BHAVANI Vs. KRISHNAN

JUDGEMENT

(1.) THIS is an appeal by the 4th respondent in O.P.No.4195 of 1973 against the Judgment in the case by which Exts.P -4 and P -7 produced along with the petition were set aside.The question that arose related to the inter se seniority of the appellant and the first respondent herein,the petitioner in the O.P.They were both admittedly appointed in the Raja's High School,Chirakkal on the same day;on 3rd June 1953.This was of course long before the Kerala Education Act and the Kerala Education Rules came into force.The Act and the rules came into force on 1st June 1959.Two questions arose before the learned Judge:( 1)as to whether it had been determined before the Act and the rules came into force that the appellant was senior to the first respondent and(2)whether in view of the advent of the Act and the rules the seniority settled(if it had been settled)between the appellant and the 4th respondent,would get altered by virtue of the provisions in the Act and rules.The learned Judge took the view that there was no settled seniority before the Act was passed and the seniority has to be decided with reference to the pro­visions in rule 37(2)in Chapter XIV(A)of the Kerala Education Rules,1959.The contention of the appellant that the seniority had been settled before the Act came into force was sought to be supported by relying on various documents.The matter was dealt with by the learned Judge thus: Has there been a determination by the management of the seniority of the 4th respondent over the petitioner? What the 4th respondent says is that she was treated as senior to the petitioner and others who were appointed on the same date.In the attendance register she was shown as 7th Assistant while the petitioner was shown as 9th Assistant.Similarly,it is also stated that this rank is adhered to in the acquittance roll and inspection reports.The then Manager has also said that the 4th respondent was appointed senior to the petitioner.It is also argued that the petitioner had at no time made any protest against this. I do not think these facts will constitute as such any positive evidence that the management had determined the question of relative seniority as between the petitioner and the 4th respondent.To determine a question means to settle a question or controversy about,to resolve or decide a disputed matter.There should be a conscious advertance to the question and a decision thereon.It is difficult to come to a conclusion that any such decision had been taken by the management here Under the Madras Educational Rules,there was no such necessity for determination of seniority as between two persons.The question of inter se seniority between the teachers was absolutely immaterial at that time as question of pro­motion or of appointment of Headmaster etc .,was in the absolute discretion of the Manager.Therefore,there could not have been an assignment of seniority before the rules came into force.

(2.) WITH respect we are unable to accept this reasoning.In every available record,the rank of the appellant was shown as senior to the first respondent.The then Manager also stated that the 4th respondent was appointed as senior to the petitioner.What is more important is that the first respondent herein himself had proceeded on the basis that the appellant was senior and had been so treated by the management.In these circumstances it is not possible to accept the position that there was no settled seniority.If there were no rules applicable it was open to the management to decide who should be senior.The Manager has shown the 4th res­pondent as senior.Whether any benefit would arise from such seniority is not the question.The matter to be con­sidered is whether the appellant was or was not appointed as senior to the 1st respondent.All the records and the evidence indicate that the appellant was so appointed. We do not think that there should have been a controversy before seniority is settled nor do we think that seniority,in the absence of rules conferring benefits on the basis of seniority is of no value.Even in the absence of any such specific rules seniority has always been an advantage.In the matter of promotion for instance even in the absence of rules a senior would normally be preferred.So,seniority was important even before rules came in.We are therefore with respect,unable to agree with the findings of the learned Judge on this aspect.

(3.) RULE 37 in Chapter XIV(A)till 18th September 1962 was different from the rule as it stands today.There was no sub -rule(2)to rule 37 till it was introduced by notification published in the Kerala Gazette dated 19th March 1963.Rule 37 now reads thus: 37.( 1)Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post. (2)In the case of teachers in the same grade,in the same unit,whose date of first appointment is the same,seniority shall be decided with reference to age,the older being senior. The rule as it now stands cannot be applied,for rule 39 in Chapter XIV(A)states that the staff list shall be pre­pared with reference to the position existing on the date of commencement of the schools as an aided school under the Act unless there is a staff list already approved by the depart­ment which conforms to those rules and shall thereafter be maintained up -to -date.