IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 WP(C).No. 27907 of 2010(K) --------------------------------- PETITIONER(S): ------------------- ANNIE P.PAUL, W/O.K.K.GEORGE, HEADMISTRESS, N.M.L.P.S.KANAKAPALAM, RESIDING AT KANJIRAKKATTU THEKKETHIL, THIRUVALLA (VIA). BY ADVS. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN SRI.ARUN THOMAS SRI.JENNIS STEPHEN RESPONDENT(S): ------------------- 1. THE DY.DIRECTOR OF EDUCATION, PATHANAMTHITTA - 689 547. 2. THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA, PATHANAMTHITTA - 689 547. 3. THE ASST.EDUCATIONAL OFFICER, KANJIRAPPALLY, KOTTAYAM - 689 101. 4. THE MANAGER, N.M.CORPORATE SCHOOLS, KUMBANAD, PATHANAMTHITTA. 5. PROFESSOR JACOB THOMAS, MANAGER, N.M.CORPORATE SCHOOLS,KUMBANAD, PATHANAMTHITTA - 689 547. 6. ANI V.JACOB, UPSA, N.M.HIGH SCHOOL, KUMBANAD,PATHANAMTHITTA - 689 547 * ADDL.R7 IMPLEADED 7. THE DISTRICT EDUCATIONAL OFFICER, KAJIRAPPILLY. * SUE MOTO IMPLEADED AS PER JUDGMENT DATED 17/12/2010 R3 & 5 BY ADV. SRI.V.A.MUHAMMED R7 BY GOVT.PLEADER SMT.BINDU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs WP(C).No. 27907/2010(K) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE STATEMENT OF PERMANENT RELINQUISHMENT BY THE PETITIONER TO THE 3RD RESPONDENT DATED 06/11/2009. P2: COPY OF THE LETTER RECEIVED BY THE PETITIONER FROM THE 4TH RESPONDENT MANAGER DATED 28/01/2010. P3: COPY OF THE STATEMENT OF RELINQUISHMENT SUBMITTED BY THE PETITIONER ON 09/02/2010. P4: COPY OF ORDER NO.254/10-11 DATED 27/05/2010 ISSUED BY THE MANAGER. P5: COPY OF THE APPLICATION FOR LEAVE SUBMITTED BY THE PETITIONER DATED 29/05/2010. P6: COPY OF THE RELIEVING ORDER DATED 29/05/2010. P7: COPY OF THE REPRESENTATION SUBMITTED BY THE PETIITONER BEFORE THE 4TH RESPONDENT DATED 29/05/2010. P8: COPY OF THE JUDGMENT IN WPC.NO.18076/2010. P9: COPY OF THE COVERING LETTER WITH THE RELINQUISHMENT DATED 15/07/2010. P10: COPY OF THE LETTER DATED 17/08/2010. P11: COPY OF ORDER NO.G/4017/10/K.DIS DATED 27/08/2010. P12: COPY OF THE APPEAL FILED BY THE MANAGER TO THE DISTRICT EDUCATIONAL OFFICER KANJIRAPPALLY DATED 23/09/2010. P13: COPY OF THE ORDER OF THE ASSISTANT EDUCATIONAL OFFICER DATED 04/10/2010. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No. 27907 OF 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 17th day of December, 2010 JUDGMENT Whether relinquishment of the eligible promotion to the post of Head Mistress of the L.P. School stated as made by the petitioner and the rejection of the same by the 4th respondent/Manager of the School as per Ext. P10 order dated 17.08.2010 is correct or not, is the question involved in this Writ Petition. 2. The petitioner was working as 'UPSA' in the school run by the 4th respondent, at a place Kumbanad in Pathanamthitta district. On completion of 50 years of age, she became eligible to be promoted as Head Mistress, but the petitioner submitted Ext P11 letter dated 06.11.2002 relinquishing her claim in this regard and sought to continue as 'UPSA'. Notwithstanding this, the 4th respondent issued Ext. P2 letter to the petitioner and others similarly situated, asking willingness for promotion to the post as Head Mistress of the primary school. Pursuant to this, Ext. P3 statement of relinquishment was submitted by the petitioner on 09.02.2010. However, without any regard to the same, the 4th respondent issued Ext. P4 dated 25.02.2010, promoting the petitioner as Head Mistress in the N.M.L.P.S Kanakapalam against the vacancy that arose W.P. (C) No. 27907 of 2010 2 because of shifting of one Annamma Mathew (who was working there as Head Mistress) as H.M., NMLPS , Uthimood w.e.f the FN of 31.05.2010 in the retirement vacancy of P.J Annamma, who in turn retired from the service on the AN of 31.03.2010. 3. On issuance of Ext. P4, the petitioner wanted to proceed on leave and Ext. P5 application was submitted in this regard, which however was rejected later. The petitioner was relieved from the service as per Ext.P6 on 29.05.2010, on which date itself she submitted Ext. P7 representation and it was thereafter, that she approached this Court by filing W.P. (C) 18076 of 2010, which culminated in Ext. P8 judgment. 4. As obvious from Ext. P8, it was submitted from the part of the 4th respondent herein (who was the 3rd respondent in the said proceedings) that the earlier relinquishment letter stated as preferred by the petitioner could not have been acted upon, as it was submitted at a time when there was no vacancy for effecting the promotion of the petitioner as H.M. It was also submitted that in case the petitioner preferred a fresh letter of relinquishment of promotion, the same would be considered and appropriate orders would be passed. It was in the said circumstances, that the Writ Petition was disposed of giving consequential directions as mentioned above. The case of the petitioner is that, immediately on the very next day of passing Ext. P8 judgment, the petitioner had preferred Ext. W.P. (C) No. 27907 of 2010 3 P9 relinquishment letter. But contrary to the undertaking given before this Court, the claim was rejected as per Ext. P10 dated 17.08.2010, which hence is under challenge in the present Writ Petition. By virtue of the interim order passed by this Court on 08.09.2010, it is stated that, the petitioner is continuing on eligible leave. 5. While so, the third respondent/AEO considered the matter with reference to the letter dated 10.06.2010 submitted by the Manager and referring to Rule 48 of Chapter XIV A of KER, it was held that, the appointment of the petitioner as the Head Mistress of the N.M.L.P.S Kanakapalam from 31.05.2010 FN was rejected, simultaneously, referring to the appellate remedy available to the Manager, if aggrieved in any manner. It is brought out that, the 4th respondent/Manager has preferred Ext. P12 appeal, being aggrieved of Ext. P11 and the same is pending consideration before the second respondent. 6. The learned counsel appearing for the 4th respondent submits, with reference to the contents of Ext. P10, that, the rejection of Ext. P9 relinquishment letter submitted by the petitioner is perfectly in order as the said application was not in the proper form; that the petitioner being a recipient of 'grade promotion' was not entitled to decline the regular promotion and further that, if any alteration was made during the midst of the academic year, it was likely to cause much adverse result with regard W.P. (C) No. 27907 of 2010 4 to the career of the students and hence was not feasible. 7. The learned Government Pleader appearing for the departmental authorities submits that 4th respondent was not justified in having issued Ext. P4, in so far as there was 'no clear vacancy' and further, no prior sanction was obtained before transferring and posting Smt. Annamma Mathew from the school at Kanakapalam. It is also brought to the notice of this Court that, if at all any such vacancy was there, such vacancy, by virtue of the mandate under Rule 48 of Chapter XIV A of KER , could have been filled up only by accommodating 'protected teachers'. The learned Government Pleader further submits that, the question of relinquishment would come only when there was any clear vacancy and since there was no such clear vacancy, the promotion given to the petitioner as Head Mistress was out of question. 8. The factual position with regard to the availability of the vacancy is vehemently opposed from the part of the 4th respondent/Manager, simultaneously stating that, no counter affidavit has been filed by the departmental authorities concerned. The learned counsel also submits that, it is very much necessary to ascertain the position, particularly in view of the retirement vacancy of Smt. P.J. Annamma on 31.03.2010 and the subsequent turn of events with regard to the transfers, promotions and postings of others concerned. It is stated that the factual particulars have W.P. (C) No. 27907 of 2010 5 been brought to the notice of the DEO, Kanjirappilliy. The learned counsel further submits that the second respondent is the officer who is having jurisdiction in respect of the school situated in Kumbanad, while the DEO Kanjirappilly is the competent authority to deal with the matter; before whom Ext. P12 appeal has been preferred and also in view of the specific stipulation in Ext. P11 order passed by the 3rd respondent/AEO Kajirappilly to prefer appeal before the DEO Kanjirappilly. 9. Considering the facts and circumstances, this Court finds that the entire issue can be resolved only by way of a proper fact adjudication and then applying the correct position of law to the given set of facts and circumstances which is to be pursued by the DEO Kanjirappilly. Accordingly, the DEO Kanjirappilly is hereby directed to consider Ext. P12 appeal preferred by the 4th respondent against Ext. P11, taking note of the contentions raised by all the parties concerned, including the petitioner, of course after giving an opportunity of hearing in this regard. Final orders shall be passed in accordance with law, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. So as to facilitate further steps in this regard, the DEO Kanjirappilly is 'suo motu' impleaded as the additional 7th respondent and the learned Government Pleader has entered appearance on behalf of the said W.P. (C) No. 27907 of 2010 6 additional respondent as well. The petitioner shall produce a copy of the Writ Petition and the judgment before said additional 7th respondent, for prompt compliance of the directions. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd