PATHUMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) 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. THE 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 Manager and the Assistant Educational Officer on the basis of R. 51-A of Chapter XIV-A of the Kerala Education Rules. Since those representations were not disposed of, she filed OP. 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.

(2.) PURSUANT to the directions contained in the judgment in OP. 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 R. 51-A of Chapter XIV-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 2-61975 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. PI. 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 R. 51-A of chapter XIV-A of the Kerala Education Rules. The petitioner seeks the issue of a writ of mandamus directing the fifth respondent to appoint her as Arabic teacher in the M. M. J. B. School, Vellaloor in compliance with the provisions of r. 51-A of Chapter XIV-A of the Kerala Education Rules, as also to direct respondents 1 to 4 to take action against the fifth respondent under R. 7 of chapter III or R. 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.

(3.) THE next submission is in relation to the implied forfeiture of the claim of the petitioner by reason of the letters of relinquishment dated 26-6-1975 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 the 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 R. 51a of Chapter XIV-A of the Kerala Service 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, T can only plead my inability to accept the submission as eliminating the claim of the petitioner for preference under R. 51a of Chapter XIV-A.