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State of Kerala Vs. K. Kunhipacky and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 52 of 1963
Judge
Reported inAIR1965Ker108
ActsConstitution of India - Articles 16(2) and 226
AppellantState of Kerala
RespondentK. Kunhipacky and anr.
Appellant AdvocateGovt. Pleader
Respondent Advocate K.V. Suryanarayana Iyer and; B. Moosakutty, Advs. (for No. 1) and;
DispositionAppeal allowed
Cases ReferredParshotam Lal Dhlngra v. Union of India
Excerpt:
- - state of kerala, 1960 ker lt 257 :(air 1960 ker 260) to hold that at the relevant time a male (professor might well be appointed to act in the women's college. ' it cannot therefore be said that in flora wilson's case, 1960 ker lt 257 :(air 1960 ker 260) this court has endorsed its approval to a supersession of the woman candidate by a senior male in the appointment of a professor in the women's college......1958; and on november 11, 1958, appointed her provisionally to the plate.2. on december 1, 1958, shri kunhipacky submitted representation before the government pointing out 'that the old practice of reserving the vacancies. in the women's college for women had already been abandoned by the government, when-shri seshadri, lecturer in philosophy of university college, trivandrum, was promoted and posted as professor of philosophy in the women's college, as he was the seniormost lecturer in .philosophy department', and claim-ing to be substituted in the place given to smt. sara-damma; and followed it by another representation dated july 13, 1959. on february 25, 1960, the government informed him of their reluctance to post him as a professor in the women's college, but assured him higher.....
Judgment:

1. In March, 1958, in the History Department of Women's College, Trivandrum, the post of a Professor, Grade II, fell vacant. Shri Kunhipaeky, Leciurer Brennen College, Tellicherry, was then the seniormost lecturer in History in the Government Colleges, and Smt. Saradamma was the seniormost woman Lecturer in the Department. The Government ordered Smt. Saradamma to officiate in the vacancy from March 1958; and on November 11, 1958, appointed her provisionally to the plate.

2. On December 1, 1958, Shri Kunhipacky submitted representation before the Government pointing out 'that the old practice of reserving the vacancies. in the Women's College for women had already been abandoned by the Government, when-Shri Seshadri, Lecturer in Philosophy of University College, Trivandrum, was promoted and posted as Professor of Philosophy in the Women's College, as he was the seniormost Lecturer in .Philosophy Department', and claim-ing to be substituted in the place given to Smt. Sara-damma; and followed it by another representation dated July 13, 1959. On February 25, 1960, the Government informed him of their reluctance to post him as a Professor in the Women's College, but assured him higher rank over Smt. Saradamma when he would be appointed as Professor. A further representation by Shri Kunnipacky suggesting transfer of Smt. Saradamma to the Training College, Tellicherry, and promotion and posting -of himself in the Women's College, Trivandrum, met with no better success. His last representation accusing Government cf gross violation of 'all principles of natural justice' was not replied to. He then filed O. P. No. 668 of 1961 for a writ of certiorari to cancel the order of promotion of Smt. Saradamma, and for a mandamus to direct the Govern-ment to pass orders promoting him with effect from November 6, 1958, and giving him the salary of a Professor from such date.

3. In answer to that motion, the State contended that, when the College was under the Kerala University before September 13, 1957, it was treated as a separate unit, and that the convention of appointing women only in the Women's College,, unless a qualified woman was not available, was followed for some time even after the institution was brought under the control of the Government.

4. Vaidialingam J. held 'the promotion of the 2nd respondent (Smt. Saradamma) should not be disturbed', declared Shri Kunhipacky 'to be holding the post of Second Grade Professor in History as and from 4-4-1961, the date on which he filed the writ petition in this Court', and directed payment to him of salary and other emoluments of a professor, with increments, from the afore-said date. Hence this appeal by the State.

5. The jurisdiction of a High Court under Article 226 of the Constitution is only supervisory, and not appellate, the consequence of which distinction is that this Court cannot enter into the factual merits of an order passed by the Government or substitute its own order therefor. This Court may, on finding an error of jurisdiction or an error of law or bias, review an executive action and quash the same, but has still to leave the exercise of the executive power to the proper authority. See Veerappa Pillai v. Raman and Raman Ltd., AIR 1952 SC 192, K. M. Shan-mugam v. S. R. V. S. (P.) Ltd., AIR 1963 SC 1626, and page 300 of Judicial Review of Administrative Action by S. A. de Smith. The declaration made by the learned Judge of Shri Kunhipacky to be holding the place of a Professor from the date he came to this Court when he has not been appointed so by the Government as also ths direction to pay him the salary of a Professor from that date cannot therefore be sustained.

6. The learned Judge has relied on the decision In Flora Hilda Wilson v. State of Kerala, 1960 Ker LT 257 : (AIR 1960 Ker 260) to hold that at the relevant time a male (Professor might well be appointed to act in the Women's College. Obviously, the fact that that decision was the subject of appeal in A. S. No. 144 of 1960 (Ker) before a Division Bench, composed by the Chief Justice and Raghavan J., who took a different view, was not brought to the notice of his Lordship. In the appellate judgment it is observed :

'.....As pointed out by the Supreme Court in. Parshotam Lal Dhlngra v. Union of India, AIR 1958 SC 36, an appointment to a post, permanent or temporary, on probation or on an officiating basis gives to the servant so appointed no right to the post unless his service had ripened into what is, in the service rules, called a quasi-permanent service.

It follows that we cannot interfere under Article 226 of the Constitution even though we sre not prepared to say that the appellant had no justification for feeling aggrieved by Exts. P-1 and P-5..... We trust that the Government will look into the matter afresh and render the appellant (Miss Flora Hilda Wilson) such redress as she may deserve in the circumstances of this case.'

It cannot therefore be said that in Flora Wilson's case, 1960 Ker LT 257 : (AIR 1960 Ker 260) this Court has endorsed its approval to a supersession of the woman candidate by a senior male in the appointment of a Professor in the Women's College. This Court has only directed reconsideration of the matter by the Government. That case cannot therefore be taken as an accepted precedent on the matter; and the observations of the learned Judge based on 1960 Ker LT 257 : (AIR 1960 Ker 260) have tc be and are hereby set aside. We make it clear that we are not prepared to say that a convention of preferring women to men for appointments in the Women's College if existent at the relevant time, was unreasonable.

7. However, the case of the Government has not been put positively before us. No affidavit of the authority who made the order of promotion in question, or of any person concerned in the passing of that order has been filed in the case to explain how or why the promo-tion was given to Smt. Saradamma while Shri Kunhipacky was her senior. The affidavit of a Superintendent who claims to be 'conversant with the facts of the case as disclosed by the records thereof' (i. e. of the file relating to the case) cannot do duty for the statement of a person concerned in impugned act; and the averments therein are couched as vaguely as may be possible. The rule under which the promotion was ordered is not told to us. We find the replies given by the Government to the representations 'submitted by Shri Kunhipacky also not expressive of any reason for the particular action in question, though it is conceded therein that Shri Kunhipacky is senior to her. It is elementary fairness that when his seniority was overlooked and his junior given the promotion he should be told the ground therefor, unless it is stated to be in the public interests not to divulge it.

8. In the circumstances, we discharge the order under appeal, and direct the Government to consider the representations of Shri Kunhipacky, after giving an opportunity to Smt. Saradamma also to present her case agsinst them, and decide afresh either in confirmation or modification of the order of November 11, 1958.

9. The appeal is thus allowed; but we make no order as to costs here.


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