K. Bhaskaran, J.
1. This original petition under Article 226 of the Constitution of India is by the manager of an aided High School. Respondents 1, 2 and 4 respectively, are the Regional Deputy Director of Public Instruction, Trivandrum, the District Educational Officer, Mavelikkara and the State of Kerala represented by the Chief Secretary. The 3rd respondent, a teacher in the petitioner's school, holds T.T.C. and has also passed Malayalam Vidwan examination. He has not, however, undergone the language teachers' training. As matters stood originally, teachers who did not undergo the language teachers' training were not considered to be qualified for promotion as High School Assistants. However, by Government Order No. 415/Edn. dated 29-4-1959 and subsequent D.O. letter No. M5. 9692/69 dated 20-2-1969 and Director's proceedings dated 22-10-1969, it was directed that teachers with T.T.C. could be promoted to the post of High School Assistants till 31-3-1970, that thereafter no person without language teachers' training should be promoted or appointed in high schools as language teachers and that teachers with T.T.C. promoted to high schools before 31-3-1970 would be treated as fully qualified.
2. It is seen that one Kunhikrishnan, who was the High School assistant in Malyalam in the school, availed leave for a period of two months and five days from 7-1-1970 to 12-3-1970 and that the 3rd respondent was appointed in the leave vacancy. This was done by virtue of the exemption provisions with respect to requisite qualifications referred to above. According to the petitioner, this appointment was at the request of the 3rd respondent and on his specific undertaking that he would not put forward any claim to the permanent post when it falls vacant. Exhibrit. P-1 is the undertaking dated 6-1-1970 given by the 3rd respondent. I am extracting below the material portion of Ext. P-1, as the dispute in this writ petition mostly centres round it.
3. The said Kunhikrishnan on superannuation retired in March, 1971. One Smt. P. Bhavani Amma was appointed in his place on 1-6-1971. Thereafter, on ll-6-'71 the petitioner received Ext. P-2 representation sent by the 3rd respondent requesting that he be appointed to the post in the vacancy caused by the retirement of Sri Kunhikrishnan. learned Counsel appearing for the writ petitioner submits that though Ext. P-2 is seen to have been dated 5-6-1971, actually it was posted only on 10-6-1971. Copy of the representation marked as Ext. P-2 produced in Court is seen to have been dated 5-6-1970. Presumably this is a typing error either in the original or while copying. The 3rd respondent appears to have submitted a representation to the 2nd respondent, the District Educational Officer, also stating that he is entitled to the appointment to the post fallen vacant due to the retirement of the said Sri Kunhikrishnan. The 2nd respondent on receipt of the representation from the 3rd respondent promptly by his letter dated 14-6-1971 sought the explanation of the petitioner with respect to the representation made by the 3rd respondent. Ext. P-3 is the reply sent by the petitioner to the 2nd respondent in reply to his letter dated 14-6-1971. In Ext. P-3 it is stated inter alia that the 3rd respondent had not undergone the language teachers' training, that he had given a written undertaking that he would not put forward any claim for future appointment as H. S. A. when he was posted in the temporary vacancy, that in the interest of the institution the petitioner wanted to appoint a Malayalam teacher with adequate teaching experience in high school and that the appointment of the 3rd respondent was only in an emergency. An application for the approval of Smt. Bhavani Amma's appointment was resubmitted along with Ext. P-3. Exhibit. P-4 is a communication dated 31-7-1971 from the second respondent to the headmaster of the school whereby he was asked to ascertain and report what the 3rd respondent had to say about the written undertaking given by him to the manager at the time of his temporary appointment. He was also asked to report whether the 3rd respondent had applied to the manager for promotion in the retirement vacancy before the fresh appointment and whether the 3rd respondent was the only claimant when he was promoted and posted as H.S.A. (Malayalam) in the leave vacancy during 1969-70. In paragraph 7 of the writ petition it is stated that the headmaster contacted the 3rd respondent and forwarded his reply to the District Educational Officer with his letter dated 13-8-1971. For reasons best known to the petitioner a copy of the letter alleged to have been sent by the headmaster has not been produced in this Court.
4. Thereafter in and by Ext. P-5 communication the 2nd respondent declined the approval for the appointment of Smt. P. Bhavani Amma in the retirement vacancy of Sri Kunhikrishnan. In Ext. P-5 it was also stated that inasmuch as the claim of the 3rd respondent (who is fully qualified for the post and whose appointment to the post of H. S. A., (Malayalam) for the period from 7-1-1970 to 12-3-1970 has been approved by the 2nd respondent) has been overlooked, the appointment of Smt. Bhavani Amma could not be approved in spite of Ext. P-1 undertaking. The reasoning of the 2nd respondent was that even in the absence of an undertaking in the nature of Ext. P-1 the petitioner was bound to appoint the 3rd respondent to the post which arose on account of the leave, because he was the only fully qualified teacher on the staff at that time. Against the decision of the 2nd respondent in Ext. P-5, the petitioner filed an appeal before the first respondent, copy of which is marked Ext. P-6, In Ext. P-6 the petitioner has reiterated his stand, namely, that in view of Ext. P-1 undertaking the 3rd respondent was not entitled to the post and it was in that circumstance that Smt. Bhavani Amma 'happened to be appointed to the post.' There is also an embellishment to the effect that 'his work and conduct during the period is also not found satisfactory.' The first respondent by his proceedings dated 1-12-1971, copy of which is Ext. P-7, rejected the appeal and upheld the decision taken by the second respondent.
5. In this writ petition the petitioner challenges Exts. P-5 and P-7. The contention inter alia is that the provisions contained in Rule 43, Chapter XIV-A of the Kerala Education Rules, 1959, is not a bar against the appointment of Smt. Bhavani Amma inasmuch as a teacher among the staff who is not efficient is not entitled to promotion even in terms of Rule 43, Chapter XIV-A, that no claim was put forward by the 3rd respondent for the post before the appointment of Smt. Bhavani Amma, that the claim that the 3rd respondent is a qualified probationer on the staff is wrong, and that the interpretation of Rule 43, Chapter XIV-A as an absolute rule by the 1st respondent, if accepted, would amount to violation of the fundamental rights guaranteed to the petitioner under Article 19 of the Constitution. Rule 43 of Chapter XIV-A reads as follows:
43. Subject to Rules 44 and 45 and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority if such hands are available.
Note : A teacher in a lower grade of pay in one category of post is eligible for promotion to a higher grade of pay in another category of post provided:
(i) he has the prescribed qualifications; and
(ii) there is no teacher with the prescribed qualifications in the lower grade of pay of the category of post to which promotions are to be made.
There cannot be any valid contention that the 3rd respondent was not fully qualified to hold the post of H.S.A. (Malayalam) on 1-6-1971 on which date the vacancy arose on account of the retirement from service of Sri Kunhi-krishnan. Therefore, normally it is the 3rd respondent who becomes entitled to the post, as it is the undisputed case that there was no other teacher on the staff who was fully qualified to hold the post. What has then to be considered is whether, because the 3rd respondent waived his right, he has forfeited his right to promotion, and whether inefficiency disentitles him to get the promotion, as contended by the writ petitioner. We have to examine these two questions separately. Let us consider presently whether, because of the waiver, the 3rd respondent has forfeited his right to promotion.
6. Strong reliance is placed on Ext. P-1, the material portion of which has already been extracted in this judgment. Whether there is a waiver is essentially a question of fact which has to be decided by taking into consideration all material facts like the circumstances under which waiver was expressed, the nature and extent of the abandonment of the right, etc. In Ext. P-l what has been stated by the 3rd respondent is that in terms of the order issued by the Director, persons holding T.T.C. and a pass in Malayalam Vidwan Examination could be appointed as H.S.A. (Malayalam) only up to the end of March, 1970 and that if he is so appointed to the post which had fallen vacant, he will not make any claim for appointment in the vacancy that may arise in future. I do not find any waiver in this undertaking. Waiver, as it is understood legally, must be a conscious, positive act on the part of the person who abandons the right, and that must also relate to an existing right. This position cannot be expressed in better terms than in the words of the Supreme Court in Basheshar Nath v. I.T. Commissioner : 35ITR190(SC) . S.K. Das, J. has observed as follows:
If, in these circumstances, the assessee made an application for settlement, can it be said that it is a voluntary or intentional relinquishment of a known right? I venture to think not. It has been said that 'waiver' is a troublesome term in the law. The generally accepted connotation is that to constitute 'waiver' there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right, estoppel is a rule of evidence....I do not think that the maxim 'ignorance of law is no excuse' can be carried to the extent of saying that every person must be presumed to know that a piece of legislation enacted by a Legislature of competent jurisdiction must be held to be invalid, in case it prescribes a differential treatment, and he must, therefore, refuse to submit to it or incur the peril of the bar of waiver being raised against him.
Judged by this standard laid down by the Supreme Court, I have no hesitation in holding that Ext. P-1 does not amount to a waiver of the 3rd respondent's right to get himself appointed to the post that fell vacant on 1-6-1971. On a careful reading of Ex, P-1 it is clear that the 3rd respondent was under the impression that the appointment of a T.T.C. holder haying a pass in Malayalam Vidwan Examination, but without language teachers' training, could be appointed to the post of H.S.A. (Malayalam) only up to the end of March, 1970. That might have been or might not have been the correct position. However, a statement that he would not claim right for future appointment, which has no reference to an existing right, does not take away the right of the 3rd respondent when the Government chose to grant permanent exemption for persons holding T.T.C. and a pass in Malayalam Vidwan Examination from undergoing language teachers' training. Apart from this it is not difficult to find that Ext. P-1 is really a statement extracted by the petitioner from the 3rd respondent using pressure tactics. This is not a voluntary statement given by the 3rd respondent. In fact, there was no need for the petitioner to take such a statement from the 3rd respondent; nor was the 3rd respondent bound to give it. It is the undisputed fact that when Sri Kunhikrishnan went on leave the 3rd respondent alone was the fully qualified teacher among the members of the staff of the school to hold the post of H.S.A. (Malayalam). Therefore, the 3rd respondent had a right to get himself appointed to the post automatically without any conditions or restrictions being imposed by the petitioner. The irresistible conclusion, therefore, is that Ex. P-l in no way stands in the way of the 3rd respondent's right to get himself appointed to the post that fell vacant on the retirement of Sri Kunhikrishnan.
7. It was then argued that the 3rd respondent put forward his claim for appointment to the post only on 5-6-1971, whereas the vacancy had arisen on 1-6-1971 and Smt. Bhavani Amma was appointed to the post on 1-6-1971 itself. It would appear that the petitioner received Ext. P-2 representation only on 11-6-1971. The contention of the learned Counsel appearing for the writ petitioner is that by his conduct he has abandoned the claim inasmuch as his claim came up only after Smt. Bhavani Amma was actually appointed. Reliance is placed by the learned Counsel on two decisions of this Court in W.A. Nos. 44 and 175 of 1970, both heard by Raman Nayar, C.J., and Mathew, J. and judgment deliverd by Raman Nayar, C.J.
8. These decisions cannot be called in aid by the petitioner in support of his contention, as both the writ appeals were concerned with the rights under Rule. 51-A of Chapter XIV-A of the K.E.R., and not Rule 43 as in the present case, and the facts and circumstances are totally different in those cases. In W.A. No. 44 of 1970 this Court held that the Government was wrong in approving the appointment of a teacher who got the appointment overlooking the claim of another teacher who had previously held the post for a short while but was discharged for want of vacancy. In that case, it was observed that-
We have little doubt that what the rule means is that a person discharged for want of vacancy has a right to be appointed in future vacancies, provided of course, he has not by word or deed given up this right.
Presumably the learned Counsel appearing for the writ petitioner wants to build up a case around the words 'provided of course, he has not by word or deed given up this right' in this observation. There is, however, no positive evidence in this case that the 3rd respondent had abandoned his claim for promotion. In paragraph 6 of his counter-affidavit the 3rd respondent has stated as follows:
On 1-6-1971 Sri Kunhikrishnan retired from service. I was fully qualified to be promoted to the vacancy. I met the petitioner several times and requested him to appoint me. But without appointing me he appointed Smt. Bhavani Amroa.
As I have already observed, his right to get the promotion is automatic. It is not a case where he was not in service and had to seek the appointment. Even in such cases, in my view, the manager has a duty to issue notice to the previous incumbent who was discharged from service for want of vacancy, and it is only when he declines to accept the post that the manager would be justified in appointing some other person to the post. Here, in the normal course, all that the writ petitioner was expected to do was to issue an order promoting the 3rd respondent, the only person on the staff who was fully qualified to hold the post of H.S.A. (Malayalam), in terms of Rule 43 of Chapter XIV-A. No application for that purpose is called for from the 3rd respondent. It was only when the 3rd respondent realised that the petitioner had no intention to appoint him to the post that he resorted to written representation which is contained in Ext. P-2, The worst that could be said against the 3rd respondent is that it took ten days (accepting the case of the petitioner that Ext. P-2 was posted only on 10-6-1971) to assert his right in writing. This cannot be treated as a case of abandonment. From the fact that the petitioner was able to extract a sort of undertaking in the nature of Ext P-l, it could be seen that the petitioner was treating the 3rd respondent as a person dependant on his mercy. It is, therefore, only natural that a person placed in the unenviable position of the 3rd respondent could not pick up courage to make an assertion in writing which may be misconstrued to be a revolt against the management.
9. The facts of the case in W.A. No. 175 of 1970 also would not support the case of the writ petitioner herein. The case before the Division Bench was one where, during the material time, vacancy arose several times and the person who claimed preferential right to get appointment to the permanent post did not come forward to accept the post partly for the reason that she was not in good health and partly for the reason that she did not think it worthwhile, because the vacancies were temporary. I do not think that the decision arrived at and the observations contained in that case could be applied to the facts and circumstances of the present case. In paragraph 7 of the judgment in W.A. No. 175 of 1970 it is stated as follows:
It seems to us clear from her own statements that the petitioner did not claim the vacancy to which the 3rd respondent was appointed on 23-11-1967 because that was only a temporary and not a permanent vacancy. It did not suit her to take up the appointment. That being so, we should think that at least as against the 3rd respondent she waived her height to reappointment based on service rendered by her prior to 23-11-1967 and she cannot, therefore, under Rule 51-A, claim the permanent vacancy that arose in June 1968.
10. The last point argued before me is that Rule 43 of Chapter XIV-A is not an absolute rule enabling the 3rd respondent to get the promotion automatically. It is submitted that the rule begins with the words 'Subject to Rules 44 and 45 and considerations f efficiency', which clearly means that it is only in cases where the management is satisfied that qualified hands in the lower grade is efficient, such hands, according to seniority, need be appointed to higher grade. On the facts of the case, I find no difficulty in holding that there is no material on record, proving that the 3rd respondent was wanting in efficiency. The words 'subject to considerations of efficiency' as used in Rule 43, to my mind, appears to mean 'unless found to be inefficient'. The learned Counsel for the writ petitioner draws my attention to the petitioner's averment in Ext. P-3 that 'the training bar and want of experience as Malayalam teacher on the part of the petitioner have constrained me to post a better qualified Malayalam hand in the permanent vacancy'. This reasoning is hardly in consonance with the spirit of the provisions contained in Rule 43. It is not open to the manager to pick and choose a more experienced hand from outside when on the staff a fully qualified hand eligible for promotion to the post is available. If the attitude of the manager in this case is accepted, that would virtually render the provisions contained in Rule 43 meaningless, as the manager can always say that he would like to appoint a more experienced person, and deny the qualified hand on the staff his legitimate claim for promotion to the higher grade. Presumably it is because the petitioner's case on this ground is weak that he resorted to an embellishment by stating in paragraph 4 of Ext. P-6 that-.His work and conduct during the period is also not found satisfactory.
The petitioner has not shown that the inspecting authorities or the headmaster had ever found fault with the efficiency of the 3rd respondent as a teacher. Even the petitioner himself had nothing to say against the 3rd respondent till this dispute arose in the year 1971. It is submitted by the learned Counsel appearing for the 3rd respondent that he (3rd respondent) has a spotless record of service and that this plea of inefficiency has been put forward as an afterthought to get over the inhibition against overlooking the ?rd respondent's claim to get the promotion. The learned Counsel for the writ petitioner submits that it is the subjective satisfaction of the manager that matters in construing the efficiency of the teacher. I do not agree; no such arbitrary and naked power is conferred on the manager in the matter of promotion. The decision on the question of efficiency cannot be based on the impulse or the sweet will and pleasure of the manager. It is a decision which has to be taken on a rational basis, not capriciously or in any arbitrary manner, lest the provisions and safeguards contained in Rule 43 are rendered purposeless.
11. I find that no ground has been made out to interfere with Exts. P-5 and P-7 orders passed respectively by respondents 2 and 1 in exercise of the statutory powers conferred on them. The impugned orders are passed taking into consideration all material facts. There is no infringement of any statutory provisions or violation of the principles of natural justice. The writ petition is without merit, and is dismissed. In the circumstances of the case, I direct the parties to bear their respective costs.