(1.) THESE two Original Petitions arise out of the same facts, and they seek a common relief. The petitioner in O. P. No. 1211 is a first Grade Professor of Zoology in the University College , Trivandrum; and the petitioner in O. P. No. 1792 is a First Grade Professor of Chemistry in Maharaja's College, Ernakulam. Both of them are in the service of the State of Kerala. At the time of filing O. P. 1211, the petitioner in this Original Petition was the senior-most in that Grade. According to the petitioner in O. P. No 1792, there has been a subsequent correction in the seniority list of the First Grade Professors, as a result of which he became the seniormost. It is not clear whether there is a controversy between them regarding seniority. However, that question does not arise in these cases. The respondents in both the cases are the same. Arguments were advanced before me only in O. P. No. 1792 of 1967; and it was agreed at the hearing that O. P. No. 1211 can be disposed of in accordance with my judgment in the other case. I shall, therefore, be dealing with the contentions of parties in this judgment with reference to the pleadings and the documents filed in O. P. 1792.
(2.) THE first respondent in O. P. No. 1792 was formerly the Principal of a private college, called the Guruvayurappan Collage, at Calicut. THE second respondent is the State of Kerala. By an order of the Government of Kerala, Ex. P. 1 dated 10-4-'67, the first respondent was appointed as Principal of the Government College, Calicut, on contract basis for a period of three years from the date of his joining duty. O. P. No. 1211 whs filed on 24-4-1967 to quash the said order; and the petitioner in that case obtained from this Court on 25-4-1967 an interim order, staying the operation of the said order. Hence Ex. P. 1 could non be implemented; In the meanwhile, a vacancy arose in the Principal's post in the Government College, Kasargod. THE first respondent was, therefore, appointed by the Government to that post, by an order Ex. P2 dated 8-6-1957. This was also on contract basis; and Ex. C 1 dated 12-6-1967 is a copy of the agreement executed between the respondents, and containing the terras and conditions of the appointment. By an order Ex. P-3 dated 20-3-1967, the Government of Kerala have in consultation with the Public Service commission, prescribed the qualifications for, and the method of recruitment to, the post of Principals in Government Colleges. THE post is admittedly a selection post; but the appointment is made by promotion from among I Grade professors, having the prescribed qualifications. THE petitioners are the senior-most among the professors in the First Grade; and both of them have the requisite qualifications. THE petitioner in O. P. No. 1792 has also acted as principal of the Maharaja's College, Ernakulam on an earlier occasion. It is, therefore, claimed by them that both of them have the right to be considered for appointment as Principal, and that one or the other of them would have been appointed as principal, if the first respondent was not appointed as stated above, when a vacancy arose in that post. THE petitioners contended that the appointment of the first respondent as per Exs. P. 1 and P. 2 is null and void on the ground (i) it is violative of Art. 16 (1) of the Constitution, and (ii)it is a mala fide exercise of executive power of the Government. Accordingly they have filed these Original Petitions to quash the appointment of the first respondent as College Principal in the service of the Government.
Art. 16 (1) reads: "16. Equality of opportunity in matters of public employment (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state". The scope and ambit of the fundamental right guaranteed by this Article have been well-settled by a series of decisions of the Supreme court. In General Manager, Southern Railway and another v. Rangachari AIR. 1962 sc. 36 the Supreme Court said: "matters relating to employment cannot be confined only to the initial matters prior to the act of employment. The narrow construction would confine the application of Art. 16 (1) to the initial employment and nothing else but that clearly is only one of the matters relating to employment. The other matters relating to employment would inevitably be the provision as to the salary and periodical increments: therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation. These are all matters relating to employment and they are and must be deemed to be included in the expression "matters relating to em-ploymsnt" in Art. 16 (1)". The Court also said: "this equality of opportunity need not be confused with absolute equality as such. What is guaranteed is the equality of opportunity and nothing more. Art. 16 (1) or (2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. Any provision as to the qualifications for the employment or the appointment to office reasonably fixed and applicable to all citizens would certainly be consistent with the doctrine of the equality of opportunity; but in regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment and even in regard to such a promotion to a selection post all that Art. 16 (1) guarantees is equality of opportunity to all citizens who enter service". The above passages were quoted with approval by the supreme Court in Jaisinghani v. Union of India AIR. 1967 SC. 1427 and it stated: "under Art. 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Art. 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Art. 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion".
Reference may also be made to three more decisions of the Supreme Court, which would illustrate the amplitude and application of the fundamental right guaranteed under Article Art. 16 (1) of the Constitution. Krishan Chander Nayar v. The Chairman, Central Tractor Organisation and others air. 1962 SC. 602, is a case, where the Government after terminating the service of a temporary servant, issued an administrative instruction banning its future employment. As a result of this, he was not considered for appointment in Government service, even though he made several applications for the same. Finally, he moved the Supreme Court under Art. 32 of the Constitution to remove this ban against his entry into Government service, on the ground that it was violative of his fundamental right under Art. 16 (1) of the constitution. After holding that the ban was imposed on the petitioner, without giving him an opportunity to show cause against the said action, and that it had no relation to his suitability for appointment under the Government, the court said; "it is clear, therefore, that the petitioner has been deprived of his constitutional right of equality of opportunity in matters of employment or appointment to any office under the State, contained in Art. 16 (1)of the Constitution. So long as the ban subsists, any application made by the petitioner for employment under the State is bound to be treated as waste-paper. The fundamental right guaranteed by the Constitution is not only to make an application for a post under the Government but the further right to be considered on merits for the post for which an application has been made. Of course, the right does not extend to being actually appointed to the post for which an application may have been made. The 'ban' complained of apparently is against his being considered on merits. It is a ban which deprives him of that guaranteed right. The inference is clear that the petitioner has not been fairly treated".
(3.) IN The High Court of Calcutta and another v. Amal kumar Roy and another AIR. 1962 SC. 1704, dealing with a complaint of violation of Art. 14 and 16 (1) of the Constitution, the Supreme Court said: "it is difficult to see how either of these Articles can be pressed in aid of the plaintiffs' case. The plaintiff's case was considered along with that of the others, and the High Court after a consideration of the relative fitness of the Munsiffs chose to place a number of them on the panel for appointment as Subordinate Judges, as and when vacancies occurred, He had, therefore, along with others, equal opportunity. But equal opportunity does not mean getting the particular post for which a number of persons may have been considered. So long as the plaintiff along with others under consideration, had been given his chance, it cannot be said that he had no equal opportunity along with others, who have been selected in preference to him. Where the number of posts to be filled is less than the number of persons under consideration for these posts it would be a case of many being called and few being chosen. The fact that the High Court made its choice is a particular way cannot be said to amount to discrimination against the plaintiff". Lastly, reference may be made to the decision is channabasruth v. State of Mysore AIR. 1965 SC. 1293. IN that case, viva-voce interviews were conducted for the purpose of recruitment to the State service, and the result of the test was duly published. But in making the appointments, a number of persons who got less mirk than, the others were selected. Therefore, persons who got higher marks and did not get the appointment moved the Supreme Court for relief complaining violation of Art. 16 (1) of the constitution. Upholding their claim, the Supreme Court said: "it seems surprising that Government should have recommended as many as twenty four names and the Commission should have approved of all these names without a single exception even though in its own judgment some of them did not rank as high as others they had rejected Such a dealing with public appointments is likely to create a feeling of distrust in the working of the Public Service Commission which is intended to be fair and impartial and to do its work free from any influence from any quarter".
There can be little doubt on the above authorities that the petitioners are entitled for being considered for the appointment to the post of Principal in accordance with the rules laid down by the Government as per Ex P-3. But it was contended on behalf of the State that the rule contained in Ex. P-3 applies only to an appointment made by promotion, that the first respondent's appointment was on contract basis, and that to such an appointment Ex. P-3 does not apply. It was also contended that the Government has the right to appoint any persons whom it likes to any post in Government service. I find myself unable to accept the above contentions. The State is a creature of the Constitution, which has vested large powers in the State. At the same time, these powers are subject to limitations and regulations. It may look paradoxical that, in matters relating to employment of persons in the service of the State, it has not got as much freedom or right as a private citizen has. Yet it is the actual position. The State's powers are subject to art. 14, 16, 311 and other relevant provisions contained in the Constitution. The right of a State to make appointments to its service is not arbitrary, as has been contended for in this case. Dealing with such a contention, the supreme Court in Jaisinghani v. Union of India AIR. 1967 SC. 1427. "in this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is impredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law". In the above case, the petitioner challenged the constitutional validity of what was described as the seniority rule in regard to Income Tax Service, Class I, Grade II and the recruitment to that service as violative of Art. 14 and 16 (1) of the Constitution. The Union Government had issued an order, fixing the quota for appointment by direct recruitment and by promotion. However, appointments were made in some years without observing the quota. One of the contentions raised in that case was that this was violative of Art. 14 (1) of the Constitution. The Solicitor-General on behalf of the Union of India contended that the quota rule was merely an administrative direction, and that a breach of it was not justiciable. The Supreme Court rejected this contention, and stated that, having fixed the quota, there was no discretion left to the Government to alter it according to the exigencies of the situation or to deviate from the quota in any particular year at its own will and pleasure. The Union Government was, therefore, directed to adjust the seniority of the petitioners according to the quota rule. The observations extracted above appear in this context.;