Philomina George v. Director of Public Instructions, Thiruvananthapuram and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 28TH DAY OF JUNE 2016/7TH ASHADHA, 1938** ## **WP(C).NO. 13961 OF 2015 (U)** ## **----------------------------** ## **PETITIONER(S): -------------** **PHILOMINA GEORGE,** **FULL TIME MENIAL, ST. JOSEPH'S HIGH SCHOOL FOR GIRLS, ALAPPUZHA, RESIDING AT PUTHENPURACKAL, KALAVOOR PO, KATTOOR, ALAPPUZHA DISTRICT.** **BY ADV. SRI.B.PRAMOD** ## **RESPONDENT(S):** - **--------------** **1. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **2. THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA** **3. CANOSSIAN CORPORATE MANAGEMENT OF SCHOOLS, ST.JOSEPHS CANOSSIAN CONVENT, ALAPPUZHA, PIN-688 001, REP. BY ITS MANAGER.** ## **4. THE PRINCIPAL,** - **ST.JOSEPH'S HIGH SCHOOL FOR GIRLS, ALAPPUZHA, REP. BY ITS MANAGER.** ## **5. MARY BARBERA,** - **FULL TIME MENIAL, ST.JOSEPH'S HIGH SCHOOL FOR GIRLS, ALAPPUZHA** **6. HENDRITHA,** - **OFFICE ASSISTANT, ST.JOSEPH'S HIGH SCHOOL FOR GIRLS, ALAPPUZHA** **R3-R4 BY ADV. SRI.V.A.MUHAMMED R3-R4,R 5&6 BY ADV. SRI.V.RAJASEKHARAN NAIR R2 BY ADV. GOVERNMENT PLEADER SRI.R.RANJITH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-06-2016, THE COURT ON THE 28.06.2016 DELIVERED THE FOLLOWING:** ## **WP(C).NO. 13961 OF 2015 (U)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **EXT P1 : TRUE COPY OF THE APPOINTMENT ORDER DATED 6-12-1999 ISSUED BY THE 3RD RESPONDENT.** **EXT P2 : TRUE COPY OF THE REPRESENTATION DATED 4-11-2014 TO THE 2ND RESPONDENT.** **EXT P3 : TRUE COPY OF THE REPRESENTATION DATED 4-11-2014 SUBMITTED TO THE 3RD RESPONDENT.** **EXT P4 : TRUE COPY OF THE REPRESENTATION DATED 2-12-2014 TO THE 2ND RESPONDENT.** **EXT P5 : TRUE COPY OF THE LETTER DATED 26.03.2015 ISSUED BY THE 2ND RESPONDENT.** **EXT P6 : TRUE COPY OF THE ORDER DATED 01-10-2014 ISSUED BY THE 3RD RESPONDENT.** **RESPONDENT(S)' EXHIBITS:** **-----------------------** **EXT:R2(A):TRUE COPY OF STATEMENT OF RELINQUISHMENT DATED 01.07.2014 EXT R2(B):TRUE COPY OF THE SENIORITY LIST OF MENIAL WORKERS AS ON 01.01.2011** **EXT:R3(A):TRUE COPY OF THE SENIORITY LIST** **EXT R3(B): TRUE COPY OF THE APPOINTMENT ORDER OF SMT.HENRITA P.M.DATED 1.10.2014** **EXT.R3(C):TRUE COPY OF THE STATEMENT OF RELINQUISHMENT DATED 1.6.2010** **EXT R3(D): TRUE COPY OF THE STATEMENT OF RELINQUISHMENT DATED 1.7.2004** **//TRUE COPY//** **P.A TO JUDGE** **(CR)** ## **A.K.JAYASANKARAN NAMBIAR, J.** **............................................................. W.P.(C).No.13961 of 2015 ............................................................. Dated this the 28[th] day of June, 2016** ## **J U D G M E N T** The petitioner in the writ petition is working as a full time menial (hereinafter referred to as FTM) in the school under the management of the 3[rd] respondent. She was appointed as a FTM with effect from 06.12.1999. The appointment of the petitioner was duly approved by the Educational authorities as well. The promotion post for FTM’s in the school is that of a Peon/Office Assistant. The promotions are to be effected on the basis of seniority and, in the absence of any candidate for promotion, the post can be filled up by direct recruitment. It is stated that in the seniority list of FTM’s maintained in the school, the petitioner is currently ranked 2[nd] . 2. It would appear that a vacancy to the post of Peon/Office Assistant arose, consequent to the retirement of one James in 2 **W.P.(C).No.13961 of 2015** September 2014. Instead of seeking the willingness of persons, such as the petitioner, who were in the feeder category for promotion, the 3[rd] respondent Manager proceeded to fill up the vacancy through direct recruitment of the 6[th] respondent. The said appointment of the 6[th] respondent was also approved by the 2[nd] respondent after noting that all the 66 FTM’s working under the different schools under the management of the 3[rd] respondent had given letters permanently relinquishing their claim for promotion to the post of Peon/Office Assistant. Ext.P6 is the duly approved order of appointment issued to the 6[th] respondent, which is sought to be impugned in the writ petition. 3. A counter affidavit has been filed by the 2[nd] respondent, wherein the sequence of events leading to the approval to the appointment of the 6[th] respondent as Peon/Office Assistant with effect from 01.10.2014 is narrated. In particular, it is pointed out that the case of the petitioner for promotion was not considered since all the 66 FTM’s working under the different schools under the management of the 3[rd] respondent, including the petitioner herein, had given letters permanently relinquishing their claim for promotion to the post of Peon/Office Assistant. 3 **W.P.(C).No.13961 of 2015** 4. I have heard Sri. Pramod, learned counsel for the petitioner, the learned Government Pleader for the official respondents and Sri. V.A Muhammed, learned counsel for the 3[rd] respondent Manager and learned counsel for the 5[th] and 6[th] respondents. 5. On a consideration of the facts and circumstances of the case, and the submissions made across the bar, I am of the view that, for the reasons that are stated hereinafter, the writ petition, in its challenge against Ext.P6 order must necessarily succeed. As per Explanation (1) to Note (2) to Rule 1 in Chapter XXIV (A) of the KER, the post of Peon/Office Attendant in an aided school is to be filled by promotion from, inter alia, FTM’s. Further, Rule 7 in Chapter XXIV B of the KER makes the provisions of Chapter XIV A in relation to matters regarding, inter alia, appointment and promotion of teaching staff, mutatis mutandis applicable to nonteaching staff also. Rule 44 of Chapter XIV A of the KER deals with appointment of Headmasters, and the relevant portion of the Rule, for the purposes of the instant case, reads as follows: 4 **W.P.(C).No.13961 of 2015** “ **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 int he 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. It is evident, therefore, that whenever the Manager of an aided school intends to appoint a person, other than the senior claimant, to the promotion post, then he is obliged to obtain a written consent from such senior claimant renouncing his claim permanently and further, such consent should have the approval of the educational authority concerned. In the instant case, it is the case of the 3[rd] respondent Manager that he had obtained a relinquishment letter from all the 66 FTM’s working in schools under his management, including the petitioner, and hence the petitioner had effectively relinquished his right to promotion to the post of Peon/Office Attendant. I note from the copy of the 5 **W.P.(C).No.13961 of 2015** relinquishment letter signed by the petitioner, which is produced as Ext. R2(a) along with the counter affidavit of the 2[nd] respondent, that the relinquishment letter is dated 01.07.2004 and it purports to relinquish the claim of the petitioner to the post in question from 01.07.2004 onwards. The question then arises as to whether this relinquishment letter, which has been approved by the Educational authority, can defeat the right of the petitioner for consideration for promotion to the vacancy that arose in 2014? 7. It is trite that the question as to whether there is a relinquishment or waiver of a right is essentially a question of fact that has to be decided taking note of various factors such as the circumstances under which the relinquishment was given and the extent to which the relinquishment was to operate. “Waiver” is a troublesome term in law and the generally accepted connotation is that to constitute “waiver” there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. (See: **Basheshar Nath v I.T.Commissioner – (AIR1959 SC 149)** . What then was the right that existed in the 6 **W.P.(C).No.13961 of 2015** petitioner in 2004, that could be said to have been relinquished or waived by her through Ext.R2(a) letter? In my opinion, the only right that accrued to the petitioner in 2004 was her right to be considered for promotion to the post of Peon/Office Assistant to a vacancy that then existed. As regards future vacancies, the right to be considered for promotion could have accrued to the petitioner only as and when those vacancies arose and hence, there was no existing right in respect of those vacancies that the petitioner could have waived in 2004. As regards the vacancy that arose in 2014, it is nobody’s case that the petitioner had waived her right for consideration to the said vacancy through any written consent given to the Manager. Under such circumstances, I am of the view that the 3[rd] respondent Manager could not have overlooked the claim of the FTM’s, in accordance with their seniority, while effecting an appointment to the post of Peon/Office Assistant to the vacancy that arose in 2014. In taking this view, I am also fortified by the decision of a Full Bench of this Court in **Usha Thayyil v State of Kerala - (2009 (4) KLT 1)** where the provisions of the Note to R.44 (1) was interpreted as referring only to a relinquishment of one’s right in respect of the existing vacancy and not subsequent vacancies. 7 **W.P.(C).No.13961 of 2015** 8. There is yet another aspect of the matter. It is now well settled that the right to be considered for promotion is a fundamental right and any policy that forecloses the promotion chances of an employee forever is ultra vires the Constitution. (See: **- A. Satyanarayana & Ors v S. Purushotham & Ors (2008 (5) SCC 416); Panchraj Tiwari v Madhya Pradesh State Electricity Board & Ors - (2014 (5) SCC 101)** . In the instant case, while the petitioner may have given up her claim for promotion to the vacancy that arose in 2004, with regard to the vacancy that arose in 2014, she was certainly within the zone of consideration for promotion as she was ranked 2[nd] in the seniority list that was in vogue. She therefore had a fundamental right to be considered for promotion to the said vacancy. This court would be slow to accept a contention with regard to waiver, by a citizen, of her fundamental rights, and it is only in circumstances where facts unequivocally establish that there was a waiver of an existing right that this court will accept such a contention. Even in such cases, the fundamental right in question would have to be one that primarily rests in the individual and one that is primarily intended for his/her benefit, and not one that infringes on the rights of 8 **W.P.(C).No.13961 of 2015** others. The facts in this case do not call for an inference of waiver, by the petitioner, of her right to consideration for promotion to the post in question. Resultantly, I allow the writ petition by quashing Exts. P5 and Ext.P6 orders, and direct the 3[rd] respondent Manager to make a fresh appointment to the vacancy of Peon/Office Assistant, to the vacancy that arose with effect from 01.10.2014, in accordance with the provisions of the Kerala Education Act and Rules. The 3[rd] respondent shall seek the willingness of the FTM’s within the zone of consideration, in accordance with their seniority, and an appointment by direct recruitment shall be resorted to only in the circumstances outlined in the Rules. The respondents shall complete the exercise of appointment and approval within a period of three months from the date of receipt of a copy of this judgment. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/ # **W.P.(C).No.13961 of 2015** 9