S. Dileep v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 16TH DAY OF FEBRUARY 2017/27TH MAGHA, 1938** ## **WP(C).No. 1465 of 2013 (G)** **---------------------------** **PETITIONER :** - **----------** **S.DILEEP, S/O.SIVANSANKARAN NAIR, (FORMERLY HIGH SCHOOL ASSISTANT (MALAYALAM) SREE VIJAYANANDA GURUKULAM VIDYA PEEDAM HIGH SCHOOL, KILIROOR)R/A.ASOKABHAVAN P.O, ANIKKAD WEST, KOTTAYAM DIST-686503** ## **BY ADVS.SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA** - **REP. BY ITS SECRETARY GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM-695014** **3. THE DEPUTY DIRECTOR OF EDUCATION KOTTAYAM DISTRICT-686001** **4. THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM DIST-686001** **5. THE MANAGER** - **SREE VIJAYANANDA GURUKULAM VIDYA PEEDAM HIGH SCHOOL,P.O.KILIROOR, KOTTAYAM DIST-686020** **R1 TO R4 BY GOVERNMENT PLEADER** - **SRI.BIJOY CHANDREAN** - **R5 BY ADV. SRI.P.GOPAL** **BY ADV. SRI.B.MURALEEDHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-01-2017, THE COURT ON 16/2/2017 DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 1465 of 2013 (G)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **P1: COPY OF THE APPOINTMENT ORDER OR THE PETITIONER DT 24/10/1997. P1(a): COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DT 12/1/1998. P1(b): COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DT 9/7/1998. P1(c): COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DT.18/9/1998. P1(d): COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DT 1/6/1999. P2: COPY OF THE TEACHES ATTENDANCE REGISTER FOR THE MONTH OF DECEMBER. P3: COPY OF THE G.O.(P) NO.199/11/G.EDN. DT 1/10/2011 OF THE GOVERNMENT. P4: COPY OF THE LETTER NO. B1/17441/11 OF THE DEPUTY DIRECTOR DT 29/2/2012. P5: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE HON'BLE CHIEF MINISTER DT 26/10/2011. P6: COPY OF THE LETTER N.86898/E3/2011/G.EDN. DT 15/5/2012 OF THE GOVERNMENT. P7: COPY OF THE GO.(RT) NO.2277/2012/G/EDN. DT 18/5/2012 OF THE GOVERNMENT. P8: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE GOVERNMENT DT 27/12/2012. P9: COPY OF THE GO(P) NO. 213/2015/G.EDN. DT 6/8/2015 OF THE GOVERNMENT** ## **RESPONDENT'S EXHIBITS :** **EXT.R5(a):COPY OF THE RELINQUISHMENT LETTER OF THE PETITIONER DT 9/12/2004.** ## **WP(C).No. 1465 of 2013 (G)** **EXT.R5(b): COPY OF THE RELINQUSHMENT LETTER GIVEN BY THE PETITIONER DT 9/12/2004 AND COUNTER SIGNED BY THE THEN MANAGER OF THE SCHOOL AND THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM. EXT.R5(c): COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER.** **//TRUE COPY// P.A. TO JUDGE** ## **bp** **'C.R'** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 1465 of 2013 ----------------------------------------------Dated this the 16[th] February, 2017** ## **JUDGMENT** Heard learned counsel for the petitioner and the learned Senior Government Pleader appearing for respondents 1 to 4 as well as Advocate P.Gopal appearing for the 5[th] respondent. 2. The issue raised in this writ petition is with regard to the petitioner's right for inclusion in the Teachers Bank. The petitioner had been appointed as High School Assistant (Malayalam) in the 5[th] respondent's school on 1.6.1999. The appointment was duly approved. He was retrenched on 9.12.2002 with effect from 15.7.2002 due to reduction of one post of HSA (Malayalam). The petitioner submits that his name should have been included in the Teachers Bank as provided in Government order dated 1.10.2011, since teachers retrenched for want of posts from 1997 to 2010 are entitled for such inclusion. The petitioner had preferred representations seeking such inclusion. By Exhibit P4 order, his request was rejected by the Deputy Director of Education. The petitioner took up the matter before the Government. However, Exhibit P6 reply was given stating that the petitioner's case would be considered as 2 _**WP(C).1465/13**_ and when seniority list of claimants is prepared in accordance with the educational package. The petitioner contends that the benefit of inclusion in the Teachers Bank had been granted to similarly situated persons on the strength of the judgment of this Court. He produces Exhibit P7 order in support of the said contention. The petitioner also claims that a representation has been preferred before the Government as Exhibit P8 and seeks directions to the Government to consider the same. Learned counsel for the petitioner also relies on several decisions of this Court including that of the Division Bench of this Court reported in _**Vasantha v. State of Kerala**_ [2009(1) KLT 1008]. 3. A counter affidavit has been filed on behalf of the 1[st] respondent, contending that the petitioner had short broken spells of provisional service in the school during the academic year 1997-1998. Thereafter, he was appointed against a regular vacancy on 1.6.1999 and was thrown out of service in the academic year 2002-2003 on account of reduction in student strength. It is stated that the teacher had thereafter taken up other employment and the Manager had reported that the petitioner had relinquished his claim for reappointment under proper attestation by the District Educational Officer and therefore the petitioner's name was not recommended for _**WP(C).1465/13**_ 3 inclusion in the list of retrenched teachers. It is further submitted that no fresh post of HSA (Malayalam) had arisen in the school and the question of Rule 51A claim also has not arisen. 4. The 5[th] respondent has also filed a counter affidavit, wherein it is specifically contended that after being thrown out of service on reduction of student strength, the petitioner had drawn salary till 9.12.2002. Thereafter, he had submitted a written relinquishment of all claims which existed due to his appointment as HSA (Malayalam) and had sought acceptance of the said relinquishment. The said relinquishment dated 9.12.2004 was witnessed by two other teachers and was accepted by the Manager and countersigned by the District Educational Officer. It is submitted that this fact was duly recorded in the petitioner's service book by the District Educational Officer on 10.12.2004. Exhibits R5(a), R5(b) and R5 (c) evidence these facts. It is also submitted that no post of HSA (Malayalam) having arisen thereafter, the petitioner's attempt, after more than six years of his having voluntarily given up all claims was only prompted by the creation of the Teachers Bank. The benefit of inclusion in the Teachers Bank would not be available to the petitioner, who had relinquished 4 _**WP(C).1465/13**_ all his claims. It is further submitted that the reliance placed on Note 2 to Rule 51A is also misplaced, since no contingency of a fresh post arising has occurred in the instant case. It is submitted that the petitioner was gainfully employed elsewhere and has no claim to the contrary in any of the requests made by him before the educational authorities or even before this Court in this writ petition. 5. I have considered the contentions advanced. It is clear that the petitioner had submitted a letter of relinquishment before the Manager. This had been duly witnessed by two other teachers and had been duly countersigned by the District Educational Officer and recorded in the petitioner's service book. The petitioner has not denied the relinquishment of his claim as specifically pleaded by the Manager. The first request made by the petitioner was evidently after more than seven years after submitting his relinquishment. This was evidently prompted by the introduction of the Teachers Bank. 6. The only question which arises for consideration in this case is whether a teacher who has submitted a clear and unequivocal relinquishment of claim would be entitled to inclusion in the Teachers Bank. Government order dated 1.10.2011 provides for the inclusion of teachers retrenched _**WP(C).1465/13**_ 5 from schools during the period from 1997 to 2010 for want of posts. A list of teachers was published and objections were called for. The objection preferred by the petitioner regarding his non inclusion in the list has been considered and disposed of by Exhibit P4 order. Though the petitioner has preferred a request before the Government, it is submitted that the same has not been conclusively disposed of. The petitioner also contends that by Exhibit P7 order, relief of inclusion has been granted to other teachers stating that there is no provision for permanently relinquishment of the claim for appointment under Rule 51A. 7. The contention raised by the respondents is that the petitioner had clearly relinquished his claim. This was by a written letter of relinquishment witnessed by two fellow teachers which was accepted by the Manager and countersigned by the District Educational Officer. This fact is recorded in the petitioner's service book also. Such an action, according to me, cannot be seen as any inadvertence on the part of the teacher concerned. The decisions relied on by learned counsel for the petitioner did not consider a case of relinquishment of the unequivocal nature as evidenced by Exhibits R5(a) to R5(c) supported by witnesses and approval of 6 _**WP(C).1465/13**_ the competent educational authorities. Since the relinquishment was on the clear ground for taking up alternative employment, it has to be presumed that the petitioner was gainfully employed elsewhere as well. 8. I notice that the petitioner does not dispute the relinquishment of his claim and only contends that the said relinquishment would not absolve the Manager from the responsibility under Rule 51A. However, on going through the pleadings and materials on record, I am of the view that the clear relinquishment of claim made by the petitioner by Exhibits R5(a) and R5(b) as duly approved and acted upon would disentitle him for inclusion of his name in the Teachers Bank. I find no illegality in Exhibits P4 and P6 orders issued by the educational authorities. The writ petition fails and is accordingly dismissed. **ANU SIVARAMAN JUDGE** _vgs_