P.A. Francis (Secretary, Avanoor Grama Panchayat) v. Director of Panchayats

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.GIRI** **FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929** **WP(C).No. 6789 of 2004(G)** **-------------------------------------** **PETITIONER:** **-------------------** **P.A. FRANCIS, SECRETARY, AVANOOR GRAMA PANCHAYAT, P.O. VALAPPAYA, TRICHUR.** **BY ADV. SMT.V.P.SEEMANDINI (SR.) SMT.LEKSHMY RAMANATHAN** **RESPONDENTS:** **-----------------------** **THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SRI.P.NANDAKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON 22/02/2008 DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.6789/2004** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXT.P1:- COPY OF THE ORDER ACCEPTING THE TEMPORARY RELINQUISHMENT OF PROMOTION TO THE POST OF JUNIOR SUPDT. DT. 13.9.01.** **EXT.P2:- COPY OF THE TEMPORARY RELINQUISHMENT STATEMENT GIVEN BY THE PETITIONER IN THE PRESCRIBED FORMAT ON 13.9.01.** **EXT.P3:- COPY OF THE ORDER DT. 19.9.02 OF THE RESPONDENT ACCEPTING THE PETITIONER'S REQUEST.** **EXT.P4:- COPY OF THE REPRESENTATION DT. 27.1.2003 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT.** **EXT.P5:- COPY OF THE REPRESENTATION DT. 5.9.03 FILED BY THE PETITIONER BEFORE THE GOVERNMENT.** **EXT.P6: COPY OF THE PROCEEDINGS DT. 9.1.04 OF THE RESPONDENT ALONGWITH THE RELEVANT PAGES OF THE LIST OF JUNIOR SUPDTS.** ## **EXT.P7:- COPY OF THE REPRESENTATION DT. 5.6.02 SUBMITTED BY THE PETITIONER.** ## **V.GIRI, J. -------------------------------------** **W.P.(C).No.6789 of 2004** ## **------------------------------------Dated this the 22[nd] day of February, 2008.** ## **JUDGMENT** The question which arises for consideration in this writ petition is whether relinquishment of regular promotion by a Government Servant and accepted by the competent authority can, thereafter, be withdrawn by him. Learned counsel for the petitioner has relied on the judgment of a Bench of this court reported in **State of Kerala v. Susheela George {2003(2) KLT 295}** and a decision of a learned single Judge in **Kumar v. State of Kerala {2002(2) KLT 630}** as affirmed by the Division Bench in W.A.No.1220/02, to contend for the position that if there was a right to relinquish the promotion, then there is a concomitant right to withdraw such relinquishment. 2. The petitioner, while working as Upper Division Clerk in the Panchayat Service, was promoted as a first Grade Secretary in 1992. While so, he was further promoted to the post of Junior Superintendent as **W.P.(C).NO.6789/04** **:: 2 ::** per the proceedings dated 1.8.2001 of the Director of Panchayats. According to the petitioner, it was inconvenient for him to accept promotion due to personal reasons. His mother was undergoing treatment due to serious illness and therefore he had temporarily relinquished such promotion for a period of one year as provided in Rule 38 of the Kerala State and Subordinate Service Rules, 1958 (hereinafter referred to as “the Rules”). By Ext.P1 order, the relinquishment made by the petitioner for a period of one year with effect from 1.8.2001 was accepted. 3. Petitioner submits that even after the expiry of one year, his mother had not recovered from her illness and therefore, considering the fact that he had to retire on 31.3.2004, he filed a representation before the Director, on 5.6.2002, seeking to extend his relinquishment on a more permanent basis i.e. from 1.8.2002 to 31.3.2004 (the date of his retirement on superannuation). By Ext.P3 order, the Director accepted the petitioner's relinquishment of promotion to the cadre of Junior Superintendent, treating the relinquishment as **W.P.(C).NO.6789/04** **:: 3 ::** one made in relation to regular promotion offered to the petitioner, on a permanent basis. 4. Petitioner's mother expired on 4.1.2003 and on 27.1.2003 he filed Ext.P4 representation before the Director with a request that, taking note of the changed circumstances, he may be promoted as Junior Superintendent, pursuant to the offers of promotion made to him earlier. While a decision on Ext.P4 was pending, the seniority of persons working in different posts in the Panchayat Department was reviewed by the Government. It so happened that, in the revised seniority list, petitioner's seniority in the cadre of Junior Superintendent was fixed with effect from 1.7.1997 as against 1.8.2001, the date on which he was actually promoted as Junior Superintendent, though such promotion had been relinquished by him as mentioned above. 5. Petitioner filed yet another representation before the Director on 5.9.2003 requesting the Director to confer on him notional seniority in the post of Junior Superintendent after deducting the period of service ## **W.P.(C).NO.6789/04** **:: 4 ::** relinquished by him viz., 1.8.2001 to 31.1.2003. There was no reply to this as well. Petitioner refers to Ext.P6 proceedings issued by the Director, publishing a modified list of Junior Superintendents appointed as Secretary prior to 20.10.1993. Apparently, petitioner is shown in the cadre of Junior Superintendent. The seniority fixed in the said cadre was with effect from 13.11.1996. 6. It is the petitioner's contention that the relinquishment made by him should be treated as a temporary relinquishment and that, at any rate, the said relinquishment should be treated as bereft of all sanctity when the Director himself had reviewed all promotions to the cadre of Junior Superintendent by Ext.P6 though it was subsequent to the acceptance of the petitioner's relinquishment for promotion on a permanent basis as evidenced by Ext.P3. It is, in these circumstances, the petitioner approached this court with the instant writ petition filed on 25.2.2004, taking note of the fact that the petitioner is impending retirement on 31.3.2004, inter alia, for a direction to the respondents to treat the ## **W.P.(C).NO.6789/04** **:: 5 ::** petitioner as notionally promoted to the post of Junior Superintendent with effect from 13.11.1996 until the date of his retirement viz., 31.3.2004 for the purpose of calculating the pensionary benefits due to him by the respondents. 7. The respondent has filed a counter affidavit. Reference is made to Rule 38 of the Rules, which reads as follows: ” **Relinquishment of rights by members:- Any person may, in writing, relinquish any right or privilege to which he may be entitled under these rules or the Special Rules, if in the opinion of the Appointing Authority, such relinquishment is not opposed to public interest; and nothing contained in these rules or the Special Rules shall be deemed to require the recognition of any right or privilege to the extent to which it has been so relinquished.”** 8. It is pointed out that the explanation to the Rule stipulates that right of relinquishment for promotion shall entail loss of seniority and relinquishment shall not be permissible, unless it entails loss of seniority. On such relinquishment, the right or **W.P.(C).NO.6789/04** **:: 6 ::** privilege, to the extent it has been relinquished, will not be recognised. As per his relinquishment statements dated 7.8.2001 (Ext.P2) and 5.6.2002 (Ext.P7), petitioner had relinquished his right for promotion to the cadre of Junior Superintendent. As a result of such relinquishment, the juniors, who are promoted, can retain their seniority in their promoted post. With reference to Ext.P6, it is contended that any retrospective assignment of seniority to the petitioner in the promoted post would not have conferred on him any benefit, because he had already permanently relinquished his right for promotion to the post of Junior Superintendent. 9. I heard learned counsel for the petitioner and the learned Senior Government Pleader. 10. Learned counsel for the petitioner raised two points. He firstly contended that though the petitioner had raised his right for promotion to the post of Junior Superintendent and the relinquishment was also accepted by the competent authority, his right to withdraw such relinquishment should be treated as ## **W.P.(C).NO.6789/04** **:: 7 ::** inbuilt into the provision, which provides for such relinquishment. He particularly referred to the judgment of this court reported in **Kumar v. State of Kerala {2002(2) KLT 630** }. Reference is made to para 10 of **Kumar** , which reads as follows: ” **In the case at hand, on the relinquishment of promotion by the petitioner, if somebody is promoted in his place, that should be treated as the date of effect of his relinquishment. As stated earlier,** Ext **.P4 by which his relinquishment was accepted, has nothing to do with the date of effect of relinquishment as** Ext **.P4 is concerned with the public interest involved in allowing him to exercise the relinquishment. If the petitioner has the right to relinquish his promotion, he must have the right to withdraw it also. The finding of the authority that his relinquishment is not against public interest, will not stand in the way of exercising his right to withdraw the relinquishment. Any other interpretation of R.38 will be violative of the fundamental rights of a senior employee guaranteed under Arts.14 and 16 of the Constitution of India and his legal rights under Rr.28 and 31 of KS & SSR, as the same will deny him the right of being considered for promotion. So, in the case at hand, what** **W.P.(C).NO.6789/04** **:: 8 ::** **has been relinquished by the petitioner is only temporary (provisional) promotion and that has been withdrawn as per** Ext **.P3 with effect from 30.4.2001. The petitioner has not relinquished his claim for regular promotion. This view that the relinquishment relates only to provisional promotion finds support from the Division Bench decision of this court in State of Kerala v. Suseela George {2000 (3) KLT 295}”** 11. It is contended that though the petitioner's relinquishment for promotion had been accepted by the competent authority, he had sought to withdraw the same well before 31.3.2004 and consequently, he should have been considered for promotion to the post of Junior Superintendent at least with reference to the date of Ext.P4, on which date, he made the request that he be considered for promotion in terms of the orders of promotion, which were made in the year 2001. It is contended that Ext.P4 must be treated as one made by the petitioner seeking to withdraw the relinquishment already made by him and consequently, unless there was **W.P.(C).NO.6789/04** **:: 9 ::** any public interest, which stood in the way of the plea for withdrawal, it should have been accepted. 12. It is next contended by the learned counsel for the petitioner that even after Ext.P3 order was passed accepting the petitioner's relinquishment of promotion to the post of Junior Superintendent on permanent basis i.e. till 31.3.2004, petitioner's seniority in the cadre of Junior Superintendent had been reviewed and he was assigned a date, prior to the date on which he was offered promotion as Junior Superintendent. Therefore according to the petitioner, the relinquishment, made by him earlier, should not be treated as standing in the way of the petitioner, claiming actual promotion to the post of Junior Superintendent on the basis of such revised and modified seniority list. 13. Learned Senior Government Pleader, on the other hand, submitted that the dictum laid down in **Kumar** (cited supra) would apply only to the case of relinquishment of temporary promotion or provisional promotion, as the case may be. It is contended that the facts involved in **Kumar** would show that what had been ## **W.P.(C).NO.6789/04** **:: 10 ::** relinquished by the petitioner therein was only temporary (provisional) and that was withdrawn with effect from a subsequent date. The following portion of paragraph 10 of the judgment in Kumar was particularly referred: ## **“The petitioner has not claimed relinquishment of regular promotion.”** 14. This view that the relinquishment relates to the provisional promotion finds support from the Division Bench decision of this court in **State of Kerala v. Susheela George {2003(2) KLT 295}** . It is contended that it is not the case of petitioner herein that what had been relinquished by him is only a temporary (provisional) and not regular, nor does he have a case that the relinquishment was restricted only to one year. What was relinquished was regular promotion and once such relinquishment is accepted, it is not open to the petitioner to withdraw such promotion. 15. Since considerable reliance was made by the petitioner on **Kumar** and **Susheela George** (cited supra), reference will have to be made to the said two **W.P.(C).NO.6789/04** **:: 11 ::** judgments. **Suseela George** was concerned with the case of provisional promotion. Apparently, **Smt.Suseela George** had relinquished her right for promotion as Second Grade Professor due to personal reasons and the Government had granted such permission for relinquishment permanently and unconditionally. But, it was noted by the Division Bench that what was offered to her was a 'provisional promotion'. By the introduction of the UGC scheme, based on her seniority she was given promotion as Lecturer (Selection Grade) on the date on which, she was promoted as the Principal. When selection to the post of Deputy Director came up, her earlier relinquishment of promotion to the post of Second Grade Professor was sought to be put in her way and it was then that she approached this court. The learned single Judge and thereafter the Division Bench held that what the petitioner therein had relinquished was only 'provisional promotion'. In fact, the Division Bench specifically noted that it is a matter beyond dispute that the petitioner had relinquished only provisional or a temporary promotion. ## **W.P.(C).NO.6789/04** **:: 12 ::** 16. The facts in **Kumar** have already been referred to above and paragraph 10 of the judgment had focused on the issue. What was relinquished by the petitioner in that case was only a temporary (provisional) promotion and the dispute did not involve a case of regular promotion. In my opinion it is also possible to infer from **Kumar** that this court might have taken a different view, had the promotion, which had been relinquished by the petitioner in that case, been not a temporary promotion, but a regular promotion. In my view, the dictum, both in **Susheela George** and **Kumar** essentially centeres around a view taken by this court that Rule 38, Part II of the Rules would have an application only to regular promotions and not to temporary promotions. It is, therefore, that this court had come to the conclusion that the loss of seniority provided as a consequence in Rule 38 of the General Rules contemplates loss of seniority in the promoted cadre. Normally, seniority in a cadre consequent upon promotion is reckoned only when the promotion is a regular one, either at the time of promotion, or by reason **W.P.(C).NO.6789/04** **:: 13 ::** of a subsequent order, which regularises an earlier temporary promotion, which is a device that is resorted to tide over the delay either in publishing the final seniority list in the case of promotions effected under Rule 28(b)(ii) or the delay in publishing a select list in the case of promotions governed by Rule 28(b)(i) of the Rules. But where a promotion, which is relinquished is a regular promotion, then such relinquishment is governed by Rule 38 of the General Rules. Rule 38 of the Rules does not contemplate a relinquishment as a unilateral act. Relinquishment of a right or privilege, which is what is referred to in Rule 38 as such ought not to be one opposed to public interest, in the opinion of the appointing authority. Therefore, in the context of a promotion governed by the Rules, or the Special Rules, as the case may be, relinquishment contemplates a conscious waiver of the right that is available to the incumbent at the relevant point of time to be promoted to the promotion post in question. Since a relinquishment is to be in writing and a format is prescribed, the appointing authority is to consider the ## **W.P.(C).NO.6789/04** **:: 14 ::** relinquishment made by the incumbent and then pass an order accepting/rejecting such relinquishment. Promotion of a person from one post to another cannot be considered merely as a privilege or a right that is available to the incumbent. It is also an act of administration exercised by the competent authority in terms of the statutory rules. It is, therefore, open to the appointing authority to reject the relinquishment and to require the concerned Government servant to discharge his duties in the promoted post, but obviously there must be reasons, which should persuade the competent authority to do so. But the fact that the relinquishment of a promotion is normally accepted does not derogate from the fact that a relinquishment does not become complete, unless the relinquishment is accepted by the competent authority. That is to say that the act of relinquishment attains finality, once it is accepted by the competent authority. In that view of the matter, withdrawal of a relinquishment once made is not possible, after the relinquishment is accepted by the competent authority. No doubt, in **Kumar** , this court **W.P.(C).NO.6789/04** **:: 15 ::** said that since law recognises a right or privilege, the law should also deem to recognise the right to withdraw such relinquishment. But as I noted above, this court was essentially concerned with the offer of a temporary (provisional) promotion and obviously relinquishment, which is a conscious act of waiver should not have been extended beyond the actual right or privilege that was consciously given up. What was offered in the case of **Kumar** was not a regular promotion and obviously his relinquishment could not have operated qua such regular promotion. 17. In the instant case, there is no dispute that the petitioner was promoted on a regular basis and it is the said regular promotion he had relinquished, though such relinquishment was initially on a temporary basis, as is evident by Ext.P7, which was accepted in Ext.P3. He relinquished it on a permanent basis i.e. till 31.3.2004, the date of retirement. In such circumstances, a rethinking on the part of the petitioner, possibly on account of a change in circumstance cannot confer him any enforceable right to compel the ## **W.P.(C).NO.6789/04** **:: 16 ::** competent authority to retrace his steps and revoke the acceptance of the relinquishment, which was validly made. In my view, **Susheela George** and **Kumar** will not come to the aid of the petitioner. 18. It was then contended by the counsel for the petitioner that even after Ext.P3 order passed by the Director accepting the permanent relinquishment made by the petitioner, there was a review of the seniority list and the petitioner was assigned a date, in the post of Junior Superintendent, prior to the date on which, he was actually promoted on a regular basis and that, in the light of such modified seniority list, the relinquishment once effected by him, though accepted, should be treated as no longer operative. In my view, paragraph 4 of the counter affidavit filed by the respondent gives a complete answer to the aforementioned contention raised by the petitioner: **“It is submitted that while publishing the review list of Junior Superintendent the petitioner was working as Secretary, Grama** ## **W.P.(C).NO.6789/04** ## **:: 17 ::** **Panchayat. For giving effect to the review list of Junior Superintendents the petitioner has been promoted to that cadre as per order No.E2.700/01 dated 1/8/2001. Later as per order No.Sl.20566/01 dated 9/1/2004 the review list has been modified in the light of G.O.(MS)No.3/2004 LSGD dated 2/1/2004, wherein the petitioner is included in the review list of Junior Superintendent published on 20/7/2001, he has also been included in the modification effected thereon. Eventhough the post of Junior Superintendent is considered as a promotion post of Panchayath Secretary as per the Panchayath Subordinate Service Rules, the post of Grama Panchayath Secretary and to that of Junior Superintendent carrying identical scale of pay. So no monetary benefit is accrued to the petitioner eventhough he was assigned a retrospective date of promotion to the cadre of Junior Superintendent as per the modified seniority list.”** 19. Further, a revision of the seniority list, as such, cannot derogate from the actual act of relinquishment made by the petitioner and the acceptance of such relinquishment by the competent **W.P.(C).NO.6789/04** **:: 18 ::** authority. After all, petitioner had consciously and voluntarily relinquished promotion with effect from 1.8.2001 to 31.3.2004, the date of his retirement and the revision of seniority list of Junior Superintendent cannot, in any manner, alter the fact that the petitioner had consciously relinquished his promotion with effect from 1.8.2001. A notional promotion with effect from 13.11.1996 may not really bring about any additional benefit to the petitioner, as there was no additional monetary benefit that may come in the way of the petitioner, apparently for the reason that the post of Junior Superintendent and Panchayat Secretary, at that point of time, carried an identical scale of pay. Moreover, if the relinquishment of the petitioner's promotion with effect from 1.8.2001 till 31.3.2004, is treated as valid and governed by the Explanation to Rule 38 of the General Rules, obviously the acceptance of the petitioner's request on the basis of Ext.P4 will lead to an incongruous situation, where the petitioner will have to be treated as notionally promoted to the post of a Junior Superintendent with effect from 13.11.1996 till ## **W.P.(C).NO.6789/04** **:: 19 ::** 31.7.2001 and then treated as having relinquished regular promotion from 1.8.2001 till 31.3.2004 the date of his retirement. Such incongruity cannot have the approval of the court, nor is it an issue to be agitated in this writ petition. For all these reasons, I do not find any merit in this writ petition. The same is accordingly dismissed. Sd/- **(V.GIRI) JUDGE** sk/ //true copy//