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2023 DIGILAW 522 (KER)

Anu Joseph v. State Of Kerala

2023-07-10

VIJU ABRAHAM

body2023
JUDGMENT : The above writ petition is filed challenging Exts.P13 and P15 orders and for a further direction to respondents 1 to 5 to permit the petitioner to continue as LPSA without any interruption with effect from 01.06.2017 with all consequential benefits. 2. The petitioner was working as LPSA in the school under the management of 4th respondent corporate educational agency. She was a nun attached to the Congregation of the Mother of Carmel (CMC). Due to personal reasons, she requested to dispense her from religious vows and obligations and her request was accepted by the church authorities as is evident from Ext.P1 Rescript dated 07.06.2017. Petitioner who was fully qualified, was appointed as LPSA as per Ext.P2 order of appointment dated 01.06.2015 and the same was duly approved by the 3rd respondent Assistant Educational Officer as per order dated 09.01.2017. It is the contention of the petitioner that her salary and allowances were being collected by the 4th respondent and the petitioner was unaware about the salary and allowances being paid into the account created in her name. A perusal of Ext.P3 duplicate pass book issued by the Agaly branch of the State Bank of India reveals that huge amounts were collected by the 4th respondent from her account and no amount was given to her. It is the case of the petitioner that respondents 4 and 5 used to obtain signature of the petitioner on blank cheque leaves and thus misappropriated all the amounts in her account. When the petitioner requested for dispensing her from the religious vows and obligations, the church authorities including the 4th respondent raised stiff resistance and when the petitioner persisted with her request, they exerted undue pressure and influence on her so as to coerce her in submitting a resignation letter. Petitioner had no other way but to sign the resignation letter dated 27.04.2017 as directed by them. Petitioner was also made to believe that her appointment did not have the approval of the department as she was not a K-TET qualified candidate and that another qualified teacher ought to be appointed in the school. Petitioner submits that the said resignation letter has been obtained under pressure and threat and by mis-representation of facts. Petitioner also submits that she never intended to resign from service and she was ready and willing to work as a teacher. Petitioner submits that the said resignation letter has been obtained under pressure and threat and by mis-representation of facts. Petitioner also submits that she never intended to resign from service and she was ready and willing to work as a teacher. Petitioner submits that till her resignation is accepted by the departmental authorities, she has every right to withdraw from the same. To substantiate the same, petitioner relies on Rules 48 and 53 of Chapter XIVA KER which specifically mandates among other things that a teacher shall not himself terminate his service before the expiry of the term of his appointment without the permission of the educational authorities. Petitioner submits that the said legal position has been settled by the judgment of this Court in Hyderali v. State of Kerala ( 2001 (1) KLT 763 ), Moideenkutty Haji v. State (1981 KHC 473) and Ushakumari V.S. v. State of Kerala and others (2019 KHC 2805). By Ext.P5 letter, the 4th respondent informed the 3rd respondent that the petitioner had submitted Ext.P4 resignation letter and that the 4th respondent had accepted the same and therefore requested for permission to make a fresh appointment. The 3rd respondent by Ext.P6 letter informed the petitioner and the 4th respondent that he propose to conduct a hearing on the issue of the alleged resignation of the petitioner. The 4th respondent Manager did not turn up for the hearing but deputed a representative. The petitioner attended the meeting and submitted Ext.P8 representation in which she explained the circumstances under which she was forced to submit Ext.P4 letter of resignation and requested to take necessary steps so as to enable her to continue with the employment. Thereupon, the 3rd respondent issued Ext.P9 letter to the 4th respondent calling for her explanation with regard to the submission made by the petitioner that Ext.P4 was forcefully obtained from her. There was no response from the side of the 4th respondent to Ext.P9 letter issued by the 3rd respondent. Petitioner was reporting before respondents 4 and 5 to resume duty, but she was prevented from doing so. Thereafter, petitioner submitted Exts.P10 and P11 requests before respondents 3 and 4 to permit her to continue on duty and Ext.P10 was duly received by the 4th respondent as is evident from Ext.P12 postal acknowledgment card. Petitioner was reporting before respondents 4 and 5 to resume duty, but she was prevented from doing so. Thereafter, petitioner submitted Exts.P10 and P11 requests before respondents 3 and 4 to permit her to continue on duty and Ext.P10 was duly received by the 4th respondent as is evident from Ext.P12 postal acknowledgment card. Petitioner being aggrieved by the denial of employment approached this Court filing W.P.(C) No.41166 of 2017 and pursuant to the direction issued by this Court, the 3rd respondent considered the matter and issued Ext.P13 order whereby the claim of the petitioner was rejected. Aggrieved by the same, Ext.P14 statutory revision was filed before the Government but the same was also rejected as per Ext.P15 order dated 01.07.2019. Petitioner submits that respondents 4 and 5 have no authority to keep the petitioner away from duty as the educational authorities have not granted approval to Ext.P4 resignation letter which was forcefully obtained from her and the same was later withdrawn also. All these aspects are discernible from her subsequent conduct of submitting Exts.P10 and P11 requests and therefore the petitioner is entitled to be in service with all consequential benefits. 3. A counter affidavit has been filed on behalf of the 1st respondent wherein it is stated that the petitioner has submitted her resignation letter dated 27.04.2017 before the 4th respondent. But Ext.P5 proposal of the 4th respondent dated 03.06.2017 for approval of the same was received in the office of the 3rd respondent only on 13.10.2017. After hearing the parties, the 3rd respondent as per Ext.P13 order approved the resignation of the petitioner and the action of the 4th respondent in having accepted Ext.P4 resignation letter. The petitioner was working in Govt.UPS, Thamarasseri on daily wages from 12.06.2017 to 30.11.2017 after submission of Ext.P4 resignation letter. 4. A counter affidavit has been filed on behalf of the 4th respondent Manager in which it is reiterated that the petitioner was appointed as a teacher at St.George LP School, Attapadi and whatever salary she is entitled to was credited directly to her account. Petitioner who is hailing from a poor family used to receive amounts from the common account of the congregation to meet various needs of her family members. Though there was no such practice, the same was benevolently considered by the authorities. Petitioner who is hailing from a poor family used to receive amounts from the common account of the congregation to meet various needs of her family members. Though there was no such practice, the same was benevolently considered by the authorities. Apart from that the petitioner also used to receive amounts from the common account of the congregation for her personal needs too. After informing the authorities that the petitioner wanted to leave her way of life as a nun, she vehemently contended that she will not continue as a teacher at St.George LP School, Attappadi. It is only in the abovesaid circumstances that the voluntary resignation submitted by her was accepted by the 4th respondent. After accepting the resignation, the Manager forwarded Ext.P5 letter seeking for approval of the resignation. In the meanwhile, the 4th respondent appointed the 6th respondent in the vacancy which arose due to the resignation of the petitioner. It is while so Ext.P6 communication was issued by the 3rd respondent directing the 4th respondent to give explanation to the allegations raised by the petitioner. Petitioner disputed her resignation only after a period of six months from the date of her resignation and that the petitioner has already joined as a teacher in another school which indicates and confirms the contention of the 4th respondent that the petitioner voluntarily submitted Ext.P4 resignation. The allegation that the authorities of CMC have appropriated all the amounts in the account of the petitioner is false. 5. I have heard the learned counsels appearing for the parties. 6. The question to be considered is as to whether the resignation submitted by the petitioner as per Ext.P4 has been validly accepted before the same has been withdrawn by the petitioner as is evident from Exts.P10 and P11. For a proper consideration of the issues involved, it is profitable to extract Rules 48 and 53 of Chapter XIVA of KER, which read as follows: “48. No teacher shall be relieved before the expiry of the term of appointment without the previous approval of the Educational Officer. xxxx xxxx xxxx 53. For a proper consideration of the issues involved, it is profitable to extract Rules 48 and 53 of Chapter XIVA of KER, which read as follows: “48. No teacher shall be relieved before the expiry of the term of appointment without the previous approval of the Educational Officer. xxxx xxxx xxxx 53. A teacher shall not himself terminate his service before the expiry of the term of his appointment without the permission of the Educational Officer.” Based on the said Rule it is the contention of the petitioner that a teacher cannot himself terminate his service before the expiry of the term of his appointment without the permission of the Educational Officer. The specific case of the petitioner is that she was forced to submit Ext.P4 resignation on 27.4.2017 for the reason that she expressed her desire to dispense her from the religious vows and obligations. It is on the said allegation that an enquiry was proposed to be conducted as per Ext.P6 communication issued by the Assistant Educational Officer. In the said enquiry, the petitioner attended and submitted Ext.P8 letter stating that it is only due to misrepresentation and coercion on the part of the CMC Management that the petitioner was forced to submit her resignation and therefore requested that she may be permitted to continue in employment. It is on the basis of Ext.P8 request made by the petitioner that Ext.P9 communication was issued by the AEO whereby an explanation was sought from the manager of the educational institution in this regard. It is the case of the petitioner that the 4th respondent has not responded to Ext.P9 at all. Subsequently, by Ext.P10 letter dated 10.11.2017 and Ext.P11 dated 11.12.2017, petitioner has submitted that she has not voluntarily resigned from the post and that she wanted to continue in service and that she was willfully prevented from working in the school and therefore, requested the Manager as well as the Headmistress as per Exts.P10 and P11 to allow her to work in the school. Ext.P10 letter issued to the Corporate Manager was duly received on 9.12.2017. Ext.P10 letter issued to the Corporate Manager was duly received on 9.12.2017. It is only on 12.10.2018 by Ext.P13, the 3rd respondent has rejected the request of the petitioner on the ground that the petitioner has not withdrawn the resignation letter till date and that she was working in some other school on daily wages and further that a complaint in this regard was raised only after 5 months. Therefore, the Educational authorities accepted the resignation of the petitioner only on 12.10.2018 as per Ext.P13 communication. It is to be seen that as per Ext.P8 dated 14.11.2017 the petitioner has informed the 3rd respondent that she was forced to submit her resignation and the same has not been done on her free will. By Ext.P9 communication dated 13.11.2017 an explanation was sought for from the Manager regarding the same. It is seen that no reply has been submitted by the Manager as directed in Ext.P9 communication. By Exts.P10 and P11 communication dated 7.12.2017 and 11.12.2017 the petitioner has addressed the Manager as well as the Headmaster intimating that she has not voluntarily resigned from the post of LPSA and she wants to continue in service. The said communication as per Ext.P10 addressed to the Manager was received on 9.12.2017, which was prior to the issuance of Ext.P13 communication dated 12.10.2018. 7. Petitioner contends that she has withdrawn her resignation as is evident from Exts.P8, P10 and P11 and expressed her willingness to continue her employment before the acceptance of the resignation by the 3rd respondent as per Ext.P13. The respondent Manger contended that she has accepted the resignation submitted by the petitioner and thereafter forwarded the same for approval ratification to the 3rd respondent and therefore, Ext.P4 resignation letter submitted by the petitioner was accepted by the 4th respondent Manager and what has been done by the AEO as per Ext.P13 is only a ratification of the same and therefore the contention of the petitioner cannot be accepted. In this backdrop, let me consider the rival claims on the basis of Rules 48 & 53 of Chapter XIVA KER. The true intent and purpose of Rules 48 and 53 of Chapter XIVA KER came up for consideration before this Court in Moideenkutty Haji vs. State (1981 KHC 473). In this backdrop, let me consider the rival claims on the basis of Rules 48 & 53 of Chapter XIVA KER. The true intent and purpose of Rules 48 and 53 of Chapter XIVA KER came up for consideration before this Court in Moideenkutty Haji vs. State (1981 KHC 473). In the said case the petitioner therein while working as Headmaster submitted her resignation dated 5.7.1977 and it was accepted by the Manager on the very same day. Subsequent to that on 28.7.1977 petitioner therein submitted a letter withdrawing the resignation and informed that she propose to continue as Headmistress. The Assistant Educational Officer as per order dated 1.8.1977 approved the petitioner's resignation from the post of Headmistress and approved the appointment of another teacher as headmaster in the school. Even though petitioner approached the Educational authorities challenging the said proceedings of the Assistant Educational Officer having approved the petitioner's resignation, the same was rejected holding that the petitioner has no claim that she had withdrawn the resignation letter before the Manager's acceptance of the same, and the moment the Manager who was the appointing authority accepted the relinquishment, the act of relinquishment became final and the petitioner was precluded from saying that she want to withdraw her request. This Court in Moideenkutty Haji's case supra, relying on Rules 48 and 53 of Chapter XIVA KER entered a finding that the resignation of an aided school teacher can take effect only on the concurrence of the Educational Officer. Paragraphs 3 & 5 of the said judgment reads as follows: “3. 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. There 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 goes 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. It goes 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 same before the date of withdrawal is immaterial if the withdrawal was made before the resignation was to take effect. This right of the person who resigns with effect from a future date will be there always. xxxxx xxxxxx xxxxxxx xxxxxxx 5. In this case, R.48 and 53 Chapter 14A of the Kerala Education Rules also go to show that the resignation of an Aided School Teacher can take effect only with the concurrence of the Educational Officer. In this case, before that concurrence was obtained, the petitioner withdrew his resignation. So, for this reason also, it cannot be said that on the date when the petitioner withdrew his resignation, it was not possible. By the mere acceptance of the Manager of the resignation, the resignation cannot become effective. In this view of the matter, Exts.P3, P4 and P5 cannot be sustained. Accordingly, I set aside Exts.P3,P4 and P5. The petitioner is given a declaration that he is entitled to continue as Headmaster of the 4th respondent's school, It is for the 3rd respondent Assistant Educational Officer to see that the petitioner is given a reposting as Headmaster of the school.” (underline supplied) 8. The issue again came up for consideration before this Court in Hyderali vs. State of Kerala ( 2001 (1) KLT 183 . Paragraphs 12, 13 & 15 of the said judgment reads as follows: “12. The Apex Court in M. Pentiah v. Muddata Veeramallappa and Others ( AIR 1961 SC 1107 ) held that where the language used by the Legislature is negative that is, the act to be done must be done in the manner prescribed and in no other manner, the requirement would be construed as imperative. We are of the view that the statute has made it mandatory that no teacher shall be relieved either on discharge, relief or resignation before the expiry of the term of appointment without the previous approval of the Assistant Educational Officer. We are of the view we cannot restrict the term of appointment of teachers who are only acting, temporary or probationary “Teacher” as we have already indicated takes in all teachers, acting, temporary or probationary. We are of the view we cannot restrict the term of appointment of teachers who are only acting, temporary or probationary “Teacher” as we have already indicated takes in all teachers, acting, temporary or probationary. In other words permanent teacher or an acting, temporary and probationary teacher has to be discharged from service or to be relieved from service or to be resigned from service on getting previous approval of the educational authorities. In other words, discharge, relief and resignation would be effective only on approval of the educational authorities. So long as no previous approval is obtained from the educational authorities, discharge, relief or resignation would not come into effect. We are of the view that mere fact that the Manager is the appointing authority does not mean that once he accepts the letter of resignation, it would come into effect. As the appointing authority he may receive the letter of resignation and give his approval, but that approval has no legal consequence unless and until the educational authority grants approval to the resignation of a teacher. Same position will apply in the case of discharge and relief of a teacher. 13. Rule 53 also stipulates that teacher shall not himself terminate his service without the permission of the Educational Officer. Rule 53 also used the expression 'teacher' and not 'acting, temporary and probationer'. Therefore 'teacher' would take in all teachers, permanent, acting, temporary and probationer. Such teachers shall not themselves terminate their service before the expiry of the term of their appointment. If a teacher resigns or gets relief from duty as and when he likes or as and when the Manager wishes that will affect the smooth functioning of the school and would affect the education of the children. State has got constitutional obligation to provide better organisation and development of the educational institution. The object and purpose of the educational system would be defeated if teachers on their volition or on the volition of the Manager are discharged, relieved or tendered resignation as and when they wish. We have indicated there is no provision in the Kerala Education Act enabling the Manager to accept the letter of resignation. Only stipulation provided in the case of discharge, relief and resignation is the approval by the educational authority. Therefore, discharge, relief and resignation would come into effect when approval is granted by the educational authority. We have indicated there is no provision in the Kerala Education Act enabling the Manager to accept the letter of resignation. Only stipulation provided in the case of discharge, relief and resignation is the approval by the educational authority. Therefore, discharge, relief and resignation would come into effect when approval is granted by the educational authority. xxxxx xxxxx xxxxx 15. In this case the teacher withdrew the resignation letter before the approval was granted by the Assistant Educational Officer. Even though he tendered his resignation on 31.5.1996 he withdrew the same on 15.6.1996. Letter of withdrawal was also forwarded to the Educational Authority by the Manager. We have held that letter of resignation of a teacher would come into effect only when appeal is granted by the educational authority. We are of the view that teacher has got locus poenitentiae to withdraw the letter of resignation which he did before the educational authority granted approval to the letter of resignation. For the reason indicated herein before we confirm the judgment of the learned single judge and uphold the Government order. The teacher Ditto will be reinstated forthwith. He will have continuity of service and is entitled to all service benefits except salary for the period he was out of service.” (underline supplied) 9. The learned counsel appearing for the 4th respondent Manager relies on the judgment in Mani v. State Bank of Travancore (1999 KHC 703) and also the judgment in North Zone Cultural Centre and Another vs. Vedpathi Dinesh Kumar (2003 KHC 1041) to contend for the position that the resignation take effects on acceptance and that a resignation once submitted could be withdrawn only before the same is accepted. There can be no quarrel on the legal position settled as per the judgment in Mani's case supra, and North Zone Cultural Centre's case supra, that a resignation could be withdrawn only before it is accepted is a settled position of law. When the Kerala Education Rules provide for a different procedure in the matter of acceptance of the resignation, etc., as provided under Rules 48 and 53 of Chapter XIVA KER, as interpreted by this Court in Moideenkutty Hajis's case and as well as Hyderali's case supra, a resignation would take effect only when the educational authority approves the same. When the Kerala Education Rules provide for a different procedure in the matter of acceptance of the resignation, etc., as provided under Rules 48 and 53 of Chapter XIVA KER, as interpreted by this Court in Moideenkutty Hajis's case and as well as Hyderali's case supra, a resignation would take effect only when the educational authority approves the same. In the present case, the approval was granted by the educational authorities only as per Ext.P13 order dated 12.10.2018. Even before that, ie, as per Ext.P8 dated 14.11.2017 and also Exts.P10 communication dated 7.12.2017, which was duly received by the Manager on 9.12.2017, the petitioner has expressed her intention to withdraw her resignation and to continue in service. These aspects were not properly considered while issuing the impugned orders. 10. Another reason stated for rejecting the claim of the petitioner is that she was in employment in another school after her resignation. To make the both ends meet, she might have take up some employment after she was forced to resign from the school. I am of the opinion that the rejection of the claim of the petitioner on that ground is also unsustainable. In view of the same, I am of the opinion that the findings in the impugned orders Exts.P13 and P15 are not in accordance with the provisions of Rules 48 and 53 of Chapter XIVA KER and the declaration of law as per the judgments cited supra, and therefore the impugned orders are liable to be set aside and I do so. The matter is remitted back to the 1st respondent Government for reconsideration afresh in accordance with law in the light of the finding in this judgment. A decision in this regard shall be taken after affording an opportunity of being heard to the petitioner as well as the respondents 4 to 6. Till a decision is taken as directed above, the 6th respondent shall continue on daily wages as directed in the order of this Court dated on 6.8.2019. With the above said direction, the writ petition is disposed of.