FLORA HILDA WILSON Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner had been a lecturer in Philosophy in the Womens College in Trivandrum. In May 1957, when the post of a Second Grade Professor in Philosophy in the College fell vacant, the University invited applications from candidates for that post. The petitioner, and the second respondent who was then a lecturer in Philosophy in the University College, Trivandrum, were among the applicants and the petitioner was selected for the post. On September 19, 1957, she was appointed by the Government of the Kerala State, the first respondent, by order, Ext. P2, as acting Junior Professor of Philosophy in the Womens College. On August 23, 1958, the first respondent reverted her, to her former post as lecturer, and appointed the second respondent as Professor, in her place. The order of reversion was communicated to her under Ext. P1. This petition is under Art.226, to quash Ext. P1, on the ground, that the petitioner was reduced in rank, in violation of the guarantee under Art.311 (2). It was not disputed by the learned Government Pleader who appeared for the first respondent, that if the reversion of the petitioner was by way of punishment, Ext. P1 could not be sustained, having been made in violation of Art.311(2); but his contention was, that Ext. P1 was not by way of punishment. This is the question which falls for determination in this petition.

(2.) One of the tests to ascertain this, formulated by the Supreme Court, in P.L. Dhingra v. Union of India, AIR 1958 S.C. 36, is to see, whether the civil servant, in this case the petitioner, had a right to hold the post from which she was reduced. The learned Government Pleader relied upon an order of the first respondent, Ext. R1, dated November 27, 1956, which declared that:

(3.) The learned counsel for the petitioner strenuously urged before me, that Ext. R1 has no application to the petitioners appointment. It seems to me, that the applicability of Ext. R-l itself is not of much importance, when it is realised, that, as the order, Ext. P2, shows, the petitioners appointment was only on a temporary basis as acting Junior Professor. However, I am quite satisfied, that the appointment must be deemed to have been made subject to Ext. R1 and to be governed by it. Ext. Rl cannot be construed, as urged by the learned counsel for the petitioner, to be operative only as regards the claims, if and when made, against the petitioner, on the basis of integration of services, or that the provisional nature of the appointment is only for the purpose of effectuating such integration and that for other purposes, the appointment must be deemed to be not provisional, or that Ext, R1 can be availed of only for the purpose of fixing comparative seniority between rival claimants upon integration. I am quite clear, thatthough Ext. R1 speaks of appointment and not specifically of promotions, the word appointment is used in a generic sense, so as to take in, not only appointments by direct recruitment of candidates, not already in service, but also appointments by promotion from subordinate service. Some of the averments in the petitioners affidavit have adopted this usage of the word appointment. It does not make any difference whatever in the interpretation of Ext. R1 as was contended, that the appointment of the petitioner was made by way of selection. This mode of ascertainment of the suitable candidate does not by itself import permanency in the tenure of the service of the candidate chosen; even for a temporary vacancy, the appointing authority may resort to such method, as it deems necessary to ensure the best choice.