REV FR XAVIER Vs. STATE OF KERALA

JUDGEMENT

(1.) The first petitioner in this writ petition is the Manager of an aided upper primary school. He appointed the 2nd petitioner as a teacher in the school in a vacancy which arose during the school year 1967-68 and reported the matter to the Assistant Educational Officer, Shertallai (2nd respondent) seeking his approval under R.8 of Chap.14(A) of the Kerala Education Rules, 1959 (hereinafter referred to as the Rules). The 2nd respondent by his order Ext. P1 dated 26 9 1967 informed the first petitioner that approval could not be granted to the appointment of the 2nd petitioner since complaints had been received from persons who had previous service in the school alleging that the appointment in question had been made overlooking their legitimate claims. In Ext. Pi the 2nd respondent has also given a direction that the 2nd petitioner should be forthwith relieved from the post of teacher. The petitioners have brought this writ petition seeking to quash the order Ext. P1.

(2.) The 3rd respondent had put in previous service in the school as an unqualified teacher and she has been impleaded in the writ petition on the ground that it was on the basis of a complaint petition put in by her before the 2nd respondent that the latter has passed the impugned order Ext. P1.

(3.) The petitioners contend that the 3rd respondent had not acquired any right or claim for preferential re-appointment in the school by virtue of the temporary service put in by her in the school as an unqualified teacher during the school year 1962-63. It is the petitioners' case that in passing the order Ext. P1 the 2nd respondent had erroneously assumed that R.5 of Chap.14(A) of the Rules which cams into force only on 2-2-1965 is applicable to the case of the 3rd respondent and that it has conferred on her a right to preference for appointment in the vacancy which arose during the year 1967-68. It is contended on behalf of the petitioners that there was no such rule in force in 1952-63 when the 3rd respondent was appointed temporarily as an unqualified teacher and such appointments were at that time governed by the express provision contained in R.2 of Chap.21 of the Rules. That Rule lays down that unqualified teachers appointed temporarily in an aided school under the provisions of the said rule shall have no preferential claim for future appointment by reason merely of the temporary service so put in by them. It is argued that the provision in R.5 cannot be regarded as applicable even to unqualified teachers who were temporarily appointed and were also relieved from service prior to the date of its introduction since it will be giving retrospective operation to R.5 which is not legally permissible. The petitioners also challenge R.5 as ultra vires on the ground that the framing of such a rule is not authorised by any of the provisions contained in the Kerala Education Act, 1958 (hereinafter referred to as the Act).