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2000 DIGILAW 654 (KER)

Hyderali v. State of Kerala

2000-12-11

K.A.ABDUL GAFOOR

body2000
JUDGMENT K.A. Abdul Gafoor, J. 1. Petitioner in O.P. 16693 of 1999 is the Manager of the A.M.U.P. School, Vettom, Tirur. 5th respondent in that Original Petition was a teacher appointed by that Manager.That teacher submitted a resignation letter as per Ext. PI. The resignation letter is though dated 1.5 1996, it is understood by all the parties as 1.6.1996. According to the petitioner-manager, he accepted it as per Ext. P2 dated 3.6-1996. As per R. 48, Chapter XIVA. Kerala Education Rules, no teacher shall be relieved before the expiry of the term of appointment without previous approval of the Educational Officer. The matter was moved before the District Educational Officer. In the meantime, the teacher withdrew his resignation on 15.6.1996. This is not disputed by either of the parties. The Assistant Educational Officer himself is aware of that withdrawal of resignation as is seen from Ext. R5(c) produced along with the counter affidavit of the teacher the 5th respondent in O.P. 16693 of 1999. Anyhow, subsequent to that, the Assistant Educational Officer considered the matter in accordance with the said rule and issued EXL P4 order. Ext. P4 order does not refer to the withdrawal of the resignation. In Ext- P4 the resignation and its acceptance was approved. The teacher had, in the meantime, approached this Court with O.P. No. 19558 of 1996. That Original Petition was disposed of by this Court with a direction to the District Educational Officer, to consider the matter and to pass appropriate orders. He issued Ext. P6 upholding Ext. P4. Aggrieved by Exts. P4 and P6, the teacher approached the Government in revision The Government heard the teacher as well as the Manager and took note of the withdrawal of the resignation before its approval as per Ext. P4 by the Assistant Educational Officer and directed the petitioner/Manager to re-admit the teacher to duty, as per Ext- P7 order dated 10.6.1999. That order is under challenge at the instance of the petitioner-Manager in this Original Petition. 2. In the meantime, the Manager had appointed the petitioner in O.P. 17012 of 2000, obviously in the available vacancy. But the appointment was not approved. There arose a further vacancy and the petitioner in O.P. 8400 of 2000 was appointed against that vacancy. That appointment was approved. They have approached this Court seeking approval of appointment or payment of salary, as in the wake of Ext. But the appointment was not approved. There arose a further vacancy and the petitioner in O.P. 8400 of 2000 was appointed against that vacancy. That appointment was approved. They have approached this Court seeking approval of appointment or payment of salary, as in the wake of Ext. P7 in O.P. 16693 of 1999 payment of salary to the petitioner in O.P. 8400 of 2000 was stopped. 3. In the issue that is coming up for consideration in O.P. 16693 of 1999 is whether the view taken in Ext. P7 is sustainable? It is an accepted fact that once the registration is accepted, it cannot be withdrawn, of course, subject to certain qualifications. It is an accepted fact that the resignation letter dated 1.6.1996, as evidenced by Ext. PI had been accepted by the Manager as per Ext. P2 dated 3.6.1996. Anyhow, the resignation is not disputed by the teacher. That resignation was seat to the Assistant Educational Officer For approval. It can be sent for approval only after accepting it. If the resignation had been rejected by the Manager, there would not have been any point in sending it to the Assistant Educational Officer for approval. Therefore, as the Manager has sent it for approval, it has to be taken that the Manager had accepted it. But it is an admitted fact by the Manager the petitioner in O.P. 16693 of 1999, that before approval of the acceptance of resignation, it had been withdrawn by the teacher. In such situation, will that withdrawal become effective? The Government took a view that it will not. That is challenged by the Manager. According to him, once it is accepted, there arose no question of withdrawal. Approval under R.48 is only a ministerial act to give validity to the acceptance. Therefore, the withdrawal does not affect the acceptance of approval. It shall always be before its acceptance; petitioner in O.P. 16693 of 1999 contends. 4. But the teacher-the fifth respondent in that Original Petition contends, relying on the decision reported in Moideenkutty Haji v. Siate of Kerala (1981 (1) ILR, 488), that in the case of aided school teachers, resignation can be withdrawn before its approval by the Assistant Educational Officer. The facts of that case are more or less similar to the one on hand. The facts of that case are more or less similar to the one on hand. It had been held by this Court in the said case as follows: "The short point that arises for consideration is whether the petitioner can withdraw his resignation before it takes effect even though the Manager of the school accepted the petitioner's resignation before the same was withdrawn. The re are different kinds of resignations; some resignations are with immediate effect while other resignations are meant to take effect from a future date. In the case of the latter, the question is whether anybody can validly prevent the person who submitted the resignation from withdrawing the same before the date on which it is to take effect. It does without saying that on basic principles of law an author of a resignation has the right to withdraw the same before it is to take effect. The fact that the authority who is to accept the resignation, accepted the same before the date of withdrawal is immaterial if the withdrawal was made before the resignation was to lake effect. This right of the person who resigns with effect from a future date will be there always. 5. When this dictum is followed, necessarily, there was nothing for the Assistant Educational Officer to approve as per Ext. P4, because the resignation had already been withdrawn before it had taken effect. As per R. 48; Chapter XIVA K.E.R., resignation will take effect only after approval by the Assistant Educational Officer. Then alone the teacher can be relieved from service. Therefore, the view taken in Ext. P7 has to be sustained, though on a different reason as mentioned above. In such circumstances, O.P. 16693 of 1999 has to fail and the direction in Ext. P7 has to be upheld. 6. A teacher appointed in the place of another teacher will hold office only if the latter was sent out legally. In other words, if the relief of the predecessor in office was being agitated necessarily, appointment will be subject to the result of such agitation. As per Ext. P7 in O.P. 16693 of 1999, it was found that there is no resignation so far as the 5th respondent in that Original Petition is concerned. In other words, if the relief of the predecessor in office was being agitated necessarily, appointment will be subject to the result of such agitation. As per Ext. P7 in O.P. 16693 of 1999, it was found that there is no resignation so far as the 5th respondent in that Original Petition is concerned. Naturally, the appointees in that place either the petitioner in O P. 17012 of 2000 or the petitioner in O.P. 8400 of 2000 can hold their appointment only subject to the claim of the 5th respondent in O.P. 16693 of 1999. When Ext. P7 in O.P. 16693 of 1999 is upheld, naturally, those teachers have to give place to their predecessor in Office. 7. Of course, they happened to be appointed because of the admitted dilemma of the teacher - the 5th respondent in O.P. 16693 of 1999 who is the 6th respondent again in O.P. Nos. 8400 and 17012 of 2000. In his counter affidavit, he had deposed as follows: In fact I was in a dilemma. On the one hand the apprehension that while suffering excruciating pain I would not be able to do justice to the teaching profession and on the other, the anxiety and worry as to what would happen to my family if I resign my job and thereby deprive my unemployed wife and two minor children from earning the daily bread. For a moment, my decision to resign the post prevailed and immediately I wrote Ext. PI and submitted it to the headmaster who received it on 3.6.1996. 8. Thus, that teacher was in a dilemma. It is because of that dilemma two teachers who are the petitioners in O.P. 17012/2000 and 8400 of 2000 are put in yet another dilemma as to whether they will get their salary or not. Default of laches on the pan of one teacher shall not result in adverse circumstance to others. Even though it is held that the 5th respondent is entitled to reinstatement forthwith, the teachers who had really worked-namely, petitioners in O.P. Nos. 8400 and 17012 of 2000 have to be paid their salary until today, if their appointment is otherwise legal. 9. Accordingly, O.P. Nos. Even though it is held that the 5th respondent is entitled to reinstatement forthwith, the teachers who had really worked-namely, petitioners in O.P. Nos. 8400 and 17012 of 2000 have to be paid their salary until today, if their appointment is otherwise legal. 9. Accordingly, O.P. Nos. 8400 and 17012 of 2000 are disposed of within a direction to the District Educational Officer concerned to consider as to whether their appointment had been justified, if there had been vacancies as such and to consider the approval thereof until today. From tomorrow onwards, the 5th respondent in O.P. J6693 of 1999 shall be re-admitted with continuity of service in every respect except salary from 1.6.1996 until today. Who among the petitioners in O.P. 8400 and 17012 of 2000 shall be allowed to continue in the other available vacancy shall also to be considered by the District Educational Officer, after hearing them and the Manager. These shall be considered at any rate, within six weeks from the date of receipt of a copy of this judgment. In the result, O.P. 16693 of 1999 is dismissed. O.P. Nos. 8400 and 17012 of 2000 are disposed of with the above directions.