Lakshmikutty Amma and Others vs Vijayalakshmikutty and Another

Jagannadha Rao, C.J.—These two appeals raise the same question, and can be disposed of together.

W.A. No. 233 of 1992 is an appeal preferred by Respondents 4 and 5 in the Writ Petition against the judgment of the learned Single Judge in O.P. No. 79 of 1991-H, which is since reported as P.V. Vijayalakshmikutty v. State of Kerala and Ors. 1992 (1) K.L.J. 56, The Writ Petitioner therein is the first Respondent in the appeal. The Writ Petition was allowed by the learned Single Judge by judgment dated 11th December 1991. The writ Petitioner was originally appointed as a Lower Grade Hindi Teacher in the Saraswathi Vilasam U.P. School, Kondazhy in a temporary vacancy for the period from 10th June 1980 to 11th August 1980. That appointment was duly approved by the Assistant Educational Officer concerned. She was again appointed in a leave vacancy from 5th September 1980 to 28th November 1980, which was also approved. Thereafter, when a vacancy arose in the same post between 10th January 1989 to 22nd March 1989, the manager did not appoint anybody. In a subsequent temporary vacancy for the period from 3rd July 1989 to 1st September 1989, the fifth Respondent in the writ petition (second Appellant) was appointed. The Petitioner contended that her claims under Rule 51A of Chapter XIV-A of the Kerala Education Rules were unjustly overlooked. She contended that no notice was given to her by the manager as contemplated by Note 2 to Rule 51A. She made a representation on 7th July 1989 to the manager as well as to the Assistant Educational Officer, and requested not to approve the appointment of the second Appellant. When there was delay, she filed O.P. No. 6454 of 1989, which was allowed on 14th August 1989 directing disposal of the representation. Thereafter, Ext. P-2 order dated 19th August 1989 was passed by the Assistant Educational Officer rejecting the writ Petitioner''s claim, giving two reasons. It was firstly stated that the writ Petitioner had given two letters of relinquishment relinquishing her claims under Rule 51A for further appointment in the school, and secondly that she was over-aged. The writ Petitioner filed a revision before the Director of Public Instruction, and as per Ext. P-4 dated 6th March 1990, it was held by the Director that the letters of relinquishment had no legal effect so long as the procedure directed in Note 2 to Rule 51A had not been Followed by the manager. Therefore the revision of the writ Petitioner was allowed, and the approval of the appointment of the second Appellant was set aside, and the manager was directed to appdint the writ Petitioner. Thereafter a permanent vacancy arose in the school on 31st March 1990, and the writ Petitioner made a representation to the manager to appoint her. But she was informed that die matter was pending with the Government in a further revision. She then submitted Ext. P-5 representation dated 10th August 1990 before the Government for a direction to the manager to appoint her in the permanent vacancy. The Government issued notice, Ext. P-6, directing the writ, Petitioner to show cause why her claims should not be rejected on the ground that she had relinquished her claim under Rule 51A. She submited a reply as per Ext. P-7 stating that the manager had not folio ved the procedure mentioned in Note 2 to Rule 51A in making appointment in the vacancy which jarose on 3rd July 1989. She also claimed that the so called relinquishments were created on blank papers got signed by the management. But the Government took the view that that was a voluntary relinquishment of the claim, and passed Ext. P-8 order dated 3rd December 1990 rejecting the Petitioner''s claim. The said order was questioned by the Writ Petitioner in the present Writ Petition. The learned Single Judge allowed the Writ Petition holding that so far as the age requirement was concerned, the same was not relevant in the case of appointment based on the claim under Rule 51A, and for the said purpose the learned Single Judge relied on a decision of this Court in O.P. No. 3949 of 1988, wherein, another learned Single Judge of this Court had held that the age limit prescribed under Rule 1(2) will not apply in the case of teachers claiming preference for appointment under Rule 51A. The learned Single Judge then went into the question of relinquishment and observed that there had been several bad practices among managers to obtain relinquishment letters even at the time of appointment, and that therefore unless the procedure prescribed under Note 2 to Rule 51A is strictly followed, there is no question of forfeiture of the right under Rule 51A. For the said purpose, the learned Single Judge relied on a decision of this Court in Nirmala v. D.E.O. ILR 1976 Ker. 149, wherein it was held that it was imperative on the part of the manager to issue an appointment order to claimant under Rule 51A in the address available, when a vacancy arises. If a statute provides that an act has to be done in a particular manner, that act can be done only in that manner as stated in University of Kashmir and Others Vs. Dr. Mohd. Yasin and Others, . The learned Single Judge then held that there could be no question of waiver of right under Rule 51A as long as the procedure prescribed under Note 2 to Rule 51A has not been followed, that context it was observed that it was not necessary to go into the question whether the relinquishment letters were fabricated or were not genuine. The learned Single Judge also relied on the decision in Pathumma v. State of Kerala 1986 KLT 166 wherein a learned Single Judge of this Court had held that no teacher could be treated as having forfeited his or her right under Rule 51A, unless the procedure prescribed in Rule 51A was followed. There is no provision in the Rules under which a teacher could relinquish her or his right. However, inasmuch as the second Appellant had been working during the entire period of the temporary vacancy between 3rd July 1989 and 1st September 1989, and in view of passage of time, the learned Single Judge did not set aside the order by which her appointment during the above period was approved by the authorities. But the learned Single Judge set aside Exts. P-2 and P-8 in so far as they approved the appointment of the fifth Respondent in the permanent vacancy which arose on 31st March 1930, and declared that the writ Petitioner-Respondent had a preferential right over the second Appellant for being appointed to the permanent vacancy which arose on 31st March 1990. A direction was issued to the authorities to take necessary steps to appoint the writ Petitioner as Lower Grade Hindi Teacher in the vacancy which arose on 31st March 1990 within one month from the date of judgment. It is this judgment that is questioned by the Appellants.

In W.A. No. 633 of 1992 the Appellant is the writ Petitioner. In that case he was appointed in a short vacancy on temporary basis in a school for the period from 5th January 1990 to 12th March 1990. That appointment was approved by the competent authority by Ext. P-1 order dated 5th March 1990. Thereafter a new post of Lower Grade Hindi Teacher was sanctioned for the academic year 1900-91 and writ Petitioner was appointed in the newly sanctioned post. His appointment was again approved by the competent authority. While so, the 8th Respondent in the writ petition, who had worked as a Lower Grade Hindi Teacher in the very same school for the period from 27th July 1981 to 30th September 1981 and from 6th October 1981 to 9th December 1981 objected to the appointment of the writ Petitioner, and claimed that she had a right under Rule 51A. The Additional Director, who heard her revision petition, rejected the same relying upon Ext. P-3 relinquishment letter dated 7th September 1982 alleged to have been given by the 8th Respondent to the manager. Thereafter the 8th Respondent filed a revision before the Government, which allowed the revision by Ext. P-7 order dated 11th February 1992 holding that there was no relinquishment of right in accordance with the provisions contanied in the Kerala Education Rules. Questioning the said order the writ. Petitioner filed the O.P. and the same was dismissed by the learned Single Judge relying upon the decision in P.V. Vijayalakshmy Kutty''s case 1992 (1) K.L.J. 56, which is the subject matter of W.A. No. 233 of 1992. It is against this judgment that the writ Petitioner has preferred this appeal.

The point for consideration in these appeals is whether there could be a valid relinquishment or forfeiture of a right accrued under Rule 51A of Chapter XIV-A of the K.E.R., if the procedure under note 2 to Rule 51A was not followed?

For the purpose of deciding the above question, we shall assume that in both the cases the relinquishment letters were issued, and they were issued voluntarily by persons who were having a preferential right to appointment under Rule 51A. The next question is therefore whether that can be relied upon by the manager of the school concerned. Note 2 to Rule 51A of Chapter XIV-A of the K.E.R. reads as follows:

Manager should issue an order of appointment to the teacher by registered post acknowledgement 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.

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 jin 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 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. Rule 51A was therefore intended to prevent such a situation. Courts and the rule-making authority having already taken cognisance of such malpractices, Note 2 was incorporated under Rule 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 relinguishment letters are obtained as a condition for return of the certificates of the teacher, as is alleged in one of the cases before us.

Therefore, in our view, both Rule 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 Math Ganguly 1986 S.C. 1571 in the context of Section 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 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 E.R. 294 that public policy is an ''unruly horse'', the Supreme Court referred to the observations of Lord Denning in Enderby Town Footbal 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, an proper occasion of expansion or modification. Pracm tices which were considered perfectly normal at one time have today becomt 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....

(Emphasis supplied)

Thus ''public policy'' has an important role to play in checking malpractices in employment. This one reason behind such salutory provision as Rule 51A and Note 2. Preferential right conferred by Rule 51A and the procedure prescribed in Note 2 are intended to subBerve a broad public policy.

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 Rule 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 Rule 51A to a teacher. The Note contemplates that initially the manager should issue an order of appointment to the teacher concerned by Registered Post acknowledgement 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 Rule 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 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 S.C. 654 and University of Kashmir and Others Vs. Dr. Mohd. Yasin and Others,

A case more directly on the point is the one in Ramchandra Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, as it relates to surrender of rights by a tenant under the Bombay Tenancy and Agricultural Lands Act, and the rules made thereunder. We say that the said decision is more apposite because in the present case, we are dealing with relinquishment of a right a teacher in respect of his or her prefcrential claim under Rule 51A of the Kerala Education Rules, while in the Bombay case, surrender by tenant of his tenancy rights was the subject of consideration under the Bombay Act and Rules. Surrender would be valid only if the Ibilow ing conditions were satisfied: (1) it must be in writing; (2) it must be verified before the Mamlatdar; (3) while making such verification the Mamlatdar must satisfy himself in regard to two things, namely, (a) that the tenant under stands th nature and consequences of the surrender, and (b) that it is voluntary; (4) the Mamlatdar must endorse his findings as to such satisfaction upon the document of surrender. The High Court of Bombay held that surrender by the tanant in that case which did not conform to the above procedure was a nullity, and was not a va1id surrender. On appeal, the Supreme Court affirmed the said view observing that the question whether the proce dure was mandatory or not has to be gathered from a review of the language, subject matter, and importance of the provision in relation to the general object intended to be secured, the mischief, if any, to be prevented and the remedy to be promoted by the Act. In that context, the Supreme Court observed that the imperath language the beneficent purpose and importance of these provisions would unerringly lead to the conclusion that they were intended to be mandatory. Neglect of any of these statutory requisites would be fatal. Disobedience of even one of these mandates would render the surrender invalid and ineffectual. In that context, the Supreme Court referred to Taylor v. Taylor (1875) 1 Ch D. 426 referred above and other cases as follows:

A century ago, in Taylor v. Taylor (1875) 1 Ch. D. 426 Jessel M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way Or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council in AIR 1936 253 (Privy Council) (2) and later by this Courfin Several cases, Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, ; Deep Chand Vs. The State of Rajasthan, ....

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 Rule 51A in any manner otherwise than by the procedure provided by Note 2 and that consequently the relinguishment letters even if executed voluntarily by the teacher relinquishing his or her right tinder Rule 51A cannot result fn the forfeiture or the preferential right to appointment. Rule 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 has taken the same view as the one we have taken in this case. We may al1986 KLT 166 so add that in the decisions in Punnen v. Vasudeva Kurup 195 KLT 924 and Murlidhar Aggarwal and Another Vs. State of Uttar Pradesh and Others, 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 appf to the cases on hand.

For the aforesaid reasons, the Writ Appeals are dismissed.