Sivadasan V.P. v. The Manager, Ayyoor Jama-Athul Islamia Aided Upper Primary School, Uppala; The Headmaster; The Assistant Educational Officer; The District Educational Officer; The Deputy Director of Education; Shabeer Ahammed

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **MONDAY, THE 19TH DAY OF SEPTEMBER 2016/28TH BHADRA, 1938** ## **WP(C).No. 4170 of 2012 (U) ---------------------------** ## **PETITIONER(S): -------------** ## **SIVADASAN.V.P.,AGED 30 YEARS S/O P. DAMODARAN ADIYODI, VELLACHAL P.O, KODAKKAD, TRIKKARIPUR, KASARAGOD DISTRICT** ## **BY ADV. SRI.M.SASINDRAN** ## **RESPONDENT(S):** ## **--------------** ## **1. THE MANAGER** **AYYOOR JAMA- ATHUL ISLAMIA AIDED UPPER PRIMARY SCHOOL, UPPALA P.O.- 671322 KASARAGOD DISTRICT** **2. THE HEADMASTER** - **AYOOR JAMA- ATHUL ISLAMIA AIDED UPPER PRIMARY SCHOOL, UPPALA P.O- 671322 KASARAGOD DISTRICT** **3. THE ASSISTANT EDUCATIONAL OFFICER, MANJESWAR, P.O. UPPALA- 671322 KASARAGOD DISTRICT** **4. THE DISTRICT EDUCATIONAL OFFICER, KASARAGOD- 671121** **5. THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD- 671121** **6. SHABEER AHAMMED,** - **S/O P.A. MOHAMMED PERIANGADI P.o. UPPALA- 671322, KASARAGOD DISTRICT** **R1,2 BY ADV. SRI.TPM.IBRAHIM KHAN (SR.) R1 & R2 BY ADVS. SRI.K.M.ABDUL MAJEED SMT.RAZIYA BEEVI** **R3 BY ADV. GOVERNMENT PLEADER SRI.UNNIKRISHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 4170 of 2012 (U)** **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT P1. TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER WHICH WAS APPROVED BY THE 3RD RESPONDENTS EXT P2. TRUE COPY OF THE CHARGE MEMO DATED 26-07-2011** **EXT P2(a). TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER 08-08-2011** **EXT P3. TRUE COPY OF THE RESIGNATION LETTER WHICH WAS WRITTEN UNDER THE DIRECTION OF THE 1ST RESPONDENT DATED 17-11-2011** **EXT P4. TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 18-11-2011 EXT P4(a). TRUE COPY OF THE E-MAIL SENT BY THE PETITIONER TO THE 3RD RESPONDENT EXT P5. TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 18-11-2011 EXT P5(a). TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 18-11-2011 EXT P6. TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ON 08-12-2011 EXT P7. TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER'S MOTHER BEFORE THE 3RD RESPONDENT DATED 19-12-2011 EXT P8. TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DATED 20-12-2011 EXT P9. TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER'S MOTHER BEFORE THE 3RD RESPONDENT DATED 26-12-2011 EXT P10. TRUE COPY OF THE ORDER DATED 27-12-2011 AS ORDER NO. C4210/2011** ## **RESPONDENTS' EXHIBITS :NIL** **//TRUE COPY//** **P.A TO JUDGE** **A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.4170 of 2012 ............................................................. Dated this the 19[th] day of September, 2016** ## **J U D G M E N T** The petitioner was appointed as Peon in the school under the management of the 1[st] respondent on 01.11.2008, in the vacancy of one P.A.Mohammed, a Peon who retired from service on 31.10.2008. The appointment of the petitioner was approved by the 3[rd] respondent by an order dated 16.02.2009. Thereafter, while the petitioner was continuing as such in the school, he was served with Ext.P2 charge memo which marked the initiation of disciplinary proceedings against him. In response to Ext.P2 charge memo, the petitioner submitted Ext.P2 (a) reply. While matters stood thus, responding to a call from the Manager, the petitioner attended the office of the Manager on 17.11.2011 and supposedly, based on instructions received from the Manager, submitted Ext.P3 letter of resignation dated 17.11.2011, seeking to resign from the post of Peon to which he was appointed. It is the case of the petitioner in the writ petition that the said resignation letter was written under duress/coercion, and immediately thereafter, by Ext.P4 letter dated -2- W.P.(C).No.4170 of 2012 18.11.2011 addressed to the 3[rd] respondent, the petitioner indicated that he was withdrawing the resignation letter that he had submitted before the Manager the previous day. Letters similar to Ext.P4 were also addressed to the 5[th] and 6[th] respondents. Thereafter, the 3[rd] respondent on receipt of Ext.P4 letter called the petitioner for a hearing on 08.12.2011. Inasmuch as the communication calling the petitioner for hearing on 08.12.2011 was received by the petitioner only on 07.12.2011, the petitioner, by Ext.P6 letter addressed to the 3[rd] respondent, indicated that he would not be in a position to appear for the hearing on the scheduled date and requested for an adjournment. Thereafter, the hearing was posted, first on 19.12.2011 and then on 26.12.2011. On both those occasions an adjournment request was send by the mother of the petitioner on behalf of the petitioner. It would appear, however, that in the hearing held on 26.12.2011, the 3[rd] respondent took a decision to approve the acceptance of the resignation of the petitioner, based on Ext.P3 resignation letter submitted by him. Ext.P10 order dated 27.12.2011 was accordingly passed approving the acceptance, of the resignation of the petitioner with effect from 17.11.201, by the -3- ## W.P.(C).No.4170 of 2012 Manager of the school. By the same order, the 3[rd] respondent also ratified the action of the Manager in relieving the petitioner from service with effect from 17.11.2011. In the writ petition, Ext.P10 order is impugned, inter alia, on the ground that, as per the provisions of Rule 48 of Chapter XIV A of the Kerala Education Rules (hereinafter referred to as 'the KER') which is made applicable even to non-teaching staff of aided schools by virtue of Rule 7 of Chapter XXIV B of the KER, the petitioner could not have been relieved, before the expiry of the term of appointment, without previous approval of the Educational Officer. It is pointed out that, inasmuch as on 17.11.2011, the date on which the petitioner had submitted Ext.P3 resignation letter, there was no prior approval by the Educational Officer, the 1[st] respondent Manager could not have accepted the resignation letter submitted by the petitioner so as to relieve him from service with effect from the same date. It is further contended that, the 3[rd] respondent in Ext.P10 order erred in granting approval to a resignation which was withdrawn the very next day as evident from Ext.P4 letter that was addressed to the 3[rd] respondent by the petitioner. It is argued that the resignation letter, having been withdrawn the very next -4- ## W.P.(C).No.4170 of 2012 day, there was no resignation proposal, to which a prior approval for acceptance could have been granted by the 3[rd] respondent. 2. A counter affidavit has been filed on behalf of respondents 1 and 2, wherein it is stated that Ext.P10 order of the 3[rd] respondent was passed after offering several opportunities to the petitioner to attend the hearing before the 3[rd] respondent, and it was only on account of the petitioner absenting himself from the hearing scheduled, that the 3[rd] respondent was constrained to pass an order approving the acceptance of the resignation letter, and relieving the petitioner with effect from the date of acceptance of the resignation letter. In the counter affidavit filed on behalf of the 3[rd] respondent, it is stated that the resignation letter submitted by the petitioner was before the Manager, and the Manager had accepted the same on 17.11.2011 itself. It is stated that the withdrawal of the resignation, through a letter dated 18.11.2011 addressed to the 3[rd] respondent, could not have had the effect of withdrawing the resignation letter submitted before the Manager since the 3[rd] respondent is not the competent authority to accept the withdrawal of resignation. Ext.P10 order passed by the 3[rd] -5- W.P.(C).No.4170 of 2012 respondent is sought to be justified on the reasons stated therein. 3. I have heard the learned counsel appearing for the petitioner, the learned counsel for the 1[st] and 2[nd] respondents and the learned Government Pleader appearing for respondents 3 to 5. 4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, it is settled by the decisions in **Manager, St.George's High School v. Joy Paul (2002 (1) KLT 691)** and **Hyderali v. State of Kerala (2001 (1) KLT 380)** that for there to be an effective resignation for acceptance by the Manager, there has to be a prior approval by the educational authority as contemplated under Rule 48 of Chapter XIV A of the KER as made applicable to non-teaching staff by Rule 7 of Chapter XXIV B of the KER. Similar is the view taken in **Hyderali v. State of Kerala (2001 (1) KLT 763)** . On the facts of the instant case, while the petitioner appears to have given Ext.P3 resignation letter dated 17.11.2011 to the Manager of the school, it is not in dispute that by Ext.P4 communication dated 18.11.2011 ie. on the very next day, the petitioner had informed -6- W.P.(C).No.4170 of 2012 the 3[rd] respondent that he was withdrawing his resignation letter. Going by the legal provisions noticed above, a Peon in an aided school cannot be relieved from service prior to the expiry of his term of appointment without there being a previous approval from the Educational Officer. On the facts of the instant case, it would appear that the Manager could not have accepted a resignation letter given by the petitioner, and relieved the petitioner based thereon, without first getting the prior approval from the educational authority. In Ext.P10 order that is impugned in the writ petition, the educational authority has granted approval to the Manager to accept the resignation letter based solely on the fact that the petitioner had not appeared before him at the time of personal hearing despite notice. In my view, since there is no dispute with regard to the receipt, by the 3[rd] respondent, of the letter from the petitioner indicating that he was withdrawing the earlier letter of resignation that was submitted to the Manager of the school, the said fact should have been sufficient to indicate to the 3[rd] respondent that there was no effective resignation which could be acted upon by the Manager of the school for the purposes of relieving the petitioner from his services in the said school. The -7- W.P.(C).No.4170 of 2012 requirement of prior approval of the educational authority, before relieving a non-teaching staff prior to the expiry of the period of appointment, is one that is designed to protect the employee against illegal and arbitrary termination of services, and is therefore to be seen as one that is necessitated in public interest and to protect the interest of the non-teaching staff. In the instant case, since there was a clear indication by the petitioner to the educational authority that he was resiling from his offer to resign, the 3[rd] respondent ought not to have granted an approval for accepting a resignation, from which the petitioner had since resiled. Accordingly, I quash Ext.P10 order to the extent it grants approval, to the acceptance by the Manager of the resignation of the petitioner with effect from 17.11.2011, and ratifies the action of the Manager in having relieved the petitioner, with effect from 17.11.2011, from his services in the school. Resultantly, the petitioner shall be deemed to have continued in service with effect from 17.11.2011, and shall be entitled to all consequential benefits that flow from such a declaration. Needless to say, the appointment of the 6[th] respondent, which was made -8- W.P.(C).No.4170 of 2012 consequent to the acceptance of the resignation of the petitioner, shall stand quashed for the purposes of deeming the petitioner to have been in service for the period from 17.11.2011. I make it clear that nothing in this judgment shall stand in the way of the respondents proceeding against the petitioner pursuant to Ext.P2 charge memo served on him, if they so desire. The writ petition is disposed as above. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/19.09.16