P G THANKAMMA Vs. V S KUNJAMMA

JUDGEMENT

(1.) Under R.51A of Chap.14(A) of the Kerala Education Rules, 1959, a prior appointee as a temporary teacher in a school has no prior title has been ruled in Smt. Mary Oomman v. The Manager, M. G. M. High School and others (1973 KLJ 290) and it was so ruled notwithstanding the observations (obiter) of the learned Chief Justice, Raman Nayar, in Writ Appeal No. 175 of 1970. We would therefore proceed on the basis that R.51A does not give any prior title to the appellant who had an earlier appointment in a temporary capacity. The 1st respondent, the other contestant for the post was appointed only later, and also in a temporary capacity. The refusal of the Assistant Educational Officer to recognise the appointment of the 1st respondent by the Manager by the order Ext. P3, and by the appellate authority by dismissing the appeal taken by the Manager by Ext. P5 order, and by the revisional authority by dismissing the revision also taken by the Manager by Ext. P7 order are clearly erroneous. The learned Judge has set aside these orders and we will have to hold that the view taken by the learned Judge in setting aside those orders is correct as it is supported by the decision in Smt. Mary Oomman v. The Manager. M.G.M. High School and others (1973 KLJ 290). Notwithstanding this position, counsel for the appellant contended before us that this Court should not have interfered because there has been no miscarriage of justice, or manifest injustice calling for the exercise of our extraordinary jurisdiction under Art.226 of the Constitution. This submission was made on the basis of an observation made in the judgment to which we have already referred in Smt. Mary Oomman v. The Manager, M.G.M. High School and others (1973 KLJ 290) to the following effect, "We also thought that it is very arguable that the earlier appointee must have preference". But having said so, we considered the scheme of the Act and its purpose and object and held that the Act and the Rules merely imposed restrictions and subject to such restrictions the Manager had full freedom of choice. We therefore held that 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, as we see it, 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 b2 injustice and it will be certainly open to that person to come forward and challenge impediments that have been placed in the way of that person in continuing in service. We discern such impediments in Exts. P3, P5 and P7 and these, we think, have rightly been vacated by the learned Judge.

(2.) Counsel for the appellant referred to a number of decisions of the Supreme Court starting from the decision in D. N. Banerji v. P. A. Mukherjee ( AIR 1953 SC 58 ) and running through those in Sangram Singh v. Election Tribunal, Kotah and another ( AIR 1955 SC 425 ), A. M. Allison and another v. B. L. Sen and others ( AIR 1957 SC 227 ) and Godde Venkateswara Rao v. Government of Andhra Pradesh and others ( AIR 1966 SC 828 ). He particularly drew our attention to three of the decisions; D. N. Banerji v. P. R. Mukherjee (AIR 1953 SC 58), A. M Allison and another v. B. L. Sen and Others (AIR 1957 SC 227) and Godde Venkateswara Rao v. Government of Andhra Pradesh and others (AIR 1966 SC 828). D. N. Banerji v. P. R. Mukherjee (AIR 1953 SC 58) dealt with the case of the dismissal of an employee which was found by the Tribunal to be wrongful and a clear case of victimisation. The Supreme Court observed in Para.5:

(3.) In the decision in A. M. Allison and another v. B. L. Sen and others (AIR 1957 SC 227) the question was whether the Deputy Commissioner who fixed the minimum wages had jurisdiction to fix the minimum wages. The High Court on the facts found held against the person who sought the writ and that was the finding of the Deputy Commissioner as well. It was in those circumstances that the Supreme Court remarked in Para.17 of the judgment that