Jalajakumari K.P. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 13TH DAY OF DECEMBER 2016/22ND AGRAHAYANA, 1938** **WP(C).No. 26023 of 2009 (W) ----------------------------** **PETITIONER(S):** **-------------** **JALAJAKUMARI K.P., KANNAMPARAMBU VEEDU, POOTHOTTA P.O., ERNAKULAM-682 307.** **BY ADVS.SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA & OTHERS** - **THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION, DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM.** **3. THE MANAGER, K.P.M.VOCATIONAL HIGHER SECONDARY SCHOOL, POOTHOTTA, ERNAKULAM-682 307.** **R1-R2 BY GOVERNMENT PLEADER SRI. BEJOY CHANDRAN R3 BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKG** ## **WP(C).No. 26023 of 2009 (W)** ## **----------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXHIBT P1**<br>|**TRUE COPY OF THE APPLICATION FOR LEAVE SUBMITTED**| ||**BY THE PETITIONER ON 11.09.1995.**| |**EXHIBIT P2**|**TRUE COPY OF THE REPRESENTATION DATED 01.11.2016**| ||**SUBMITTED BY THE PETITIONER BEFORE THE 3RD**| ||**RESPONDENT.**| |**EXHIBIT P3**|**TRUE COPY OF THE MEDICAL CERTIFICATE DATED**| ||**30.09.1996 ISSUED FROM GOVERNMENT AYURVEDA COLLEGE**| ||**HOSPITAL, THRIPUNITHURA.**| |**EXHIBIT P4**|**TRUE COPY OF THE COMMUNICATION DATED 11.12.1997**| ||**ISSUED BY THE 2ND RESPONDENT.**| |**EXHIBIT P5**|**TRUE COPY OF THE LETTER DATED 01.02.2000 SUBMITTED**| ||**BY THE PETITIONER BEFORE THE 3RD RESPONDENT.**| |**EXHIBIT P6**|**TRUE COPY OF THE FITNESS CERTIFICATE DATED**| ||**02.03.2000 ISSUED FORM GOVERNMENT AYURVEDA COLLEGE**| ||**HOSPITAL, THRIPUNITHURA.**| |**EXHIBIT P7**|**TRUE COPY OF THE MEMO OF CHARGES DARTED 16.11.1999**| ||**ISSED BY THE 3RD RESPONDENT TO THE PETITIONER.**| |**EXHIBIT P8**|**TRUE COPY OF THE REPLY DATED 13.03.2000 SUBMITTED**| ||**BY THE PETITIONER TO EXT.P7**| |**EXHIBIT P9**|**TRUE COPY OF THE ORDER, G.O. DATED 05.02.2002**| ||**ISSUED BY THE GOVERNMENT.**| |**EXHIBIT P10**|**TRUE COPY OF THE JUDGMENT DATED 29.01.2008 IN O.P.**| ||**NO. 9229/2000 OF THIS HON'BLE COURT.**| |**EXHIBIT P11**|**TRUE COPY OF THE JUDGMENT DATED 17.06.2008 IN**| ||**W.A.NO.1130/2008 OF THIS HON'BLE COURT.**| |**EXHIBIT P12**|**TRUE COPY OF THE STAFF FIXATION ORDER DATED**| ||**18.07.2000 FOR THE YEAR 2000-2001 ISSUED BY THE**| ||**2ND RESPONDENT**| |**EXHIBIT P12(A)**|**TRUE COPY OF THE STAFF FIXATION ORDER DATED**| ||**29.08.2001 FOR THE YEAR 2001-2002 ISSUED BY THE**| ||**2ND RESPONDENT.**| |**EXHIBIT P12(B)**|**TRUE COPY OF THE STAFF FIXATION ORDER DATED**| ||**31.07.2002 FOR THE YEAR 2002-2003 ISSUED BY THE**| ||**2ND RESPONDENT.**| |**EXHIBIT P13**|**TRUE COPY OF THE COMMUNICATION DATED 24.08.2009**| ||**ISSUED BY THE 3RD RESPONDENT.**| ## **WP(C).No. 26023 of 2009 (W)** **---------------------------EXHIBIT P14 TRUE COPY OF THE ORDER DATED 25.03.2000 ISSUED BY THE 3RD RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **EXHIBIT R3(A) TRUE COPY OF LETTER DATED 06.01.96 OF THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT R3(B) TRUE COPY OF LETTER NO.C.134/96 DATED 25.11.96 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT R3(C) TRUE COPY OF LETTER SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 14.03.2000 EXHIBIT R3(D) TRUE COPY OF LETTER SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 14.03.2000 EXHIBIT R3(E) TRUE COPY OF REPRESENTATION DATED 16.10.2008 SUBMITTED BY THE PETITIONER EXHIBIT R3(F) TRUE COPY OF LETTER DATED 05.12.08 FROM DEO, ERNAKULAM TO THE HEADMISTRESS, K.P.M.V.H.S.S. POOTHOTTA EXHIBIT R3(G) TRUE COPY OF REPORT OF THE PRINCIPAL DATED 30.12.08 FORWARDED TO THE 2ND RESPONDENT. EXHIBIT R3(H) TRUE COPY OF LETTER DATED 15.01.2009 BY THE 2ND RESPONDENT DEO. EXHIBIT R3(I) TRUE COPY OF LETTER FROM DDE, ERNAKULAM DATED 06.05.09 EXHIBIT R3(J) TRUE COPY OF LETTER FROM DDE, ERNAKULAM TO THE PETITIONER DATED 18.06.2009 EXHIBIT R3(A) TRUE COPY OF REPRESENTATION DATED 16.10.2008 SUBMITTED BY THE PETITIONER. EXHIBIT R3(B) TRUE COPY OF LETTER DATED 05.1.208 FROM DEO, ERNAKULAM TO THE HEADMISTRESS, K.P.M.V.H.S.S, POOTHOTTA. EXHIBIT R3(C) TRUE COPY OF REPORT OF THE PRINCIPAL DATED 30.12.08 FORWARDED TO the 2ND RESPONDENT. /TRUE COPY/** ## **SKG** **P.A. TO JUDGE** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 26023 of 2009 ----------------------------------------------Dated this the 13[th] December, 2016** ## **JUDGMENT** The issue raised in this writ petition is with regard to the termination of the services of the petitioner who was a physical education teacher in an aided school managed by the 3[rd] respondent. It is submitted that the petitioner was working as a physical education teacher from 1978 onwards. By Exhibit P1 application dated 11.9.1995, the petitioner sought leave without allowance on medical grounds for five years. It appears that the application was rejected on the ground that it was not accompanied by a medical certificate from a Government doctor. The petitioner states that she had preferred Exhibit P2 request dated 1.11.1996 with Exhibit P3 certificate issued by a Government doctor. Thereafter, by Exhibit P4, the District Educational Officer addressed the Director of Health Services stating that a Medical Board is to be constituted to examine the petitioner and obtain an opinion with regard to sanction of leave. It is stated that thereafter, no orders were issued by the authorities either constituting the Medical Board or sanctioning leave. 2 _**WP(C).26023/09**_ 2. On 1.2.2000, the petitioner had approached the Manager and sought permission to rejoin duty on 2.3.2000. She had also produced Exhibit P6 fitness certificate. However, by Exhibit P7, a memo of charges was issued to the petitioner stating that she had marked attendance in the school without obtaining order from the Manager or the department and that her absence from the school from 11.9.1985 was unauthorised. The petitioner had preferred Exhibit P8 reply. Thereafter, nothing was heard of. The petitioner's application for leave without allowance on medical grounds was directed to be taken up and considered by an interim order of this Court dated 26.9.2001 in C.M.P.No.45222 of 2001 in O.P.No.9229 of 2000. By Exhibit P9 order dated 5.2.2002, the matter was considered by the Government and it was found that leave without allowance on medical grounds cannot be granted. It appears that this Court considered the validity of the said order and by Exhibit P10 judgment dated 29.1.2008, this Court upheld Exhibit P9. Though the matter was taken in appeal by the petitioner, by Exhibit P11 judgment dated 17.6.2008, the appeal was dismissed and Exhibit P10 was upheld. 3. The petitioner submits that Exhibit P12 staff fixation order for the year 2000-2001 would show that there was a post of 3 _**WP(C).26023/09**_ physical education teacher in the school retained on protection to accommodate the petitioner. The said post continued in the year 2001 upto 2003 and thereafter as well. However, the petitioner submits that he was not permitted to rejoin duty. On making a request under the Right to Information Act, the 3[rd] respondent has issued the petitioner with a copy of Exhibit P14 order dated 25.3.2000. Exhibit P14 refers to letters dated 14.3.2000 and 13.3.2000 of the petitioner. That evidently refers to Exhibit P8 reply submitted by the petitioner to Exhibit P7 memo. After considering the contentions raised by the petitioner, the Manager goes on to find that in view of the ejection of the application for leave without allowance, the petitioner was not in service of the school from 11.9.1995 onwards and therefore, his service stands terminated since the management does not and cannot take any disciplinary action. It is therefore stated that the belated representation dated 14.3.2000 requesting the Manager to permit her to join duty is declined. 4. Heard learned counsel for the petitioner and the learned Senior Counsel appearing for the Manager as well as the learned Government Pleader appearing for respondents 1 and 2. 4 _**WP(C).26023/09**_ 5. It is submitted by learned counsel for the petitioner that the fact that the petitioner's services had been terminated was never brought to her notice by the management until an application had been made in 2009 by the petitioner under the Right to Information Act. It is stated that even at the stage of Exhibits P10 and P11 judgments of this Court, the Manager, who was a party to the writ petitions as well as the writ appeal, had no case that the petitioner's services had already been terminated. Learned counsel for the petitioner further contends that an order in the nature of Exhibit P14 terminating the services of the petitioner cannot be issued without recourse to the procedure prescribed in Rule 75 of Chapter XIV-A KER. The learned counsel relies on the decisions of this Court in _**Manager v. State of Kerala**_ [1989(2) KLT SN Case No.13] and _**Seetharam Upper Primary School v. State of Kerala**_ [2012(2) KLT 338]. 6. The learned Government Pleader as well as the learned counsel appearing for the Manager would contend that the order of the Government declining the request of the petitioner for leave has become final. The only conclusion which can be arrived at in the matter is that the absence of the petitioner from school with effect from 11.9.1995 was unauthorised. In the above view of 5 _**WP(C).26023/09**_ the matter, it is contended that no further enquiry was necessary for terminating the petitioner's services in view of the undisputed position of fact. 7. The petitioner contends that he was continuing on orders of protection and could have been entitled to continue under protection till the date of superannuation. 8. I have considered the contentions advanced on either side as well as the decisions relied upon by learned counsel for the petitioner. It is clear from a reading of Rule 65 of Chapter XIV-A KER that an order of termination of services is a major penalty which can be imposed on a teacher by the management by recourse to Rule 75 of Chapter XIV-A KER or by the educational authorities by recourse to Rule 75A. It has been repeatedly held by this Court that an order of termination of services cannot be issued without following due procedure prescribed in the Rules. In the above view of the matter, I am of the opinion that Exhibit P14 order of the Manager is illegal and unsustainable, since none of the steps prescribed in Rule 75 of Chapter XIV-A KER have been complied with. In the facts and circumstances of the case, I am of the opinion that the Government should be directed to consider the future course of action, since the petitioner has already 6 _**WP(C).26023/09**_ attained the age of 56 and would be retired from service on 31.3.2015. In the result, Exhibit 14 is set aside. There will be a direction to the 1[st] respondent to consider the future course of action in the petitioner's case after hearing the petitioner as well as the Manager and pass orders within three months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. **ANU SIVARAMAN JUDGE** _vgs16/12_