LAKSHMIKUTTY AMMA Vs. VIJAYALAKSHMIKUTTY

JUDGEMENT

(1.) These two appeals raise the same question, and can be disposed of together.

(2.) 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) KLJ 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 1 l-12-1991.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 10-6-1980 to 11-8-1980. That appointment was duly approved by the Assistant Educational Officer concerned. She was again appointed in a leave vacancy from 3 -9-1980 to 28-11-1980, which was also approved. Thereafter, when a vacancy arose in the same post between 10-1-1989 to 22-3-1989, the manager did not appoint anybody. In a subsequent temporary vacancy for the period from 3-7-1989 to 1-9-1989, the fifth respondent in the writ petition (second appellant) was appointed. The petitioner contended that her claims under R.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 R.51A. She made a representation on 7-7-1989 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 14-8-1989 directing disposal of the representation.. Thereafter, Ext. P2 order dated 19-8-1989 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 R.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. P4 dated 6-3-1990, it was held by the Director tint the letters of relinquishment had no legal effect so long as the procedure directed in note 2 to R.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 appoint the writ petitioner. Thereafter a permanent vacancy arose in the school on 31-3-1990, and the writ petitioner made a representation to the manager to appoint her. But she was informed that the matter was pending with the Government in a further revision. She .then submitted Ext. P5 representation dated 10- 8-1990 before the Government for a direction to the manager to appoint her in the permanent vacancy. The Government issued notice,Ext. P6, directing the writ petitioner to show cause why her claims should not be rejected on the ground that she had relinquished her claim underR.51 A She submitted a reply as per Ext. P7 stating that the manager had not followed the procedure mentioned in Note 2 to R.51A in making appointment in the vacancy which arose on 3-7-1989. She also claimed that the so-called relinquishment 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. P8 order dated 3-12-1990 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 R.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 R.1(2) will not apply in the case of teachers claiming preference for appointment under R.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 R.51A is strictly followed, there is no question of forfeiture of the right under R.51A. For the said purpose, the 'earned Single Judge relied on a decision of this Court in Nirmala v. D.E.O. ILR (1976) 1 Ker. 149, wherein it was held that it was imperative on the part of the manager to issue an appointment order to claimant under R.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 v. Dr. Mohd. Yasin, AIR 1974 SC 238 . The learned Single Judge then held that there could be no question of waiver of right under R.51A as long as the procedure prescribed under Note 2 to R.51A has not been followed. In 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 R.51A, unless the procedure prescribed in R.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 3-7-1989 and 1-9-1989, 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. P2 and P8 in so far as they approved the appointment of the fifth respondent in the permanent vacancy which arose on 31-3-1990, 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 31-3-1990. 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 31-3-1990 within one month from the date of judgment. It is this judgment that is questioned by the appellants.

(3.) 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 5-1-1990 to 12-3-1990. That appointment was approved by the competent authority by Ext. P1 order dated 5-3-1990. Thereafter a new post of Lower Grade Hindi Teacher was sanctioned for the academic year 1990-91 and the 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 27-7-1981 to 30-9-1981 and from 6-10-1981 to 9-12-1981 objected to the appointment of the writ petitioner, and claimed that she had a right under R.51A. The Additional Director, who heard her revision petition, rejected the same relying upon Ext. P3 relinquishment letter dated 7-9-1982 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. P7 order dated 11-2-1992 holding that there was no relinquishment of right in accordance with the provisions contained 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. Vijayalakshmi Kutty's case 1992 (1) KLJ 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.