IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR THE HONOURABLE MR. JUSTICE V.GIRI & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 37060 of 2007(J) -------------------------- PETITIONER : -------------------- USHA THAYYIL, HEADMISTRESS, CHEVAYUR AUP SCHOOL, CHEVAYUR P.O., KOZHIKODE. BY ADV. SMT.P.V.ASHA RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE. 4. THE MANAGER, CHEVAYUR AUP SCHOOL, CHEVAYUR, KOZHIKODE. 5. SMT.P.C.SHEEJA, UPSA, CHEVAYUR AUP SCHOOL, CHEVAYUR P.O., KOZHIKODE. R1 TO R3 BY GOVT. PLEADER SMT.N. SUDHA DEVI. R4 BY ADV. SRI.P.K.SURESH KUMAR SMT.PRIYA VIJAYAN R5 BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA SRI.T.V.VIJAYARAJAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2009, ALONG WITH WPC NO. 5831 OF 2008 & WPC NO. 1809 OF 2009 THE COURT ON 09/09/2009 DELIVERED THE FOLLOWING: WP(C) No.37060 of 2007 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of order of appointment of petitioner dated 18.10.2004. Ext.P1A: True copy of order dated 6.5.2005 of the 4th respondent. Ext.P2: True copy of order No.K.Dis.77883/05.B2 dated 26.10.2005 of the third respondent. Ext.P3: True copy of the order No.G3/29899/06/K.Dis/DPI dated 12/09/06 of the D.P.I. Ext.P4: True copy of G.O.(Rt) No.5346/07/G.Edn. Dated 23.11.2007. RESPONDENT'S EXHIBITS: Ext.R4(a): True copy of deed of relinquishment executed by the 5th respondent in the presence of Assistant Educational Officer, Chavayur. dt.19.5.04. Ext.R4(b): True copy of the relevant extract from the service book of the 5th respondent. Ext.R5(a): True copy of letter NO.C.6064/04 of A.E.O., Chavayur dt. 11.1.2005 Ext.R5(b): True copy of the appeal filed before the D.P.I. Ext.R5(c): True copy of the Revision Petition filed before the Government. Ext.R5(d): True copy of the decision reported in 1998(2) KLT 637. Ext.R5(e): True copy of the decision reported in 2000 (2) KLT 248. Ext.R5(f): True copy of the decision reported in 2001 (2) KLT 273. Ext.R5(g): True copy of the decision reported in 2002 (2) KLT 630. K. BALAKRISHNAN NAIR, V.GIRI & P.S. GOPINATHAN, JJ. ------------------------------ W.P.(C) Nos.37060 of 2007, 5831 of 2008 & 1809 of 2009 ------------------------------ Dated this, the 9th day of September, 2009 JUDGMENT Balakrishnan Nair, J. The point that arises for decision in these Writ Petitions is, whether a teacher who has relinquished his/her claim for promotion to the post of Headmaster can stake his/her claim, when another vacancy in that post arises subsequently. The answer to the above question will depend on the construction, placed on the Note to Rule 44(1) of the Kerala Education Rules (hereinafter referred to as, 'the Rules'). W.P.(C) No.37060 of 2007: 2. The brief facts of the case are the following: The petitioner, Usha Thayyil, was appointed as Upper Primary School Assistant (for short, “UPSA”) in the fourth respondent's aided Upper Primary School on 6.7.1989. The fifth respondent, Smt.P.C.Sheeja was appointed as Upper Primary School WP(C) Nos.37060/07, 5381/08 and 1809/09 - 2 - Assistant in the said school on 7.7.1989. As per Rule 45B(1) of the Rules, a pass in Account Test (Lower) conducted by the Kerala Public Service Commission is an obligatory qualification for promotion as Headmaster of Lower Primary and Upper Primary Schools. As per sub-rule(4) of Rule 45B, those teachers, who attained the age of 50 years, are exempted permanently from acquiring the said test qualification. The existing Headmaster, who was due to retire from service on 30.6.2004, entered on leave from 1.6.2004. So, Smt.Akkamma Joseph, who has continuous service in the school from 1.1.1976, being the seniormost hand, was promoted as Headmistress on 1.6.2004. She resigned from the post on 15.10.2004. Before the appointment of Akkamma Joseph, the fifth respondent, who is a graduate teacher,submitted Ext.R4(a) relinquishment letter dated 19.5.2004, relinquishing her claim for the post of Headmistress. Apart from her, three other test qualified/test exempted graduate teachers also submitted their relinquishment. Otherwise, Akkamma Joseph, who was a non-graduate teacher though senior, could not have been WP(C) Nos.37060/07, 5381/08 and 1809/09 - 3 - appointed as Headmistress, in view of the provisions contained in Rule 45 of the Rules. The said rule provided that a graduate UPSA with five years teaching experience after acquisition of B.Ed. qualification shall be preferred to a non-graduate senior, provided the former has service, which is at least equal to half of the service of the latter. 3. In the resignation vacancy of Smt.Akkamma Joseph, the petitioner was appointed as temporary Headmistress on 18.10.2004. The Assistant Educational Officer, (for short, 'A.E.O.'), by order dated 31.12.2004, declined to grant approval for the promotion of Smt.Akkamma Joseph. The said officer by order dated 5.1.2005, also declined to grant approval for the temporary promotion of the petitioner. The reason for non-approval of promotion of the petitioner was the existence of senior qualified hands. Challenging the said order of the A.E.O, she moved the District Educational Officer (for short, 'D.E.O'.), in appeal. The petitioner had cleared the Account Test (Lower), which was held in January, 2005. Later, WP(C) Nos.37060/07, 5381/08 and 1809/09 - 4 - after the results were announced, she was promoted as Headmistress on 6.5.2005, by Ext.P1A order. The D.E.O., by order dated 7.6.2005, upheld her temporary promotion and directed the A.E.O. to approve the same. Challenging the said order of the D.E.O. dated 7.6.2005, the 5th respondent approached this Court by filing W.P.(C) No.24850 of 2005. By judgment dated 31.8.2005 in the said writ petition, this Court set aside the aforementioned order of the D.E.O. and directed the said officer to pass fresh orders on the appeal filed by the 5th respondent. The D.E.O., thereafter, passed Ext.P2 order dated 26.10.2005, rejecting the claim of the 5th respondent and directed the A.E.O. to approve the temporary appointment of the petitioner as Headmistress from 18.10.2004. Challenging Ext.P2 order, the 5th respondent moved the Director of Public Instruction, by filing a revision petition. The said revision petition was dismissed by the Director of Public Instruction, by Ext.P3 order dated 12.9.2006. The 5th respondent moved the Government in revision by challenging Ext.P3 order. The said revision was allowed by the Government, by Ext.P4 order dated WP(C) Nos.37060/07, 5381/08 and 1809/09 - 5 - 23.11.2007. The Government took the view that the Manager should have obtained relinquishment letters from all senior claimants before filling up the resignation vacancy, which arose on 16.10.2004. Aggrieved by the said decision of the Government, the Writ Petition was filed. When the Writ Petition came up before the learned Single Judge, it was referred to the Division Bench, noticing the apparently conflicting decisions regarding relinquishment of promotion. The Division Bench, which heard the writ petition, felt that the decision of this Court in George v. State of Kerala, 1998 (2) KLT 637, which was approved in Rajasree v. Secretary to Government, 2000 (2) KLT 248, was not in accordance with the Note to Rule 44 (1) of Chapter XIV-A of the K.E.R. Therefore, the Writ Petition was referred for hearing by the Full Bench. 4. We heard Smt.P.V.Asha, learned counsel who appeared for the petitioner, Sri.P.K.Sureshkumar, learned counsel for the 4th respondent and Sri.V.A.Muhammed, learned WP(C) Nos.37060/07, 5381/08 and 1809/09 - 6 - counsel for the 5th respondent. We also heard Smt.Sudhadevi, learned Government Pleader for the State. We also had the benefit of hearing Dr.George Abraham, learned counsel for the petitioner in W.P.(C) No.5831 of 2008 and Sri.R.K.Muraleedharan Nair, learned counsel for the petitioner in W.P.(C) No.1809 of 2009, which were referred to be heard along with this Writ Petition. 5. According to the petitioner, once the relinquishment is given, the same should be treated as permanent relinquishment for promotion to the post of Headmaster. But, the contesting respondents would point out that, when every time the Manager proposes to appoint a junior hand, he should obtain relinquishment from the seniors. Such relinquishment will be permanent in relation to the concerned vacancy only and it does not mean that the senior incumbents , who gave relinquishment once, cannot claim appointment in future vacancies. The learned counsel for the petitioner submitted that this Court should adopt contextual WP(C) Nos.37060/07, 5381/08 and 1809/09 - 7 - interpretation, and uphold the view canvassed by the petitioner. She cited the following decisions in support of her submissions, viz. Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and others, (1987) 1 SCC 424, Hameedia Hardware Stores v. B.Mohan Lal Sowcar, AIR 1988 SC 1060, Grasim Industries Ltd. v. Collector of Customs, (2002) 4 SCC 297, Nathi Devi v. Radha Devi, (2005) 1 KLT 443, National Insurance Co. Ltd. v. Anjana Shyam, (2007) 7 SCC 445, Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd.,(2007) 8 SCC 705 and Kannadasan v. Ajoy Khose, 2009 (2) KLT SN 65. The learned counsel for the fifth respondent and the learned counsel who appeared for the petitioners in the connected writ petitions supported the view taken by the Government in Ext.P4.. 6. The Note to Rule 44(1) of Chapter XIV-A of the K.E.R. reads as follows: “Note:- Whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, the Manager shall WP(C) Nos.37060/07, 5381/08 and 1809/09 - 8 - obtain a written consent from such senior claimant renouncing his claim permanently. Such consent shall have the approval of the Educational Officer concerned.”. 7. In George v. State of Kerala, 1988 (2) KLT 637, a learned Judge of this Court held as follows: “Contention of respondents 3 and 4 is that petitioner relinquished his right to be appointed as Headmaster. It is evident from the Note to R.44(1) that whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, the Manager shall obtain a written consent from such a senior claimant, renouncing his claim permanently. Such concession shall have the approval of the educational officer concerned. It is not as if Manager can get a letter from the petitioner and treat that as a permanent relinquishment for all years to come.”. The view taken by the learned Judge, in the above case, was that relinquishment in relation to a particular vacancy cannot be treated as relinquishment for all vacancies arising in future. WP(C) Nos.37060/07, 5381/08 and 1809/09 - 9 - The very same learned Judge reiterated the same position in Mahatma High School v. State of Kerala, 1999 (1) KLT 705, and held as follows: “8. ..........................The above mentioned circular states that the question of relinquishment arises only whenever the manager intends to appoint or promote a person other than the senior claimant. This shows that the question of relinquishment arises only when the right accrues. Note to R.44(1) says that whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, the manager shall obtain a written consent from such senior claimant, renouncing his claim permanently. This Court in George v. State of Kerala, 1998(2) KLT 637 took the view that whenever the manager overlooks the claim of a senior teacher to be appointed as Headmaster, Manager has to get a written consent from such senior claimant renouncing his claim permanently.'. 8. A Division Bench of this Court, in Rajasree v. Secretary to Government, 2002 (2) KLT 248 approved the decision of the learned Single Judge in George v. State of WP(C) Nos.37060/07, 5381/08 and 1809/09 - 10 - Kerala (supra). The relevant portion of the said judgment reads as follows: “3. Having heard learned counsel for the appellants and the respondents at length, we are of the considered opinion that the judgment under challenge rendered by the learned Single Judge does not call for any interference and the same is only to be upheld. The bone of contention is whether Ext.P4 relinquishment letter is liable to be acted upon while considering the claim of Gangakumari for the post of H.S.A.(Natural Science). According to the learned counsel for the appellants, viz. The Manager and the teacher, Rajasree, who stands appointed to the post of H.S.A.(Natural Science), Gangakumari having unconditionally relinquished her right for promotion as H.S.A., she is barred from staking a claim to the said post. We cannot accept this contention for more than one reason. First of all, it has to be noted that there is no provision either under the Kerala Education Act or under the Rules framed thereunder permitting a teacher to relinquish promotion to any post or enabling the Manager to accept such a letter of relinquishment. R.38 of the Kerala State and Subordinate Services Rules, under which Ext.P4 relinquishment letter was given by Gangakumari is not applicable to aided school teachers. As has been rightly observed by the learned Single Judge, the only provision in the Kerala Education Rules is Note to R.44(1) of Chapter XIV-A of K.E.R. which says, whenever, the WP(C) Nos.37060/07, 5381/08 and 1809/09 - 11 - Manger intends to appoint a person as Headmaster other than the senior claimant, the Manager shall obtain a written consent from such senior claimant, renouncing his claim permanently. Such consent shall have the approval of the Educational Officer concerned. Scope of R.44(1) was considered by this Court in George v. State of Kerala (1998 (2) KLT 637) and this Court held that there cannot be any permanent relinquishment to the post of Headmaster. 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. In this case, Ext.P4 relinquishment letter was obtained by the Manager long before the vacancy arose and the right got vested in the teacher. In fact, Ext.P4 was accepted by the Manager even before the appointment of the teacher as U.P.S.A. was approved by the authorities concerned. In our considered opinion, the practice of obtaining relinquishment letter from a teacher while issuing the initial order of appointment renouncing his or her claim for promotion for all time to come is an unhealthy practice. As observed by the learned Single Judge, it is unjust, illegal and arbitrary. In this connection, we take note of the fact that no teacher will voluntarily give up his or her right to promotion at the very threshold of appointment unless the teacher is compelled to adopt such a course for extraneous reasons or for reasons such as to avoid shouldering higher responsibilities or to avoid WP(C) Nos.37060/07, 5381/08 and 1809/09 - 12 - transfer to other stations etc. But that is not the situation here. Here is a case where the teacher had been made to relinquish permanently her right for promotion as H.S.A. which may arise in future, which cannot stand the scrutiny of law for a moment. Therefore, we are of the opinion that the Government was right in holding that Ext.P4 letter of relinquishment is invalid and inoperative and ultra vires the provisions of the Kerala Education Rules (vide Ext.P11) and the learned Single Judge rightly declined to interfere with the said order.”. 9. Recently, a learned Single Judge of this Court followed the decision in George v. State of Kerala, (supra) in Kunjamma v. State of Kerala, ILR 2007 (2) Kerala 242. The relevant portion of the said judgment reads as follows: “11. As far as the question relating to relinquishment is concerned, no doubt it is not seen specifically dealt with by the Government. I must proceed on the basis that this question was not raised before the Government as it is not seen dealt with by the Government. Even permitting Smt.Rohini Mathen to raise this contention, I do not think that a decision in her favour can be rendered on this point. As held by a Division Bench of this Court in the decision reported in WP(C) Nos.37060/07, 5381/08 and 1809/09 - 13 - Rajasree's case, besides the decision reported in George v. State of Kerala, the law does not contemplate a permanent relinquishment in regard to a post. What is contemplated is relinquishment in regard to a particular vacancy. Therefore, when Smt.A.Kunjamma gave Ext.P7 relinquishment, it was valid from 1-6-2003 to 31-5-2005, which apparently was given on the basis that Sri.Mathai was to retire on 31.5.2005. Therefore, the contention of the counsel for Smt.A.Kunjamma that as regards the vacancy which arose on 1-6-2005, the relinquishment even treating it as permanent relinquishment in the sense in which it can be understood in view of the Division Bench Judgment, it will not in any way dis-entitle her from raising a claim in relation to the vacancy which fell open on the retirement of Sri.Mathai. ................”. 10. In Mariam Koshy v. Jolly Varghese, 2007 (4) KLT 803, a Division Bench of this Court held as follows: “The stand taken by the Manager, educational authorities as well as the Government is not legally sustainable. R.44A of Chapter XIVA of the Kerala Education Rules is the provision dealing with the appointment of Headmaster. Scope of the above mentioned rule came up for consideration before this court in George v. State of Kerala, (1998 (2) KLT 637). WP(C) Nos.37060/07, 5381/08 and 1809/09 - 14 - Referring to Note to R.44(1) this court held as follows: 'Secondly, going by the Note itself, the said relinquishment itself cannot be used on each and every occasion. The expression “Whenever the Manager intends to appoint” would show that whenever the manager overlooks the claim of a senior teacher to be appointed as Headmaster, manager has to get a written consent from such senior claimant renouncing his claim permanently. In other words, there cannot be any permanent relinquishment to the post of Headmaster. Apart from that, Ext.R3(a) cannot have any legal validity, since no approval was obtained from the educational officer concerned. Therefore, the same cannot be given effect to for all years to come.'. The above mentioned decision was quoted with approval by a Division Bench of this Court in Rajasree v. Secretary to Government (2000(2) KLT 248, wherein the Division Bench held as follows: 'Scope of R.44(1) was considered by this Court in George v. State of Kerala (1998 (2) KLT 637) and this Court held that there cannot be any permanent relinquishment to the post of Headmaster. 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.' Note to R.44(1) states that whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, the Manager shall obtain a written consent from such senior claimant renouncing his claim WP(C) Nos.37060/07, 5381/08 and 1809/09 - 15 - permanently. Such a consent shall have the approval of the educational officer concerned. A person can relinquish his right for promotion only when the right accrues. Relinquishment can only be of an existing right. Petitioner was not qualified to be appointed to the post of Headmaster on 30.6.1990 and therefore, there was no question of relinquishing her right because she had no right to be relinquished. A non-existing right cannot be relinquished. Ext.R2(a) letter has therefore no legal basis. Petitioner had completed 50 years of age on 14.5.1993 and then only she became fully qualified to be appointed as Headmistress when the regular vacancy arose on superannuation of Kesava Pillai on 31.5.1993. Petitioner had got legitimate claim to the post of Headmaster on 1.6.1993. Manager, in our view, was not justified in denying appointment to her to the post of Headmaster on the strength of Ext.R2(a) letter dated 25.11.1989. Ext.P8 Government order dated 6.11.1997 therefore, cannot stand in the eye of law. Ext.R2(a) letter has no legal validity and could not have been relied upon by the Manager to deny the post of Headmaster to the petitioner when the regular vacancy arose on 1.6.1993.”. 11. Thus, all the reported decisions of this Court have consistently taken the view, that relinquishment given by WP(C) Nos.37060/07, 5381/08 and 1809/09 - 16 - 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 Rule 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 accepted by the Division Bench and it is apparently against the literal meaning of the words used in 'note' of Rule 44(1) of Chapter XIV-A, we are of the opinion that the question regarding the interpretation of Rule 44 (1) of Chapter 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 Rule 44(1) of Chapter XIV-A of the K.E.R., which we have already quoted WP(C) Nos.37060/07, 5381/08 and 1809/09 - 17 - 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 Rule 44 (1) of WP(C) Nos.37060/07, 5381/08 and 1809/09 - 18 - Chapter 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. 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 Rule 51-A of Chapter XIV-A and Rule 81-A of Chapter XIV-A of the K.E.R. The Note to Rule 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. 13. There is yet another reason to accept the above WP(C) Nos.37060/07, 5381/08 and 1809/09 - 19 - interpretation. The interpretation, which we have held as the correct interpretation, was holding the field for quite some time. The Managers and teachers have adjusted their affairs accordingly. Many teachers might have relinquished promotion to enable the juniors in service but seniors in age, to get promotion, so that, after the said persons' retirement, they will get a chance for promotion. If we accept a contrary interpretation, all persons who have arranged their affairs as per the interpretation of the Note to Rule 44, which was holding the field for several years, will be seriously prejudiced. The law must be