M. Hameed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** **WA.No.1401 OF 2017** **AGAINST THE JUDGMENT IN WPC 25316/2010 DATED 21-03-2017 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **M. HAMEED,MANICKAMCHERY, PIO VALLIYAD, VILLIAPPALLY,KOZHIKODE673542.** **BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA SRI.VARUN C.VIJAY** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM-695014.** - **3 DISTRICT EDUCATIONAL OFFICER VADAKARA, KOZHIKODE DISTRICT-673101.** - **4 ASSISTANT EDUCATIONAL OFFICER THODANNUR, VATAKARA-673101, KOZHIKODE DISTRICT.** - **5 *THE MANAGER,(ADDRESS CORRECTED)CHILAVATTOM L.P.SCHOOL, VALLIADU, VILLIAPPALLY, KOZHIKODE-673542.[ADDRESS CORRECTED]** ***THE MANAGER, CHIRAVATTOM L.P. SCHOOL MEMUNDA,VILLIAPALLY,VIA MEMNUDA, KOZHIKODE – 673542 ADDRESS OF R5 CORRECTED AS PER ORDER DATED 30.8.2019 IN IA 1089/2017.** - **6 M.SOUDHA,D/O.POYIL MAHAMOOD, ASHIYANA MEMUNDA, VATAKARA, KOZHIKODE-673104.** ## **OTHER PRESENT:** ## **GP RAJI T BHASKAR, ADV M VIJAYAKUMAR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28-01-2021, THE COURT ON 18-02-2021 DELIVERED THE FOLLOWING:** W.A.No.1401 of 2017 2 **'C.R.'** ## **JUDGMENT** ## **A.K. Jayasankaran Nambiar, J** The petitioner in W.P.(C)No.25316/2010 is the appellant before us aggrieved by the judgment dated 21.3.2017 of the learned Single Judge. The brief facts necessary for the disposal of the Writ Appeal are as follows:- 2. The petitioner had been appointed as an Arabic Teacher in a leave vacancy that arose in the school consequent to the leave availed by the regular incumbent Sri. K.Basheer Ahammed. The petitioner was appointed to the said vacancy for the period from 27.10.1986 to 30.9.1991. It is not in dispute that the said appointment of the petitioner was approved by the Educational Authorities. It would appear that, thereafter, a permanent vacancy of Arabic Teacher arose in the school with effect from 20.3.2006, the date on which the earlier incumbent to the permanent vacancy, Sri. K. Basheer Ahammed, resigned from the school. While the petitioner, believing himself to be a Rule 51A claimant consequent to his earlier spell of service in the leave vacancy, preferred a representation dated 16.11.2006 before the Manager, the said W.A.No.1401 of 2017 3 representation was not considered favourably by the Manager, who had, in the meanwhile, appointed Smt. M. Soudha, the 6[th] respondent in the writ petition, as the Arabic Teacher. The said appointment of Smt. M. Soudha was also approved by the Educational Authorities, as is evident from Ext.P3 order produced in the writ petition. 3. The petitioner, thereafter, challenged Ext.P3 order before the Director of Public Instruction at first instance, and against the order of the Director of Public Instruction rejecting his appeal, preferred a further revision petition before the Government, which also stood rejected by Ext.P8 order. In all of these orders, which were impugned in the writ petition, the specific finding rendered by the Educational Authorities is that the petitioner had submitted his resignation from, or relinquished his right to, the leave vacancy, for the purposes of the appointment of Smt. S. Soudha to the remaining period of the leave vacancy. The learned Single Judge, therefore, took note of the concurrent findings of fact and found that, in as much as the petitioner had not produced any material to show that he had not resigned from service and that his relief from the school on 30.9.1991 was only on account of termination of a vacancy, the claim under Rule 51A of Chapter XIVA of KER could not be legally countenanced. The challenge to Ext.P8 W.A.No.1401 of 2017 4 Government Order was, therefore, repelled. 4. Before us, it is the vehement contention of Sri. Kaleeswaram Raj, learned counsel appearing for the appellant that the finding that the petitioner had tendered his resignation on 30.9.1991 is not supported by any material on record. It is pointed out that the specific contention of the petitioner before the Educational Authorities was that he had been made to sign on a blank paper by the Manager of the school, who had later proceeded to make it out to be a resignation letter without the petitioner's knowledge. It is further contended that before filling up the subsequent vacancy on 20.3.2006, the Manager of the School had not informed the petitioner of the existence of the vacancy to which the petitioner could have sought appointment by invoking his claim under Rule 51A. In support of the said contention, the learned counsel places reliance on the decision of this Court in **Hyderali** v. **State of Kerala** [2001 KHC 183]. The learned counsel also refers to Annexure-1 document produced along with the Writ Appeal, stating it to be the copy of the letter actually submitted by the appellant to the Manager of the School while leaving the school on 30.9.1991. A perusal of the said letter indicates that the appellant had only informed the Manager of the fact of his joining another school in the neighbourhood consequent to the expiry of the period W.A.No.1401 of 2017 5 for which he was initially appointed in the leave vacancy in the respondent school. The argument of the learned counsel is essentially that, in as much as it is not in dispute that the appellant had rendered service in the leave vacancy for the period between 27.10.1986 and 30.9.1991 which was the period covered by his appointment letter as approved by the Educational Authorities, his leaving the school on 30.9.1991 cannot be seen as an act of resignation/relinquishment and must be viewed simply as service rendered in a leave vacancy for the period indicated in the appointment order. Referring to the provisions of Rule 51A of Chapter XIVA KER, it is contended that this would suffice for the purposes of realising his claim under the said provision. 5. We have carefully considered the averments in the Writ Petition, Writ Appeal and the findings in the impugned judgment. We have also considered the arguments of the learned counsel for the appellant before us. On a consideration of the same, we are of the view that the finding of the learned single Judge, based on the concurrent findings of fact before the Educational Authorities and the revisional authorities, that the petitioner had not produced any material to show that he had not resigned from service and that his relief from the school on 30.9.1991 was only on account of the termination of vacancy does not call for any interference. We might W.A.No.1401 of 2017 6 only add that for the purposes of raising a claim for preferential appointment under Rule 51A of Chapter XIVA of KER, qualified teachers in a school have to be relieved either in the manner provided under Rule 49 or Rule 52 or 'on account of termination of vacancies'. In the instant case, while the petitioner, no doubt, rendered service in the leave vacancy during the period from 27.10.1986 to 30.9.1991 based on the appointment order issued to him, there is no material that would suggest that the vacancy to which he was appointed had terminated on 30.9.1991. On the contrary, the orders impugned in the Writ Petition would clearly indicate that while the appellant did not continue in the school beyond 30.9.1991, be it on account of her resignation or on account of her relinquishment, there were appointments of teachers other than the regular incumbent Sri. K. Basheer Ahammed, to the said vacancy till 20.3.2006, on which date the said regular incumbent Sri. K. Basheer Ahammed resigned from the school. It would follow, therefore, that although the appellant worked for the period for which he was appointed in the leave vacancy, he was not relieved thereafter on account of the termination of that vacancy since it is apparent that the vacancy continued even beyond 30.9.1991. If that be the case, then it would necessarily follow that the benefits under Rule 51A of Chapter XIVA KER will not accrue to the appellant as rightly found by the learned Single Judge. W.A.No.1401 of 2017 7 6. The learned counsel for the appellant would then point to the other benefits that have been denied to him through Ext.P8 order that was impugned in the writ petition. It is his case that since it is not firmly established that the petitioner had resigned from the school on 30.9.1991, the deprivation of benefits as envisaged under Rule 54(1) of Chapter XIVA KER and Rule 62 of Chapter XIVC KER cannot be justified in his case. Persuasive though the submission of the learned counsel is, we find ourselves unable to consider the said argument since the challenge to Ext.P8 order in the Writ Petition was not premised on the said contention. A perusal of the grounds in the Writ Petition would clearly indicate that the efforts of the petitioner were confined to showing the alleged illegality that resulted from the denial of his claim under Rule 51A of Chapter XIVA KER through the orders of the Educational Authorities that were impugned in the Writ Petition. The consideration by the learned Single Judge was also limited to the said issue alone. Although it is a fact that the Writ Appeal is in a sense a continuation of the writ proceedings, we are of the view that we ought not to consider issues not urged before the learned Single Judge while deciding this Writ Appeal, more so, when the facts necessary to establish the claim of the petitioner have not been averred in the Writ Petition. W.A.No.1401 of 2017 8 In the result, we see no reason to interfere with the findings of the learned single Judge, and for the reasons stated in the impugned judgment, as supplemented by the reasons contained in this judgment, we uphold the same. The Writ Appeal fails and is accordingly dismissed. sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** **Sd/GOPINATH P. JUDGE** **Acd** W.A.No.1401 of 2017 9 ## **APPENDIX** **ANNEXURE-I TRUE COY OF LETTER DATED 30.9.1991 SUBMITTED BY THE APPELLANT TO THE 6TH** **RESPONDENT.**