BINDU THOMAS Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner challenges the retrospectivity given to an amendment introduced in the Kerala Education Rules by Ext. P9 dated 3. 4. 2003. By the said amendment, a rival claimant became eligible for appointment as High school Assistant. THE petitioner apprehends that the said eligibility acquired by the 3rd respondent may affect her claim for approval of her appointment. THE brief facts of the case are the following:

(2.) THE petitioner is presently working as High School assistant (Malayalam) in St. Mary's High School, Vynthala managed by the 4th respondent. She was appointed as HSA (Malayalam) in this School in a leave vacancy by Ext. P3 order dated 12. 8. 1999. THE appointment was for a period extending from 12. 8. 1999 to 15. 10. 1999. That was approved by the D. E. O. She was reappointed in a leave vacancy of HSA (Malayalam) from 11. 1. 2000 to 15. 3. 2000 by Ext. P4. THE said appointment was also approved. THE petitioner was again appointed in a leave vacancy from 19. 9. 2000 to 18. 9. 2002. THE said appointment was also approved as evident from Ext. P6 appointment order. THE approval of appointment was restricted upto 14. 7. 2001. THE petitioner submits, feeling aggrieved by the approval being restricted upto 14. 7. 2001 instead of granting upto 18. 9. 2002, she has preferred a revision before the Government and the same is pending. While so, as a result of retirement of a senior HSA (Malayalam), a vacancy arose from 1. 4. 2002. THE petitioner was reappointed in that vacancy by ext. P7 order with effect from 5. 6. 2002. THE said appointment is yet to be approved.

(3.) S. 36 (1) of the Kerala Education Act, 1958 empowers the government to make rules either prospectively or retrospectively, for the purpose of carrying into effect the provisions of the Act. So, admittedly, the government have the power to frame rules with retrospective affect. So, the only point to be decided is whether it is affecting the vested rights of the petitioner, or it is arbitrary rendering it unconstitutional. Going by the amendment, I think that none of the rights (stricto sensu) of the petitioner is affected by Ext. P9. May be, she is adversely affected by the Governmental action in issuing Ext. P9. That does not mean that her rights are affected. Salmond in his jurisprudence explains the concept'right' co-relating it to duty. The learned Author first explains 'duty'. It is said, "a duty is roughly speaking an act which one ought to do, an act the opposite of which would be a wrong To ascribe a duty to a man is to claim that he ought to perform a certain act". The learned Author goes on to add that in the strict sense a duty is something owed by a person to another. Then the concept of 'right' is explained in the following words:? "we have seen that in the strict sense a duty is something owed by one person to another. Correspondingly the latter has a right against the former. The master has a right against his servant, the parent against his child and so on. To ascribe a right to one person is to imply that some other person is under a corresponding duty". The right co-related to duty is described by other learned Authors as 'right stricto sensu' or 'claim'. According to them, jural concepts of liberty/ privilege, power and immunity can also be termed as'rights'.