MERCY LUKOSE Vs. M G UNIVERSITY

JUDGEMENT

(1.) The petitioner is a teacher discharged from service for continued unauthorised absence. She had been out of India to join her husband employed abroad. Later, she came to India and by that time, the petitioner had been discharged from service, by an order passed by the management ousting her due to such long unauthorised absence. In spite of that, the petitioner claimed employment She was shown the order of discharge. She was also not preferred for the vacancies which had arisen next, in spite of her application, in another college under the same management This resulted in two appeals before the University Appellate Tribunal. The Tribunal negatived the contention of the petitioner for re-appointment and also against the discharge order. The first one was challenged in an original petition and the later in a revision before this Court. Those were disposed of by Ext. P1. The challenge against the discharge order finally failed before this court as well. This Court also did not accept the contention of the petitioner that appointment made in the vacancy which had arisen last which was claimed by the petitioner could be set aside displacing the appointee, to give place to the petitioner. But, it was declared that the petitioner, as no penalty had been imposed on her though she had been discharged due to unauthorised absence, will be entitled to claim for future appointment in any of the Colleges under the management under S.62(2)(b) of the Mahatma Gandhi University Act In spite of that, no appointment was given, though a Special Leave Petition seeking leave to the appellant against Ext. P1 judgment failed before the Supreme Court. The petitioner moved contempt of court case, but that did not succeed. The petitioners repeated request to fill up an existing vacancy of Physical Education teacher which had arisen due to retirement of an incumbent also failed. It is in the above circumstances, the petitioner has approached this Court with this writ petition mainly seeking a direction to the third respondent "to appoint the petitioner in the available retirement vacancy for the post of Physical Instructor in the B.C.M. College, Kottayam forthwith." Petitioner seeks incidental reliefs as well including arrears of salary payable by the management from the date of retirement of the incumbent in the post and from which date, according to the petitioner, she is entitled to be appointed in terms of Ext. P1 judgment

(2.) The claim of the petitioner is contested by the management, third respondent, relying mainly on Ext. P11 order issued by the Government banning appointment in private colleges against the existing vacancies because of delinking of Pre degree courses, from the affiliated colleges. It is also contended by the counsel for the third respondent that there is no specific direction to appoint the petitioner in any vacancy. That is why the contempt of court case taken up by the petitioner had been dismissed as per Ext. R3(c) judgment When there is no direction, no writ of mandamus will lie against me management to appoint an incumbent Moreover, the management is disabled to appoint any teacher because of the ban imposed by Government as already mentioned above. Moreover, the petitioner is not qualified hand in terms of the regulations issued by the University Grants Commission for being appointed against the vacancy. It is also contended that, the right, the petitioner has, in terms of Ext. P1 judgment is the right available under S.62(2)(b) of the Mahatma Gandhi University Act. That is a right for "preference in the matter of future appointments". So, such right will arise only at me time the management considering any incumbent for appointment. Merely because there is a vacancy, there arise no consideration of any preference being given. The preferential question arise only when the management intend to fill up the vacancy. Certainly, the management will give that preferential right, the counsel for the find respondent contends.

(3.) The petitioner relies mainly on two decisions, one of the Supreme Court and another of a Division Bench of this Court. The former one is the decision reported in K. Krishnamacharyulu and Others v. Sri. Venkateswara Hindu College of Engineering & Anr. ( AIR 1998 SC 295 ). The main decision mainly deals with the maintainability of a writ petition under Art 226 of the Constitution of India in the matter of filling up of the vacancies in the educational institutions or agencies. It is stated that the imparting of education is a fundamental right so far as the public is concerned. Therefore, in the matter of sanctioning posts of teachers and appointment thereof, there is a public element involving and therefore, in such circumstances, the court can, under Art 226 issue appropriate direction to the authority concerned to serve mat public interest