IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 WA.No. 2278 of 2006() --------------------- AGAINST THE JUDGEMENT IN WPC.15625/2005 DT.27.9.2006 .................... APPELLANT: PETITIONER ------------------------- A.K.VASANTHA, "MADHAVAM", KATAYARD P.O., VELLAMUNDA, WAYANAD. BY ADV. SMT.V.P.SEEMANDINI, SENIOR ADVOCATE APPEARING ALONG WITH SMT.S.KARTHIKA SMT.T.B.REMANI SRI.M.R.ANISON SRI.T.R.RAJESH SRI.M.S.UNNIKRISHNAN SMT.K.P.GEETHA MANI RESPONDENT(S): RESPONDENTS --------------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. ASSISTANT EDUCATIONAL OFFICER, VYTHIRI, KALPETTA P.O., WAYANAD. 3. THE MANAGER, AUP SCHOOL PADINJARATHARA, PADINJARATHARA P.O., VYTHIRI SUB DISTRICT, WAYANAD. 4. SMT. RENJINI, U.P.S.A., AUP SCHOOL PADINJARATHARA, PADINJARATHARA P.O., VYTHIRI SUB DISTRICT, WAYANAD. 5. P.VINODKUMAR, U.P.S.A., AUP SCHOOL PADINJARATHARA, PADINJARATHARA P.O., VYTHIRI SUB DISTRICT, WAYANAD. WA 2278/06 6. A.S.SANGEETHA, AUP SCHOOL PADINJARATHARA, PADINJARATHARA P.O., VYTHIRI SUB DISTRICT, WAYANAD. 7. M.T.LEELA, AUP SCHOOL PADINJARATHARA, PADINJARATHARA P.O., VYTHIRI SUB DISTRICT, WAYANAD. ADV. SMT.PREETHI KARUNAKARAN – R4 TO R7 GOVERNMENT PLEADER SRI.NOBLE MATHEW – R1 & R2 SRI.GOVIND K.BHARATHAN, SENIOR ADVOCATE APPEARING ALONG WITH SRI.MANU MOHAN & SRI.PRABIN BABU FOR R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON 02/03/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ----------------------------------------- W.A. NO. 2278 OF 2006 ----------------------------------------- Dated 2nd March, 2009. JUDGMENT Balakrishnan Nair, J. The writ petitioner is the appellant and the respondents in the writ petition are the respondents herein. The point that arises for decision in this Writ Appeal is whether a claim under Rule 51A of Chapter XIV-A of the Kerala Education Rules (K.E.R.) will be lost, if the claimant gets appointment in another school, though the said appointment was not approved by the competent authority for want of qualification and as a result, the incumbent was thrown out of that employment. 2. The brief facts of the case are the following: The appellant was duly qualified for appointment to the post of Upper Primary School Assistant (U.P.S.A.). The 3rd respondent, who is the Manager of A.U.P.S., Padinjarathara, appointed the appellant in his School as U.P.S.A in a leave vacancy on 5.6.2000. She was retrenched from service on the termination of the leave vacancy on 17.10.2000. The said appointment was duly approved by the 2nd respondent Assistant Educational Officer (A.E.O.), WA 2278/2006 2 Vythiri. By virtue of Rule 51A of Chapter XIV-A of the K.E.R., which deals with the right of retrenched teachers concerning preference for appointment in future vacancies, the appellant had a claim for appointment to the vacancies that may arise in the school in future, provided she has not been appointed in a permanent vacancy in a school under some other educational agency. 3. While so, a vacancy in the post of U.P.S.A arose in the 3rd respondent's school on 1.6.2001. A senior claimant under Rule 51A was appointed in that vacancy. Another vacancy in the said post arose on 15.7.2001. Instead of appointing the appellant, a fresh hand from the open market was appointed in that vacancy as U.P.S.A by the Manager. Soon thereafter, the appellant got appointment as Higher Secondary School Teacher (H.S.S.T.) (Junior) in Sanskrit in Jayasree Higher Secondary School, Kalluvayal on 2.8.2001. The appellant was not considered for appointment by the 3rd respondent, for the reason of a relinquishment letter dated 6.6.2001 given by her, a copy of which was produced in the writ petition as Ext.P7. According to the appellant, the said letter was obtained by the Manager under threat and coercion at the time of her initial appointment. 4. Since the appellant failed to clear the State Eligibility Test WA 2278/2006 3 (S.E.T.), she was terminated from the post of H.S.S.T. (Junior) (Sanskrit) on 30.8.2003. In the meantime, apparently, apprehending termination from the said Higher Secondary School, she moved for re-appointment in her parent school in the vacancy of U.P.S.A. She filed a representation dated 5.8.2003 before the A.E.O. Pursuant to the said representation, the A.E.O., after hearing the appellant and the Manager, issued Ext.P2 order dated 25.10.2003. The A.E.O. found that by operation of Rule 51A of Chapter XIV-A of the K.E.R., the appellant was entitled to get appointment in the existing vacancy in the school. Therefore, the Manger was directed to appoint her. Apparently, on the basis of that order, the Manager issued Ext.P3 order dated 13.11.2003, appointing the appellant in a leave vacancy having duration from 13.11.2003 to 13.1.2004. The appellant submitted Ext.P4 representation before the Manager, claiming that instead of the leave vacancy, she may be appointed in the permanent vacancy. Because of the dispute, the appellant did not join duty pursuant to Ext.P3. Thereafter, she moved this Court by filing W.P.(C) No.39819/2003. The said writ petition was disposed of by Ext.P5 judgment dated 29.3.2004, with the following directions: “3. If, as a matter of fact, Ext.P2 is subjected to challenge, it should be ensured by the Manager that such WA 2278/2006 4 proceedings are got finalised in three months' time from today. If it is not challenged within one month, Ext.P2 is to be complied with. No fresh appointments also are to be made, without accommodating the petitioner as a UPSA in the school, if unless Ext.P2 is got modified in a manner recognized by law. The writ petition is disposed of with the above directions.” Ext.P2 mentioned in the above quoted judgment was Ext.P2 produced in this case. 5. Pursuant to the above judgment, the Manager filed a revision petition dated 24.3.2004 under Rule 92 of Chapter XIV-A of the K.E.R., before the Government, challenging Ext.P2. This Court by order dated 1.7.2004 in I.A.No.8115/2004 in W.P.(C) No.39819/2003 also directed the disposal of the said revision petition within a time-frame. The Government, after hearing both sides, set aside Ext.P2 order by Ext.P6 order dated 21.3.2005. The Government found that since the appellant got appointment as H.S.S.T., her claim under Rule 51A no longer survived. The writ petition was filed, challenging Ext.P6 and contending that her claim under Rule 51A is not forfeited, as the Manager has failed to follow the procedure prescribed under Note 2 to Rule 51A. In view of the decision of this Court in Lakshmikutty Amma v. Vijayalakshmikutty [1992(2) K.L.T. 341], it was WA 2278/2006 5 contended that the relinquishment letter Ext.P7 has no efficacy to affect her rights. Later, the writ petition was amended, producing the appointment orders Exts.P10 to P14, appointing respondents 4 to 7. The appellant by way of amendment, prayed for quashing those orders. 6. The 3rd respondent Manager filed a counter affidavit, contending that in view of Ext.R3B relinquishment letter given by the appellant, a copy of which was produced in the writ petition as Ext.P7, she lost her right for re-appointment. Since she got appointment in Jayasree Higher Secondary School, her claim under Rule 51A is lost. To show that she got appointment in the said Higher Secondary School, Ext.R3C appointment order dated 2.8.2001, issued by the Manager of that school, appointing her as H.S.S.T. (Sanskrit) (Part-time) was produced. Ext.R3D is the certificate issued by the said Higher Secondary School, stating that the appellant has been terminated from service on 30.8.2003, for her failure to pass the State Eligibility Test. Since she got employment elsewhere and as she has given Ext.P7 relinquishment letter on 6.6.2001, no right under Rule 51A survived, it was submitted. 7. The 6th respondent filed a counter affidavit on behalf of respondents 4 to 7. She also supported the contentions of the Manager. The appellant/writ petitioner filed a reply affidavit on 21.9.2005, dealing with WA 2278/2006 6 the averments in the affidavit of the 3rd respondent and reiterating her submissions in the writ petition. 8. After hearing both sides, the learned Single Judge dismissed the writ petition. The learned Judge, on going through the materials on record, found that the appellant, undoubtedly, has a claim under Rule 51A. The contention of the appellant that Ext.P7 relinquishment letter was obtained under threat and coercion at the time of her appointment was disbelieved by the learned Judge, for the reason that it was impossible to mention about the appointment she got in Jayasree Higher Secondary School, if it was written in 2000. The appellant got appointment as H.S.S.T only on 2.8.2001. The learned Judge observed that technically she was liable to be appointed as U.P.S.A in the vacancy which arose during the beginning of the academic year, in 2001. But, the learned Judge was not persuaded to accept that contention, because of the injustice that would generate as she pressed her claim only after the lapse of two years. The learned Judge also found that since the appellant got appointment in the Higher Secondary School, she has lost her claim under Rule 51A. The appointment she got need not be a permanent appointment, it was observed. The learned Judge found that Note 2 to Rule 51A has no application in this case, as the appellant is disqualified to get appointment, as she was appointed in another WA 2278/2006 7 school. The same is clear from the first part of the Rule, it was held. Based on the above findings, the writ petition was dismissed by the judgment under appeal dated 27.9.2006. 9. Aggrieved by the judgment of the learned Single Judge, this Writ Appeal is filed. The learned counsel for the appellant submitted that by virtue of the operation of Note 2 to Rule 51A, the appellant's preferential right to get re-appointment is remaining in tact. The right will be lost, if only the Manager followed the mandate of the aforementioned Note to the Rule. Ext.P7, even assuming, it is given in the circumstances stated by the Manager, will not have the efficacy to affect her rights, in view of the decision of the Division Bench of this Court in Lakshmikutty Amma v. Vijayalakshmikutty (supra). Since the appellant's appointment in the Higher Secondary School was never approved, the same will not affect her rights under Rule 51A for re-appointment, it is submitted. 10. The respondents supported the judgment under appeal. According to them, Note 2 to Rule 51A has no application at all in this case, as the appellant got appointment in another school, managed by a different educational agency. 11. We heard the learned counsel on both sides. We have gone WA 2278/2006 8 through the pleadings and materials on record. Before dealing with the rival submissions, we will examine the scope of the right under Rule 51A. The said Rule, as it stood when the dispute arose, reads as follows: “51A. Qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided they have not been appointed in permanent vacancies in schools under any other Educational Agency. Note 1. If there are more than one claimant under this rule the order of preference shall be according to the date of first appointment. If the date of first appointments is the same then preference shall be decided with reference to age, the older being given first preference. In making such appointments, due regard should be given to the requirement of subjects and to the instructions issued by the Director under sub-rule (4) of rule 1 as far as High schools are concerned. Note 2. 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 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.” The above Rule incorporates the salutary principle of industrial/service jurisprudence that an employee retrenched for want of vacancy,is entitled to get re-appointment, when a vacancy arises in that post in future. But, when WA 2278/2006 9 the said principle was incorporated, it was provided in the main part of the Rule that preference in appointment to future vacancies need not be extended to an incumbent, if he is appointed in a permanent vacancy in a school managed by another educational agency. What is 'permanent vacancy' has not been defined or explained anywhere in the Act or the Rules. So, the ordinary meaning of those words has to be applied for interpreting them. We notice that the use of the word “permanent” as an adjective to the vacancy has some significance. It implies, the appointment he got must be regular and permanent and therefore, he is no longer in need of re-appointment. The right to re-appointment is preserved only to an unemployed person or who has not got regular appointment elsewhere. In schools, if appointment is made in a permanent vacancy, normally, it can be presumed that the incumbent no longer requires re-appointment in his parent school. Where there are more than one claimant seeking re- appointment, Note 1 to Rule 51A deals with preference in the matter of appointment. Note 2 deals with how the right under Rule 51A can be regarded as forfeited. When a vacancy arises in future, the Manager should issue an appointment order to the retrenched teacher by Registered post acknowledgment due, giving 14 clear days to him to join duty. If he does not join duty within the said time limit, the Manager should issue a further WA 2278/2006 10 notice to him, stating that another person will be appointed, if he does not join duty within seven clear days. Even thereafter, the claimant under Rule 51A does not join duty, it can be taken that his right under the Rule is forfeited and the Manager can proceed accordingly. The rule-making authority has provided such stringent measures for the forfeiture of a right under Rule 51A, because of the distrust of private school Managers, who are often accused of indulging in irregularities, to deny appointment to legitimate claimants and go for candidates from the open market for obvious reasons. 12. Jagannadha Rao, C.J. (as His Lordship then was) in Lakshmikutty Amma v. Vijayalakshmikutty (supra), while dealing with the efficacy of a relinquishment letter for abrogating the right under Rule 51A, held as follows: “6. Rule 51A gives a preferential right to appointment to an 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 WA 2278/2006 11 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 the public good or in the public interest or what would be injurious or harmful to the public good or the public interest WA 2278/2006 12 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 recognised 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 ..... .' Thus 'public policy' has an important role to play in checking malpractices in employment. This is one reason behind such WA 2278/2006 13 salutary provision as Rule 51A and Note 2. Preferential right conferred by R.51A and the procedure 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 Rule 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 WA 2278/2006 14 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. 9. ....................................................................................... We accordingly hold that the procedure contained in Note 2 to Rule 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, 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.” (Emphasis WA 2278/2006 15 supplied) The above decision has been followed by this Court in several reported and unreported decisions. In view of the above settled legal position, Ext.P7 letter of relinquishment has no efficacy to affect the rights, if any, of the appellant under Rule 51A. 13. In this context, we notice the dispute between the parties regarding the genuineness of Ext.P7 letter. The claim of the appellant that the said letter was obtained under threat and coercion at the time of her initial appointment cannot be correct. As held by the learned Single Judge, the appointment made in 2001 cannot be mentioned in a letter written in 2000. But, the claim of the Manager regarding the execution of Ext.P7 also cannot be correct. The said letter was purportedly written on 6.6.2001. In such a letter it is not possible to mention an appointment the appellant got on 2.8.2001. Every one connected with aided schools knows that the appointment order is issued on the intended date of joining and on the very same day the incumbent will join duty. Probably, the letter might have been given by the appellant after she got appointment in the Higher Secondary School on 2.8.2001, at the request of the Manager, pre-dating it as 6.6.2001. But, the above dispute concerning Ext.P7 has no relevance, in view of the judgment quoted above. Even assuming that all that is said by WA 2278/2006 16 the Manager concerning Ext.P7 are correct, still, it cannot have any effect on the rights of the appellant under Rule 51A. 14. The next point to be considered is whether the appellant had any right under Rule 51A, in view of her appointment in Jayasree Higher Secondary School as H.S.S.T. (Part-time) in Sanskrit. Now, the part-time post is re-designated as H.S.S.T. (Junior). Clearing of State Eligibility Test was one of the obligatory qualifications for appointment to the post of H.S.S.T. But, the incumbents who did not have that qualification were given three chances to clear the test. Obviously, the appellant could not clear the said test and therefore, she was terminated from service on 30.8.2003. Since her appointment was never approved, she has no claim for re-appointment in the Higher Secondary School. The point to be considered is whether such appointment will have the effect of forfeiting the right of the appellant under Rule 51A. The stipulation that a person appointed in a