MEENAKSHY Vs. STATE OF KERALA

JUDGEMENT

(1.) IN the C. N. N. Girls' High School, Cherpu, a High school Assistant (Hindi) retired from service on 31-3-1977. The petitioner and the 4th respondent were then working as lower grade language teachers (Hindi ). The petitioner was fully qualified for the post of High School Assistant (Hindi) while the 4th respondent though senior to the petitioner, was not qualified. On 18-6-1977 the 4th respondent also became qualified for appointment as High School Assistant (Hindi) On 23-6-1977 the 3rd respondent-Manager appointed the petitioner as High School Assistant (Hindi ). The 2nd respondent-District educational Officer, Trichur by Ext P3 dated 8-9-1977 declined approval to the petitioner's appointment on the ground that the 4th respondent 'who is the qualified senior hand has the claim for the post of H. S. A. (Hindi),' Against ext. P3 the petitioner appealed to the Regional Deputy Director of Public instruction, Ernakulam, who by order dated 13-6-1978 rejected that appeal. Thereupon, the petitioner filed a revision before the 1st respondent-State. The 1st respondent-State by Ext. P4 order dated 9-2-1979 rejected the petitioner's revision holding that the 4th respondent the seniormost lower grade (Hindi) teacher should have been promoted as H. S A on 23-6-1977. The petitioner challenged Ext P4 order before this Court in O. P. No. 555 of 1979. The original petition was disposed of by this Court by Ext. P5 judgment. This Court quashed the orders challenged by the petitioner including Ext. P4 and directed the 2nd respondent-District Educational Officer to pass fresh orders. The 2nd respondent thereupon passed Ext. P6 on 1-9-1979 holding that the rule applicable in the case is R. 43 of Chapter XIVA of the K. E. R. and not r. 43 (B) (1) (i), and directed the 3rd respondent-Manager to promote the 4th respondent in the vacancy as, according to the 2nd respondent, the appointment of the petitioner was irregular. Ext. P6 was challenged by the petitioner before this Court in O. P No. 3166 of 1979. This Court by Ext. P9 judgment set aside Ext. P6 order and again directed the 2nd respondent to consider the claims of the petitioner and the 4th respondent for promotion as High School assistants under R. 43 (B) of Chapter XIVA of the K. E. R. Thereupon, the 2nd respondent passed Ext. P8 order on 11-1-1980 holding that the promotion of the petitioner was irregular and that the 4th respondent ought to have been promoted. The petitioner who continued as H S. A. (Hindi) from 23 6-1977 has again challenged the order of the 2nd respondent by this original petition.

(2.) A counter-affidavit has been filed on behalf of the 2nd respondent. It is stated in Para. 5 of the counter-affidavit that at the time of effecting the promotion of the petitioner the 4th respondent who was senior to the petitioner was duly and fully qualified to be promoted In Para. 7 it is stated as follows: "at the time of the reopening also, as a staff fixation is statutorily imminent for that academic year, the posts if filled up before 15th of July that has to be done at the risk of the manager. Apart from that the manager being the appointing authority can decide as to when the post has to be filled up. In this case the manager has filled up the post on 23-6-1977. Hence the claim of the senior hand at the time of the filling up of the post on promotion has to be considered and the seniormost hand eligible for promotion has to be so posted. " It is asserted in the counter-affidavit that the 4th respondent is the legitimate claimant to the post according to law.

(3.) R. 7a (2) of Chapter XIV (A) of the K. E. R. reads: " (2) Post that may fall vacant on the closing date shall not be filled up till the reopening date (except in the case of posts of headmasters)" Rule 43b of Chapter XIVA of the K. E. R, reads: "43b (1) Notwithstanding anything contained in R. 43, posts of full time High School Assistants in a particular language shall be filled up by promotion in the following order of preference: (i) Lower Grade Language Teachers who have the prescribed qualifications in that Language for promotion to the post of High School assistants in that Language at the time of occurrence of the vacancy and who had given option in writing as per G. O. Ms. 61 612/edn. dated 10-11-1964 to continue as Lower Grade Language Teachers. (ii) Part time High School Assistants in that Language. (iii) Other Lower Grade Language Teachers in that Language, (iv) Regular primary teachers having the prescribed qualifications, (v) Craft and Specialist teachers having the prescribed qualifications. (vi) If no teacher with the prescribed qualification is available in the categories mentioned above. Lower Grade Language Teachers in any other Language having the prescribed qualifications. (2) If qualified teachers as mentioned in sub-rule (1)are not available in schools under the same Educational agency for promotion to the post of High School Assistants in that language, qualified candidates from outside may be appointed to that post. " In Mary v. The Regional Deputy Director of Instruction, ernakulam (ILR. 1974 (2) Ker. 274) Eradi J. (as he then was) dealing with the contention that when a qualified hand working in a lower grade in the institution is available for promotion on the date of occurrence of the vacancy, the vacancy can be filled up only by promoting such qualified hand, said: "if R. 51a is to be understood as conferring a right on an outsider to be appointed to a vacancy in a higher grade merely on the ground of his having acted in the school on a previous occasion when there was no qualified hand in the lower grade, the provisions of R. 43 will be rendered nugatory. Such an interpretation will also leave the door open for misuse of the provisions of R. 51a by the manager since it will be possible for him to circumvent the mandatory terms of R. 43 by merely appointing an outsider in a short term vacancy which may even be deliberately created by inducing a higher grade teacher to take leave at a time when the person working in a lower grade is not yet fully qualified. By the said device the teacher in the lower grade can be effectively deprived of the benefit conferred by R. 43 and divested of all prospects of promotion, even though such person may have acquired the requisite qualifications by the time a permanent vacancy arises in the school. " In Jaisinghani versus Union of India (AIR. 1967 SC. 1427)the Supreme Court has said: "in this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law. discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey -'law of the Constitution' tenth Edn. Introduction ex.) 'law has reached its finest moments,' stated Douglas, J. in United States v. Wunderlich (1951) 342 US 98, 'when it has freed man from the unlimited discretion of some ruler Where discretion is absolute, man has always suffered. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 at p. 2539 'means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful'. " In Radhakri hna Kamath v. Cochin T. D. Corporation (1976 klt. 14) it is said: "the Headmaster's retirement could take effect as per the rules only from the closing of the school for the academic year. There is no statutory rules or orders which prescribe that on the date of the retirement itself the new Headmaster should be appointed. The 3rd respondent was appointed within a reasonable period as Headmaster. There is no rule like r. 28 (bb) of the Kerala State and Subordinate Services Rules in this connection which states that the qualifications should be as on the date of occurrence of the vacancy and not on the date of the appointment. " In Thankamma v. Kunjamma (1976 KLT 212) it is said: "under R. 51a of Chap. XIVA a prior appointee as a temporary teacher in a school has no prior title. The Act and the Rules merely imposed restrictions and subject to such restrictions the Manager has full freedom of choice. If there was no clear provision in R. 51a giving a prior title to a prior temporary appointee, the Manager was free to appoint any one of the two or more that fell under R. 51a. When such an appointment was made, two consequences follow; firstly, the Manager who appointed exercised his right to choose and the person appointed gets a right to the post. If that post rightly given to that person is taken away it will be injustice and it will be certainly open to that person to come forward and challenge the impediments that have been placed in the way of that person in continuing in service. By the impugned orders passed by the educational authorities, there has been interference, a wrongful interference, an illegal interference with a right of choice of the Manager. The Government Pleader is partly right in his submission that it is for the Manager to complain and that the Manager not having complained, this Court should not interfere. But the choice made by the Manager had resulted in the appointment of the 1st respondent. When that appointment was wrongly interfered with this Court removed the interference. " Rule 43b (1) deals with promotions to the post of High school Assistant Language. The different categories of teachers on the staff of the school who are qualified for the post of High School Assistant Language which falls vacant have a right to be promoted in the order of preference insisted by the rule. This is a right which accrues to them the moment the vacancy arises. So, a qualified teacher (qualified for the post of High School assistant) on the staff has a right for promotion, of course subject to the rules in the K. E. R The teacher's right to get promotion cannot depend upon anything the Manager does or omits to do. It is a right conferred by the rules and it can only be subject to the rules and cannot depend on the whims and fancies of the Manager. Even if the Manager makes an honest mistake or does not take prompt action at the appropriate time that cannot be a reason to deny the teacher his claim for promotion That cannot also create any right in a teacher, who because of the fact that he was not qualified for promotion at the time when the promotion ought to have been made, to claim promotion, even if he becomes qualified by the time the Manager actually makes the delayed promotion. It is true that the powers of the Manager are restricted only to the extent that there are restrictions imposed by the Kerala Education Act and the K E. R. It is also a fact that there is no statutory compulsion that the Manager should fill up the vacancies within a time limit. But that does not mean that a manager need only make the promotion whenever he wants. If a post is kept vacant for long, it will adversely affect the instruction in the school. Giving an absolute discretion to the Manager in the matter is likely to result in the misuse of the powers of appointment Legitimate rights of teachers in service will also be lost In any service, the powers of the appointing authority cannot be interpreted ignoring the rights of the service. Discretion that the Manager has must be sound discretion and not absolute discretion which will be arbitrary and which will deprive teachers in service of their valid rights for promotion The indication in R. 7a (2) of Chapter XIVA of the K. E. R. is also that the Manager must fill up vacancies without delay. The only restriction is that except in the case of posts of Headmasters, posts that fall vacant on the closing date should not be filled up till the reopening. So, at any rate, in this case, the vacancy in question which arose on 31-3-1977 ought to have been filled up in the first week of June 1977. The petitioner was qualified at the time of the occurrence of the vacancy. The Kerala Education Act and the rules do not give any discretion to the Manager to delay the promotion to deprive the petitioner of her rights for promotion As per R. 43b (1) (i) the right to preference for promotion is to the teacher qualified for promotion at the time when the vacancy arose. Simply because such an indication is not there in r. 43b (1) (iii) it cannot be said that qualification on the date of occurrence of the vacancy is not to be taken into account for promotion under R. 43b (1) (iii ). There is no reason to believe that the Government wanted to lay down different principles for promotions under sub-clauses (i) and (iii ). Hence I hold that for promotions under R. 43b (1) (iii) also only a lower grade teacher qualified for promotion when the vacancy arose has got preference.