SAROJINI P.R. Vs. ASSISTANT EDUCATIONAL OFFICER

JUDGEMENT

(1.) ON four occasions between 1957 and 1962 the appellant writ petitioner reference will hereafter be to the arties as they stand arrayed in the writ petition was appointed to act as a teacher in leave vacancies in the school managed by the second respondent,and,on each occasion,he was discharged on the termination of the vacancy,however,in a number of vacancies that arose between 1962 and 1966,the petitioner was not reappointed,and,in six of hem,the third respondent was appointed.On 12th July 966,a new rule,rule 51 -A was introduced in Chapter XIV(A)of the Kerala Education Rules,1959,conferring on teachers discharged for want of vacancy rights of reappointment,analogous to the rights conferred on probationers by rule 6 in Part II of the Kerala State and Subordinate Services Rules,1958.But,unfortunately,the rule did not expressly provide for priority of preference as between persons entitled to preference under the rule in cases where there were more than one such person.Nor lid it lay down any procedure by which a person entitled to reappointment could be notified of a vacancy,or state the consequences of failure or neglect to take up the appointment,of a waiver whether express or implied of the right to reappointment.The rule reads as follows: 51 -A.Qualified teachers who are relieved as per rule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Educational A gency provided they have not been appointed in permanent vacancies n schools under any other Educational Agency. After the rule was framed,two vacancies arose on 2nd November 1966,one of five months 'and the other of three months 'duration.To the first,the manager appointed the petitioner,and,to the second,the third respondent,both of whom at that time stood discharged for want of vacancy.The third respondent,it would appear,protested against her being given the shorter vacancy from which she was discharged before the petitioner,was discharged,and she was appointed again on 7th February 1967 while the petitioner was still continuing as a teacher.She was dis­charged on 18th April 1967 on the termination of the vacancy after the discharge on the petitioner on 2nd April 1967.Thereafter,when both the petitioner and the third respondent stood discharged for want of vacancy,a vacancy arose,and to this vacancy,the third respondent was appointed on 23rd November 1967.She continued to act in this vacancy till 31st January 1968 when she was discharged on the termination of the vacancy.In June 1968 a permanent vacancy arose,and,to that vacancy,the manager appointed the petitioner who,it would appear,is his first cousin 's daughter -in -law.In due course,he applied to the Assistant Educational Officer for approval of this appointment as required by rule 8 of Chapter XIV(A ).But,by his order,Ext.P -1,dated 10th January 1969,the Assistant Educational Officer refused approval on the ground that the third respondent had a better claim to the appointment.Thereupon,the manager submitted the petition,Ext.P -2 dated 29th January 1969,to the District Educational Officer complaining of the refusal by the Assistant Educational h Officer,and,on 2nd June 1969,the District Educational Officer,notwithstanding that he had no powers of appeal or revision over the order of the Assistant Educational Officer,made the order,Ext.P -3 dated 2nd June 1969,directing the latter to approve the appointment.Pursuant thereto,the Assistant Educational Officer granted approval by an order dated 11th July 1969.Against the order Ext.P -3 made by the District Educational Officer,the 3rd respondent brought a writ petition,O.P.No.4668 of 1969,to which the petitioner was a party,and,by Ext.P -4 dated 7th April 1970,this Court quashed Ext.P -3 on the ground that it had been made without jurisdiction and a breach of the principles of natural justice.The result was that the Assistant Educational Officer 's order Ext.P -1 dated 10th January 1969 refusing approval stood in force,and,recognis­ing this,that officer made the order,Ext.P -5 dated 8th June 1970,cancelling his order of approval of 11th July 1969.On 15th June 1970,the petitioner came to this Court with the present writ petition complaining against Exts.P -1 and P -5,and this petition having been dismissed by the learned Single Judge on the ground that Ext.P -1 was not vitiated by any error of law or of jurisdiction,the petitioner has come up with this appeal.

(2.) THE explanation tendered on behalf of the petitioner for the delay of about 17 months in coming to this Court to assail Ext.P -1 was that there was no need or occasion for her to come earlier in view of the fact that she had obtained the relief she wanted by the order Ext.P -3 passed by the District Educational Officer on the manager 's petition,Ext.P -2,which had been submitted very shortly after the passing of Ext.P -1.She thought it premature to come to this Court when the departmental authorities were seized of the matter and she was really aggrieved only when,in pur­suance of the order Ext.P -3 having been quashed by this Court in O.P.No.4668 of 1969,the approval of her appointment was cancelled by the impugned order Ext.P -5 dated 8th June 1970.She came with the present petition within a week of Ext.P -5.

(3.) COMING now to the merits of the case,although it does not appear that the petitioner was offered any of the vacancies to which the third respondent was appointed after 1962 or was even notified of the vacancies,it is quite clear that the petitioner knew about these vacancies but never­theless did not offer herself as a candidate for reappoint­ment.On this a plea was raised by the 3rd respondent in paragraphs 3 and 5 of her counter -affidavit that the petitioner had abandoned the benefit of her past appoint­ments and was,therefore,not entitled to the permanent vacancy that occurred in June 1968.This plea,we might mention,was taken,in express terms only in paragraph 3 relating to the appointments between 1961 and 1966.But there is the statement in paragraph 5,which deals also with the vacancy that arose on 23rd November 1967(to which,it will be recalled,the 3rd respondent was appointed)that the petitioner never raised any objection to any of the appointments,and,reading paragraphs 3 and 5 together,we find no difficulty in spelling out a plea of abandonment even in respect of the vacancy that arose on 23rd November 1967.Indeed,the petitioner,possibly forewarned by the pleas raised in the prior writ petition,had in her petition anticipated this plea of abandonment,for,in ground C of the grounds set out therein,she averred that there had been no positive act of abandonment of any claim on her part and the fact that she had kept quiet when the third res­pondent was appointed could not be taken as an implied act of surrender of her claims.She added that she had put forward the case that because of ill -health she was disabled from functioning as a teacher when these vacancies occurred.And,in paragraph 8 of her reply affidavit,in meeting the third respondent 's plea of abandonment,the petitioner averred that she had never abandoned her rights,that abandonment of rights could only be in writing,and that she had not taken objection to the various appointments of the third respondent because all those appointments were only temporary appointments in short vacancies.There can be no doubt,therefore,that the parties went to trial on the footing,that it was the third respondent 's case that the petitioner had waived the benefit of all her previous appoint­ments including her appointment from 2nd November 1966 to 2nd April 1967 when the 3rd respondent was appointed from 23rd November 1967 to 31st January 1968.