IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WP(C).No. 12941 of 2010(P) --------------------------------------- PETITIONER: ------------------- N.RAMACHANDRAN, AGED 50 YEARS, S/O.KESAVAN NAIR (LATE), CLERK, P.M.S.A. HIGH SCHOOL, ELANKUR-676 122, MALAPPURAM (RESIDING AT "DEEPA SREE", MANJERI, MALAPPURAM DISTRICT). BY ADVS. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (N) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-14. 3. THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM. 4. THE MANAGER, P.M.S.A. HIGH SCHOOL, ELANKUR-676 122, MALAPPURAM DISTRICT. 5. SRI.E.A.SREESAN, FULL TIME MINIAL, P.M.S.A. HIGH SCHOOL, ELANKUR-676 122, MALAPPURAM DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER SMT. NISHA BOSE, R5 BY ADVS. SMT.S.KARTHIKA, SRI.M.S.UNNIKRISHNAN, SRI.M.R.ANISON, SMT.K.P.GEETHA MANI, SRI.P.N.APPUKUTTAN, SMT.P.A.RINUSA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2011, ALONG WITH W.P.(C). NOS. 28745 OF 2010 AND 16255 OF 2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.12941/2010-P: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE LETTER OF THE PETITIONER DTD. 30/06/2006. EXT.P.2: COPY OF THE LETTER OF THE MANAGER DTD. 30/06/2006. EXT.P.3: COPY OF THE APPOINTMENT ORDER DTD. 01/07/2006. EXT.P.4: COPY OF THE DECISION REPORTED IN 2003 (3) K.L.T. 233 DTD. 25/07/2003. EXT.P.5: COPY OF THE CIRCULAR NO.9124/S3/05/G. EDN. OF THE GOVERNMENT DTD. 25/04/2005. EXT.P.6: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C).NO.29634/2006 DTD. 05/12/2006. EXT.P.7: COPY OF THE DECISION REPORTED IN 1998 (2) K.L.T. 637 DTD. 12/08/1998. EXT.P.8: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO.7955/94-V DTD. 24/03/1999. EXT.P.9: COPY OF THE -DO- IN W.A. NO. 1152/1999-A DTD. 26/06/1999. EXT.P.10: COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN S.L.P.NO.11670/1999 DTD. 23/08/1999. EXT.P.11: COPY OF THE DECISION REPORTED IN 2009 (4) K.L.T. 1 (F.B) DT.D 09/09/2009. EXT.P.12: COPY OF THE G.O.(RT).NO.3855/07/G. EDN. OF THE GOVERNMENT DTD. 18/08/2007. EXT.P.13: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C).NO.27194/2007- K DTD. 07/07/2009. EXT.P.14: COPY OF THE G.O.(RT).NO.1245/10/G. EDN. OF THE GOVERMENT DT.D 19/03/2010. EXT.P.15: COPY OF THE LETTER NO.64395/B1/09/BGE OF THE GOVERNMENT DTD. 16/12/2009. RESPONDENT'S EXHIBITS:- EXT.R5.A: COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE R.3. EXT.R5.B: COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF MR. ACHUTHANANDAN. EXT.R5.C: COPY OF THE STAFF STATEMENT DTD. 31/07/2005. EXT.R5.D: COPY OF THE STAFF STATEMENT DTD. 31/08/1993. //TRUE COPY// P.A. TO JUDGE Prv. T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) Nos.12941, 16255 & 28745 OF 2010 --------------------------------------- Dated this the 24th day of November, 2011. J U D G M E N T W.P.(C)No.12941/2010 is filed by the petitioner challenging Ext.P14 order passed by the Government which is also under challenge in W.P.(C) No.16255/2010 filed by the Manager. W.P.(C) No.28745/2010 is filed by the Manager against the order refusing the grant of approval of the promotion of the 5th respondent therein as Peon from the post of Full Time Menial. 2. Heard the learned counsel appearing for the respective parties. The relevant facts necessary for the disposal of these writ petitions are the following: 3. The petitioner in W.P.(C)No.12941/2010 was initially appointed as Peon on 04.06.1986. In the year 1993, a vacancy of Clerk arose in the school and a relinquishment was submitted by the petitioner. On 01.07.2006, due to the retirement of one Smt.Radha, a permanent vacancy of Clerk arose. The petitioner W.P.(C) No.12941/2010 & conn. cases 2 submitted a request to the Manager to withdraw the relinquishment already submitted on 10.08.1993. This was agreed to by the Manager. Ext.P1 is the letter withdrawing the relinquishment submitted by the petitioner and Ext.P2 is the letter of the Manager accepting the withdrawal of relinquishment. By Ext.P3, the petitioner was promoted as Clerk and the proposal was forwarded for approval. 4. The 5th respondent in W.P.(C) No.12941/2010 is a rival claimant who entered service on 01.03.1995 who is working as Full Time Menial and he is junior to the petitioner. He objected to the promotion of the petitioner by filing a representation before the Government. It appears that the Government passed an order dated 19.10.2006 directing the Manager to promote 5th respondent as Clerk which was quashed by Ext.P6 judgment. Thereafter, the matter was re-heard by the Government and the present order has been passed. 5. The question turns on the validity and scope and extent of the relinquishment of promotion by the petitioner in the year 1993 which was accepted by the Manager and approved by the W.P.(C) No.12941/2010 & conn. cases 3 Department. According to the learned counsel appearing for the 5th respondent in W.P.(C) No.12941/2010, the relinquishment submitted by the petitioner in 1993 will act as a permanent relinquishment barring his claim for promotion in all the future vacancies also since he has given the letter relinquishing permanently the present and future claims for the post of L.D. Clerk. 6. Learned counsel appearing for the petitioner in W.P.(C) No.12941/2010 submitted that the issue is covered in favour of the petitioner in the light of Exts.P7 and P8 judgments rendered in the writ petitions filed by certain similarly placed persons and also in the light of the Full Bench decision of this Court in Usha Thayyil vs. State of Kerala (2009 (4) KLT 1 (F.B.) which is produced as Ext.P11. Ext.P9 judgment will show that the Division Bench confirmed the view taken in Ext.P8, and the Special Leave Petition filed against Ext.P9 judgment has also been dismissed. 7. The view taken in Ext.P7 judgment namely, in George vs. State of Kerala (1998 (2) KLT 637) is that there cannot be W.P.(C) No.12941/2010 & conn. cases 4 any permanent relinquishment to the post of Headmaster. The Rule interpreted therein is Rule 44(1) of Chapter XIV-A of Kerala Education Rules. It was held therein that a relinquishment submitted on an earlier occasion cannot be used for denying appointment in the subsequent vacancies and that there cannot be any permanent relinquishment to the post of Headmaster. In Ext.P8 judgment also, the very same question was considered and therein the petitioner was appointed as a Part Time Menial of the school involved herein and later she was promoted as Full Time Menial. The said petitioner was appointed earlier than the petitioner in W.P.(C)No.12941/2010. Actually, she had also submitted a relinquishment like the one submitted by the petitioner herein. The said petitioner raised a claim for promotion to the post of L.D. Clerk when a vacancy arose on 02.06.1986. The same was not heeded by the Manager, in the light of the relinquishment made. Challenge by her was rejected by all the authorities. Later another leave vacancy arose in 1993, and the claim being rejected by the Educational Authorities, she challenged the orders in the writ petition. W.P.(C) No.12941/2010 & conn. cases 5 8. This Court in paragraph 5 onwards in Ext.P8 considered the effect of the relinquishment letter. Therein also, the petitioner had relinquished permanently the present and future claims for promotion to the post of Peon/Clerk in the school. Based on the said letter, the Manager as well as the authorities had rejected the claim for promotion. Paragraph 6 of Ext.P8 judgment reads as follows: “This Court in O.P.Nos.15040 and 16707 of 1998 as well as in the decision in GEORGE v. STATE OF KERALA, 1998(2) KLT 637 deprecated the practice of obtaining relinquishment letter at the time of one's entry into service. No employee would give letter of relinquishment relinquishing all future promotions at the time of one's entry into service unless there are compelling reasons. There may be cases where employee may relinquish promotion to defer the order of transfer, or to continue in a particular place, or due to various other factors. But at the time of appointment, no employee would give a relinquishment letter permanently relinquishing all future promotions, unless he is compelled to do so. Obtaining of such letters is unjust, illegal and arbitrary, which will demoralise an employee. Experience gathered by an employee is to be better utilised in the promotion post”. This was affirmed by the Division Bench in Ext.P9 judgment and Ext.P10 is the order passed by the Apex Court dismissing the W.P.(C) No.12941/2010 & conn. cases 6 Special Leave Petition from it. 9. In paragraph 7 of Ext.P8 judgment, this Court held further thus: “.........I am of the view, in the absence of any statutory provision, Manager is not justified in relying on such a relinquishment letter to debar all future claims for promotion of an employee. The said practice has to be deprecated”. 10. The Full Bench in Usha Thayyil vs. State of Kerala (2009 (4) KLT 1 (F.B.) considered the provision under Rule 44(1) of Chapter XIV-A K.E.R. Therein, after considering various decisions of this Court, in paragraphs 11 and 12, the legal position was declared as follows: “11. Thus, all the reported decisions of this Court have consistently taken the view, that relinquishment given by a teacher while appointing a junior cannot be treated as a relinquishment relating to all future appointments of juniors to him. The Division Bench which heard the Writ Petition was of opinion that the view taken in George's case (supra) and Rajasree's case (supra) is apparently against the literal meaning of the words used in the Note to R.44(1) and therefore, referred the matter to the Full Bench. The relevant portion of the reference order reads as follows: “2. George's case and Rajasree's case is based on facts also. Since ratio in George's case was W.P.(C) No.12941/2010 & conn. cases 7 accepted by the Division Bench and it is apparently against the literal meaning of the words used in 'note' of R.44(1) of Chap.XIV-A, we are of the opinion that the question regarding the interpretation of R.44(1) of Chap.XIV-A has to be decided by a Full Bench. Hence we adjourn the matter to be posted before a Full Bench of this Court.” 12. A close reading of the Note to R.44(1) of Chap.XIV-A of the K.E.R., which we have already quoted above would show that whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, he should obtain a written consent from the senior hand. The renouncement of his claim should be permanent. We feel that 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, we are of the view that 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. We think, 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 W.P.(C) No.12941/2010 & conn. cases 8 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. We have gone through the decisions cited by the learned counsel for the petitioner and also noticed the relevant canons of interpretation. Having regard to the scheme of the Act, we notice that 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. So, we think, the view taken by this Court in George's case (supra) and Rajasree's case (supra) lays down the correct legal position. 11. Therefore, going by the dictum laid down by the Full Bench, it can be seen that 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. Of course, express provisions under Rule 44(1) of Chapter XIV-A K.E.R and the Note therein govern the promotion to the post of Headmaster. But a parallel can be drawn herein in the sense that relinquishment as understood by the legal position will apply only to the vacancy to which the relinquishment letter was submitted. It cannot debar W.P.(C) No.12941/2010 & conn. cases 9 the future claims of the petitioner. In fact, in Ext.P8 judgment, in paragraph 7, the Court has already taken the view that in the absence of any statutory provision, the Manager is not justified in relying on such a relinquishment letter to debar all future claims for promotion of an employee. The said judgment has been upheld by this Court as per Ext.P9 and the Special Leave Petition filed against Ext.P9 has also been dismissed by Ext.P10. It relates to the same school, which binds the Manager evidently. Therefore, even though as far as the non teaching staff are concerned, there is no provision akin to Rule 44(1) of Chapter XIV-A K.E.R, the principle that was adopted by this Court in Ext.P8 will squarely apply. After noticing the fact that there is no statutory provision to govern the matter, this Court had held that the Manager cannot debar all future claims for promotion of an employee. 12. Learned counsel appearing for the 5th respondent submitted that the conduct of the petitioner is relevant while considering the claim now raised. It is submitted that on earlier two occasions, the petitioner did not stake his claim, i.e. once W.P.(C) No.12941/2010 & conn. cases 10 when one Smt.Salini was appointed and the other when Smt.Radha was promoted in the earlier vacancy. Reliance is placed on the decisions in Balakrishnan Nair vs. State of Kerala (2008 (1) KLT 923), Francis vs. Director of Panchayats (2008 (2) KLT 88) and Krishnakumar vs. Kunhiraman (2011 (2) KLT 457) in support of the said argument. 13. Learned counsel appearing for the 5th respondent, therefore, argued that the relinquishment once given and approved by the Educational Officer will debar all future claims. It is further submitted that the Manager was thus not competent to review the decision to accept the relinquishment and to accept the claim for promotion at a later point of time. It is in that context, the decision in Balakrishnan Nair vs. State of Kerala (2008 (1) KLT 923) has been relied upon. It was a case where the appointment was made by the Manager which was approved by the Educational Officer by invoking the power under Rule 8 of Chapter XIV-A K.E.R. After the approval of person concerned as Headmaster, the Manager wanted to review the order and this W.P.(C) No.12941/2010 & conn. cases 11 Court held that the same is not permissible. Herein, the petitioner had relinquished his claim as per Ext.R5(a) letter dated 10.08.1993. When a vacancy arose at that point of time, it is true that the same has been recorded in the Service Book also. But in the light of the principles explained by this Court and relied upon by the petitioner, it can be seen that the Manager had to consider his claim for promotion and he is not seeking to review the approval of the relinquishment letter for enabling the petitioner to claim appointment in the vacancy which occurred in 1993 or in the vacancy to which Smt.Radha was promoted later. The present vacancy arose consequent on the retirement of Smt.Radha. Hence, the situation on the admitted facts is not identical to those considered in the case, relied on by the learned counsel. 14. Learned counsel appearing for the 5th respondent even though relies upon the principles stated in Balakrishnan Nair vs. State of Kerala (2008 (1) KLT 923), the same cannot have any application herein. Even though the learned counsel for the petitioner relied upon the principles stated in Francis vs. W.P.(C) No.12941/2010 & conn. cases 12 Director of Panchayats (2008 (2) KLT 88), the facts of the case show that the principle with regard to relinquishment of a regular promotion was re-stated by this Court with reference to Rule 38 of Kerala State and Subordinate Service Rules, 1958. The Rule doesn't apply to aided schools, as held by the Division Bench in a similar situation in Rajasree vs. Secretary to Government (2000 (2) KLT 248). In Francis's case (supra), the petitioner because of the illness of his mother relinquished the promotion and later after the death of the mother, the petitioner therein sought for promotion. Apart from the fact that the legal position discussed therein turned upon the interpretation of Rule 38 of KS & SSR, in the light of the interpretation of the principles of relinquishment laid down in the decisions relied upon by the Manager, the same may not apply to the facts of this case. There is no provision like Rule 38 of K.S & S.S.R as far as non- teaching staff of aided schools are concerned. 15. In Rajasree's case (supra), the Division Bench in paragraph 3 noted that “there is no provision either under the Kerala Education Act or under the Rules framed thereunder W.P.(C) No.12941/2010 & conn. cases 13 permitting a teacher to relinquish promotion to any post or enabling the Manager to accept such a letter of relinquishment....”. It was further added that “that apart, we are of opinion that relinquishment can only be of an existing right. Mere chance of promotion is not a right and if it is not a crystallised right, there is no question of any relinquishment”. Herein also there is no provision under the Act or Rules governing relinquishment of promotion of a non-teaching staff. 16. In Krishnakumar vs. Kunhiraman (2011 (2) KLT 457), the Division Bench of this Court considered whether the legal right under Rule 51A of Chapter XIV-A K.E.R can be relinquished. It was held that the same cannot be done. Paragraph 2 therein shows that the Bench was of the view that when a teacher who is entitled to claim appointment to a post arising subsequently by virtue of the provisions of Rule 51A does not choose to exercise the right or fails to accept employment offered by management, what happens is extinquishment of the right under Rule 51A leaving the Manager's freedom to appoint a teacher in accordance with the Rules. The person concerned will W.P.(C) No.12941/2010 & conn. cases 14 lose the right under Rule 51A on the happening of such events as provided in the note to the said Rule and there cannot be any quarrel with the said legal position also. The Note 2 to Rule 51A provides for the circumstances under which the preferential right will be forfeited. 17. Herein, what is sought to be projected by the learned counsel appearing for the 5th respondent is that the alleged conduct of the petitioner in joining with the Manager in submitting relinquishment and remaining idle or silent at the time of promotion of Smt.Radha is really important and it is submitted that he is estopped from going back on the letter of relinquishment. It is further submitted that Smt.Radha was junior to the petitioner and therefore, even at the time of promotion of Smt.Radha also, he was sticking on to the relinquishment and the said conduct therefore will disentitle the petitioner to claim promotion in any future vacancy. 18. Of course, going by Ext.R5(c), Smt.Radha was appointed on 04.03.1985 and the petitioner was appointed on 04.06.1986. But, the petitioner was appointed as Peon and W.P.(C) No.12941/2010 & conn. cases 15 Smt.Radha was appointed as Full Time Menial. The above argument even though was forcefully raised by the learned counsel appearing for the 5th respondent, in the light of the principles already discussed that the relinquishment cannot act in respect of the future vacancies, it will fall to the ground. The Government even though had considered the issue in extenso, the legal principles laid down by this Court in various judgments have not been properly considered. The Government was of the view that the relinquishment once approved by the Department cannot be withdrawn and no permission has been granted to withdraw the relinquishment. Both these are rather insignificant in the sense that relinquishment or its approval by the Department is not statutory and as held by this Court in Ext.P8 judgment, it will not debar the claims in respect of future vacancies. The legal position declared in Rajasree's case (supra) will squarely apply here. Therefore, non approval of withdrawal of relinquishment by the Department is also of no consequence and the Manager was thus legally right in promoting the petitioner in W.P.(C) No.12941/2010. In that view of the matter, W.P.(C) No.12941/2010 & conn. cases 16 the view taken by the Government cannot be supported. 19. In W.P.(C) No.28745/2010, pursuant to the promotion of the petitioner in W.P.(C) No.12941/2010, the 5th respondent therein was promoted as Peon and the same was not approved by the Department in the light of non approval of appointment of the petitioner in W.P.(C) No.12941/2010. The view taken is that there is no consequential vacancy to approve the appointment. Learned counsel for the Manager submitted that there is a sanctioned post already available for his promotion also. Therefore, the impugned order Ext.P14 in W.P.(C) No.12941/2010 is quashed and the said writ petition is allowed. Consequently, W.P.(C) Nos.16255 and 28745/2010 are also allowed. The impugned orders therein are accordingly quashed. There will be a direction to the District Educational Officer to approve the appointment of the petitioner in W.P.(C) No. 12941/2010 and a consequential order will be passed with regard to the approval of promotion of the 5th respondent in W.P.(C) No.28745/2010 and these orders will be passed within a period of two months from the date of receipt of a copy of this judgment. W.P.(C) No.12941/2010 & conn. cases 17 On such approval, the consequential monetary benefits will also be sanctioned and disbursed to them. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp