JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant having relinquished his claim temporarily fur the post of Headmaster and having become a Headmaster and at a subsequent stage at his own option claims that persons who have been promoted during the interregnum to the cadre of Headmasters being juniors to him in the cadre of High School Assistants cannot have a preferential claim to the appellant in the matter of further promotion. This contention has been negatived by the State Government and on a further representation the earlier decision has been reiterated. THE learned single judge has agreed with that view. THE clear effect of R. 38 of the Kerala State and Subordinate Services rules which deals with the relinquishment of rights by persons like the appellant is stated in the rule itself to the effect that nothing contained in the rules or in the Special Rules shall be deemed to require the recognition of any right or privilege to the extent to which it has been so relinquished. In other words, what has been relinquished cannot be taken into account for the purpose of assessing the rights of person who has made the relinquishment. If the contention of the appellant is accepted it would mean that the relinquishment has to be ignored for the purpose of further promotion to the cadre of District Educational Officer.

(2.) R. 38, without the explanation, reads: "38. Relinquishment of rights by members. Any person may, in writing, relinquish any right or privilege to which he may be entitled under these Rules or the Special Rules, if, in the opinion of the appointing authority, such relinquishment is not opposed to public interest; and nothing contained in these Rules or the Special Rules shall be deemed to require the recognition of any right or privilege to the extent to which it has been so relinquished. " It is expressly provided that the right or privilege which has been relinquished is not required to be recognised either under the ks & SSR or the Special Rules. Thus, if a person relinquishes his right to a promotional post, be loses the right to be considered for promotion until the relinquishment ceases. He may be considered for promotion for the first vacancy that arises after the relinquishment ceases. On such promotion he cannot claim seniority over those who had been promoted during the interregnum, i. e. , between the date of relinquishment and the date of promotion of the person after the relinquishment ceases. Full effect has to be given to these consequences, having regard to the mandate of R. 38, notwithstanding anything contained in R. 27 or ether Rules of KS & SSR or the Special Rules.