IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 WP(C).No. 16966 of 2008(T) -------------------------- PETITIONER(S): --------------- K.KRISHNAVENI, (RETIRED HEADMISTRESS, EDAMUTTAM U.-P. SCHOOL), KARANATH HOUSE, EDAMUTTAM, VALAPPAD, THRISSUR DISTRICT. BY ADV. SRI.N.P.SAMUEL SRI.B.K.PURUSHOTHAMAN SRI.B.K.GOPALAKRISHNAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM 2. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT. 3. THE ASSISTANT EDUCATIONAL OFFICER, VALAPPAD, THRISSUR DISTRICT. 4. THE MANAGER, EDAMUTTAM U.P. SCHOOL, VALAPPAD, THRISSUR DISTRICT. SMT.T.B.REMANI, GOVERNMENT PLEADER FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.16966/2008 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF APPOINTMENT ORDER OF THE PETITIONER ISSUED BY R4 DATED 01/04/2005. P2 : COPY OF ORDER NO.C/1571/05 DATED 21/05/2005 ISSUED BY R3. P3 : COPY OF APPEAL FILED BY PETITIONER BEFORE R2 ON 10/06/2005. P4 : COPY OF ORDER NO.B1/5217/05/L.DIS. DATED 22/12/2005 ISSUED BY R2. P5 : COPY OF REVISION PETITION FILED BY PETITIONER BEFORE R1 ON 14/03/2006. P6 : COPY OF JUDGMENT IN WPC NO.34636/2007 DATED 23/11/2007 ISSUED BY THIS HONOURABLE COURT. P7 : COPY OF LETTER NO.69904/B2/07/GE DATED 18/02/2008 ISSUED BY R1. P8 : COPY OF ARGUMENT NOTES SUBMITTED BY PETITIONER BEFORE R1 DATED 04/03/2008. P9 : COPY OF ORDER NO.G.O.(Rt) NO.1717/08/G.Edn. DATED 05/04/2008 ISSUED BY R1. P10 : COPY OF LETTER DATED 31/03/1986 SENT BY PETITIONER TO R3. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.16966 of 2008 --------------------------------- Dated, this the 30th day of October, 2008 J U D G M E N T The petitioner retired from service as Headmistress of Edamuttom U.P.School, Valappad with effect from 30/06/2005. The petitioner was the senior most Primary School Assistant. On 01/04/2005, a vacancy of Headmaster arose in the school and the petitioner was promoted as Headmistress as per Ext.P1 order. Approval was sought and that was rejected by the 3rd respondent as per Ext.P2 order on the ground that the petitioner had permanently relinquished the post of Headmistress with effect from 31/03/1986. Appeals filed against the said order were also rejected by Ext.P4 order of the 2nd respondent, and Ext.P9 order passed by the Government. 2. In the aforesaid circumstances, this writ petition is filed challenging Exts.P2, P4 & P9 orders and a direction is sought to the respondents to approve the appointment of the WP(C) No.16966/2008 -2- petitioner as Headmistress with all consequential benefits including arrears of pay, pensionary benefits etc. 3. The learned Government Pleader refers to Ext.P10 relinquishment given by the petitioner on 31/03/1986. According to the learned Government Pleader, relinquishment made by the petitioner is permanent and she also makes particular reference to the last sentence of Ext.P10, which reads as under:- “I also will not put-forth any future claim for Headmastership.” Based on this, it is stated that the petitioner, having permanently relinquished the post of Headmistress, could not have been appointed to that post with effect from 01/04/2005. On this basis, the learned Government Pleader seeks to sustain the impugned orders. 4. I have considered the submissions made. It is true that on 31/03/1986, the petitioner had relinquished the post of Headmistress and stated that she had no objection to the appointment of Shri.M.Ravindran as Headmaster in WP(C) No.16966/2008 -3- the vacancy which arose on 31/03/1986. It is also stated in Ext.P10 that she will not put-forth any future claim for the post of Headmistress. 5. The effect of Ext.P10 is what is required to be considered in this writ petition. Appointment to the post of Headmaster in an aided school is as per Rule 44, Chapter 49, of the K.E.R. The Note attached to the said Rule, which provides for relinquishment in the nature of Ext.P10, is extracted below for reference :- “Note :- 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. Such consent shall have the approval of the Educational Officer concerned.” This Note provides that “whenever the Manager intends to appoint” a person as Headmaster, who is not the senior teacher, the manager shall obtain a written consent from the senior teacher renouncing his/her claim permanently. It is in pursuance to the note referred to above, that Ext.P10 WP(C) No.16966/2008 -4- relinquishment has been given by the petitioner. The effect of Ext.P10 has been considered by this Court in various judgments. In George Vs. State of Kerala (1998(2) KLT 637, this Court has 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 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”. This judgment has been quoted with approval by a Division Bench judgment of this Court in Rajasree Vs. Secretary to Government (2000(2) KLT 248), wherein it has held that : “Scope of R.44(I) was considered by this Court in George Vs. 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 WP(C) No.16966/2008 -5- crystallized right, there is no question of any relinquishment.” Following these two judgments, a Division Bench of this Court, in Mariam Koshy Vs. Jolly Varghese, (2007(4) KLT 803) held that whenever the Manager intends to appoint a person as Headmaster other than a senior claimant, the Manager shall obtain a written consent from such senior claimant renouncing his claim permanently. Therefore, the law laid down by the aforesaid three judgments is to the effect that there is no permanent relinquishment of the post of Headmaster, but whenever the manager intends to make appointment to the post of Headmaster by a person other than the senior claimant, the manager has to obtain a written consent from the senior claimant. Similar is the view taken by another bench of this Court in Muhammed Ashraf Vs. State of Kerala ( 2007(3) KLT 667). 6. The learned Government Pleader relied on a Division Bench judgment of this Court in Joseph Vs. State WP(C) No.16966/2008 -6- of Kerala (1987(2) KLT 579). According to the learned Government Pleader, going by the law laid down in this judgment, once a permanent relinquishment is made, the teacher is not entitled to claim promotion to the post of Headmaster. 7. However, I am not persuaded to accept the contention raised by the learned Government Pleader. That was a case where, though the teacher had relinquished his claim for promotion, subsequently he was promoted to the post of Headmaster and thereafter he claimed seniority over the person, who was promoted as Headmasters during the time when his relinquishment was in operation. In such circumstances, the Division Bench held that once appointment to the post of Headmaster has been relinquished, it is not open to the teacher to claim seniority over the persons, who were promoted as Headmaster. In my view, the principle laid down by this Court in the judgment relied on by the learned Government Pleader cannot be imported to the facts of this case, where the WP(C) No.16966/2008 -7- petitioner is claiming promotion to the post of Headmaster and is not claiming seniority over the persons, who were promoted to the vacancies that arose prior to 01/04/2005. 8. For all these reasons, I hold that Exts.P2, P4 & P9 are illegal and the petitioner is entitled to approval as Headmistress with effect from 01/04/2005. Therefore, the writ petition is allowed, and the respondents are directed to approve the appointment of the petitioner as Headmistress with effect from 01/04/2005 with all consequential benefits including arrears of pay and pensionary benefits and all such other benefits. The writ petition is allowed as above. (ANTONY DOMINIC, JUDGE) jg