State of
Kerala Vs. Mother Anasthasia, Superior
General & Ors [1997] INSC 132 (6 February 1997)
K.
RAMASWAMY, S. SAGHIR AHMAD
ACT:
HEAD NOTE:
O R D
E R
These appeals by special leave arise from the judgment of the Division
Bench of the Kerala High Court in O.P Nos.868/77 and 4934/76.
The
admitted position is that Smt. Mary Lily, the third respondent, was temporarily
appointed in a leave vacancy for a period of three months effective from
January 2, 1974 in St. Joseph's College for Women , Irinjalakuda, After the
expiry of the period, she ceased to be a Lecturer. In 1976, when a permanent
vacancy hay arisen advertisement was made for recruitment. Pursuant thereto,
when 27 candidates including the third respondent had applied for and called
for selection therein Smt. Mariamma Chacko, fourth respondent was selected. The
third respondent challenged the validity of the selection and appointment of Smt.
Mariamma on the ground that under Section 57 (6) of Calicut University Act,
1975, she had preferential claim for appointment since she was a discharged
employee. Sub-section (6) of Section 57 reads as under:
"Notwithstanding
anything contained in sub-sections (i) and (4) a teacher discharged from a
private college on or after the 14th day of March, 1974, due to abolition of a
course of study in that college or for any other reason except disciplinary
action against him shall be given reference in the matter of future
appointments in the private college or, as the case may be, or any of the
private colleges under the management of the educational agency within the
university area." (emphasis supplied) A reading thereof would indicate
that notwithstanding anything contained in sub-section (i) and Section 4 of
Section 57, a teacher discharged from a private college on or after March 14,
1974 due to abolition of a course of course of study in college for any other
reason except on disciplinary action against him, shall be given preference in
further appointments in a private college or any of the private colleges under
the Management of the educational agency within the university area.
Admittedly, the third respondent was appointed in a leave vacancy for a short
period of three months. The intendment of sub-section (6) appears to be only
that when permanent teacher or teacher appointed on a regular basis is
discharged from service due to abolition of the course of study in that college
or for any other reason, obviously, other analogous causes other then
disciplinary action, such a teacher who held the post was given preferential
treatment for future appointment. A temporary teacher in a leave vacancy cannot
be considered as discharged not claimed the status as discharged employee.
Discharge
would connote for any other reason ujus dem generis due to abolition of the
post or course of study or such similar circumstances except for discharge due
to misconduct. Such a teacher only will be eligible to set up preferential
claim for appointment but not a teacher who fortuitously came to be appointed
in a leave vacancy much less for a limited period.
The
appeals are accordingly disposed of. No costs.
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