P.K Pathumma vs State of Kerala

V. Sivaraman Nair, J.—The petitioner was working as Arabic teacher in the school managed by the fifth respondent in two spells from 2-6-1975 to 28-8-1975 and from 21-7-1976 to 19-1-1977 when the permanent Arabic teacher Shri Abdul Rahman was on leave. That teacher retired from service on 30-6-1983 resulting in a vacancy with effect from 1-7-1983 in the post of Arabic teacher. Petitioner claimed preference for appointment in representations addressed to the Manger and the Assistant Educational Officer on the basis of rules 51-A of Chapter XIV-A of the Kerala Education Rules. Since those representations were not disposed of, she filed O.P.No. 6593 of 1983 and obtained a judgment directing the Assistant Educational Officer to dispose of that representation. In the meantime, the sixth respondent was appointed by the fifth respondent-Manager in that vacancy with effect from 1-7-1983. Pursuant to the directions contained in the judgment in O. P. No. 6593 of 1983, the Assistant Educational Officer conducted an enquiry with notice to the Manager, and passed Ext. P1 order dated 6-12-1983 refusing to approve the appointment of the sixth respondent for the reason that the petitioner had a claim for preference under rule 51-A of Chapter XTV-A of the Kerala Education Rules. The specific case of the fifth respondent, that the petitioner had relinquished her claim to be appointed to future vacancies in the same school on the basis of letters dated 2-6-1975 and 21-7-1976 alleged to have been obtained from the petitioner, was also urged before the Assistant Educational Officer. On a consideration of the probabilities, the Assistant Educational Officer came to the conclusion that there was a coincidence of the dates of appointment of the petitioner and the dates of the alleged letters of relinquishment, and refused to accept the forfeiture of the claim of the petitioner on the basis of those letters. The fifth respondent filed an appeal before the District Educational Officer against Ext, P1. By Ext. P2 order dated 6-4-1984, the District Educational Officer dismissed the appeal affirming Ext. P1. The fifth respondent then filed a revision petition before the Director of Public Instruction: and that was dismissed by Ext. P3 order dated 10-12-1984. It is at that stage that the petitioner filed this Original Petition complaining that in spite of orders, Exts. P1 to P3, upholding her claim and refusing approval of appointment of the sixth respondent, the Manager was not appointing her in recognition of her claim for preference under rule 51-A of Chapter XIV-A of the Kerala Education Rules. The petitioner seeks the issue of a writ of mandamus directing the 5th respondent to appoint her as Arabic teacher in the M. M. J. B. School, Vellaloor in compliance with the provisions of Rale 51-A of Chapter XlV-A of the Kerala Education Rules as also to direct respondents 1 to 4 to take action against the fifth respondent under rule 7 of Chapter III or rule 23 of Chapter V of the Kerala Education Rules so as to compel the fifth respondent to appoint the petitioner as Arabic teacher in the above school.

The fifth respondent has filed a counter affidavit. It is stated that the petitioner was appointed in two spells of leave vacancies in 1975 and 1977. The claim of the petitioner for preference under rule 51-A of Chapter XIV-A of the Kerala Education Rules is sought to be controverted on two grounds viz, that the petitioner was already working in another school since 19-1-1977 and that the petitioner had abandoned her claim for preference under rule 51-A of Chapter XIV-A of the Kerala Education Rules for appointment in future vacancies by letter of relinquishment written by her to the Manager. It is further submitted that 3 revision under rule 92 of Chapter XIV-A of the Kerala Education Rules has been filed against Ext. P3 order by the fifth respondent on 12-3-1985, and the Manager is not obliged to appoint the petitioner as teacher in his school until after disposal of the revision by the Government.

Counsel for the petitioner referred me to the provisions of rule 51-A of Chapter XIV-A of the Kerala Education Rules, which provide that preference in future appointment would not be available to a teacher otherwise entitled to such preference if that person has been appointed in a permanent vacancy in a school under any other educational agency. Support is sought to be drawn from the decision of this court reported in ILR 1972 (1) Kerala 266, where it is stated that on relinquishment of the claim against the next vacancy, a teacher who is entitled to preference under rule 51A of Chapter XIV-A of the Kerala Education Rules need not be considered for vacancies arising thereafter. As far as the first of these submissions is concerned, the petitioner may lose preference under rule 51A of Chapter XIV-A only if she has been appointed in a permanent vacancy in a school under any other educational agency. There is no specific and positive averment that the petitioner has been so appointed in a permanent vacancy in another school under any other educational agency. The Government Pleader appearing for the respondents 1 to 4 submits that in the revision petition filed by the fifth respondent-Manager, his only ground was that the petitioner has been appointed against a leave vacancy. I am therefore not in a position to accept the submission of the counsel for the fifth respondent that the petitioner has lost her claim for preference under rule 51-A of Chapter XIV-A, because she is continuously working in another school since 19-1-1977.

The next submission is in relation to the implied forfeiture of the claim of the petitioner by reason of the letters of relinquishment dated 2-6-1975 and 21-7-1976 given by the petitioner to the fifth respondent-Manager. The merits of this contention were considered by the Assistant Educational Officer while passing Ext. P1 order, and that order has been affirmed in Exts. P2 and P3 orders by the appellate and revisional authorities I am told that the matter is now pending before the Government in a further revision. It is not necessary for me to consider the merits of this contention as the same was considered by the original, appellate and revisional authorities concurrently, and the question of bona fides in obtaining the letters of relinquishment cannot and need not be considered over again by this court in these proceedings. Another submission of counsel for the fifth respondent is that (he vacancy to which the claim is being, urged by the petitioner arose six years after she was relieved from the school on 19-1-1977 and therefore, the claim for preference under rule 51A of Chapter XlV-A of the Kerala Education Rules cannot be urged as emphatically as it would otherwise have been. In the absence of any specification of any period of time within which alone, the preferential claim shall be considered anywhere in the rules, I can only plead my inability to accept the submission as eliminating the claim of the petitioner for preference under rule 51 A of Chapter XIV-A.

As far as the question of forfeiture of the claim of the petitioner urged by counsel for the fifth respondent on the basis of the decision reported in ILR 1972 (2) Kerala 266 is concerned, I need only state that the law has been changed since then by incorporating Notes 1 and 2 to rule 51-A of Chapter XIV-A by notifications dated 18-7-1972 and 26-4-1977, Note (2) provides the manner in which the Manager should intimate a teacher entitled for preference under rule 51-A of Chapter XIV-A of the availability of the vacancy, and the circumstance under which forfeiture of the claim can be inferred. The Manager is obliged to send an order of appointment in the teacher by registered post acknowledgement due requiring the teacher to join. duty within a period of 14 days. If the teacher does not join duty in time, the Manager in obliged to give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under rule 51-A would be forfeited if not exercised within another 7 clear days. If nothing is heard from the teacher during that time also, the preferential right under the rule will be regarded as forfeited,

The vacancy to which the petitioner lays claim under ruler 5 1A of Chapter XIV-A arose on 1-7-1983, which was subsequent to the incorporation of Note (2) to rule 51A of Chapter XIV-A. Admittedly, the fifth respondent had not sent an order of appointment, or the further intimation requiring the petitioner to join duty. In the absence of resort to the specific method prescribed by the rule, which may lead to an inference of forfeiture of the preferential claim of the petitioner, the fifth respondent is not entitled to consider that the petitioner has forfeited the claim for appointment under rule 51A of Chapter XIV-A. This is so notwithstanding the decision referred to by the counsel for the fifth respondent, since the law as it then stood was subsequently altered by the incorporation of Notes to the rule referred to by me earlier.

In the light of Exts. P1 to P3 orders, rule 51A of Chapter XIV-A, and Note (2) thereto, the fifth respondent, who is a statutory functionary, is obliged to give recognition to the right of the petitioner for preference in the matter of appointment in the vacancy which arose in the category of Arabic teacher on 1-7-1983, and the fifth respondent had to appoint the petitioner. There will, therefore, be a direction that the fifth respondent shall appoint the petitioner as Arabic teacher with effect from the date of occurrence of the vacancy, 1-7-1983, in view of the fact that he had not been able to obtain any interim order in the revision alleged to have been filed by him before the State Government under rule 92 of Chapter XIV-A for the K. E. Rules. Such appointment will, of course, be subject to the result of any competent proceeding pending before the Government. Only if the petitioner does not comply with the order appointing her in exercise of her preference under rule 51A of Chapter XIV-A of the K. E. Rules within the time specified in Note (2) to that rule will the fifth respondent be justified in making any other alternative arrangement. If the petitioner has been in service in another school for any portion of the period from 1-7-1983, such appointment has been approved by the educational authorities, and she has been in receipt of remuneration pursuant to such approval, the claim of the petitioner for remuneration pursuant to her appointment in the vacancy of Arabic teacher in the fifth Respondent''s School with effect from 1-7-1983 will be limited to the period during which her appointment is approved and remuneration has not been paid to her.

In the result, the Original Petition is allowed. The directions as above shall be complied with within a period not exceeding one month from today. There will be no order as to costs.