DEPUTY DIRECTOR OF EDUCATION Vs. P.A.SUHURA

JUDGEMENT

(1.) Respondents 1 to 3 in O.A.(EKM) No.645 of 2016 before the Kerala Administrative Tribunal, Ernakulam Bench has filed the present Original Petition challenging Ext.P7 final order dtd. 17/10/2018 in the said Original Application.

(2.) Brief facts necessary for the disposal of the present Original Petition are as follows: The respondent herein/applicant in the OA entered service in the General Education Department in the year 1993 and is presently working as a Primary Departmental Teacher in the Govt. Vocational Higher Secondary School, Mathirippally near Kothamangalam in Ernakulam District. While working so, as per Annexure-A1 order, the applicant was promoted as Primary Headmistress and posted at Kuzhikkattussery Government Lower Primary School. Since she was not in a position to take up the post for personal reasons mainly due to her and her husband"s health condition, the applicant decided to relinquish her right for promotion temporarily for a period of 5 years, and therefore, she submitted Annexure-A2 application dtd. 3/7/2015 in this regard, in the prescribed format. After Annexure-A2 was forwarded to the Deputy Director of Education, Ernakulam through the proper channel, nothing was heard in reply to the same. However, it is contended that the Headmaster, GVHSS, Mathirippally had instructed that the applicant need not be relieved on the basis of Annexure-A1 and she was allowed to continue in the said school. Though no formal orders were issued accepting her request made in Annexure-A2, the applicant reasonably thought that her request for relinquishment has been accepted. To the surprise of the applicant, Annexure-A3 order dtd. 3/5/2016 was issued by the Deputy Director of Education, Ernakulam, the 1st petitioner herein, promoting the applicant as Primary Headmistress and posting her at Govt. Lower Primary School, Neeleswaram, near Kalady. Since the applicant had already forwarded her request for relinquishment of promotion for a period of 5 years, she genuinely felt that issuance of Annexure-A3 order was due to an oversight on the part of the Deputy Director of Education, Ernakulam and therefore, she submitted Annexure-A4 representation dtd. 2/6/2016 requesting to cancel her promotion. It is contended that the applicant was given to understand that the 1st respondent in the O.A. has taken a decision to grant the request for relinquishment only for a period of one year and also to grant no further relinquishment. It is in the said circumstance that the applicant has filed O.A. No.645 of 2016 before the Kerala Administrative Tribunal, Ernakulam Bench challenging Annexure-A3 order of promotion to the post of Primary Headmistress and for a consequential direction to allow the request made in Annexure-A2 and permit relinquishment of her promotion to the post of Headmistress for a period of five years. While the said matter was pending before the Tribunal, the applicant produced Annexure-A7 order dtd. 16/7/2015 whereby she was allowed to temporarily relinquish her promotion only for a period of one year mainly relying on Annexure A-6 Government Order, G.O.(P)No.39/91/P&ARD dtd. 7/12/1991 in which it has been specified that though the promotion can be relinquished either permanently or temporarily, temporary relinquishment can only be for a minimum period of one year. Annexure-A7 order also mandated that no further temporary relinquishment can be allowed on any account. Therefore, an application was filed seeking to amend the O.A. incorporating a challenge against Annexure-A7 order dtd. 16/7/2015 and for a declaration that Sub Clauses (iii) and (iv) of Clause 3 of Annexure-A6 Government Order are void and have no effect as being ultra virus to Rule 38 of Part II Kerala State & Subordinate Service Rules, 1958.

(3.) Before the Tribunal, a detailed reply statement was filed by the 1st respondent in the O.A. mainly contending that the applicant submitted an application for relinquishment of promotion as Headmistress only for a period of one year and that as per Annexure-A7 order the request of the applicant for temporary relinquishment of promotion for a period of one year was granted, subject to the condition that no further request will be accepted on any account. It was further contended that after the expiry of the period of the relinquishment granted, the applicant was again promoted as Headmistress and posted to GLPS, Neeleswaram as per Annexure-A3 order dtd. 3/5/2016 and that at this point of time she submitted a request to cancel the promotion as Headmistress and the same could not be accepted as the Rules do not permit an employee to put forward a second claim for relinquishment of promotion. It was also contended that the applicant submitted a request for relinquishment of promotion only for a period of one year and not five years as contended by her. Temporary relinquishment of promotion can be made only for a minimum period of one year and that too only once in service. It was also contended based on Rule 38 of Part II KS & SSR and the provisions of Annexure-A6 Government Order dtd. 7/12/1991 that the right for relinquishment of promotion either permanently or temporarily is only for a minimum period of one year. In support of the said contention, Ext.R2(a) relinquishment application submitted by the applicant was produced to show that she has sought for relinquishment of promotion only for a period of one year. Based on the said contentions the official respondents sought for dismissal of the O.A.