JANCY M.T. v. STATE OF KERALA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 5TH DAY OF OCTOBER 2017/13TH ASWINA, 1939** **WP(C).No. 19592 of 2011 (Y) ----------------------------** **PETITIONER(S):** **-------------** **JANCY M.T., W/O BABY P.P., KOODAPPUZHA,ARATTUKADAVU(VIA), CHALAKKUDY-680307.** **BY ADVS.SRI.ELVIN PETER P.J.** **SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION, DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM, PIN-695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM,PIN-695001.** **3. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR-680001.** **4. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA-680121.** **5. THE MANAGER, SREE KRISHNA HIGH SCHOOL, MATTATHUR(P.O),KODAKARA (VIA.), THRISSUR DISTRICT PIN-680692.** **6. THE HEADMISTRESS, SREE KRISHNA HIGH SCHOOL, MATTATHUR(P.O),KODAKARA(VIA.), THRISSUR DISTRICT,PIN-680692.** **7. SMT.JISNA P.M.,U.P.S.A, SREE KRISHNA HIGH SCHOOL, MATTATHUR(P.O),KODAKARA(VIA.), THRISSUR DISTRICT,PIN-680692.** ***ADDL.8TH RESPONDNET IMPLEADED:** **Addl. 8. SRI.RAJKUMAR,U.P.S.A., SREE KRISHNA HIGH SCHOOL, MATTATHUR (P.O.), KODAKARA (VIA), THRISSUR DISTRICT, PIN-680692.** ***ADDL.R8 IS IMPLEADED AS PER ORDER DATED 6.6.2017 IN IA.18503/2016** **R1 TO R4 BY GOVERNMENT PLEADER SMT.PRINCY XAVIER R5 BY ADV. SRI.V.A.MUHAMMED R7 BY ADV. SRI.KALEESWARAM RAJ ADDL.R8 BY ADV. SRI.T.N.MANOJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 19592 of 2011 (Y)** **----------------------------** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **P1 TRUE COPY OF THE ORDER DATED 2.6.2008 ISSUED BYT HE 5TH RESPONDENT TO THE PETITIONER** - **P2 TRUE COPY OF THE ORDER NO.B4/4701/08/L.DIS DATED 16.5.09 ISSUED BY THE 4TH RESPONDENT** - **P3 TRUE COPY OF THE APPEAL SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 3RD RESPONDENT** - **P4 TRUE COPIES OF THE MEDICAL CERTIFICATE AND FITNESS CERTIFICATE ISSUED BY THE MEDICAL PRACTITIONER AT GOVERNMENT HOSPITAL, MALA** - **P5 TRUE COPY OF THE APPOINTMENT ORDER DATED 1.1.2010 ISSUED TO THE 7TH RESPONDENT** - **P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT** - **P7 TRUE COPY OF THE JUDGMENT IN WPC.11728/2010 DATED 6.4.2010** - **P8 TRUE COPY OF THE ORDER NO.B4-3544/10 DATED 25.5.2010 P9 TRUE COPY OF THE ORDER NO.69226/B2/2010/GE DATED 30.12.2010** - **P10 TRUE COPY OF THE PROCEEDINGS NO.B4-10039/10 DATED 12.4.2011** - **P11 TRUE COPY OF THE PROCEEDINGS NO.B4-10039/10 DATED 12.4.2011** - **P12 TRUE COPY OF THE PROCEEDINGS NO.B4-10039/10 DATED 12.4.2011** - **P13 TRUE COPY OF THE PROCEEDINGS NO.B4-10039/10 DATED 12.4.2011** - **P14 TRUE COPY OF THE PROCEEDINGS NO.B4-10039/10 DATED 22.4.2011** - **P15 TRUE COPY OF THE PROCEEDINGS NO.B4-10039/10 DATED 22.6.2011** - **P16 TRUE COPY OF THE REPRESENTATION DATED 4.7.2011 P17 PHOTOCOPY OF EXT.R-5(B) DOCUMENT P18 PHOTOCOPY OF EXT.R-5(C) DOCUMENT** - **P19 TRUE COPY OF THE REPORT DATED 4.11.2010 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT** - **P20 TRUE COPY OF ORDER 2.6.2008 ISSUED BY THE 5TH RESPONDENT PROMOTING SMT. REHKHA O.** - **RESPONDENT(S)' EXHIBITS -----------------------** **R5(A) TRUE COPY OF THE LETTER OF THE HEADMISTRESS OF THE SCHOOL DATED 24.11.2009** **WP(C).No. 19592 of 2011 (Y) ----------------------------** **R5(B) TRUE COPY OF THE LETTER OF THE MANAGER TO THE PETITIONER DATED 26.11.2009** - **R5(C) TRUE COPY OF THE ORDER OF THE MANAGER DATED 29.12.2009 R5(D) TRUE COPY OF THE DETAILED REMARKS TO THE DISTRICT EDUCATIONAL OFFICER DATED 27.3.2010** - **R5(E) TRUE COPY OF THE DETAILED REMARKS TO THE DISTRICT EDUCATIONAL OFFICER DATED 17.5.2010** - **R5(F) TRUE COPY OF THE LETTER NO.B4-1259/11 OF THE DISTRICT EDUCATIONAL OFFICER DATED 18.6.2011** - **R5(G) TRUE COPY OF THE DETAILED REMARKS FILED BEFORE THE DISTRICT EDUCATIONAL OFFICER DATED 1.8.2011** - **R5(H) TRUE COPY OF THE ORDER NO.B4/4353/09 DATED 7.10.2009 OF THE DISTRICT EDUCATIONAL OFFICER** - **R6(A) TRUE COPY OF THE LETTER OF THE HEADMISTRESS OF THE SCHOOL DATED 24.11.2009** - **R7(A) TRUE COPY OF THE APPOINTMENT ORDER PERTAINING TO RESPONDENT NO.7** - **R7(B) TRUE COPY OF THE APPOINTMENT ORDERS PERTAINING TO PRIYA, SUNANDA K., DIMPLE M.D., LIJI K.G., RASHMI K.R., MEENA MANOHARAN, BLESSEY ANTHONY, ANU GEORGE, RAKESH RAGHUNATH** - **R8(A) TRUE COPY OF THE PROCEEDINGS OF THE DEO DATED 7.10.2009 R8(B) TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 8TH RESPONDENT** - **R8(C) TRUE COPY OF THE PROCEEDINGS DT.12.7.2010 OF THE DEPUTY DIRECTOR OF EDUCATION TRISSUR** - **TRUE COPY** **P.S. TO JUDGE** **EL** ## **A.MUHAMED MUSTAQUE, J.** _**********************************************************************_ W.P.(C) No.19592 of 2011 _**********************************************************************_ Dated this the 5[th] day of October, 2017 ## JUDGMENT The question arises in this writ petition whether the Manager of an aided school can make appointment in any of the vacancies arose, consequent upon the rejection of approval of the teacher without terminating the service of such teacher by overlooking the claim of such teacher. However, the dispute has to be first addressed with reference to the question whether there was any valid termination on the facts as well. The Manager has a case that the teacher was terminated consequent upon non-approval. Therefore, the legal question would have to be answered after the factual question is decided. 2. For the purpose of deciding both points referred as above, it is necessary to advert to the facts of the case. The petitioner was appointed in Sree Krishna High School, Mattathur, an aided school, as U.P.S.A. in a vacancy arose consequent upon the promotion of one Rekha.O. on 2.6.2008. The petitioner claimed that she worked till 19.10.2009 without the appointment W.P.(C) No.19592 of 2011 2 being approved. The appointment was ultimately rejected by the order of the District Educational Officer, Irinjalakuda dated 16.5.2009. The Manager aggrieved by that objection filed an appeal. Ext.P3 is the memorandum of appeal. The fate of the outcome of that appeal is not known. Whatever be the facts, as come out from the pleadings non-approval was on account of the fact of imposition of ban by the Government making promotion and fresh appointments. 3. It appears that the petitioner had applied for medical leave. However, the Manager stoutly disputed this fact. The ban was, subsequently, lifted by G.O.No.10/10. Thereafter, based on the revised staff fixation order for the period 2008-2009, 13 UPSA posts were sanctioned as evident from Ext.P12. The Manager made some of the appointments. The petitioner appeared to have moved the Director of Public Instructions stating that the Manager did not permit her to join duty after the period of leave was over. Thereafter, the petitioner approached this Court in W.P.(C) No.11728 of 2010. This Court directed the District Educational Officer to consider the petitioner’s grievances. The District Educational Officer heard the petitioner as well as the W.P.(C) No.19592 of 2011 3 Manager and passed an order dated 25.5.2010. This order is very crucial in this matter to determine the factual issue as noted above. The Manager submitted before the District Educational Officer that the petitioner abandoned the service. The Manager had no case before the District Educational Officer that the petitioner was terminated from the service. The District Educational Officer noted that the petitioner is having not approved service and rejected her representation. Thereafter, the petitioner filed revision before the Government. The Government passed Ext.P9 order dated 30.12.2010 rejecting the petitioner’s revision. 4. The foremost question that has to be considered whether the petitioner had forfeited her right to continue in the service by abandonment or on account of the termination of the service by the Manager. The Manager by relying upon Ext.P18 dated 29.12.2009 would argue that the petitioner has been terminated from the service. The petitioner disputes the existence of Ext.P18. Her case is that she never received Ext.P18. Anyhow, taking in the context of the Manager’s stand before the District Educational Officer, this Court is also of the W.P.(C) No.19592 of 2011 4 view that there is no such order has been passed by the Manager. The Manager is unable to establish that such order has been communicated to the petitioner. Therefore, this Court has to hold that there was no valid termination of the service as claimed by the Manager. 5. The learned counsel for the petitioner relying upon Rule 48 of Chapter XIVA of the KER would argue that the Manager cannot terminate the service of the teacher without obtaining previous approval of the Educational Officer. I will answer this legal point after adverting to the second limb of the Manager’s argument that the petitioner had abandoned the service. Having noted that there was no termination as claimed by the petitioner, the question that has to be considered factually whether there was an abandonment of right to hold the post of teacher. The abandonment, legally means a voluntary relinquishment of a known right. That means the right to continue in the post as a teacher. This has to be inferred from the circumstances or from the conduct of the parties. As seen from the appeal preferred by the Manager as per Ext.P3, the petitioner was continuing in the service atleast an order passed by the Educational Officer on W.P.(C) No.19592 of 2011 5 28.5.2009 rejecting approval as per Ext.P2. It is not discernible from the date of Ext.P3. Though the petitioner produced the medical certificate, it is not clear whether the Headmistress/Headmaster, the head of the school had received such certificate. Anyhow, it is important to note that the petitioner had approached the Director of Public Instructions as per Ext.P6. In that, the petitioner stated that she could not attend the duty due to medical ground and she had submitted the medical certificate before the head of the school. The representation was addressed to the Director of Public Instruction on 2.2.2010. Taking note of the gap in time, I do not find such duration of the time could be reckoned for any purpose of the claim of that the teacher had abandoned the service. In those circumstances, I also need not doubt the genuineness of the medical certificate of the petitioner. Therefore, this Court is of the view that there was no abandonment of the service. As already noted that there was no termination of the service as per Ext.P3 and also there was no abandonment of the service. The question then is whether Rule 48 would apply in the particular circumstances. W.P.(C) No.19592 of 2011 6 ## 6. Rule 48 of Chapter XIV.A of the KER read as follows: “No teacher shall be relieved before the expiry of the term of appointment without the previous approval of the Educational Officer.” A safeguard has been made as a simple mechanism to obtain the previous sanction from the District Educational Officer. But this, according to me, would apply only in the case of approved teacher. In as much as that the District Educational Officer cannot recognise in a _de facto_ appointee in an aided school, the relationship between the Educational Authority vis-a-vis the school through the teacher is based on the approval being given to such teacher. 7. The learned counsel for the petitioner is having a case that when approval is given, subsequently, it will take effect from the date of appointment. But that, in fact, does not arise in this context especially when approval itself has been rejected. No doubt, there would have some merit in the point argued by the learned counsel for the petitioner that if the approval has not been rejected and the approval is pending consideration of the Educational Officer. W.P.(C) No.19592 of 2011 7 8. However, the question looms large in this case when the non-approved teacher can be overlooked for subsequent future vacancies without terminating the service of such non-approved teacher by the Manager. The learned counsel for the petitioner relied upon the Division Bench judgment of this Court in **Hyderali v. State of Kerala [2001(1) KLT 763]** argued that the teacher as referred above, Rule 48 would also include the non-approved teacher. This Court held that even in the matter of permanent and temporary teachers, the permission of the District Educational Officer must be obtained. In this case, the question is whether in the matter of non-approved teacher, such permission is required or not and whether a Manager can make appointments in any of the subsequent vacancies or future vacancies overlooking the appointment already made by him. No doubt, the Manager is competent to make such appointment if the service of the earlier appointee had been terminated in accordance with law. By appointment, a contractual relationship is created between the Manager and the appointee. That can be terminated only by a process which was known under the law. If the Manager chooses to terminate such person, certainly, the W.P.(C) No.19592 of 2011 8 Manager is free to do so. The Manager can terminate such service on the ground of non-existence of the sanctioned posts or any of the grounds on which the Manager would be justified by himself terminating the services of the appointee. But without terminating the service of the teacher, through the process of the law, the Manager cannot make a further appointment. The KER may not as such cover this issue in a sense, this issue has not been specifically referred in it. Otherwise, it would confer a Manager an arbitrary power to cancel any appointment made by him before the appointment is approved by the Educational Authorities. ## 9. In fact, this Court in **Beeba K. Nath v. State of Kerala [2015(3) KLT 541]** held as follows: “It is well settled principle of service jurisprudence that in the event of retrenchment, last come first go principle should be applied. Even in the absence of any statutory prescription regarding unapproved teachers, the above principle should be applied as being general principle. When different or competent claim exists, in the absence of statutory provisions to govern, general provision shall be resorted to as an element of an agreement by all, to make larger system coherent, lest chaos would W.P.(C) No.19592 of 2011 9 prevail, leaving to whims and fancies of the dominant, who wields the power. This agreement is the very foundation of the legal system in which all have agreed to be governed by the Rule of law. Thus, going by the above principle, the petitioner being the last appointee, has to be retrenched.” 10. The petitioner is the foremost appointee by the Manager in the year 2008. As already noted that the petitioner has not been terminated legally by the Manager. It is also noted that the petitioner had not abandoned her claim to continue the post. In fact, in another judgment of this Court in **Rashida K. v. State of Kerala and Others [2016(4) KLJ 743]** held as follows: “In my view, both the aforesaid decisions do not expressly find, as indeed they cannot, that the Manager of a school, who has appointed a Teacher, can act in an arbitrary manner, while cancelling the appointment given to the said Teacher in accordance with the provisions of the KER. While it may be a fact that the appointment becomes effective for the purposes of obtaining the benefits under the KER, only on the appointment being approved by the Educational Authorities in the manner stipulated under the Kerala Education Act and Rules, it cannot be said that the appointment _per se_ does not confer on the appointee certain rights with regard to the post to which the appointee has been appointed. At the very least, the W.P.(C) No.19592 of 2011 10 rights so conferred on the appointee would include a right against an arbitrary cancellation of the appointment as has happened in the instant case.” 11. This would show that the Manager cannot have unbridled power in cancellation of the appointment. As already noted, there was no valid termination. That being so, this Court has to uphold the claim of the petitioner. Thus, holding that the petitioner is entitled to be approved for the post in which substantial vacancies arose for the academic year 2008-2009, the writ petition is disposed of by setting aside all impugned orders. 12. However, this direction may result in unsettling appointments already made. Certainly, as far as possible those appointments should be protected if posts were available. Competing interest of such persons will have to be addressed by the District Educational Officer. Therefore, upholding the claim of the petitioner and to consider the other issues, the matter is relegated to the District Educational Officer. It is made clear that the petitioner would be entitled to be approved in the vacancy arose on 2.6.2008. She should be paid salary for the period till she actually worked. However, she cannot claim any salary for W.P.(C) No.19592 of 2011 11 the period she was out of service. For all other service benefits, seniority shall be reckoned with effect from 2.6.2008 onwards. Appropriate orders shall be passed within a period of two months. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ln