 21st of June 1944 confirming the petitioner, the third respondent and some other lecturers as third grade lecturers. In the said order the petitioner was shown above the third respondent. The third respondent that on account of the illegal order passed by the Vice-Chancellor ignoring the directions of the Government and the mandate of the University Council appointing her as against a temporary vacancy, she had unjustly suffered and had to suffer a break in her appointment for some time; that the wrong that was done to her should be rectified and that she should be treated as senior to the petitioner. After a protracted correspondence and examining the entire matter the government passed an order on 5th of June 1956 recognising the claims of the third respondent. The Government held that the third respondent had suffered in seniority and lost the benefit of increments on account of the irregularity committed by the University in not appointing her as against the permanent vacancy and in spite of the fact that she was the only qualified lady candidate belonging to the Backward Community and that therefore, she should be treated as Senior to the petitioner. In doing so the Government accepted the recommendation made by the University Council in their resolution dated 9th of May 1942.

(3.) The petitioner being aggrieved by the order made a representation to the Government of Mysore Through the University for reconsideration of the matter and the Government rejected it. The petitioner has filed this Writ Petition and has prayed for issue of a Writ of Certiorari quashing the order passed by the Government refixing her seniority and treating her as junior to the third respondent.