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Flora Hilda Wilson Vs. State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 158 of 1959
Judge
Reported inAIR1960Ker260
ActsConstitution of India - Articles 14 and 311(2); Kerala University Act
AppellantFlora Hilda Wilson
RespondentState of Kerala and anr.
Appellant Advocate T.K. Narayana Pillai,; D. Narayanan Potti and; V. Chelli
Respondent Advocate C.M. Kuruvilla, Government Pleader
DispositionPetition dismissed
Cases ReferredSamuel v. State of Kerala
Excerpt:
.....act - petitioner challenged order of reversion - appointment of petitioner only on officiating basis - article 311 (2) not attracted - article 14 not violated - no infirmity in impugned order - petition liable to be dismissed. - - p-2, shows, the petitioner's appointment was only on a temporary basis as acting junior professor, however, i am quite satisfied, that the appointment must be deemed to have been made subject to ext. even for a temporary vacancy, the appointing authority may resort to such method, as it deems necessary to ensure the best choice. p-2 was by the first respondent, which bad power to make the appointment on the date in question, under the kerala university act 14 of 1957. on a true interpretation of ext. it would appear, that when a representation was made..........reduced in rank, in violation of the guarantee under article 311(2). it was not disputed by the learned government pleader who appeared for the first respondent, that if the reversion of the petitioner was by way of punishment, ext. p-1 could not be sustained, having been made in violation of article 311(2); but his contention was, that ext; p-1 was not by way of punishment. this is the question which falls for determination in this petition.2. one of the tests to ascertain this, formulated by the supreme court, in p.l. dhingra v. union of india, air 1958 sc 36, is to see whether the civil servant, in this case the petitioner, had a right to hold the post from which she was reduced. the learned government pleader relied upon an order of the first respondent. ext. r-1 dated november.....
Judgment:
ORDER

S. Velu Pillai, J.

1. The petitioner had been a lecturer in Philosophy in the Women's College in Trivandrum. In May 1957, when the post of a Second Grade Professor in Philosophy in the College fell vacant, the University invited applications from candidates for that post. The petitioner, and the second respondent who was then a lecturer in Philosophy in the University College, Trivandrum, were among the applicants and the petitioner was selected for the post. On September 19, 1957, she was appointed by the Government of the Kerala State, the first respondent, by order Ext. P-2, as acting Junior Professor of Philosophy in the Women's College. On August 23, 1058, the first respondent reverted her, to her former post as lecturer, and appointed the second respondent as Professor, in her place, The order of reversion was communicated to her under Ext. P-1. This petition is under Article 226, to quash Ext. P-1, on the ground, that the petitioner was reduced in rank, in violation of the guarantee under Article 311(2). It was not disputed by the learned Government Pleader who appeared for the first respondent, that if the reversion of the petitioner was by way of punishment, Ext. P-1 could not be sustained, having been made in violation of Article 311(2); but his contention was, that Ext; P-1 was not by way of punishment. This is the question which falls for determination in this petition.

2. One of the tests to ascertain this, formulated by the Supreme Court, in P.L. Dhingra v. Union of India, AIR 1958 SC 36, is to see whether the civil servant, in this case the petitioner, had a right to hold the post from which she was reduced. The learned Government Pleader relied upon an order of the first respondent. Ext. R-1 dated November 27, 1956, which declared that:

'all appointments as on or after the 1st November 1956 will be held only on a provisional basis pending the settlement of the question of comparative seniority between the members of the staff of allied Departments under the former Governments of Travancore-Cochin and Madras as on the above date.'

Paragraph 2 of the above order further provided;

'No person should be confirmed in vacancies arising after 1-11-1956 until the integration of the Service personnel is completed.'

The argument of the learned Government Pleader was, that in view of Ext. R-1, the appointment of the petitioner being provisional was only on an officiating basis, although in a substantive vacancy, and that therefore by such appointment, she obtained no right to hold the post to which she was appointed. As pointed out by the learned Chief Justice of India in Dhingra's case, AIR 1958 SC 36 an appointment to a permanent post may be made in three ways substantively, or on probation or trial, or on an officiating basis. If the petitioner's appointment as Professor was provisional, being subject to Ext. R-1, it must he held, that the appointment was only on an officiating basis. If so, Dhingra's case is also authority for holding, that she had no right to bold the post.

3. The learned counsel for the petitioner strenuously urged before me, that Ext. R-1 has no application to the petitioner's appointment. It seems to me that the applicability of Ext. R-1 itself is not of much importance, when it is realised, that, as the order, Ext. P-2, shows, the petitioner's appointment was only on a temporary basis as acting Junior Professor, However, I am quite satisfied, that the appointment must be deemed to have been made subject to Ext. R-1 and to be governed by it. Exhibit R-1 cannot be construed, as urged by the learned counsel for the petitioner, to be operative only as regards the claims, if and when made, against the petitioner, on the basis of integration of services, or that the provisional nature of the appointment is only for the purpose of effectuating such integration and that for other purposes, the appointment must be deemed to be not provisional, or that Ext. R-1 can be availed of only for the purpose of fixing comparative seniority between rival claimants upon integration. I am quite clear, that though Ext. R-1 speaks of appointment and not specifically of promotions, the word 'appointment' is used in a generic sense, so as to take in, not only appointments by direct recruitment of candidates, not already in service, but also appointments by promotion from subordinate service. Some of the averments in the petitioner's affidavit have adopted this usage of the word 'appointment'. It does not make any difference whatever in the interpretation of Ext. R-1 as was contended, that the appointment of the petitioner was made by way of selection. This mode of ascertainment of the suitable candidate docs not by itself import permanency in the tenure of the service of the candidate chosen; even for a temporary vacancy, the appointing authority may resort to such method, as it deems necessary to ensure the best choice.

4. There is no force in the argument of the learned counsel, that Ext. R-1 applies only to appointments made by the first respondent and not by the University. The argument loses sight of the fact, that the very order of appointment, Ext. P-2 was by the first respondent, which bad power to make the appointment on the date in question, under the Kerala University Act 14 of 1957. On a true interpretation of Ext. R-l, the appointment of the petitioner must be held to have been made provisionally, and therefore, on an officiating basis. Applying the rule in Dhingra's case, AIR 1958 SC 36 which I have had occasion to follow in Samuel v. State of Kerala, 1960 Ker LT 55: (AIR 1960 Kerala 231) B consider that the petitioner had no right to hold the post, to which she was promoted. If so, her reduction in rank cannot per se be by way of punishment.

5. Next it was contended, that even an officiating servant may be reduced in rank by way of punishment, and to establish this, certain averments in the counter-affidavit on behalf of the first respondent were pressed into service. It would appear, that when a representation was made to the first respondent, by one of tbe rival candidates, against the petitioner's appointment as acting Professor, the matter was referred to the Director of Collegiate Education for remarks, who reported to the first respondent, that if in making the promotion, the claims of women candidates alone were to lie considered the petitioner has a better claim on the ground of her seniority to other women candidates, hut that, if men also can be chosen, then the second respondent has a superior claim over the petitioner, on the ground of experience and of seniority. One of the grounds urged in tbe representation against the petitioner was that she became qualified to teach students of the B. A. Class, only after she took her M. A. degree in the year 1954. The counter-affidavit in paragraph 6 has extracted the report of the Director of Collegiate Education and in paragraph 17 bas further stated that:

'It was by reason of the fact that the petitionerhad not the requisite experience and seniority thatshe was reverted and the second respondent promoted in her place.'

These passages in the counter-affidavit were reliedon by the learned counsel for the petitioner tocontend, that the petitioner was reduced in rank on account of some blameworthiness, or deficiency, ordisqualification in her so as to disentitle her to hold the post to which she was promoted, and that this is sufficient to attract the operation of Article 311(2). The argument at first sight appeared to me to be plausible; but on further reflection I consider, that it cannot prevail. As the learned Government Pleader contended, the averments in the counter-affidavit do not mean, that the petitioner was reduced in rank on account of any blameworthiness, or deficiency or disqualification in her in the discharge of the duties of the office to which she was promoted and which she was holding, but that they mean only that on the representation being made against the petitioner's claims, the first respondent accepted the opinion of the Director of Collegiate Education, as regards the superior claims of the second respondent to be promoted as Junior Professor; in other words, the first respondent recognised the superior claims of the second respondent for appointment, and gave effect to them. This certainly the first respondent was entitled to do, if the petitioner had no right to hold the cost. I think, the view contended for by the learned Government Pleader is reasonable, and sound, and must be accepted. It therefore follows, that the reversion of the petitioner was not by way of punishment, and that Article 311(2) is not therefore attracted.

6. Finally, it was contended, that the appointment of the second respondent is discriminatory, and is hit by Article 14 of the Constitution. I am of the view, that there is no substance in this contention. The point taken was, that when the Travancore University was making appointments, for a time, it appointed only women in the teaching staff of the Women's College, but that when the petitioner's chance arose, the second respondent has been chosen. The first respondent has explained, that there was this practice, but only for a time, when the University was making appointments, but that afterwards when the first respondent took over the power of appointment, it ruled that males should not he so discriminated against in this manner, If so, it follows that there is no factual basis for the present charge of discrimination against the respondent.

7. This petition is, therefore, groundless and is dismissed, but without costs.


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