RAJASREE Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) One Smt. Gangakumari was appointed as UPSA in M.H.S. for boys from 25.1.1995 to 31.3.1995 in an existing division vacancy and the appointment was also approved by the Manager as also by the District Educational Officer as borne out by Ext. P2 appointment order. Thereafter, the said teacher was reappointed from 5.8.1995 onwards as borne out by Ext. P3 appointment order. She possesses B.Sc. degree (Natural Science) and B.Ed. qualifications and hence duly qualified for the post of H.S.A. (Natural Science). Later, when a leave vacancy of H.S.A. (Natural Science) arose, the Manager appointed one Rajasree to the said post rejecting Gangakumari's claim for the said post on the ground that she had as per Ext. P4 relinquishment letter, permanently relinquished her right for promotion as H.S.A. Ext. P7 is the representation preferred by Gangakumari to the District Educational Officer highlighting her grievances. In Ext. P7, Gangakumari has stated that the permanent relinquishment obtained from her is one obtained by force and therefore it is illegal and invalid.

(2.) As per Ext. P8, the District Educational Officer, informed Gangakumari that she had permanently relinquished her claim as H.S.A. and it has been accepted by the controlling officer and that an employee shall not be allowed to withdraw the relinquishment of the claim once accepted and approved by the controlling officer. Aggrieved by Ext. P8, Gangakumari moved this Court in O. P. 646/98 which was finally heard and disposed of by Ext. P9 judgment dated 1.6.1998 directing her to seek the alternate statutory remedy available under R.92 of Chap.14A of the Kerala Education Rules. Pursuant to Ext. P9 judgment, the Government, after hearing all the affected parties, passed Ext. P11 order dated 23.7.1998 holding that Ext. P4 relinquishment letter submitted by Gangakumari on 25.1.1995 is invalid. It is also held that the action of the Manager in having obtained relinquishment letter at the time of appointment was ultravires the provisions of the Kerala Education Rules. Aggrieved by Ext. P11, both the Manager and the teacher who was appointed as H.S.A. (Natural Science) moved this Court in O. P. Nos. 15040/98 and 16707/98 respectively which were heard and disposed of by a common judgment dated 15.12.1998 by a learned Single Judge upholding Ext. P11 and declaring that Ext. P4 relinquishment letter has no statutory basis and the same has to be ignored. The judgment of the learned Single Judge is under challenge in these two Writ Appeals. W. A. No. 435/99 is at the instance of the Manager and W. A. No. 311/99 is at the instance of the teacher, Rajasree. The sequence of events which are mentioned in the statement of facts in this judgment and exhibits referred to herein are in the order as mentioned in O. P. 15040/98 preferred by the Manager.

(3.) Having heard learned counsel for the appellants and the respondents at length, we are of the considered opinion that the judgment under challenge rendered by the learned Single Judge does not call for any interference and the same is only to be upheld. The bone of contention is whether Ext. P4 relinquishment letter is liable to be acted upon while considering the claim of Gangakumari for the post of H.S.A. (Natural Science). According to the learned counsel for the appellants, viz., the Manager and the teacher - Rajasree, who stands appointed to the post of H.S.A. (Natural Science). Gangakumari having unconditionally relinquished her right for promotion as H.S.A., she is barred from staking a claim to the said post. We cannot accept this contention for more than one reason. First of all, it has to be noted that there is no provision either under the Kerala Education Act or under the Rules framed thereunder permitting a teacher to relinquish promotion to any post or enabling the Manager to accept such a letter of relinquishment. R.38 of the Kerala State and Subordinate Services Rules under which Ext. P4 relinquishment letter was given by Gangakumari is not applicable to aided school teachers. As has been rightly observed by the learned Single Judge, the only provision in the Kerala Education Rules is Note to R.44(1) of Chap.14A of KER which says, 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. Scope of R.44(1) was considered by this Court in George v. State of Kerala ( 1998 (2) KLT 637 ) and this court held that there cannot be any permanent relinquishment to the post of Headmaster. That apart, we are of opinion that relinquishment can only be of an existing right. Mere chance of promotion is not a right and if it is not a crystallised right, there is no question of any relinquishment. In this case, Ext. P4 relinquishment letter was obtained by the Manager long before the vacancy arose and the right got vested in the teacher. In fact, Ext. P4 was accepted by the Manager even before the appointment of the teacher as UPSA was approved by the authorities concerned. In our considered opinion, the practice of obtaining relinquishment letter from a teacher while issuing the initial order of appointment renouncing his or her claim for promotion for all time to come is an unhealthy practice. As observed by the learned Single Judge it is unjust, illegal and arbitrary. In this connection, we take note of the fact that no teacher will voluntarily give up his or her right to promotion at the very threshold of appointment unless the teacher is compelled to adopt such a course for extraneous reasons or for reasons such as to avoid shouldering higher responsibilities or to avoid transfer to other stations etc. But that is not the situation here. Here is a case where the teacher had been made to relinquish permanently her right for promotion as H.S.A. which may arise in future, which cannot stand the scrutiny of law for a moment. Therefore, we are of the opinion that the Government was right in holding that Ext. P4 letter of relinquishment is invalid and inoperative and ultravires the provisions of the Kerala Education Rules (vide Ext. P11) and the learned Single Judge rightly declined to interfere with the said order.