S. Dileep v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944** **WA NO. 2229 OF 2017** **AGAINST THE JUDGMENT IN WPC 1465/2013 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/PETITIONER:** **S.DILEEP AGED 42 YEARS, SON OF SIVASANKARAN NAIR, (FORMERLY HIGH SCHOOL ASSISTANT (MALAYALAM), SREE VIJAYANANDA GURUKULAM VIDYA PEEDAM HIGH SCHOOL, KILIROOR, RESIDING AT ASOKABHAVAN, P.O.ANIKKAD WEST,KOTTAYAM DISTRICT - 686 503.** **BY ADVS. SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR** ## **RESPONDENTS/RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, BGENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, THIRUVANANTHAPURAM - 695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION KOTTAYAM DISTRICT - 686 001.** - **4 THE DISTRICT EDUCATIONAL OFFICER KOTTAYAM DISTRICT-686 001.** **5 THE MANAGER SREE VIJAYANANDA GURUKULAM VIDYA PEEDAM HIGH SCHOOL, P.O.KILIROOR, KOTTAYAM DISTRICT - 686 020.** Writ Appeal No.2229 of 2017 -: 2 :- **BY ADVS. SRI.P.GOPAL FOR R5 SRI.B.MURALEEDHARAN SR.GP A.J.VARGHESE** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Writ Appeal No.2229 of 2017 -: 3 :- **P.B.SURESH KUMAR & C.S.SUDHA, JJ. ----------------------------------------------Writ Appeal No.2229 of 2017 -----------------------------------------------** ## **Dated this the 12[th] day of August, 2022.** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This appeal is directed against the judgment dated 16.02.2017 in W.P.(C) No.1465 of 2013. The appellant was the petitioner in the writ petition. 2. The appellant was appointed as High School Assistant in Malayalam in Sree Vijayananda Gurukulam Vidya Peedam High School in a permanent vacancy on 01.06.1999. Due to fall in the strength of pupils, one post of High School Assistant in Malayalam in the school was reduced in terms of the Staff Fixation Order of the year 2002-2003. Consequently, the appellant was retrenched from the school on 09.12.2002. It is stated by the appellant that even though he was entitled to be included in the provisional list of retrenched teachers in terms of Ext.P3 order issued by the Government for redeployment, his name was not included in the said list on the -: 4 :- Writ Appeal No.2229 of 2017 ground that he has relinquished his right for re-appointment under Rule 51A of Chapter XIVA of the Kerala Education Rules (the Rules). Ext.P4 is the communication issued to the appellant by the competent authority in response to the complaint lodged by him concerning his non-inclusion in the said list. It is stated by the appellant that even though the Government had directed inclusion of similarly situated persons in the list of retrenched teachers prepared in terms of Ext.P3 order, the request made by him before the Government was also turned down. Ext.P6 is the communication issued by the Government in this regard. The writ petition was filed in the aforesaid background challenging Exts.P4 and P6 decisions and for a direction to the competent authority to include the name of the appellant in the list of retrenched teachers prepared in terms of Ext.P3 order. 3. A counter affidavit was filed by the fifth respondent, the Manager of the school contending, among others, that after the retrenchment, the appellant had taken up other employment and submitted Ext.R5(b) letter of relinquishment of his claim under Rule 51A; that Ext.R5(b) letter of relinquishment was forwarded by the Manager to the -: 5 :- Writ Appeal No.2229 of 2017 Educational Officer; that the Educational Officer has accepted the same by making appropriate endorsement to that effect in the service book of the appellant and that the appellant therefore is not entitled to be included in the list of retrenched teachers prepared in terms of Ext.P3 order. 4. A counter affidavit was filed on behalf of the State contending that the name of the appellant was not included in the list of retrenched teachers prepared in terms of Ext.P3 order as he has relinquished his claim for reappointment under Rule 51A. 5. During the pendency of the writ petition, Ext.P3 order was withdrawn and Ext.P9 order was issued by the Government in its place. When Ext.P9 order was issued, the appellant has amended the writ petition setting out a plea that as per Para I (4) of Ext.P9 order, retrenched teachers who were posted as Cluster Co-ordinators are entitled for protection in terms of the said order. A prayer for a declaration that the appellant is entitled to protection in terms of Para I (4) of Ext.P9 order was also included in the writ petition. 6. The learned Single Judge took the view that a teacher who gives a clear and unequivocal relinquishment of Writ Appeal No.2229 of 2017 -: 6 :- his claim under Rule 51A is not entitled to inclusion in the list of retrenched teachers prepared in terms of Ext.P3 order. Consequently, the writ petition was dismissed. The appellant is aggrieved by the said decision of the learned Single Judge and hence, this appeal. 7. Heard the learned counsel for the appellant, the learned Government Pleader as also the learned counsel for the fifth respondent, the Manager of the School. 8. The learned counsel for the appellant did not dispute the fact that the appellant has submitted Ext.R5(b) letter of relinquishment to the Manager of the school. He has also not disputed the fact that the same was forwarded by the Manager to the Educational Officer, who, in turn has made an endorsement to the effect that the relinquishment of the right for re-appointment submitted by the appellant has been accepted. He however contended, placing reliance on the Division Bench decisions of this Court in **Vasantha v. State of Kerala** , 2009 (1) KLT 1008 and **Vinayaraj v. State of Kerala** , 2014 (1) KLT 709, that there is no provision for relinquishment of the claim under Rule 51A and the appellant should have therefore been included in the list of retrenched teachers Writ Appeal No.2229 of 2017 -: 7 :- prepared in terms of Ext.P3 order. 9. The learned counsel for the fifth respondent did not dispute the fact that the appellant was a Rule 51A claimant. But it was submitted that a claim under Rule 51A can certainly be relinquished and if the relinquishment is accepted and acted upon by the Educational Officer, the teacher can no longer claim to be a retrenched teacher. To reinforce the said contention, the learned counsel has placed reliance on Rule 53 of Chapter XIVA of the Rules. The argument developed is that when the relinquishment letter of the appellant was accepted and acted upon by the Educational Officer by making an appropriate endorsement in his service book, the teacher is deemed to have been terminated from service and such a terminated teacher is not entitled to the benefit of retrenchment. 10. We have examined the arguments advanced by the learned counsel for the parties. 11. As noted, the appellant does not dispute the fact that he has submitted Ext.R5(b) letter of relinquishment of his claim for re-appointment under Rule 51A. He also does not dispute the fact that Ext.R5(b) letter was acted upon by the -: 8 :- Writ Appeal No.2229 of 2017 Educational Officer and an endorsement concerning the same was made in his service book. The question therefore is whether the official respondents were justified in not including the name of the appellant in the list of retrenched teachers prepared in terms of Ext.P3 order. 12. It is seen that in **Lakshmikutty Amma v. Vijayalakshmikutty** , 1992 (2) KLT 341, a Division Bench of this Court has categorically held that Rule 51A and Note 2 thereunder being provisions introduced based upon public policy to prevent managers from arbitrarily appointing teachers of their choice ignoring those who have earlier worked in the same school, and to prevent the malpractice of obtaining relinquishment letters in advance by the managers concerned, the right accrued under Rule 51A cannot be forfeited in any manner otherwise than by the procedure provided by Note 2 to the Rule and that relinquishment letters even if executed voluntarily by the teacher relinquishing his/her right under Rule 51A cannot result in forfeiture of preferential right to appointment. Paragraphs 6 to 9 of the said judgment read thus: “6. R.51A gives a preferential right to appointment to an Writ Appeal No.2229 of 2017 -: 9 :- approved teacher who had earlier worked in a school for the purpose of being appointed to the next vacancy in the school. The rule was obviously intended by the rule-making authority to put an end to certain evil practices which had come into existence in the educational system in several private schools. It was intended to prevent managers from arbitrarily appointing teachers of their choice ignoring those who had earlier worked in the same school. Secondly, employment has become very difficult in this State, and there are too many claimants for too small a number of posts. If the malpractices were to be permitted, it would result in serious injustice and arbitrariness. R.51A was therefore intended to prevent such a situation. Courts and the rule-making authority having already taken cognizance of such malpractices, Note 2 was incorporated under R.51A to prevent yet another malpractice of obtaining relinquishment letters in advance by the managers concerned even at the time of first temporary appointment in a short vacancy. There are also occasions where such relinquishment letters are obtained as a condition for return of the certificates of the teacher, as is alleged in one of the cases before us. 7. Therefore, in our view, both R.51A and Note 2 thereunder are clearly based upon public policy. Dealing with a case involving the tremendous pressure on employment, the Supreme Court had occasion to refer to public policy in _Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly_ (AIR 1986 SC 1571) in the context of S.23 of the Contract Act. After referring to the inequality of bargaining power and contracts of adhesion, the Supreme Court referred to unconscionable bargains also. 'Public Policy', observed their Lordships, 'however, is not the policy of a particular Government. It connotes some matter which concerns the public good and the public interest. The concept of what is for Writ Appeal No.2229 of 2017 -: 10 :- the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. As new concepts take the place of old, transactions which were once considered against public policy are now being upheld by the courts and similarly where there has been a well recognized head of public policy, the Courts have not shirked from extending it to new transactions and changed circumstances and have at times not even flinched from inventing a new head of public policy.' After referring to the two schools of thought, namely, the narrow one, and the broad one, in regard to public policy, and to the statement made by Borrough, J in _Richardson v. Mellish_ ((1824) 2 Bing 229 = 130 ER 294), that public policy is an 'unruly horse', the Supreme Court referred to the observations of Lord Denning in _Enderby Town Football Club Ltd. v. Football Association Ltd_ ., ((1971) Ch. 591), at 606 as follows: “With a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles.” The Supreme Court in the same case finally observed as follows: “It is thus clear that the principles governing public policy must be and are capable, on proper occasion, of expansion or modification. Practices which are considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy which covers a case, then the Court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy……” (Emphasis supplied) Thus 'public policy' has an important role to play in checking malpractices in employment. This is one reason behind such salutary provision as R.51A and Note 2. Preferential right conferred by R.51A and the procedure Writ Appeal No.2229 of 2017 -: 11 :- prescribed in Note 2 are intended to subserve a broad public policy. 8. Yet another reason which could be attracted to the situation is the following. As stated by the learned Single Judge there is no provision in the Rules which specifically permits relinquishment of a right accrued under R.51A to a teacher. On the other hand Note 2 to R.51A refers to the procedure to be followed by the manager which could result in forfeiture of an existing or accrued right under R.51A to a teacher. The Note contemplates that initially the manager should issue an order of appointment to the teacher concerned by Registered Post acknowledgment due and give 14 clear days to the teacher to join duty. If the teacher did not join duty in time, the manager is bound to give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under R.51A would be forfeited if not exercised within seven clear days. If nothing is heard during that time also, the preferential right under the Rule will be regarded as forfeited. In other words, Note 2 requires two registered notices to be issued as stated above, and under the second notice the manager has to give the option to the teacher to exercise the preferential right within seven clear days. It is only when such an option is not exercised by the teacher, her or his preferential right would be forfeited. It is now well settled that if a statute prescribes that an act has to be done in a particular manner, that act can be done only in that manner, and in no other manner. If a statute gives a power to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. _Taylor v. Taylor_ ((1875) 1 Ch.D. 426) quoted in _State of Gujarat v. Shantilal_ (AIR 1969 SC 634) and _Kashmir University v. Mohd. Yasin_ (AIR 1974 SC 238). Writ Appeal No.2229 of 2017 -: 12 :- 9. A case more directly on the point is the one _in Ramachandran v. Govind,_ AIR 1975 SC 915, as it relates to surrender of rights by a tenant under the Bombay Tenancy and Agricultural Lands Act, and the rules made thereunder. We say that the said decision is more apposite because in the present case, we are dealing with relinquishment of a right of a teacher in respect of his or her preferential claim under R.51A of the Kerala Education Rules, while in the Bombay case, surrender by tenant of his tenancy rights was the subject of consideration under the Bombay Act and Rules. Surrender would be valid only if the following conditions were satisfied: (1) it must be in writing; (2) it must be verified before the Mamlatdar; (3) while making such verification the Mamlatdar must satisfy himself in regard to two things, namely, (a) that the tenant understands the nature and consequences of the surrender, and (b) that it is voluntary; (4) the Mamlatdar must endorse his findings as to such satisfaction upon the document of surrender. The High Court of Bombay held that surrender by the tenant in that case which did not conform to the above procedure was a nullity, and was not a valid surrender. On appeal, the Supreme Court affirmed the said view observing that the question whether the procedure was mandatory or not has to be gathered from a review of the language, subject matter, and importance of the provision in relation to the general object intended to be secured, the mischief, if any, to be prevented and the remedy to be promoted by the Act. In that context, the Supreme Court observed that the imperative language the beneficent purpose and importance of these provisions would unerringly lead to the conclusion that they were intended to be mandatory. Neglect of any of these statutory requisites would be fatal. Disobedience of even one of these mandates would render the surrender invalid and ineffectual. In that context, Writ Appeal No.2229 of 2017 -: 13 :- the Supreme Court referred to _Taylor v. Taylor,_ referred above and other cases as follows: “A century ago, in _Taylor v. Taylor,_ (1875) 1 Ch.D. 426 Jcssel M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council in _Nazir Ahmed v. Emperor,_ 63 Ind. App. 372 = AIR 1936 P.C 253 (2) and later by this Court in Several _cases, Shiv Bahadur Singh v. State of U.P.,_ AIR1954 SC 322 Deep _Chand v. State of Rajasthan,_ AIR 1961 SC 1527.....” We accordingly hold that the procedure contained in Note 2 to R.51A is mandatory, and that there cannot be forfeiture of a right accrued under R.51A in any manner otherwise than by the procedure provided by Note 2 and that consequently the relinquishment letters even if executed voluntarily by the teacher relinquishing his or her right under R.51A cannot result in the forfeiture of the preferential right to appointment. R.51A and Note 2 thereunder are based upon public policy and they are intended to prevent malpractices. Therefore the judgment of the learned Single Judge is correct and is liable to be confirmed. In this context we may state that a learned Single Judge of this Court in _Pathuma's_ case (1986 KLT 166) has taken the same view as the one we have taken in this case. We may also add that in the decisions in _Punnel v. Vasudeva Kurup_ (1955 KLT 924 (F.B.) and _Muralidar v. State of U.P_ . (AIR 1974 SC 1924), it has been held that a tenant cannot relinquish his rights under the Tenancy Act. The said principle is based upon public policy and the same will apply to the cases on hand.” The ratio of the said judgment has been followed consistently by this Court in all the subsequent judgments. Writ Appeal No.2229 of 2017 -: 14 :- 13. Let us now consider the contention raised by the learned counsel for the fifth respondent based on Rule 53. As noted, the argument is that when the relinquishment letter was accepted and acted upon by the Educational Officer by making appropriate endorsement in the service book, the teacher is deemed to have been terminated from service and a terminated teacher is not entitled to the benefit of retrenchment. Rule 53 reads thus : “A teacher shall not himself terminate his service before the expiry of the term of his appointment without the permission of the Educational Officer.” As is evident from the extracted Rule, what is provided therein is only that a teacher shall not himself terminate his service before the expiry of the term of his appointment without the permission of the Educational Officer. No doubt, the appointment of a teacher in an aided school in a permanent vacancy is for the term up to the date of superannuation of the teacher and if a teacher wants to terminate his service after the appointment, permission of the Educational Officer is required in terms of the said statutory provision. The Rule Writ Appeal No.2229 of 2017 ## -: 15 :- does not provide for any consequences, if a teacher terminates his service without the permission of the Educational Officer. In other words, the rule can only be construed as directory and not mandatory, intended to enable the Educational Officer to ensure that the termination of the service of the teachers does not affect the smooth functioning of the school. It is all the more so since there is no provision in the Rules which requires a retrenched teacher to obtain permission of the Educational Officer for the purpose of taking up other employment. That apart, merely for the reason that a letter submitted by a teacher relinquishing his claim for re-appointment under Rule 51A is endorsed by the Educational Officer in the service book of the teacher, the same will not have the effect of the teacher forfeiting his right of re-appointment under Rule 51A. Needless to say, the stand taken by the Manager that the petitioner has forfeited the right in terms of Rule 51A for re-appointment and thereby dis-entitled to be included in the list of retrenched teachers prepared in terms of Ext.P3 order is unsustainable. 14. There is no dispute to the fact that had the name of the appellant been included in the list of retrenched teachers in terms of Ext.P3 order, he would have got the Writ Appeal No.2229 of 2017 ## -: 16 :- benefit of Ext.P9 order. In the circumstances, the appellant is entitled to succeed. In the result, the writ appeal is allowed, the Impugned judgment is set aside and it is declared that the appellant is entitled for protection as provided for in Para I (4) of Ext.P9 order. **Sd/P.B.SURESH KUMAR, JUDGE.** **Sd/C.S.SUDHA, JUDGE.** ds 04.08.2022