IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 WP(C).No. 4359 of 2011(T) ------------------------------------ PETITIONER(S): ---------------------- SMT.PUSHPAMMA E.A, HSA,(SANSKRIT), POILKAVU HIGH SCHOOL,KOZHIKODE DISTRICT. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT(S): -------------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, VATAKARA,KOZHIKODE DISTRICT. 2. THE MANAGER, POIKAVU HIGH SCHOOL, EDAKULAM, KOYILANDY. 3. NARAYANAN.V., HEADMASTER IN CHARGE, POILKAVU HIGH SCHOOL,EDAKULAM, KOYILANDY. R1 BY GOVT. PLEADER SRI.V.T.K.MOHANAN R3 BY ADVS. SRI.P.NARAYANAN, SMT.M.R.JAYALATHA, SRI.P.V.JOSE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.4359/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE GO(P) NO.145/73/GAD DTD. TRIVANDRUM 16.3.1978. P2:- COPY OF THE GO(P) NO.247/2001/G.EDN. DTD. THIRUVANANTHAPURAM 3.8.01. P3:- COPY OF THE RELEVANT PAGE OF THE SENIORITY LIST OF POILKAVU HIGH SCHOOL STAFF AS ON 1.1.2010. P4:- COPY OF THE DECLARATION SUBMITTED BY THE PETITIONER. P5:- COPY OF THE REQUEST DTD. 24.1.11. P6:- COPY OF THE REPLY GIVEN BY 2ND RESPONDENT DTD. 2.2.11. TRUE COPY P.A. TO JUDGE tss T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.4359 Of 2011 ----------------------------------------------------- DATED THIS THE 28th DAY OF FEBRUARY, 2011 J U D G M E N T The grievance raised by the petitioner is with regard to the denial of promotion as Headmistress allegedly because of a relinquishment submitted by her with regard to an earlier vacancy. 2. The petitioner has got approved service as HSA (Sanskrit) from 24.9.1979 onwards. When a vacancy arose on 1.4.2010 to the post of Headmistress, even though the petitioner was the seniormost teacher and was fully qualified, the petitioner relinquished her claim as per Exhibit P4 declaration because of the sudden death of her husband. The same was accepted and the next Junior Shri P.Balakrishnan was promoted as Headmaster. A vacancy will arise on 31.3.2011 due to the attaining of superannuation by Shri P.Balakrishnan on that date. It is pointed out that he has already availed of leave preparatory to his retirement resulting in the creation of a leave vacancy also. Exhibit P5 is the request submitted by the petitioner, seeking promotion. W.P.(C)No.4359/11 -2- 3. It is pointed out that the 3rd respondent is appointed as Headmaster in charge overlooking the claim of the petitioner. The petitioner received a reply as per Exhibit P6 by the Manager stating that the petitioner has already relinquished the promotion, which is under challenge in this Writ Petition. 4. Even though notice was ordered by special messenger and notice was served prior to 21.2.2011, the contesting respondents 2 and 3 have not entered appearance and they have not filed any counter affidavit in the matter opposing the claim of the petitioner. The matter was posted on 21.2.2011 and later adjourned to 23.2.2011 and has come up for hearing today. Even now, there is no appearance for respondents 2 and 3. 5. The learned counsel for the petitioner submitted that the issue is covered in favour of the petitioner in the light of the decision of the Full Bench of this Court in Usha Thayyil v. State of Kerala (2009 (4) KLT1 (F.B.) wherein it was held that the relinquishment, if any, submitted with regard to the earlier vacancy will not defeat the claim of the parties concerned for promotion in a later vacancy. The headnote reads thus: W.P.(C)No.4359/11 -3- “Held: The use of the word “whenever” has some significance. Concise Oxford English Dictionary gives the meaning of “whenever” as “at whatever time, on whatever occasion, every time that”. Going by the plain meaning of the above word, on every occasion, when the Manager appoints a junior, overlooking a senior claimant, the consent of the latter has to be obtained. That is, consent obtained once will only apply to that particular appointment made at the relevant time. As far as that appointment is concerned, the relinquishment is permanent. In other words, the senior cannot retract from the relinquishment and stake claim for appointment, in the very same vacancy. But, when a subsequent vacancy arises, then also the Manager has to get consent of the senior claimant, if it is intended to overlook that claimant. There is no ambiguity in the words used in the Note to R.44 (1) of Chap.XIV-A, K.E.R. Even assuming, there is some ambiguity, an interpretation which is favourable to the teacher should be adopted. The said Note was introduced to protect the interest of teachers. By the above interpretation, the interest of the incumbent who was promoted overlooking the seniority of another claimant and also the interest of latter are protected. There are several provisions which are introduced as a check on the managers and to safeguard the interest of teachers. This is the view taken by this Court while interpreting R.51-A of Chap.XIV-A and R.81-A of Chap.XIV-A of the K.E.R. The Note to R.44 is one such provision.” 6. In the light of the above decision of the Full Bench, Exhibit P6 cannot be supported and the same is quashed. The W.P.(C)No.4359/11 -4- petitioner's claim cannot be rejected now in view of the relinquishment for the promotion in the earlier vacancy. The Manager is directed to consider the claim of the petitioner for promotion in terms of the above finding and appropriate orders will be passed on or before 31.3.2011, since a regular vacancy arises on 01.04.2011. The Writ Petition is disposed of as above. Sd/-( T.R.RAMACHANDRAN NAIR, JUDGE) dsn True copy P.A.to Judge