M.V. Latha v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933** **WP(C).No. 33464 of 2009(C)** **---------------------------------PETITIONER(S):** - **--------------------** **M.V.LATHA, AGED 38 YEARS,** **W/O.RAGHUNATH, UPPER PRIMARY SCHOOL ASSISTANT (RELIEVED) ANANGANADI HIGH SCHOOL, P.O.PANAMANNA PALAKKAD - 679 501 (RESIDING AT REGHUNILAYAM P.O.TRIKKATIRI, OTTAPPALAM, PALAKKAD DISTRICT).** **BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S):** - **---------------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM. 14** **3. THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, PALAKKAD.** **4. THE DISTRICT EDUCATIONAL OFFICER, OTTAPALAM, PALAKKAD DISTRICT.** **5. THE MANAGER, ANANGANADI HIGH SCHOOL, P.O.PANAMANA OTTAPALAM, PALAKKAD DISTRICT - 679 501.** **6. SMT.JAYASREE,LOWER PRIMARY SCHOOL ASSISTANT ANANGANADI HIGH SCHOOL, P.O.PANAMANA OTTAPALAM EDUCATION DISTRICT, PALAKKAD - 679 501.** **R1-4 BY GOVERNMENT PLEADER SMT. RANI DIOTHIMA R5 BY ADVS. SRI.K.JAJU BABU** **SMT.M.U.VIJAYALAKSHMI R6 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY** **SMT.N.SANTHA** **SRI.K.A.BALAN** **SRI.PETER JOSE CHRISTO** **SRI.S.A.ANAND** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/07/2011, ALONG WITH WPC NO. 22614 OF 2010 WPC NO. 23689 OF 2010 THE COURT ON 05/08/2011 DELIVERED THE FOLLOWING:** **svs** ## **W.P.(C). NO. 33464/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE APPOINTMENT ORDER.** - **P2: COPY OF THE ORDER NO.EMI/88693/07/DPI/D.DIS. OF THE 2ND RESPONDENT.** - **P3: COPY OF THE APPOINTMENT ORDER ALONG WITH APPROVAL ORDER** - **P4: COPY OF THE LETTER NO.B2/4466/08 OF THE DISTRICT EDUCATIONAL OFFICER.** - **P5: COPY OF THE REVISION FILED BEFORE THE GOVERNMENT.** - **P6: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT WPC. NO.26709/2008-D.** - **P7: COPY OF THE G.O.(Rt)NO.3900/09/G.EDN. OF THE GOVERNMENT.** - **P8: COPY OF THE REQUEST OF THE PETITIONER.** - **P9: COPY OF THE LETTER OF THE MANAGER.** - **P10: COPY OF THE DECISION REPORTED IN 2009 (3) K.L.T.650 (F.B.)** - **P11: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC.NO.16059/2009-B.** ## **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** ## **P.A. TO JUDGE.** **svs** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos. 33464/2009-C, 22614/2010-B and 23689/2010-I** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 5[th] day of August, 2011.** ## **JUDGMENT** All these writ petitions concern the same issue, viz. with regard to the direction by the Government to approve the appointment of the petitioner in W.P.(C) No.33464/2009 as UPSA in the school managed by the petitioner in W.P.(C) No.22614/2010. W.P.(C) No.23689/2010 is at the instance of the teacher who was appointed by the Manager and the petitioner in W.P. (C) No.33464/2009 seeks implementation of the Government Order on the plea that she is a senior claimant under Rule 51-A of Chapter XIV-A K.E.R. 2. The bare facts for the disposal of the writ petitions are the following. I shall refer to the pleadings in W.P.(C) No.22614/2010. As already noticed, the petitioner is the Manager of the school. The fourth respondent who is appointed in the vacancy of U.P.S.A., had approved service from 15.7.1999 to 15.7.2001. The fifth respondent had approved service from 4.6.1999 to 14.7.200. She is now directed to be appointed by the Government, being senior among the two. Both of them became wpc 33464/2009, 22614/2010 & 23689/2010 2 surplus on 15.7.2001 due to division fall. The fifth respondent continued upto 15.7.2004 claiming the benefit of 1 : 40 teacher-student ratio. 3. The case of the Manager is that after 15.7.2004 the fifth respondent discontinued attending the school and was not in service on 31.3.2005. In the next academic year, viz. 2005-2006 an anticipated vacancy of UPSA arose in the school on 1.6.2005. She is residing very near to the school. She was given an appointment order dated 1.6.2005. The covering letter as well as the copy of the appointment order are produced as Exts.P1 and P1(a). She gave a letter in writing, on 22.5.2005 to the effect that due to her present family conditions she is not able to take up the employment. To comply with the procedure contained in Note 2 to Rule 51A of Chapter XIV-A K.E.R. the Manager gave a written direction to the Headmaster to permit her to join duty, as per Ext.P1(b) letter. Even though the fifth respondent came to the school on 1.6.2005, she did not join duty. Again she was given a direction by Ext.P2 letter dated 15.7.2005 to join duty. By letters dated 9.8.2005 and 11.8.2005 (Exts.P3 and P4) she gave in writing that she is not in a position to continue in the school and wanted to relinquish the claim. The Headmaster, by Exts.P5 and P6 confirmed that she did not join the school. wpc 33464/2009, 22614/2010 & 23689/2010 3 4. Since the fifth respondent was not willing, the fourth respondent was given direction to join duty on 1.6.2006 itself and on 2.6.2005 directions were issued to the Headmaster. On 3.6.2005 the appointment order was issued to her. The proposal for appointment was forwarded to the District Educational Officer on 7.6.2005. These communications have been produced as Exts.P7 to P7(c). She was allowed to join duty at her risk and a separate attendance register was also maintained. Another proposal regarding the appointment of the fourth respondent was forwarded to the third respondent on 7.11.2005 as per Ext.P8, but the approval was rejected by Ext.P9 order by stating that there were two other senior claimants, viz. M/s. Sindhu and Raji. This was affirmed by the Deputy Director and these orders were under challenge before the Director of Public Instruction. The appeal was allowed as per Ext.P10 order. But the revision petition filed by the fifth respondent against Ext.P10 order was allowed as per Ext.P12. 5. It is submitted that the relinquishment of claim by the fifth respondent was not properly considered by the Government even though all the documents were produced before the Government. Since the documents were not considered, a review petition was filed by the petitioner as per Ext.P13. But in the meanwhile, the fifth respondent filed W.P.(C) wpc 33464/2009, 22614/2010 & 23689/2010 4 No.33464/2009 raising a contention that the review petition is not maintainable and with a prayer to implement the orders. 6. The fifth respondent denies the allegation that she has relinquished the claim. In the counter affidavit filed by her, it is pointed out that she entered on maternity leave from 1.6.2004 and on expiry of the leave applied for till the closing of the academic year 2004-2005, she reported to rejoin duty on 1.6.2005, but the Headmaster directed her to meet the petitioner Manager. On the evening of 1.6.2005 the fifth respondent met the petitioner. She was directed by the Manager to signify acceptance of discipline instructions in a format. But since the same was illegal and unjustified, she expressed her inability to accept it and the Manager declared that she will not be allowed to rejoin duty. It is pointed out that Ext. P1(a) appointment order was not given to her either in person or through post. She did not submit any letter on 22.5.2005 or any day later, relinquishing her claim. Ext.P2 letter dated 15.7.2005 was received by her and she reported before the Headmaster on 23.7.2005, but was not admitted to duty, as the fourth respondent was already appointed in the very same vacancy. The stand taken by the fifth respondent is that there is no relinquishment of the claim and the Manager never followed the procedure wpc 33464/2009, 22614/2010 & 23689/2010 5 prescribed under Note 2 to Rule 51A of Chapter XIV-A K.E.R. by sending the appointment order through registered post. 7. In the additional counter affidavit filed by the fifth respondent also, it is contended that the alleged letters produced are not under her signature and they are forged. The allegation that she had gone abroad, is also denied in para 3 of the additional counter affidavit and it is pointed out that she never applied for a passport and does not possess a passport at all. Only after she came to know that the District Educational Officer has approved the appointment of the fourth respondent, she could challenge it before the Government. She was never heard by any authorities except the Government, 8. The fourth respondent in W.P.(C) No.22614/2010 is the petitioner in W.P.(C) No.23689/2010 and the very same contentions of the Manager, have been adopted by the said respondent also. 9. Heard Shri K.E. Hamsa, K. Jaju Babu and S.P. Aravindakshan Pillay, learned counsel for the petitioners, Shri K.R.B. Kaimal, learned Senior Counsel appearing for the fifth respondent in W.P.(C) No.22614/2010 and learned Govt. Pleader. 10. It is the contention of the Manager and the petitioner in W.P.(C) wpc 33464/2009, 22614/2010 & 23689/2010 6 No.23689/2010 that the fifth respondent deliberately did not join duty for her own reasons and she had relinquished her claim, going by the contents of the letters. It is further pointed out that the challenge raised before the Government was belated, as she was keeping quiet in the matter. It is thus pointed out that the right of the fifth respondent has been lost due to abandonment, as she deliberately refused to join duty in spite of receipt of appointment orders and further communication from the Manager. 11. The order passed by the Government produced as Ext.P12 in W.P.(C) No.22614/2010 shows that the Government accepted the claim of the fifth respondent under Rule 51-A of Chapter XIV-A K.E.R. The plea that she had relinquished her claim, was rejected. It was found that the documents produced by the Manager are not genuine. 12. The question is whether there is any relinquishment of claim by the fifth respondent. Herein, the allegations raised by the Manager and the petitioner in W.P.(C) No.23689/2010 that the fifth respondent was served with appointment orders by the Manager and she refused to join duty, are stoutly denied by the fifth respondent. In fact, learned Senior Counsel appearing for the fifth respondent in W.P.(C) No.22614/2010 further submitted that the admitted signature of the fifth respondent varies with the wpc 33464/2009, 22614/2010 & 23689/2010 7 signature shown in Exts.P3 and P4 letters alleged to have been received by the Manager showing her willingness for relinquishment. Learned Senior Counsel also submitted that the Manager was adamant not to employ the fifth respondent and it is in that context it is submitted that the appointment order issued to the fourth respondent itself is dated 3.6.2005 (Ext.P7(b) in W.P.(C) No.22614/2010). It is thus pointed out that the letter issued by the Manager dated 15.7.2005 asking her to join duty, has no legal effect, since even before that he had filled up the vacancy by appointing the fourth respondent. It is therefore pointed out that the entire story created by the Manager is to deny the lawful rights of the fifth respondent. These arguments are supported by Shri K.E. Hamsa, learned counsel appearing for the petitioner in W.P.(C) No.33464/2009 (fifth respondent in W.P.(C) No.22614/2010). 13. The allegation of the alleged relinquishment will have to be considered, in the light of the provisions of the Rules. In this context, what is important is Note 2 to Rule 51-A of Chapter XIV-A K.E.R. which reads as follows: **“Note 2.** The Manager should issue an order of appointment to the teacher by Registered post acknowledgment due and give a period of 14 (fourteen) clear days to the teacher to join duty. If the teacher wpc 33464/2009, 22614/2010 & 23689/2010 8 does not join duty in time the Manager should give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under this rule would be forfeited if not exercised within another 7 (seven) clear days. If nothing is heard during that time also, the preferential right under the rule will be regarded as forfeited.” There is a catena of decisions of this Court emphasising the mandatory compliance of Note 2 by the Manager of a school to establish forfeiture of the claim by a claimant under Rule 51A. Going by Note 2, the Manager will have to issue an appointment order by registered post acknowledgment due by giving 14 clear days to join duty. If the teacher does not join duty, a further notice will have to be issued to the teacher stating that another person will be appointed and the preferential right will be forfeited if not exercised within another 7 clear days. Only if these two are complied with, the preferential right will be forfeited. 14. The question of relinquishment cannot have a legal effect unless the Manager has followed the above procedures. Herein, the fifth respondent has denied the furnishing of relinquishment letter and there are no other evidence also. This Court has held in **Vijayalakshmikutty v. State** (1992 (2) KLT 341) that there is no provision in KER under which a wpc 33464/2009, 22614/2010 & 23689/2010 9 teacher is enabled to give a letter of relinquishment which can be relied upon by the Manager for making appointments. The legal position with regard to the interpretation of Notes 1 and 2 of Rule 51-A, was laid down earlier by this Court in **Pathumma v. State of Kerala** (1986 KLT 166). Therein, the obligation of the Manager to comply with Note 2 was specified in the following words: “The Manager is obliged to send an order of appointment to the teacher by registered post acknowledgment due requiring the teacher to join duty within a period of 14 days. If the teacher does not join duty in time the Manager is obliged to give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under rule 51-A would be forfeited if not exercised within another 7 clear days. If nothing is heard from the teacher during that time also, the preferential right under the rule will be regarded as forfeited.” 15. The Apex Court in **Mary Oommen v. Manager, M.G.M. High** **School** (1987 (1) KLT 686 - SC) also considered the impact of the preferential right of the teacher and took the view that “the preference is Rule 51-A should be based on priority of title. The rule as it stands clearly confers priority to the earlier appointee.” 16. The legal position as above, with regard to the compliance of wpc 33464/2009, 22614/2010 & 23689/2010 10 Note 2 has been reiterated in various decisions, some of them have been relied upon by the learned Counsel appearing for the fifth respondent. They are: **Sobana v. Manager, Cholapurath A.U.P.S.** (1997 (2) KLJ 700), **Nalini v. State of Kerala** (2001 (2) KLT 273) and **Abdurahiman N.K. v. Government of Kerala and others** (2009 (1) KHC 950). In **Nalini's case** (supra), it was held that the Manager cannot deny the statutory claim under Rule 51-A on the plea that the teacher had submitted a relinquishment letter to the Manager. In that view of the matter, unless the mandate of Note 2 is complied with by the Manager, it can be seen that the preferential right will not be forfeited. 17. The learned counsel for the Manager and learned counsel for the petitioner in W.P.(C) No.23689/2010 submitted that actually she had abandoned her right. In this context, the following decisions of the Apex Court were relied upon: **Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and another** {(2000) 5 SCC 65} and **C. Jacob v. Director of Geology and Mining and another** {(2008) 10 SCC 115}. 18. In **Syndicate Bank's case** {(2000) 5 SCC 65}, the issue considered was one of abandonment. Therein, a Bank employee was unauthorisedly absent and in spite of notice issued by the Bank, he did not wpc 33464/2009, 22614/2010 & 23689/2010 11 join duty. The Bank treated him as having voluntarily retired from service. The Tribunal took the view that termination was without any enquiry. The Apex Court upheld the view of the Bank that the employee voluntarily retired from the Bank in terms of Clause 16 of the Bypartite Settlement. 19. In **Jacob's case** {(2008) 10 SCC 115}, the termination was challenged after 20 years. Therein also, the termination was due to unauthorised absence. It was held in para 12 of the judgment thus: “When a government servant abandons service to take up alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that he should be taken back to duty. Nor can such employee be treated as having continued in service, thereby deeming the entire period as qualifying service for the purpose of pension. That will be a travesty of justice.” Herein, to support the plea of abandonment, the contention of the learned counsel for the Manager and learned counsel appearing for the petitioner in W.P.(C) No.23689/2010 is that the fifth respondent is residing close-by to the school. She was served with even the initial orders of appointment issued by the Manager personally. She did not join duty thereafter and since wpc 33464/2009, 22614/2010 & 23689/2010 12 she was residing close-by, the manner of serving notice by registered post, was not followed by the Manager. It is submitted that the failure to do so by the Manager cannot be held as illegal, in the light of the fact that she was asked to join duty by the Manager by letter dated 31.5.2005 and thereafter on 15.7.2005 also. 20. The review petition filed by the Manager has also been subsequently rejected by the Government as evident from Ext.R1(a) produced along with the counter affidavit by the Government in W.P.(C) No.22614/2010. Going by the counter affidavit filed by the official respondents also, it can be seen that the alleged relinquishment letters were not accepted by the Government. It is averred in para 4 of the counter affidavit that the Manager cannot insist the teacher to sign in the school discipline instructions as a pre condition for joining duty. They are not supported by any of the provisions of the K.E.R. It is further averred that the signature of the petitioner seen in Exts.P4 and P5 are different. As rightly pointed out by the learned Senior Counsel for the fifth respondent none of the educational officers have considered the superior claim of the fifth respondent, while approving the appointment of the fourth respondent. The declaration filed by the Manager before the District Educational wpc 33464/2009, 22614/2010 & 23689/2010 13 Officer, has been produced as Ext.R5(l) in W.P.(C) No.23689/2010 stating that “all senior claimants as per Rules 51A and 43 of Chapter XIV-A K.E.R. have been given appointments in regular posts of UPSA or has or respective category as on the date of appointment of Smt. Jayasree P.” is also not correct. The decision of the Apex Court in **Jacob's case** (supra), will not help the plea of abandonment going by the facts of this case and in view of Note 2 to Rule 51-A of Chapter XIV-A of the Rules. 21. Evidently, this is a case where the fifth respondent denied the receipt of Exts.P1 and P1(a) produced in W.P.(C) No.22614/2010. She admit receipt of letter dated 15.7.2005, but it is stated that that is not an appointment order. According to her, when she went to the school, it was found that the fourth respondent was already appointed. Evidently, the fourth respondent was given appointment by order dated 3.6.2005 (Ext.P7 (b) produced in W.P.(C) No.22614/2010). Therefore, the Manager had appointed her as on that date and at least by 3.6.2005. Going by the pleadings of the Manager, the fourth respondent was directed to come to the school on 1.6.2005 itself and a direction was issued to the Headmaster on 2.6.2005 and on 3.6.2005 the appointment order was issued. Evidently, this was done without following Note 2 to Rule 51A. Such an action on the part wpc 33464/2009, 22614/2010 & 23689/2010 14 of the Manager cannot be taken for any advantage to deny the preferential right of the fifth respondent. The letters of relinquishment are clearly denied by the fifth respondent. 22. Then the question is whether there is any undue delay in the fifth respondent raising a claim. Ext.P11 produced in W.P.(C) No.22614/2010 is the copy of the revision petition filed by her. Therein, her case is that on 1.6.2005 the Headmaster did not permit her to join duty and even after the letter dated 15.7.2005 was served by the Manager, she was not allowed to join duty. A representation submitted by her before the Government on 29.5.2008 is produced as Ext.P1 along with Ext.P11 revision petition. It is pointed out that the orders issued by the department officer are without hearing her and without considering her claim. The Public Information Officer of the office of the District Educational Officer, Ottappalam as per letter dated 26.6.2008 informed the petitioner that she had relinquished her claim for appointment for the post of UPSA. It is in these circumstances, she filed the revision petition. 23. It was pointed out by the learned counsel for the Manager and learned counsel appearing for the petitioner in W.P.(C) No.23789/2010 that that the fifth respondent was staying outside India, which could be wpc 33464/2009, 22614/2010 & 23689/2010 15 substantiated the fact that she approached the Government also only very late. As already noticed, she has denied the allegation that she went abroad. 24. A copy of the representation dated 29.5.2008 has been produced along with the counter affidavit filed in W.P.(C) No.23689/2010. Therein, she had pointed out that while working as UPSA, one Smt. Jaya was promoted as H.S.A. (Physical Science) from 6.6.2001 and therefore the petitioner was entitled to continue as UPSA. After getting the order of the Director of Public Instruction dated 10.3.2008, she filed a further revision petition before the Government. 25. Evidently, going by the dictum laid down by this Court in various decisions, only after Note 2 to Rule 51A is complied with, there can be any forfeiture of the claim. Therefore, as the same has not been followed by the Manager here, the preferential right of the fifth respondent could not be said to have been forfeited. The plea of relinquishment also cannot be supported, as the same has been stoutly denied by the fifth respondent and the Government also did not accept the documents as genuine. When the very existence of the documents are disputed by the fifth respondent, this Court in this jurisdiction, will not be justified in accepting the documents as true in the light of the adverse finding by the Government. Apart from wpc 33464/2009, 22614/2010 & 23689/2010 16 that, as Note 2 to Rule 51A has not been complied with by the Manager, the right of the fifth respondent cannot be defeated by that process. Therefore, W.P.(C) Nos.22614/2010 and 23689/2010 are dismissed. W.P.(C) No.33464/2009 is allowed. The order passed by the Government which is produced as Ext.P7 herein, will be implemented by the Manager, by appointing the petitioner herein, within a period of three weeks from the date of receipt of a copy of this judgment. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/ `**