K.V. Manjula v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942** ## **WP(C).No.9655 OF 2012(F)** ## **PETITIONER:** **K.V. MANJULA, W/O.KUMARAN, ASSISTANT TEACHER, AIDED UPPER PRIMARY SCHOOL, UDINUR CENTRAL,P.O.UDINNUR, KASARAGODDISTRICT-671349.** **BY ADVS. SRI.K.SHRIHARI RAO SMT.N.SHOBHA SRI.K.S.BALAKRISHNAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATIONDEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695039.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-695001.** - **3 THE DISTRICT EDUCATIONAL OFFICER KANHANGAD-671315.** - **4 THE ASSISTANT EDUCATIONAL OFFICER CHERUVATHUR,KASARAGOD DISTRICT,PIN-671313.** - **5 THE MANAGER, AIDED UPPER PRIMARY SCHOOL, UDINUR CENTRAL,P.O.UDINUR, KASARAGOD DISTRICT,PIN-671349.** - **6 U.SUGATHAN, ASSISTANT TEACHER, AIDED UPPER PRIMARY SCHOOL,UDINUR CENTRAL,P.O.UDINUR,KASARAGOD DISTRICT-671349.** - **7 C.M.BINDU, ASSISTANT TEACHER, AIDED UPPER PRIMARY SCHOOL,UDINUR CENTRAL,P.O.UDINUR,KASARAGOD DISTRICT-671349.** WPC 9655/12 2 |**8**|**C.M.SUDHA, ASSISTANT TEACHER,**| |---|---| ||**AIDED UPPER PRIMARY SCHOOL,**| ||**UDINUR CENTRAL,P.O.UDINUR,**| ||**KASARAGOD DISTRICT-671349.**| |**9**|**T.V.NISHA, UPSA,AIDED UPPER PRIMARY SCHOOL,**| ||**UDINUR CENTRAL,P.O.UDINUR,**| ||**KASARAGOD DISTRICT-671349.**| ||**BY ADVS.**| ||**SRI.M.SASINDRAN**| ||**SRI. P.M.MANOJ - SR.GP**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 9655/12 3 ## **JUDGMENT** The petitioner, who is stated to be working as an Assistant Teacher in 'Aided Upper Primary School', Kasaragode, impugns Ext.P22, under which, Government has rejected her plea for being considered for appointment to a post that arose on 05.06.1995, asserting that she is entitled to be appointed and approved from that date-she being a claimant under Rule 51A Chapter XIVA of the Kerala Education Rules (KER for short). 2. The petitioner says that instead of appointing her, the Manager appointed another teacher, by name Sri.Sugathan and that this led to a series of objections and litigations; finally concluding that the petitioner had voluntarily relinquished her claim under Rule 51A Chapter XIVA of the KER. She says that it is the same line of reasoning that is adopted in Ext.P22 and that consequently, she has only WPC 9655/12 4 been given the benefit of a notional approval as UPSA in the said school from 02.06.2003 to 18.11.2009. She, therefore, prays that Ext.P22 be set aside and the Educational Authorities be directed to reconsider her claim for approval of appointment with effect from 05.06.1995. 3. The afore contentions of the petitioner made on her behalf by the learned counsel – Sri.K.Shri Hari Rao, are vehemently opposed by Sri.M.Sasindran, learned counsel for respondents 6 to 9, who contends that the petitioner cannot now assert any claim under Rule 51A Chapter XIVA of the KER, since she had unequivocally relinquished such rights through two letters dated 08.02.1994 and 06.01.1996, which are countersigned by the AEO and DEO respectively. He submitted that since the petitioner had voluntarily relinquished her claim under the afore Rule, she cannot now WPC 9655/12 5 turn around and seek its benefits with respect to the vacancy that arose in the year 1995. He, therefore, prayed that Ext.P22 be granted approval by this Court and that this writ petition be dismissed. 4. The learned Senior Government Pleader – Sri.P.M.Manoj, submitted that the petitioner's attempt to assail Ext.P22 after efflux of so many years, on the ground that she had not issued the 'relinquishment letters' is without bonafides since, at the time when she was heard by the Government on an earlier occasion, she had expressly agreed that she had issued them. He, therefore, prayed that this Writ Petition be dismissed. 5. The specific contention of the petitioner in this writ petition is that she had not voluntarily relinquished her claim under Rule 51A Chapter XIVA of the KER, but that the alleged relinquishment letters had WPC 9655/12 6 **==> picture [390 x 619] intentionally omitted <==** **----- Start of picture text -----**<br> |||||||| |---|---|---|---|---|---|---| |been obtained by the Manager, committing fraud| |on her. However, it is pertinent that the| |petitioner|has|not|chosen|to|produce|the| |relinquishment letters on record or to seek| |any|relief|against|it,|but|has|only| |whisperingly|and|passingly|made|a|bald| |allegation - that these letters were obtained| |by fraud - in Ground G of this writ petition.| |Interestingly,|nowhere|else|in|this|writ| |petition or in any other pleadings is this| |allegation even mentioned, nor has it been| |expatiated or explained by her as to the| |nature of the 'fraud' committed on her.| |6.|That apart, as is clear from Ext.P22,| |the issue regarding relinquishment of Rule 51A| |claim by the petitioner had earlier engaged| |the attention of this Court and that of the| |Educational Authorities, finally being found| |against the petitioner through the Government| |Order mentioned therein. Obviously, therefore,| **----- End of picture text -----**<br> WPC 9655/12 7 the Secretary of Government who issued Ext.P22 was justified in saying that the petitioner cannot, at this distance of time, reopen such issues, when it had already been settled against her through the earlier proceedings. 7. I must, however, record that the contention of the learned counsel for the petitioner is not merely that his client had not issued the relinquishment letters but also that even if that be so, in the absence of the Manager having issued notices to his client in terms of Note 2 to Rule 51A Chapter XIVA of the KER, the relinquishment cannot be seen to be complete or concluded. For this proposition, the learned counsel relied upon **Lakshmikutty Amma v. Vijayalakshmikutty [1992(2) KLT 341]** and **Vasantha v. State of Kerala [2009(1) KLT 1008]** in substantiation and contended that, therefore, Ext.P22 is vitiated for such reason. WPC 9655/12 8 ||8.|8.|I am afraid that I cannot grant|I am afraid that I cannot grant|I am afraid that I cannot grant|I am afraid that I cannot grant| |---|---|---|---|---|---|---| |imprimatur to||||the afore submissions of||| |Sri.K.Shri Hari|||||Rao because, both in|| |**Lakshmikutty Amma**<br>(supra) and||||||**Vasantha**| |(supra),|||this Court was not dealing|||with a| |case||of a teacher who had voluntarily||||| |relinquished claim|||||under Rule 51A|but was| |seized||of the question as to whether,||||without| |the Manager issuing two notices - as provided||||||| |under||Note 2 to|||Rule 51A - could the|| |relinquishment be|||||seen to be complete. The|| |answer||is emphatically to the negative and I||||| |have|no||doubt|that the said position is||| |correct in law.||||||| ||9.||However,|the facts of this case are||| |at complete variance to the one noticed in the||||||| |afore||two judgments since, herein, the||||| |petitioner is stated to have voluntarily||||||| |relinquished her||||rights under Rule 51A and if||| |that|be||so, I|fail to understand||why the| WPC 9655/12 9 Manager should thereafter issue the notices as mentioned in Note 2 of the said Rule, as is asserted by the learned counsel for the petitioner. There may have been some substance in the submission of the petitioner had she taken a specific contention that the relinquishment letters, stated to have been issued by her, were either not signed by her or if it had been procured by unfair and unlawful means. 10. In this case, as I have already seen above, the petitioner has not even produced the letters and has only passingly contended in Ground G of this Writ Petition that said letters have been obtained by 'fraud', but without explaining it. This bald allegation of the petitioner cannot be countenanced by this Court in the absence of cogent evidence to the contrary, particularly when the learned Senior Government Pleader affirms that these letters WPC 9655/12 10 were countersigned by the AEO and DEO respectively. 10. That apart, as I have already indited above, the petitioner had earlier impelled contentions regarding her relinquishment letters before this Court, as also before the Government and other Educational Authorities, but in all such cases, it had been concluded against her. She cannot, therefore, as rightly recorded in Ext.P22, try to reopen such issues at this stage, especially when she does not challenge the said relinquishment letters in any manner in this Writ Petition. 11. In the afore circumstances, I cannot find the case of the petitioner against Ext.P22 to be worthy; and presumably being aware of the mind of this Court, Sri.K.Shri Hari Rao, her learned counsel, prayed that said order be directed to be implemented by the competent Educational Authorities at WPC 9655/12 11 earliest, so that his client will obtain resultant benefits at least now. In the afore circumstances, I dispose of this Writ Petition, repelling the challenge of the petitioner against Ext.P22 and confirming it; with a resultant direction to the competent Educational Authorities to ensure that the directions in the said order are complied with and necessary consequential orders issued, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR ## **JUDGE** WPC 9655/12 12 ## APPENDIX ||APPENDIX| |---|---| |PETITIONER'S/S|EXHIBITS:| |EXHIBIT P1|TRUE COPY OF THE ORDER DATED| ||23.11.93 OF THE 5TH RESPONDENT.| |EXHIBIT P2|TRUE COPY OF THE LETTER DATED| ||07.11.95 OF THE 3RD RESPONDENT.| |EXHIBIT P3|TRUE COPY OF THE ORDER OF THE 4TH| ||RESPONDENT.| |EXHIBIT P4|TRUE COPY OF THE ORDER DATED| ||18.12.2001 OF THE 3RD RESPONDENT.| |EXHIBIT P5|TRUE COPY OF THE REPRESENTATION| ||DATED 27.06.2001 OF THE PETITIONER.| |EXHIBIT P6|TRUE COPY OF THE REPRESENTATION| ||DATED 17.11.2001 OF THE PETITIONER.| |EXHIBIT P7|TRUE COPY OF THE ORDER DATED| ||01.02.2002 OF THE 4TH RESPONDENT.| |EXHIBIT P8|TRUE COPY OF THE ORDER DATED| ||03.08.2002 OF THE 3RD RESPONDENT.| |EXHIBIT P9|TRUE COPY OF THE ORDER DATED| ||13.01.2003 OF THE 2ND RESPONDENT.| |EXHIBIT P10|TRUE COPY OF THE ORDER DATED| ||11.03.2004 OF THE 1ST RESPONDENT.| |EXHIBIT P11|TRUE COPY OF THE LETTER DATED| ||30.04.2003 OF THE PETITIONER TO THE| ||5TH, 4TH AND 1ST RESPONDENTS.| |EXHIBIT P12|TRUE COPY OF THE LETTER DATED| ||24.05.2003 OF THE PETITIONERS TO THE| ||4TH AND 5TH RESPONDENTS.| |EXHIBIT P13|TRUE COPY OF THE LETTER DATED| ||26.06.2003 SENT TO THE 3RD| ||RESPONDENT WITH COPY TO 1ST, 4TH AND| ||5TH RESPONDENTS.| WPC 9655/12 13 - EXHIBIT P14 TRUE COPY OF THE LETTER DATED 10.04.2004 SENT TO 1ST, 4TH AND 5TH RESPONDENTS. - EXHIBIT P15 TRUE COPY OF THE LETTER DATED 07.06.2005 SENT TO THE 5TH RESPONDENT WITH A COPY TO 4TH RESPONDENT. - EXHIBIT P16 TRUE COPY OF THE ORDER DATED 16.08.05 OF THE 2ND RESPONDENT. - EXHIBIT P17 TRUE COPY OF THE APPOINTMENT ORDER DATED 20.11.2009 ISSUED IN THE NAME OF THE PETITIONER BY THE 5TH RESPONDENT. - EXHIBIT P18 TRUE COPY OF THE ORDER OF APPOINTMENT DATED 01.06.2010 ISSUED BY THE 5TH RESPONDENT AND APPROVAL ORDER OF THE 4TH RESPONDENT. - EXHIBIT P19 TRUE COPY OF THE JUDGMENT DATED 28.11.2011 IN W.P.(C) NO.11308/04 OF THIS HONOURABLE COURT. - EXHIBIT P20 TRUE COPY OF THE REPRESENTATION DATED 19.12.2011 OF THE PETITIONER TO THE 1ST RESPONDENT. - EXHIBIT P21 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER AT THE TIME OF HEARING BEFORE THE SECRETARY TO THE GOVERNMENT GENERAL EDUCATION DEPARTMENT. EXHIBIT P22 TRUE COPY OF THE ORDER DATED 19.03.2012 OF THE 1ST RESPONDENT.