Kerala High Court
M. Hameed vs State Of Kerala Represented By The ... on 18 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942
WA.No.1401 OF 2017
AGAINST THE JUDGMENT IN WPC 25316/2010 DATED 21-03-2017 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
M. HAMEED,MANICKAMCHERY, PIO VALLIYAD, VILLIAPPALLY,KOZHIKODE-
673542.
BY ADVS.
SRI.KALEESWARAM RAJ
KUM.A.ARUNA
SRI.VARUN C.VIJAY
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695
001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS
JAGATHY, THIRUVANANTHAPURAM-695014.
3 DISTRICT EDUCATIONAL OFFICER
VADAKARA, KOZHIKODE DISTRICT-673101.
4 ASSISTANT EDUCATIONAL OFFICER
THODANNUR, VATAKARA-673101, KOZHIKODE DISTRICT.
5 *THE MANAGER,(ADDRESS CORRECTED)CHILAVATTOM L.P.SCHOOL, VALLIADU,
VILLIAPPALLY, KOZHIKODE-673542.[ADDRESS CORRECTED]
*THE MANAGER, CHIRAVATTOM L.P. SCHOOL MEMUNDA,VILLIAPALLY,VIA
MEMNUDA, KOZHIKODE - 673542 ADDRESS OF R5 CORRECTED AS PER ORDER
DATED 30.8.2019 IN IA 1089/2017.
6 M.SOUDHA,D/O.POYIL MAHAMOOD, ASHIYANA MEMUNDA, VATAKARA,
KOZHIKODE-673104.
OTHER PRESENT:
GP RAJI T BHASKAR, ADV M VIJAYAKUMAR
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28-01-2021, THE COURT ON
18-02-2021 DELIVERED THE FOLLOWING:
W.A.No.1401 of 2017 2
'C.R.'
JUDGMENT
A.K. Jayasankaran Nambiar, J
The petitioner in W.P.(C)No.25316/2010 is the appellant before
us aggrieved by the judgment dated 21.3.2017 of the learned Single
Judge. The brief facts necessary for the disposal of the Writ Appeal
are as follows:-
2. The petitioner had been appointed as an Arabic Teacher
in a leave vacancy that arose in the school consequent to the leave
availed by the regular incumbent Sri. K.Basheer Ahammed. The
petitioner was appointed to the said vacancy for the period from
27.10.1986 to 30.9.1991. It is not in dispute that the said
appointment of the petitioner was approved by the Educational
Authorities. It would appear that, thereafter, a permanent vacancy
of Arabic Teacher arose in the school with effect from 20.3.2006, the
date on which the earlier incumbent to the permanent vacancy, Sri.
K. Basheer Ahammed, resigned from the school. While the
petitioner, believing himself to be a Rule 51A claimant consequent to
his earlier spell of service in the leave vacancy, preferred a
representation dated 16.11.2006 before the Manager, the said
representation was not considered favourably by the Manager, who
had, in the meanwhile, appointed Smt. M. Soudha, the 6th
respondent in the writ petition, as the Arabic Teacher. The said
appointment of Smt. M. Soudha was also approved by the
Educational Authorities, as is evident from Ext.P3 order produced in
the writ petition.
3. The petitioner, thereafter, challenged Ext.P3 order
before the Director of Public Instruction at first instance, and
against the order of the Director of Public Instruction rejecting his
appeal, preferred a further revision petition before the Government,
which also stood rejected by Ext.P8 order. In all of these orders,
which were impugned in the writ petition, the specific finding
rendered by the Educational Authorities is that the petitioner had
submitted his resignation from, or relinquished his right to, the
leave vacancy, for the purposes of the appointment of Smt. S.
Soudha to the remaining period of the leave vacancy. The learned
Single Judge, therefore, took note of the concurrent findings of fact
and found that, in as much as the petitioner had not produced any
material to show that he had not resigned from service and that his
relief from the school on 30.9.1991 was only on account of
termination of a vacancy, the claim under Rule 51A of Chapter XIVA
of KER could not be legally countenanced. The challenge to Ext.P8
Government Order was, therefore, repelled.
4. Before us, it is the vehement contention of
Sri. Kaleeswaram Raj, learned counsel appearing for the appellant
that the finding that the petitioner had tendered his resignation on
30.9.1991 is not supported by any material on record. It is pointed
out that the specific contention of the petitioner before the
Educational Authorities was that he had been made to sign on a
blank paper by the Manager of the school, who had later proceeded
to make it out to be a resignation letter without the petitioner's
knowledge. It is further contended that before filling up the
subsequent vacancy on 20.3.2006, the Manager of the School had
not informed the petitioner of the existence of the vacancy to which
the petitioner could have sought appointment by invoking his claim
under Rule 51A. In support of the said contention, the learned
counsel places reliance on the decision of this Court in Hyderali v.
State of Kerala [2001 KHC 183]. The learned counsel also refers
to Annexure-1 document produced along with the Writ Appeal,
stating it to be the copy of the letter actually submitted by the
appellant to the Manager of the School while leaving the school on
30.9.1991. A perusal of the said letter indicates that the appellant
had only informed the Manager of the fact of his joining another
school in the neighbourhood consequent to the expiry of the period
for which he was initially appointed in the leave vacancy in the
respondent school. The argument of the learned counsel is
essentially that, in as much as it is not in dispute that the appellant
had rendered service in the leave vacancy for the period between
27.10.1986 and 30.9.1991 which was the period covered by his
appointment letter as approved by the Educational Authorities, his
leaving the school on 30.9.1991 cannot be seen as an act of
resignation/relinquishment and must be viewed simply as service
rendered in a leave vacancy for the period indicated in the
appointment order. Referring to the provisions of Rule 51A of
Chapter XIVA KER, it is contended that this would suffice for the
purposes of realising his claim under the said provision.
5. We have carefully considered the averments in the Writ
Petition, Writ Appeal and the findings in the impugned judgment.
We have also considered the arguments of the learned counsel for
the appellant before us. On a consideration of the same, we are of
the view that the finding of the learned single Judge, based on the
concurrent findings of fact before the Educational Authorities and
the revisional authorities, that the petitioner had not produced any
material to show that he had not resigned from service and that his
relief from the school on 30.9.1991 was only on account of the
termination of vacancy does not call for any interference. We might
only add that for the purposes of raising a claim for preferential
appointment under Rule 51A of Chapter XIVA of KER, qualified
teachers in a school have to be relieved either in the manner
provided under Rule 49 or Rule 52 or 'on account of termination of
vacancies'. In the instant case, while the petitioner, no doubt,
rendered service in the leave vacancy during the period from
27.10.1986 to 30.9.1991 based on the appointment order issued to
him, there is no material that would suggest that the vacancy to
which he was appointed had terminated on 30.9.1991. On the
contrary, the orders impugned in the Writ Petition would clearly
indicate that while the appellant did not continue in the school
beyond 30.9.1991, be it on account of her resignation or on account
of her relinquishment, there were appointments of teachers other
than the regular incumbent Sri. K. Basheer Ahammed, to the said
vacancy till 20.3.2006, on which date the said regular incumbent
Sri. K. Basheer Ahammed resigned from the school. It would follow,
therefore, that although the appellant worked for the period for
which he was appointed in the leave vacancy, he was not relieved
thereafter on account of the termination of that vacancy since it is
apparent that the vacancy continued even beyond 30.9.1991. If that
be the case, then it would necessarily follow that the benefits under
Rule 51A of Chapter XIVA KER will not accrue to the appellant as
rightly found by the learned Single Judge.
6. The learned counsel for the appellant would then point
to the other benefits that have been denied to him through Ext.P8
order that was impugned in the writ petition. It is his case that
since it is not firmly established that the petitioner had resigned
from the school on 30.9.1991, the deprivation of benefits as
envisaged under Rule 54(1) of Chapter XIVA KER and Rule 62 of
Chapter XIVC KER cannot be justified in his case. Persuasive though
the submission of the learned counsel is, we find ourselves unable to
consider the said argument since the challenge to Ext.P8 order in
the Writ Petition was not premised on the said contention. A perusal
of the grounds in the Writ Petition would clearly indicate that the
efforts of the petitioner were confined to showing the alleged
illegality that resulted from the denial of his claim under Rule 51A of
Chapter XIVA KER through the orders of the Educational Authorities
that were impugned in the Writ Petition. The consideration by the
learned Single Judge was also limited to the said issue alone.
Although it is a fact that the Writ Appeal is in a sense a continuation
of the writ proceedings, we are of the view that we ought not to
consider issues not urged before the learned Single Judge while
deciding this Writ Appeal, more so, when the facts necessary to
establish the claim of the petitioner have not been averred in the
Writ Petition.
In the result, we see no reason to interfere with the findings of
the learned single Judge, and for the reasons stated in the impugned
judgment, as supplemented by the reasons contained in this
judgment, we uphold the same. The Writ Appeal fails and is
accordingly dismissed.
sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
GOPINATH P.
JUDGE
Acd
APPENDIX
ANNEXURE-I TRUE COY OF LETTER DATED 30.9.1991
SUBMITTED BY THE APPELLANT TO THE 6TH
RESPONDENT.
