K.V. Manjula vs State Of Kerala
2021 Latest Caselaw 2553 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

      FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942

                       WP(C).No.9655 OF 2012(F)

PETITIONER:

               K.V. MANJULA, W/O.KUMARAN,
               ASSISTANT TEACHER,
               AIDED UPPER PRIMARY SCHOOL,
               UDINUR CENTRAL,P.O.UDINNUR,
               KASARAGODDISTRICT-671349.

               BY ADVS.
               SRI.K.SHRIHARI RAO
               SMT.N.SHOBHA
               SRI.K.S.BALAKRISHNAN

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY ITS SECRETARY,
               GENERAL EDUCATIONDEPARTMENT,
               SECRETARIAT,THIRUVANANTHAPURAM-695039.

      2        THE DIRECTOR OF PUBLIC INSTRUCTION
               THIRUVANANTHAPURAM-695001.

      3        THE DISTRICT EDUCATIONAL OFFICER
               KANHANGAD-671315.

      4        THE ASSISTANT EDUCATIONAL OFFICER
               CHERUVATHUR,KASARAGOD DISTRICT,PIN-671313.

      5        THE MANAGER, AIDED UPPER PRIMARY SCHOOL,
               UDINUR CENTRAL,P.O.UDINUR,
               KASARAGOD DISTRICT,PIN-671349.

      6        U.SUGATHAN, ASSISTANT TEACHER,
               AIDED UPPER PRIMARY SCHOOL,UDINUR
               CENTRAL,P.O.UDINUR,KASARAGOD DISTRICT-671349.

      7        C.M.BINDU, ASSISTANT TEACHER,
               AIDED UPPER PRIMARY SCHOOL,UDINUR
               CENTRAL,P.O.UDINUR,KASARAGOD DISTRICT-671349.
 WPC 9655/12
                                2



       8      C.M.SUDHA, ASSISTANT TEACHER,
              AIDED UPPER PRIMARY SCHOOL,
              UDINUR CENTRAL,P.O.UDINUR,
              KASARAGOD DISTRICT-671349.

       9      T.V.NISHA, UPSA,AIDED UPPER PRIMARY SCHOOL,
              UDINUR CENTRAL,P.O.UDINUR,
              KASARAGOD DISTRICT-671349.


              BY ADVS.
              SRI.M.SASINDRAN
              SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 9655/12
                                       3


                                  JUDGMENT

The petitioner, who is stated to be

working as an Assistant Teacher in 'Aided

Upper Primary School', Kasaragode, impugns

Ext.P22, under which, Government has rejected

her plea for being considered for appointment

to a post that arose on 05.06.1995, asserting

that she is entitled to be appointed and

approved from that date-she being a claimant

under Rule 51A Chapter XIVA of the Kerala

Education Rules (KER for short).

2. The petitioner says that instead of

appointing her, the Manager appointed another

teacher, by name Sri.Sugathan and that this

led to a series of objections and litigations;

finally concluding that the petitioner had

voluntarily relinquished her claim under Rule

51A Chapter XIVA of the KER. She says that it

is the same line of reasoning that is adopted

in Ext.P22 and that consequently, she has only WPC 9655/12

been given the benefit of a notional approval

as UPSA in the said school from 02.06.2003 to

18.11.2009. She, therefore, prays that Ext.P22

be set aside and the Educational Authorities

be directed to reconsider her claim for

approval of appointment with effect from

05.06.1995.

3. The afore contentions of the

petitioner made on her behalf by the learned

counsel - Sri.K.Shri Hari Rao, are vehemently

opposed by Sri.M.Sasindran, learned counsel

for respondents 6 to 9, who contends that the

petitioner cannot now assert any claim under

Rule 51A Chapter XIVA of the KER, since she

had unequivocally relinquished such rights

through two letters dated 08.02.1994 and

06.01.1996, which are countersigned by the AEO

and DEO respectively. He submitted that since

the petitioner had voluntarily relinquished

her claim under the afore Rule, she cannot now WPC 9655/12

turn around and seek its benefits with respect

to the vacancy that arose in the year 1995.

He, therefore, prayed that Ext.P22 be granted

approval by this Court and that this writ

petition be dismissed.

4. The learned Senior Government Pleader

- Sri.P.M.Manoj, submitted that the

petitioner's attempt to assail Ext.P22 after

efflux of so many years, on the ground that

she had not issued the 'relinquishment

letters' is without bonafides since, at the

time when she was heard by the Government on

an earlier occasion, she had expressly agreed

that she had issued them. He, therefore,

prayed that this Writ Petition be dismissed.

5. The specific contention of the

petitioner in this writ petition is that she

had not voluntarily relinquished her claim

under Rule 51A Chapter XIVA of the KER, but

that the alleged relinquishment letters had WPC 9655/12

been obtained by the Manager, committing fraud

on her. However, it is pertinent that the

petitioner has not chosen to produce the

relinquishment letters on record or to seek

any relief against it, but has only

whisperingly and passingly made a bald

allegation - that these letters were obtained

by fraud - in Ground G of this writ petition.

Interestingly, nowhere else in this writ

petition or in any other pleadings is this

allegation even mentioned, nor has it been

expatiated or explained by her as to the

nature of the 'fraud' committed on her.

6. That apart, as is clear from Ext.P22,

the issue regarding relinquishment of Rule 51A

claim by the petitioner had earlier engaged

the attention of this Court and that of the

Educational Authorities, finally being found

against the petitioner through the Government

Order mentioned therein. Obviously, therefore, WPC 9655/12

the Secretary of Government who issued Ext.P22

was justified in saying that the petitioner

cannot, at this distance of time, reopen such

issues, when it had already been settled

against her through the earlier proceedings.

7. I must, however, record that the

contention of the learned counsel for the

petitioner is not merely that his client had

not issued the relinquishment letters but also

that even if that be so, in the absence of the

Manager having issued notices to his client in

terms of Note 2 to Rule 51A Chapter XIVA of

the KER, the relinquishment cannot be seen to

be complete or concluded. For this

proposition, the learned counsel relied upon

Lakshmikutty Amma v. Vijayalakshmikutty

[1992(2) KLT 341] and Vasantha v. State of

Kerala [2009(1) KLT 1008] in substantiation

and contended that, therefore, Ext.P22 is

vitiated for such reason.

WPC 9655/12

8. I am afraid that I cannot grant

imprimatur to the afore submissions of

Sri.K.Shri Hari Rao because, both in

Lakshmikutty Amma (supra) and Vasantha

(supra), this Court was not dealing with a

case of a teacher who had voluntarily

relinquished claim under Rule 51A but was

seized of the question as to whether, without

the Manager issuing two notices - as provided

under Note 2 to Rule 51A - could the

relinquishment be seen to be complete. The

answer is emphatically to the negative and I

have no doubt that the said position is

correct in law.

9. However, the facts of this case are

at complete variance to the one noticed in the

afore two judgments since, herein, the

petitioner is stated to have voluntarily

relinquished her rights under Rule 51A and if

that be so, I fail to understand why the WPC 9655/12

Manager should thereafter issue the notices as

mentioned in Note 2 of the said Rule, as is

asserted by the learned counsel for the

petitioner. There may have been some substance

in the submission of the petitioner had she

taken a specific contention that the

relinquishment letters, stated to have been

issued by her, were either not signed by her

or if it had been procured by unfair and

unlawful means.

10. In this case, as I have already seen

above, the petitioner has not even produced

the letters and has only passingly contended

in Ground G of this Writ Petition that said

letters have been obtained by 'fraud', but

without explaining it. This bald allegation of

the petitioner cannot be countenanced by this

Court in the absence of cogent evidence to the

contrary, particularly when the learned Senior

Government Pleader affirms that these letters WPC 9655/12

were countersigned by the AEO and DEO

respectively.

10. That apart, as I have already indited

above, the petitioner had earlier impelled

contentions regarding her relinquishment

letters before this Court, as also before the

Government and other Educational Authorities,

but in all such cases, it had been concluded

against her. She cannot, therefore, as rightly

recorded in Ext.P22, try to reopen such issues

at this stage, especially when she does not

challenge the said relinquishment letters in

any manner in this Writ Petition.

11. In the afore circumstances, I cannot

find the case of the petitioner against

Ext.P22 to be worthy; and presumably being

aware of the mind of this Court, Sri.K.Shri

Hari Rao, her learned counsel, prayed that

said order be directed to be implemented by

the competent Educational Authorities at WPC 9655/12

earliest, so that his client will obtain

resultant benefits at least now.

In the afore circumstances, I dispose of

this Writ Petition, repelling the challenge of

the petitioner against Ext.P22 and confirming

it; with a resultant direction to the

competent Educational Authorities to ensure

that the directions in the said order are

complied with and necessary consequential

orders issued, as expeditiously as is

possible, but not later than three months from

the date of receipt of a copy of this

judgment.

Sd/-

                                           DEVAN RAMACHANDRAN
       RR                                            JUDGE
 WPC 9655/12


                            APPENDIX
       PETITIONER'S/S EXHIBITS:

       EXHIBIT P1        TRUE COPY OF THE ORDER DATED

23.11.93 OF THE 5TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE LETTER DATED 07.11.95 OF THE 3RD RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 18.12.2001 OF THE 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 27.06.2001 OF THE PETITIONER.

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 17.11.2001 OF THE PETITIONER.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 01.02.2002 OF THE 4TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 03.08.2002 OF THE 3RD RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE ORDER DATED 13.01.2003 OF THE 2ND RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 11.03.2004 OF THE 1ST RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE LETTER DATED 30.04.2003 OF THE PETITIONER TO THE 5TH, 4TH AND 1ST RESPONDENTS.

EXHIBIT P12 TRUE COPY OF THE LETTER DATED 24.05.2003 OF THE PETITIONERS TO THE 4TH AND 5TH RESPONDENTS.

EXHIBIT P13 TRUE COPY OF THE LETTER DATED 26.06.2003 SENT TO THE 3RD RESPONDENT WITH COPY TO 1ST, 4TH AND 5TH RESPONDENTS.

WPC 9655/12

EXHIBIT P14 TRUE COPY OF THE LETTER DATED 10.04.2004 SENT TO 1ST, 4TH AND 5TH RESPONDENTS.

EXHIBIT P15 TRUE COPY OF THE LETTER DATED 07.06.2005 SENT TO THE 5TH RESPONDENT WITH A COPY TO 4TH RESPONDENT.

EXHIBIT P16 TRUE COPY OF THE ORDER DATED 16.08.05 OF THE 2ND RESPONDENT.

EXHIBIT P17 TRUE COPY OF THE APPOINTMENT ORDER DATED 20.11.2009 ISSUED IN THE NAME OF THE PETITIONER BY THE 5TH RESPONDENT.

EXHIBIT P18 TRUE COPY OF THE ORDER OF APPOINTMENT DATED 01.06.2010 ISSUED BY THE 5TH RESPONDENT AND APPROVAL ORDER OF THE 4TH RESPONDENT.

EXHIBIT P19 TRUE COPY OF THE JUDGMENT DATED 28.11.2011 IN W.P.(C) NO.11308/04 OF THIS HONOURABLE COURT.

EXHIBIT P20 TRUE COPY OF THE REPRESENTATION DATED 19.12.2011 OF THE PETITIONER TO THE 1ST RESPONDENT.

EXHIBIT P21 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER AT THE TIME OF HEARING BEFORE THE SECRETARY TO THE GOVERNMENT GENERAL EDUCATION DEPARTMENT.

EXHIBIT P22 TRUE COPY OF THE ORDER DATED 19.03.2012 OF THE 1ST RESPONDENT.