JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE two Original Petitions arise out of the same facts, and they seek a common relief. The petitioner in O. P. No. 1211 is a first Grade Professor of Zoology in the University College , Trivandrum; and the petitioner in O. P. No. 1792 is a First Grade Professor of Chemistry in Maharaja's College, Ernakulam. Both of them are in the service of the State of Kerala. At the time of filing O. P. 1211, the petitioner in this Original Petition was the senior-most in that Grade. According to the petitioner in O. P. No 1792, there has been a subsequent correction in the seniority list of the First Grade Professors, as a result of which he became the seniormost. It is not clear whether there is a controversy between them regarding seniority. However, that question does not arise in these cases. The respondents in both the cases are the same. Arguments were advanced before me only in O. P. No. 1792 of 1967; and it was agreed at the hearing that O. P. No. 1211 can be disposed of in accordance with my judgment in the other case. I shall, therefore, be dealing with the contentions of parties in this judgment with reference to the pleadings and the documents filed in O. P. 1792.

(2.) THE first respondent in O. P. No. 1792 was formerly the Principal of a private college, called the Guruvayurappan Collage, at Calicut. THE second respondent is the State of Kerala. By an order of the Government of Kerala, Ex. P. 1 dated 10-4-'67, the first respondent was appointed as Principal of the Government College, Calicut, on contract basis for a period of three years from the date of his joining duty. O. P. No. 1211 whs filed on 24-4-1967 to quash the said order; and the petitioner in that case obtained from this Court on 25-4-1967 an interim order, staying the operation of the said order. Hence Ex. P. 1 could non be implemented; In the meanwhile, a vacancy arose in the Principal's post in the Government College, Kasargod. THE first respondent was, therefore, appointed by the Government to that post, by an order Ex. P2 dated 8-6-1957. This was also on contract basis; and Ex. C 1 dated 12-6-1967 is a copy of the agreement executed between the respondents, and containing the terras and conditions of the appointment. By an order Ex. P-3 dated 20-3-1967, the Government of Kerala have in consultation with the Public Service commission, prescribed the qualifications for, and the method of recruitment to, the post of Principals in Government Colleges. THE post is admittedly a selection post; but the appointment is made by promotion from among I Grade professors, having the prescribed qualifications. THE petitioners are the senior-most among the professors in the First Grade; and both of them have the requisite qualifications. THE petitioner in O. P. No. 1792 has also acted as principal of the Maharaja's College, Ernakulam on an earlier occasion. It is, therefore, claimed by them that both of them have the right to be considered for appointment as Principal, and that one or the other of them would have been appointed as principal, if the first respondent was not appointed as stated above, when a vacancy arose in that post. THE petitioners contended that the appointment of the first respondent as per Exs. P. 1 and P. 2 is null and void on the ground (i) it is violative of Art. 16 (1) of the Constitution, and (ii)it is a mala fide exercise of executive power of the Government. Accordingly they have filed these Original Petitions to quash the appointment of the first respondent as College Principal in the service of the Government.

(3.) IN The High Court of Calcutta and another v. Amal kumar Roy and another AIR. 1962 SC. 1704, dealing with a complaint of violation of Art. 14 and 16 (1) of the Constitution, the Supreme Court said: "it is difficult to see how either of these Articles can be pressed in aid of the plaintiffs' case. The plaintiff's case was considered along with that of the others, and the High Court after a consideration of the relative fitness of the Munsiffs chose to place a number of them on the panel for appointment as Subordinate Judges, as and when vacancies occurred, He had, therefore, along with others, equal opportunity. But equal opportunity does not mean getting the particular post for which a number of persons may have been considered. So long as the plaintiff along with others under consideration, had been given his chance, it cannot be said that he had no equal opportunity along with others, who have been selected in preference to him. Where the number of posts to be filled is less than the number of persons under consideration for these posts it would be a case of many being called and few being chosen. The fact that the High Court made its choice is a particular way cannot be said to amount to discrimination against the plaintiff". Lastly, reference may be made to the decision is channabasruth v. State of Mysore AIR. 1965 SC. 1293. IN that case, viva-voce interviews were conducted for the purpose of recruitment to the State service, and the result of the test was duly published. But in making the appointments, a number of persons who got less mirk than, the others were selected. Therefore, persons who got higher marks and did not get the appointment moved the Supreme Court for relief complaining violation of Art. 16 (1) of the constitution. Upholding their claim, the Supreme Court said: "it seems surprising that Government should have recommended as many as twenty four names and the Commission should have approved of all these names without a single exception even though in its own judgment some of them did not rank as high as others they had rejected Such a dealing with public appointments is likely to create a feeling of distrust in the working of the Public Service Commission which is intended to be fair and impartial and to do its work free from any influence from any quarter".