IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 4TH MAY 2010 / 14TH VAISAKHA 1932 WP(C).No. 35513 of 2005(C) -------------------------- PETITIONER(S): --------------- N.SASIDHARAN, HINDI TEACHER (FULL TIME), M.A.M.U.P.SCHOOL, ARACKKAL, THENNALA P.O., MALAPPURAM. BY ADVS. MS. V.P.SEEMANDINI, SENIOR ADVOCATE MS. S.KARTHIKA MS. K.P.GEETHA MANI RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT. 3. THE ASSISTANT EDUCATIONAL OFFICER, VENGARA, MALAPPURAM DISTRICT. 4. THE HEADMASTER,M.A.M.U.P.SCHOOL, ARACKAL, THENNALA P.O., MALAPPURAM. 5. BHASKARAN KANDOTH, KANDOTH HOUSE, ARUR P.O., VIA-KAKATTIL, KOZHIKODE DISTRICT. * ADDL. R6:- THE MANAGER, M.A.M.U.P.SCHOOL, ARACKAL, THENNALA P.O., MALAPPURAM. (*IMPLEADED VIDE ORDER IN I.A.14455/06 DT.19.10.06) ADVS. MR. B.KRISHNAN FOR R4 MR. R.PARTHASARATHY FOR R4 GOVERNMENT PLEADER MR.K.B.RAMANAND FOR R1TOR3 MR. V.B.HARI NARAYANAN FOR ADDL.R6 MS. M.J.RAJASREE FOR ADDL.R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).35513/05-C APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF THE APPOINTMENT ORDER DT.2.6.1997. EXT.P2:- TRUE COPY OF THE ORDER NO.KDIS/C/3624/01 DT.4.8.2001. EXT.P3:- TRUE COPY OF THE ORDER DT.18.6.2005 ISSUED BY R3 EXT.P4:- TRUE COPY OF THE LETTER DT.4.10.05 SENT BY R3 ADDRESSED TO THE MANAGER. EXT.P5:- TRUE COPY OF THE RELINQUISHMENT LETTER EXECUTED BY R5 DT.2.6.97 EXT.P6:- TRUE COPY OF THE THE RECEIPT DT.2.6.97. EXT.P7:- TRUE COPY OF THE JUDGMENT DT.22.11.2000 IN O.P.20026/2000 OF THIS COURT RESPONDENT'S EXHIBITS:- EXT.R5(a):- TRUE COPY OF THE JUDGMENT IN W.A.675/2001 DT.25.7.01 OKB //TRUE COPY// P.A. TO JUDGE C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.35513 OF 2005 ------------------------------ Dated this the 4th day of May, 2010 J U D G M E N T ---------------------- 1. The petitioner was appointed as Full Time Hindi Teacher in an Aided school to which 6th respondent is the Manager. The appointment was made on 2.6.1997 by virtue of Ext.P1 order, against a post newly created. Initially the 3rd respondent approved the appointment, only with effect from 15.7.1997. But in a revision filed by the 6th respondent Manager, the Director of Public Instructions had issued order on 21.6.2000 directing approval of appointment, with effect from 2.6.1997. Ext.P2 is the consequential order issued by the 3rd respondent approving the appointment with effect from 2.6.1997. The petitioner is continuing as Full Time Hindi Teacher on the basis of the appointment approved as above, and he is drawing salary attached to the post from the date of appointment onwards. 2. The 5th respondent is a Teacher appointed against a retirement vacancy, in the very same school, on W.P.(C).35513/05 -2- 18.10.2001. The appointment of 5th respondent was approved by the concerned authorities. Before that, the 5th respondent had worked in the very same school in a leave vacancy for the period from 13.9.1995 to 13.11.1995. But his appointment in the leave vacancy was not approved by the 3rd respondent. In appeal, the 2nd respondent had issued orders on 23.6.2000 directing the 3rd respondent to approve the appointment for the above said period. It is evident that approval of appointment of the 5th respondent for the period from 13.9.1995 to 13.11.1995 came much after appointment of the petitioner against the permanent vacancy. Apprehending that approval of appointment of the 5th respondent against the leave vacancy may entitle him for raising a claim under Rule 51A of Chapter XIVA of the Kerala Education Rules (KER) for appointment against the post to which the petitioner was appointed, the 6th respondent Manager challenged the approval of appointment of 5th respondent before this court in O.P.No:20026/2000. But the said writ petition was dismissed through Ext.P7 Judgment dt.22.11.2000. Writ Appeal filed against the Judgment by the 6th respondent was also unsuccessful. It is under such circumstances that the 6th respondent appointed the 5th respondent against a retirement W.P.(C).35513/05 -3- vacancy which arose subsequently, on 18.10.2001. 3. The issue which is subject matter of this writ petition arose when the 3rd respondent issued Ext.P3 order dt.18.6.2005. It is revealed from Ext.P3 that the 5th respondent has submitted a complaint before the 2nd respondent against withholding of salary for the period from 1/2001 to 5/2001, alleging want of approval of the appointment with respect to the period from 13.9.1995 to 13.11.1995. While disposing that complaint, the 2nd respondent ordered that appointment of the petitioner on 2.6.1997 and its approval was not correct in view of approval of appointment of the 5th respondent for the period from 13.9.1995 to 13.11.1995, and therefore the petitioner was not entitled for salary during the period from 2.6.1997 to 17.10.2001 (i.e., till the date of appointment of the 5th respondent in the permanent vacancy on 18.10.2001). Therefore the 3rd respondent had cancelled appointment of the petitioner on 2.6.1997 and directed to approve the appointment only with effect from 18.10.2001 onwards. Further the Manager was directed to recover salary drawn by the petitioner from 2.6.1997 upto 17.10.2001, and to remit the same to the Department. Ext.P4 is a consequential letter issued by the 3rd respondent to the 6th respondent W.P.(C).35513/05 -4- requesting to effect repayment of the amount, after recovery from the petitioner. It is aggrieved by Ext.P3 and P4 that the present writ petition is filed. The petitioner inter alia seeks direction to restrain the respondents 1 to 3 from taking any steps for recovery of salary from the petitioner which was drawn during any period after 2.6.1997. 4. It is contended by the petitioner that the 5th respondent had already relinquished claims if any available under Rule 51A, with respect to the post which arose on 2.6.1997. The relinquishment letter issued by the 5th respondent to the Manager is produced as Ext.P5. It is contended that while issuing the relinquishment letter, the 5th respondent had received an amount of Rs.11,590/- being salary due for the period from 13.9.1995 to 13.11.1995 and from 27.2.1996 to 30.4.1996. A receipt issued in this regard by the 5th respondent is produced as Ext.P6. Hence it is contended that the 5th respondent is not legally entitled to raise any claim under Rule 51A with respect to the permanent vacancy which arose on 2.6.1997. So also it is contended that, while upholding approval of appointment of the 5th respondent for the period from 13.9.1995 to 13.11.1995in Ext.P7 Judgment, this court has not W.P.(C).35513/05 -5- mentioned anything about eligibility of the 5th respondent under Rule 51A for appointment against the vacancy to which the petitioner was appointed. Hence the findings of the 2nd respondent in Ext.P3 to the effect that the petitioner's appointment can be approved only from 18.10.2001, has no basis. 5. In the counter affidavit filed by the 2nd respondent it is admitted that appointment of the petitioner with effect from 2.6.1997 was approved by virtue of an order of the DPI dt.24.6.2000, and the consequential order in this regard was issued on 4.8.2001. It is also admitted that appointment of the 5th respondent in the leave vacancy, for the period from 13.9.1995 to 13.11.1995, was approved only on 23.4.2001. Therefore it is evident that on the date on which the petitioner was appointed, i.e: on 2.6.1997, and on the date on which his appointment was approved by the DPI, (i.e: on 24.6.2000), the 5th respondent was not a claimant under Rule 51A, because his appointment for the period from 13.9.95 to 13.11.95 was approved only on 23.4.2001. It is also evident that the 5th respondent had issued Ext.P5 & Ext.P6 in effect relinquishing claim for the post which arose on 2.6.1997. W.P.(C).35513/05 -6- 6. It is pertinent to note that there is no specific denial about fact of relinquishment, in the counter affidavit filed by the 5th respondent. In paragraph 5 of the counter affidavit of the 5th respondent it is stated as follows:- “Though I was entitled to get approval with effect from 2.6.1997 when the writ petitioner was appointed overlooking my claim as a 51A claimant, approval was granted only from 18.10.2001. I have brought to the notice of the Asst. Educational Officer and the District Educational Officer that I am entitled to get by approval from 2.6.1997 instead of 18.10.2001. The same is pending consideration.” 7. On a perusal of Ext.P3 it is noticed that the 3rd respondent had issued such a proceedings only on the basis of directions issued by the 2nd respondent, as per order No.B4/8062/2002 dt.19.11.2003, which is referred to in Ext.P3 (As Read No:1). Learned counsel for the writ petitioner made available a copy of letter No.B4/8062/2002 dt.19.11.2003 issued by the 2nd respondent for my perusal. It is noticed that the same is only a letter issued by the 2nd respondent to the 3rd respondent stating that since appointment of the 5th respondent from 13.9.1995 to 13.11.1995 is approved, the approval issued with respect to appointment of the petitioner from 2.6.1997 is not in W.P.(C).35513/05 -7- order and since the 5th respondent was appointed on 18.10.2001, the petitioner is not entitled for salary from 2.6.1997 to 17.10.2001. Therefore the 3rd respondent was directed to regularise the appointments of both the teachers. 8. It is evident from the above said letter of the 2nd respondent that he has not issued any proceedings unsettling the approved appointments of both the teachers, with notice to them and after affording any opportunity of hearing to them or to the Manager. From Ext.P3 also it is evident that the 3rd respondent had issued the proceedings as a consequence of the above referred letter of the 3rd respondent. There also no opportunity was seen afforded to any of the parties, before unsettling the approved appointments. 9. While taking a decision on this writ petition it is worth noting the observations contained in Ext.P7 judgment. While upholding order of approval of appointment of the 5th respondent, this court had dealt with the matter related to the claims of both the teachers regarding eligibility for appointment to the permanent vacancy which arose on 2.6.1997. A reproduction of the observation of this court contained in Ext.P7 Judgment will be beneficial in this regard. W.P.(C).35513/05 -8- “4. The petitioner's worry is about the claim of fifth respondent, because he had already appointed one Sasidharan whose appointment was directed to be approved as per Ext.P11 dated 24.6.2000. The petitioner submits that he appointed the said Sasidharan based on Ext.P4 relinquishment by the fifth respondent. Ext.P7 order of the Director of Public Instruction contained direction to approve the appointment of fifth respondent. But so far as the petitioner is concerned, he had appointed the fifth respondent. That is a lawful appointment. He cannot say it was illegal. Therefore, he was bound to honour the claim of the 5th respondent. 5. There is no provision in the eye of law to relinquish a claim arising under Rule 51-A obviously because a claimant under Rule 51-A will not be in service. A claim under Rule 51-A arises to a teacher thrown out of service when a further vacancy arises in the school. There is nothing to relinquish in advance under Rule 51- A, because he accrues a right for appointment only when another vacancy occurs. In such circumstances, there arise no question of relinquishment. That is why a separate procedure is provided for in Rule 51-A making the manager liable to issue two notices to the claimant who is to be appointed in the newly arising vacancy. Even in spite of the said two notices if the claimant does not turn up for duty, then also a new appointee can be preferred by the manager. Therefore, Ext.P4 has no efficacy in the eye of law. It is not a relinquishment. The manager has not admittedly followed the procedure prescribed in the Notes under Rule 51-A. The manager cannot contend that at the time of Ext.P4 or at the time of appointment of Sasidharan, the fifth respondent had not W.P.(C).35513/05 -9- claimed any approval. The matter was being agitated by the fifth respondent by petition dated 2.10.1996 before the Director of Public Instruction which lead to Ext.P3. Therefore, the manager ought not to have overlooked the fifth respondent at that time. There is nothing illegal in Ext.P12 and whatever benefit the fifth respondent accrues on the strength of his approval has to be rendered to him by the manager and the department.” 10. The above observations contained in Ext.P7 Judgment now stands confirmed by dismissed of the Writ Appeal. But it is pertinent to note that in Ext.P7 Judgment this court was not dealing with an issue regarding the Rule 51A claim of the 5th respondent but the challenge was only against the approval of appointment of the 5th respondent. As such this court has not taken any specific decision as to whether appointment of the petitioner on 2.6.1997 need be unsettled or not. No specific direction was issued to the educational authority to deal with the issue or to take any decision regarding this matter. 11. It is worth noting that in Ext.P7 this court found that the relinquishment alleged to have been issued by the 5th respondent is not in order. But it is pertinent to note that there is no evidence to the effect that the 5th respondent had raised any claim or made any protest against appointment of the W.P.(C).35513/05 -10- petitioner w:e:f: 2.6.1997, nor against the approval of such appointment, before any other authority. On the other hand 5th respondent had accepted appointment against a subsequent vacancy which arose on 18.10.2001. From Ext.P3 and the letter of the 2nd respondent referred above, it is evident that the complaint of the 5th respondent was against withholding of salary pertaining to the previous periods during which he worked against the leave vacancy. At the same time it is stated in the counter affidavit that the 5th respondent had raised complaint against the irregularity occurred in appointment of the petitioner, ignoring his claims under Rule 51-A. So the question as to whether the 5th respondent is entitled for salary during the period from 2.6.1997 till 17.10.2001, and as to whether the petitioner is liable for refund of the salary etc: are questions need elaborate considerations. 12. Under the above circumstances I notice that a consideration of all the aspects, before taking any decision to unsettle appointments of both the teachers, which stands approved through decisions of different authorities, with proper notice and after affording adequate opportunities, ought to have been made. Instead, what is seen done is that, the 2nd W.P.(C).35513/05 -11- respondent had issued directions to the 3rd respondent through letter dt.19.11.2003 to unsettle the appointments and to issue fresh proceedings and the 3rd respondent has taken a decision to cancel the approval of appointment of the petitioner, which stands confirmed by the DPI, without notice to any of the parties. Therefore I am of the view that, without entering upon any findings on the merits of the claims of both teachers for appointment against the vacancy which arose on 2.6.1997, the matter need be remanded for fresh consideration and decision of the appropriate authority in the Department. At any rate, I am of the considered opinion that Exts.P3 and P4 are unsustainable and they are liable to be quashed. I am not referring to any of the decisions cited by both sides to substantiate their claims regarding eligibility, because I am not proposing to take a decision on merits on the disputed claims. 13. In the result the writ petition is allowed and Exts.P3 and P4 are hereby quashed. The educational authority concerned will consider the matter afresh, after proper notice to the petitioner and respondents 5 & 6, and after affording adequate opportunity of hearing to all parties concerned. While taking decision on the matter, the authority shall take note of all the W.P.(C).35513/05 -12- factual aspects enumerated above. It is made clear that an independent decision shall be taken untrammeled by any of the observations contained in this judgment, on considering merits of the claims of both the parties and taking note of the factual aspects and history of the appointments. A decision in this regard shall be taken at the earliest and at any rate within a period of three months from the date of receipt of a copy of this Judgment. C.K.ABDUL REHIM, JUDGE. okb