P.GIRIJA v. District Educational Officer, Palakkad; Manager, Parli High School, Parli Palakkad; Happy Job, H.S.A., Parli High School, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 19TH DAY OF OCTOBER 2012/27TH ASWINA 1934** **WP(C).No. 16670 of 2012 (G) ---------------------------** **PETITIONER:** **-----------** **P.GIRIJA, AGED 53 YEARS H.S.A.(SOCIAL STUDIES), PARLI HIGH SCHOOL, PARLI PALAKKAD.** **BY ADV. SRI.JACOB SEBASTIAN** **RESPONDENTS:** **------------** **1. THE DISTRICT EDUCATIONAL OFFICER,** **PALAKKAD, PALAKKAD DISTRICT, PIN-678001** **2. THE MANAGER, PARLI HIGH SCHOOL, PARLI, PALAKKAD PIN-678612** **3. HAPPY JOB, H.S.A., PARLI HIGH SCHOOL, PARLI PALAKKAD, PIN-678612** **R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR** **R BY GOVERNMENT PLEADER SMT. K.A. LOWSY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-10-2012, ALONG WITH WPC 24217/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 16670 of 2012 (G)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE JUDGMENT DATED 21.3.2012 WP(C)NO.5470/2012 SOF THIS HON'BLE COURT** **EXHIBIT P2: TRUE COPY OF THE ORDER DATED 26.6.2012 OF THE 1ST RESPONDENT** **EXHIBIT P3: TRUE COPY OF THE LETTER DATED 12.7.2012 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT** **RESPONDENTS' EXHIBITS: NIL** // **TRUE COPY//** **PA TO JUDGE** **Scl.** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) Nos. 16670 & 24217 OF 2012** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of October , 2012 ## **JUDGMENT** The scope of Rule 44(1) of Chapter XIV A, KER with regard to the appointment of Headmaster of a school, as interpreted by the Full Bench of this Court vide decision in **Usha Thayyil v. State of Kerala** ( 2009(4) KLT 1 (F.B.), is the subject matter of dispute in these cases, preferred by the very same petitioner. 2. The sequence of events as projected in the writ petition shows that, the petitioner was working as the senior most H.S.A. in the school belonging to the second respondent, having nearly 31 years of service. Wen there occurred a vacancy of Headmaster in the academic year 2010-11, the petitioner gave a letter of relinquishment because of her ailments and accordingly, the next senior most hand was appointed to the post in question, who retired in the year 2011-2012. Against the resultant vacancy, the second respondent sought to appoint one K.T.Purushothaman, who was still junior to the petitioner, which was objected by the petitioner. The stand of the second respondent W.P.(C)Nos.16670 & 24217 of 2012 2 was that the petitioner had permanently relinquished her rights and claims and as such, the second respondent was at liberty to appoint the next senior person in the queue. The petitioner approached this Court by filing W.P.(C)No.5470/2012. Taking note of the factum of retirement of Mr.Purushothaman by 31/03/2012 and referring to the contention raised by the petitioner, placing reliance on the law declared by the Division Bench of this Court in **George v. State of Kerala** ( 1998(2) KLT 637) and the Full Bench in Usha Thayyil v. State of Kerala ( 2009(4) KLT 1 (F.B.), the petitioner was relegated to approach the DEO for appropriate reliefs, simultaneously directing the DEO to take a decision before any approval is granted to the new incumbent, within the time as specified. It was accordingly, that Ext.P2 order came to be passed by the DEO on 26/06/2012, whereby the appointment given by the second respondent to the third respondent was held as not in conformity with the statutory prescription, giving a positive direction to the second respondent to appoint the petitioner as Headmaster. The petitioner approached this Court by filing W.P.(C)No.16670/2012 for getting Ext.P2 to be implemented by all W.P.(C)Nos.16670 & 24217 of 2012 3 concerned. 3. While so, the third respondent took up the matter before the fourth respondent, being aggrieved of Ext.P2 and after considering the same, the impugned order was set aside by the Deputy Director, as per Ext.P3 order dated 29/09/2012 holding that, the petitioner had permanently relinquished her claim and as such, the third respondent was liable to continue and get her appointment approved. This in turn is under challenge in the subsequent writ petition i.e. W.P.(C) No.24217/2012. 4. Heard the learned counsel for the petitioner, the learned counsel for respondents 2 and 3 and the learned Government Pleader for respondents 1 and 4. 5. The only question is with regard to the interpretation of Rule 44(1) and the 'Note' thereunder as understood by the departmental authorities and whether the interpretation given by the Deputy Director while passing Ext.P3 is correct or not. The learned counsel for respondents 2 and 3 sought to assert that the relinquishment once given forfeits the rights permanently. It is liable to be taken as it W.P.(C)Nos.16670 & 24217 of 2012 4 is and there is no necessity to get the consent from the senior person on every occasion whenever the vacancy arises, more so when such relinquishment has been approved by the departmental authorities and the same has been entered in the service book as in the instant case. It is in such circumstances, that the position has been rightly appreciated by the Deputy Director vide Ext.P3, which is not assailable under any circumstances, submits the learned counsel. ## The disputed Rule reads as follows : “Rule 44(1) The appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under clauses (a) and (b) as the case may be of rule 34. The Manager will appoint the Headmaster subject to the Rules laid down in the matter. A teacher if he is aggrieved by such appointment will have the right of appeal to the Department. 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.” 6. Prima facie, there appears to be some confusion when the W.P.(C)Nos.16670 & 24217 of 2012 5 very same Rule uses under Note 'whenever' ( referring to the vacancy) and the word 'permanently' and how these two words reconcile with each other. But the issue was resolved by the Full Bench, observing in paragraph 12, in the following terms : “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 W.P.(C)Nos.16670 & 24217 of 2012 6 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.XIVA, 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 W.P.(C)Nos.16670 & 24217 of 2012 **==> picture [7 x 9] intentionally omitted <==** 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.” From the above, the Full Bench declared the law that, there is actually no ambiguity in the Rule and even if there is some ambiguity, the interpretation which is favourable to the teacher should be adopted. It was declared by the Full Bench in a crystal clear terms that, the mandate of the Rule is to get the consent of the senior teacher on every . occasion whenever the vacancy arises It will be permanent only to the extent in respect of the concerned vacancy and nothing more. Applying the said legal position to the given facts and circumstances, the approval given by the departmental authorities and the entry made in the service record as to the permanent relinquishment of the petitioner can have application only in respect of the earlier exercise pursued by the petitioner, when there occurred a vacancy in the year 2010-2011 and it can never be stretched to any extent beyond that. W.P.(C)Nos.16670 & 24217 of 2012 8 Admittedly, no consent has been obtained from the petitioner, when the third respondent was sought to be appointed and there is no dispute with regard to the seniority, as the petitioner stands in front of the queue, being the senior most hand. This Court finds that the interpretation sought to be given by the third respondent is per se wrong and illegal and virtually amounts to re-writing the judgment passed by the Full Bench of this Court, which cannot, but be deprecated in the strongest possible words. 7. In the above circumstances, Ext.P3 is set aside. The first respondent is directed to give effect to Ext.P2 order and pass appropriate orders to see that the petitioner is appointed as the Headmistress of the school forthwith. The proceedings in this regard shall be finalised at the earliest, at any rate within one month. Writ petitions are allowed as above. No cost. ## **P.R.RAMACHANDRA MENON JUDGE** sv. W.P.(C)Nos.16670 & 24217 of 2012 9 W.P.(C)Nos.16670 & 24217 of 2012 10