Pushpalatha K. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **TUESDAY, THE 13TH DAY OF MAY 2014/23RD VAISAKHA, 1936** ## **WP(C).No. 19576 of 2013 (V)** ## **----------------------------** ## **PETITIONER :** **--------------------------** **PUSHPALATHA K., ASSISTANT TEACHER, M.D.L.P. SCHOOL, VELOM VATAKARA, KOZHIKODE DISTRICT.** **BY ADV. SRI.K.LAKSHMINARAYANAN** **RESPONDENT(S) :** - **----------------------------** ## **1. STATE OF KERALA** - **EDUCATION DEPARTMENT (L) (GENERAL EDUCATION), SECRETARIAT THIRUVANANTHAPURAM-695 001 (REPRESENTED BY ITS SECRETARY)** **2. DIRECTOR OF PUBLIC INSTRUCTION DEPARTMENT OF EDUCATION, THIRUVANANTHAPURAM-695 014** **3. DISTRICT EDUCATIONAL OFFICER VATAKARA EDUCATIONAL DISTRICT, VATAKARA -673101** **4. ASSISTANT EDUCATIONAL OFFICER KUNNUMEL EDUCATIONAL SUB DISTRICT P.O.KUNNUMMEL, KOZHIKODE - 673 101.** **5. MANAGER, M.D.L.P .SCHOOL, VELOM, VIA. KUTTIADI, VATAKARA - 673 508.** ## **6. NAJEEB** - **ASSISTANT TEACHER, M.D.L.P. SCHOOL, VELOM VIA.KUTTIADI, VATAKARA - 673 508** ## **7. C. RADHAKRISHNAN** - **ASSISTANT TEACHER, M.D.L.P. SCHOOL, VELOM VIA. KUTTIADI, VATAKARA - 673 508.** **R1 TO R4 BY GOVT. PLEADER SRI. JOSE AEDAIODI R5 BY ADV. SRI.K.B.GANGESH** **R7 BY ADV. SRI.R.K.MURALEEDHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-03-2014, THE COURT ON 13-05-2014 DELIVERED THE FOLLOWING:** **Mn** **...2/-** **WP(C).No. 19576 of 2013 (V) ----------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** **-------------------------------------** **EXT.P1 - TRUE COPY OF THE RELINQUISHMENT LETTER DATED 5-4-08 ISSUED BY THE PETITIONER.** - **EXT.P2 - TRUE COPY OF THE WITHDRAWAL LETTER DATED 30-06-08 ISSUED BY THE PETITIONER.** **EXT.P3 - A TRUE COPY OF THE ORDER NO. K.DIS.B5-3042/09 DATED 28-10-2009 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P4 - A TRUE COPY OF THE PROCEEDINGS NO.GS/93818/10/DPI/K.DIS DATED 20-10-2010 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P5 - A TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE REGISTER OF THE PETITIONER.** **EXT.P6 - A TRUE COPY OF THE LETTER NO.A/2519/11 DATED 11-7-2011 ISSUED BY THE 4TH RESPONDENT. EXT.P7 - A TRUE COPY OF ADDITIONAL DIRECTOR BEARING NO.G3/86058/09/DPI/K/DIS DATED 3-3-2010. EXT.P8 - A TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER. EXT.P9 - A TRUE COPY OF THE ORDER NO.68549/L1/2011/PO.V DATED 14-5-2013 ISSUED BY THE 1ST RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS : NIL** **----------------------------------------------------------** ## **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## C.K.ABDUL REHIM,J. ------------------------------WP(C).NO.19576 of 2013 --------------------------------Dated this the 13th day of May, 2014 ## JUDGMENT Brief facts of the case born out from the pleadings on either side are as follows. There arose a vacancy of Headmaster at the 5[th] respondent's school on the retirement of one Mr. Andy, on 30.4.2008. The petitioner was the senior-most teacher eligible to be promoted against the said vacancy. The 5[th] respondent issued a proceedings on 28.4.2008 requesting the petitioner to take charge as Headmistress with effect from 1.5.2008. It was mentioned in the said proceedings that, if the petitioner is not willing to accept the promotion she can relinquish the same before the Educational Officer on or before 30.4.2008. On 5.4.2008 the petitioner submitted Ext. P1 declaration relinquishing her claim for promotion to the post of Headmistress, clarifying that she had no objection in promoting any other teacher of the school as Headmistress in the retirement vacancy of Mr. Andy. The declaration of relinquishment was submitted by the petitioner directly at the office of the 4[th] WP(C).19576 /2013 2 respondent and it was counter signed by the Senior Superintendent of the said office, who was holding full charge of the 4[th] respondent. Since there was no qualified teacher available to be promoted as Headmaster, the 5[th] respondent had promoted the 6[th] respondent temporarily, under Rule 45 C of Chapter XIV A KER. According to the petitioner the 4[th] respondent had not approved the appointment of the 6[th] respondent, since he could not pass the test qualification prescribed. Meanwhile the 7[th] respondent had attained the age of 50 years as on 1.6.2008 and became eligible to be promoted as Headmaster because he was permanently exempted from acquiring the test qualification, as per Rule 45 B(4) of Chapter XIV A KER. On the basis of the claim made by the 7[th] respondent the 6[th] respondent was replaced by the 7[th] respondent as required under Rule 45 C(2), with effect from 5.6.2008. Thereafter the petitioner submitted Ext.P2 letter to the 5[th] respondent on 30.6.2008 seeking withdrawal of the relinquishment and requesting for appointing her as the Headmistress. Since the withdrawal of the relinquishment was WP(C).19576 /2013 3 not considered, the petitioner had approached the 3[rd] respondent in appeal. In Ext.P3 the 3[rd] respondent observed that the relinquishment of the petitioner was not received by the Educational Officer and therefore the 5[th] respondent was instructed to appoint the petitioner as Headmistress, she being the senior-most and qualified claimant to the post. But Ext.P3 was challenged by the 5[th] respondent by preferring appeal before the 2[nd] respondent. In Ext.P4 proceedings the 2[nd] respondent had reversed the decision, accepting the contention that the relinquishment was accepted by the 4[th] respondent and that the replacement of the 6[th] respondent by the 7[th] respondent was in order, as per Rule 45 C (2). The 2[nd] respondent had approved the temporary promotion granted to the 6[th] respondent for the period from 1.5.2008 to 4.6.2008 and also approved the appointment of the 7[th] respondent as Headmaster with effect from 5.6.2008. 2. The petitioner challenged Ext.P4 in a revision petition filed before the 1[st] respondent, which was disposed of through Ext.P9 proceedings. The Government found that the permanent WP(C).19576 /2013 4 relinquishment made by the petitioner with respect to the vacancy which arose due to retirement of Mr. Andy was approved and the charge given to the 6[th] respondent was only by way of temporary promotion contemplated under Rule 45 C. Since the temporary hand was replaced by the 7[th] respondent under Rule 45 C(2), the relinquishment existed with respect to the vacancy which arose due to retirement of Mr. Andy. Hence it is held that the promotion granted to the 7[th] respondent is in order . It is challenging Ext.P4 and P9 orders, this writ petition is filed. 3. Contentions raised by the petitioner in challenge of the impugned orders are as follows. The vacancy in question arose only on 1.5.2008 and as on the date of Ext.P1 there was no vacancy which has been crystallised into a right . Hence there was no question of relinquishing such a right. Therefore it is contended that Ext.P1 relinquishment cannot be treated as valid. In support of the above contention the petitioner had relied on a Division Bench decision of this court in **Rajasree vs. Secretary to Government (2000 (2) KLT 248).** It is held WP(C).19576 /2013 5 therein that there cannot be any permanent relinquishment to the post of Headmaster under Rule 44(1). The relinquishment can only be with respect to an existing right. Mere chance of promotion is not a right and if it is not a crystalised right, there is no question of any relinquishment. On the facts it was a case where the Manager had obtained a relinquishment letter from the teacher at the time of appointment itself. But in the case at hand, Ext.P1 will clearly indicate on unequivocal terms that the relinquishment was made specifically with respect to the vacancy which arose on the retirement of Mr. Andy. The petitioner had expressed consent for promoting any other teacher against the said vacancy. Hence the above said contention cananot be accepted. 4. Another contention raised is that the relinquishment was not approved by the Educational Officer as required under the 'Note' to Rule 44(1). It is contended that mere counter signature by the Senior Superintendent cannot be considered as approval . But it is evident from the counter affidavit filed by the 4[th] respondent that the petitioner had submitted Ext.P1 directly at WP(C).19576 /2013 6 the office of the 4[th] respondent and the Senior Superintendent had counter signed the relinquishment as officer holding full additional charge of the AEO. It is also evident that the acceptance of the relinquishment was recorded in the Service Book of the petitioner. Hence it cannot be contended that there was no approval of the relinquishment by the Educational Officer. The petitioner places reliance of Ext.P3 proceedings of the Educational Officer to contend that the relinquishment was not approved till 28.10.2009, because such a stand was taken by the 4[th] respondent in the Adalath conducted on the said date. But it is evident that the officer in charge of the AEO had received and counter signed the relinquishment much earlier. The withdrawal of the relinquishment can only be construed as one submitted after the approval. Further it is pertinent to note that the request for withdrawal was submitted only after appointment of the 7[th] respondent. 5. Incidentally the petitioner also raises a contention that the relinquishment was not in proper form. But it is to be WP(C).19576 /2013 7 noticed that there is no prescribed form for relinquishment of any claim for promotion, under Rule 44(1) of Chapter XIV A KER. 6. Learned counsel for the petitioner had raised vehement arguments to the effect that, the relinquishment, even if it is approved, is only with respect to a vacancy which arose on 1.5.2008 and the Manager ought to have appointed the petitioner when the 6[th] respondent was reverted, with effect from 5.6.2008. It is contended that an earlier relinquishment cannot be used on each and every occasion whenever a vacancy arose, and there cannot be any permanent relinquishment of the claim for promotion. In support of the above contention the petitioner had relied on the decisions of this court in **George vs. State of Kerala ( 1998 (2) KLT 637) , Usha Thayyil vs. State of Kerala ( 2009(4) KLT 1 (FB) and Sreesan E.A. vs.Manager P.M.S.A. High School and others (2012 KHC 584).** It is true that the legal position remains settled to the effect that there cannot be a relinquishment on a permanent basis. The relinquishment can only be with respect to an existing vacancy and that such relinquishment cannot disentitle a teacher WP(C).19576 /2013 8 from claiming promotion with respect to a vacancy which arose subsequently. 7. But the crucial aspect to be considered is as to whether the promotion of the 7[th] respondent is against the very same vacancy which arose on the retirement of Mr. Andy, on 30.4.2008 or as to whether it is a fresh vacancy which arose at the time of replacement of the 6[th] respondent. Evidently the 5[th] respondent had promoted the 6[th] respondent as Teacher in charge invoking Rule 45 C, as the petitioner had relinquished the claim for promotion and there was no other qualified teacher available. Learned counsel appearing for the 7[th] respondent had pointed out that a person temporarily promoted under rule 45 C cannot be treated as having entered in the category of Headmaster by virtue of such promotion . He had pointed out a decision of this court in **Gouri vs. State of Kerala ( 2007 (3) KLT 952)** wherein it is held that a temporary promotee Headmaster under rule 45 C does not gain regular service as Headmaster which could be reckoned as service in the said category. According to the counsel for the 7[th] respondent, none WP(C).19576 /2013 9 or the remaining teachers except the petitioner were qualified at the time of occurrence of the vacancy and the appointment made under Rule 45 C has to be replaced as soon as a qualified hand became available. In the case at hand, when the 6[th] respondent was continuing as a Headmaster in charge, the 7[th] respondent became qualified to seek appointment against the vacancy in question. Hence the 6[th] respondent was replaced by promoting the 7[th] respondent. Therefore it is contended that the promotion granted to the 7[th] respondent is only against the very same vacancy which arose consequent to retirement of Mr. Andy. As on the date of promotion granted to the 7th respondent the relinquishment made by the petitioner with respect to the said vacancy was in force, remaining approved by the Educational Officer. Hence the Manager was not at an obligation to consider the petitioner for promotion to the said post, is the contention. 8. It is evident that in Ext.P9 that the Government have taken a stand to the effect that the promotion of the 7[th] respondent was against the very same vacancy which arose consequent to retirement of Mr. Andy, against which the WP(C).19576 /2013 10 temporary promotion was granted to the 6[th] respondent, as Headmaster in charge. This court do not find any illegality or infirmity with respect to such finding. As on the date of promotion to the 7[th] respondent there existed a relinquishment of the claim for promotion, made by the petitioner with respect to the vacancy which arose on 30.4.2008. Therefore the promotion granted to the 7th respondent invoking Rule 45 C (2) of Chapter XIV A KER cannot be assailed under any valid ground. 9. In the result the writ petition deserves no merit and the same is accordingly dismissed. C.K.ABDUL REHIM, JUDGE pmn/ WP(C).19576 /2013 11 WP(C).19576 /2013 12