SREESAN Vs. P M S A HIGH SCHOOL

JUDGEMENT

(1.) All these three appeals arise out of a common judgment of the Single Judge. Editor's Note: Reported in 2012 3 KLT SN 34 (C. No. 34). Appellant in these three cases is the party respondent in all three Writ Petitions. For the sake of convenience, parties are described as in the order in Writ Appeal No. 304/2012. Question a rising for consideration is as to whether relinquishment of a claim for promotion made by the first respondent will operate as a permanent bar for promotion in the future arising vacancies. The first respondent was appointed as Peon in the fifth respondent's school during the year 1986. When vacancy of a Clerk arose in the year 1993, he submitted relinquishment of promotion, to the Manager. In the year 2006 when another vacancy of Clerk arose due to retirement of one Smt. Radha, Ext. P1 letter withdrawing the relinquishment was submitted by the first respondent and he claimed promotion. The Manager accepted the withdrawal of relinquishment and promoted the 1st respondent. The appellant herein, who is admittedly junior to the first respondent appointed in the post of Full Time Menial, objected the promotion. The educational authorities have not approved appointment of the first respondent The Director of Public Instructions had issued orders to promote the appellant, which was challenged by the first respondent in a Writ Petition. This court relegated the matter for decision of the Government. The decision of the Government was initially quashed by this court in Ext. P6 on the ground of procedural violations and directed the Government to take a fresh decision. Ext. P14 is the fresh decision taken after conducting personal hearing of all concerned. The Government observed that the relinquishment made by the first respondent in the year 1993 and it was accepted by the Manager and approved by the educational authorities. Necessary endorsements were made in the service book of the 1st respondent. Hence the withdrawal of relinquishment was not acceptable and therefore the promotion given is beyond the power vested on the Manager. Observing that there is no provision permitting withdrawal of relinquishment, it is found that the promotion given cannot be sustained Ext. P14 was challenged by the first respondent as well as by the Manager in W.P.(C). Nos. 12941/2010 and W.P.(C). 16255/2010, respectively.

(2.) The petitioner in W.P.(C). 28745/2010, from which W.A. No. 299/2012 arises, was filed by the Manager of the school. Consequent to promotion given to the first respondent the appellant was promoted as Peon. But the said appointment was not approved by the department in the light of the non approval of appointment of the first respondent. The refusal of approval of promotion given to the appellant is the subject matter of challenge in that Writ Petition.

(3.) Heard; Smt. V.P. Seemanthini, senior counsel appearing for the appellant, Sri. V.A. Mohammed, counsel appearing for the first respondent and Sri. Liju Stephen, Government Pleader. The legal question does not remain res integra. A Full Bench of this Court in Usha Thayyil v. State of Kerala, 2009 4 KerLT 1 had upheld the view taken by this court in the decisions in George v. State of Kerala, 1998 2 KerLT 637 and in Rajasree v. Secretary to Government,2000 2 KerLT 248 . In George's case while interpreting provisions contained in R. 44(1)of Chapter XIVA of K.E.R., it was held that a relinquishment submitted on an earlier occasion cannot be used for denying appointment in the subsequently arising vacancy and that there cannot be any permanent relinquishment to the post of Headmaster. In the said case this court deprecated the practice of obtaining relinquishment letter at the time of one's entry in the service. It is held that obtaining of such letter is unjust, illegal and arbitrary which will demoralise an employee. While affirming the view, the Full Bench observed that, the relinquishment given by a teacher while promoting a junior cannot be treated as relinquishment relating to all future appointments of juniors to him. Interpreting the word "whenever" used in R. 44 (1), the Full Bench observed that the meaning as per Oxford English Dictionary is, "at whatever time, on whatever occasion, every time that", which will implicate that on every occasion when the Manager appoints a junior overlooking the senior claimant consent of the latter has to be obtained. That means the consent once obtained will only apply to that particular appointment made at the relevant time. As far as that appointment is concerned the relinquishment is permanent and that the senior cannot retract from the relinquishment and stake claim for appointment in the very same vacancy. But when a subsequent vacancy arises, the Manager has to get consent of the senior claimant, if he is intending to overlook the seniority.