MANAGER ST MARYS HIGH SCHOOL THALACODE Vs. POULOSE

JUDGEMENT

(1.) The second respondent in O.P. 5354 of 1971 has appealed from the judgment of Isaac, J. allowing the petition of the first respondent. By the judgment the appointment of the third respondent here as well as in the O.P., to the school by order dated 4th May 1970 passed by the appellant has been set aside.

(2.) The facts are the following. The first respondent as well as the third respondent were unqualified teachers in the aided upper primary school under the management of the second respondent during the period 3rd June 1964 to 31st March 1965. The first respondent had also service prior to that. The first respondent passed the Teachers Training examination in 1967 from the Mysore University and the third respondent passed the Teachers Training Course of the Kerala University in 1969. The first respondent had written to the appellant that he had passed the Teachers Training examination as early as on 5th April 1970 and that he may be appointed in any ensuing vacancy. Soon after that letter a leave vacancy arose in the school. The first respondent applied for the post by application dated 1st May 1970. The third respondent had also applied for the post and by order dated 4th May 1970 the third respondent was appointed by the appellant. It is the case of the appellant that be received the application of the first respondent only on 5th May 1970. The appointment of the third respondent was questioned in O.P. 6471 of 1970 by the first respondent. The order upholding the appointment of the third respondent was set aside by this court for the reason that the only ground stated in the order that the first respondent was not qualified for the post to which the third respondent was appointed at the time of the occurrence of the vacancy, was not correct. It is necessary to further state that from the judgment it is clear that this was the only point that was decided by this court by that judgment and all other matters were left open for consideration de novo after affording reasonable opportunity to the first and third respondents to state their cases. It is also necessary to mention that the District Educational Officer who passed the order which was impugned in O.P. 6471 of 1970 had ceased to be the District Educational Officer by the time the matter came up for consideration again before the District Educational Officer. The second time also the third respondent succeeded and it was held that the lawful claimant to the post is the third respondent and not the first respondent. In so holding it was found that the application of the first respondent reached the Manager only on the 5th May. 1970 after the third respondent was appointed by the Manager by order dated the 4th of May, 1970. Some evidence was taken for the purpose of deciding the question as to the date of the receipt of the application of the first respondent by the appellant and it was on the basis of such evidence that it was recorded by the District Educational Officer that the application of the first respondent was actually received by the appellant only on 5th May 1970.

(3.) The question arising for our consideration in this case is whether there are justifiable grounds for setting aside the appointment of the third respondent by the Educational Authorities. These were challenged in the O.P. and the learned Judge felt that the District Educational Officer who dealt with the matter the second time had gone beyond the ambit of the enquiry visualised by the judgment in O.P. 6471 of 1970 and therefore exceeded his jurisdiction. Certain strong observations have also been made in the judgment that the District Educational Officer went out of his way to find that the application of the first respondent was received by the appellant only on 5th May 1970. It was therefore directed that enquiry should be conducted against the District Educational Officer who passed the order Ext. P2 produced along with the original petition. We are informed that such enquiry had been commenced and is pending. By the time the writ application was filed the person who passed Ext. P2 order also ceased to be the District Educational Officer and the counter affidavit in the O.P. has been filed by a third District Educational Officer. We are mentioning these facts because certain observations have been made in the judgment regarding the averments in the counter affidavit filed by the third District Educational Officer, in answer to the original petition.