USHA THAYYIL Vs. STATE OF KERALA

JUDGEMENT

(1.) The point that arises for decision in these Writ Petitions is, whether a teacher who has relinquished his/her claim for promotion to the post of Headmaster can stake his/her claim, when another vacancy in that post arises subsequently. The answer to the above question will depend on the construction, placed on the Note to Rule 44(1) of the Kerala Education Rules (hereinafter referred to as, 'the Rules').

(2.) The brief facts of the case are the following: The petitioner, Usha Thayyil, was appointed as Upper Primary School Assistant (for short, "UPSA") in the fourth respondent's aided Upper Primary School on 6.7.1989. The fifth respondent, Smt. P.C. Sheela was appointed as Upper Primary School Assistant in the said school on 7.7.1989. As per Rule 45B(1) of the Rules, a pass in Account Test (Lower) conducted by the Kerala Public Service Commission is an obligatory qualification for promotion as Headmaster of Lower Primary and Upper Primary Schools. As per Sub-rule (4) of Rule 45B, those teachers, who attained the age of 50 years, are exempted permanently from acquiring the said test qualification. The existing Headmaster, who was due to retire from service on 30.6.2004, entered on leave from 1.6.2004. So. Smt. Akkamma Joseph, who has continuous service in the school from 1.1.1976, being the seniormost hand, was promoted as Headmistress on 1.6.2004. She resigned from the post on 15.10.2004. Before the appointment of Akkamma Joseph, the fifth respondent, who is a graduate teacher, submitted Ext.R4(a) relinquishment letter dated 19.5.2004, relinquishing her claim for the post of Headmistress, Apart from her, three other test qualified/test exempted graduate teachers also submitted their relinquishment. Otherwise, Akkamma Joseph, who was a non-graduate teacher though senior, could not have been appointed as Headmistress, in view of the provisions contained in Rule 45 of the Rules. The said rule provided that a graduate UPSA with five years teaching experience after acquisition of B.Ed, qualification shall be preferred to a non-graduate senior, provided the former has service, which is at least equal to half of the service of the latter.

(3.) In the resignation vacancy of Smt. Akkamma Joseph, the petitioner was appointed as temporary Headmistress on 18-10-2004. The Assistant Educational Officer, (for short, 'A.E.O.'), by order dated 31.12.2004, declined to grant approval for the promotion of Smt. Akkamma Joseph. The said officer by order dated 5.1.2005, also declined to grant approval for the temporary promotion of the petitioner. The reason for non-approval of promotion of the petitioner was the existence of senior qualified hands. Challenging the said order of the A.E.O, she moved the District Educational Officer (for short, 'D.E.O'.), in appeal. The petitioner had cleared the Account Test (Lower), which was held in January, 2005. Later, after the results were announced, she was promoted as Headmistress on 6,5.2005, by Ext. P1A order. The D.E.O., by order dated 7.6.2005, upheld her temporary promotion and directed the A.E.O. to approve the same. Challenging the said order of the D.E.O. dated 7.6.2005, the 5th respondent approached this Court by filing W.P.(C) No. 24850 of 2005. By judgment dated 31.8.2005 in the said writ petition, this Court set aside the aforementioned order of the D.E.O. and directed the said officer to pass fresh orders on the-appeal filed by the 5th respondent. The D.E.O., thereafter, passed Ext. P2 order dated 26.10.2005, rejecting the claim of the 5th respondent and directed the A.E.O. to approve the temporary appointment of the petitioner as Headmistress from 18.10.2004. Challenging Ext.P2 order, the 5th respondent moved the Director of Public Instruction, by filing a revision petition. The said revision petition was dismissed by the Director of Public Instruction, by Ext.P3 order dated 12.9.2006. The 5th respondent moved the Government in revision by challenging ExtP3 order. The said revision was allowed by the Government, by Ext.P4 order dated 23.11.2007. The Government took the view that the Manager should have obtained relinquishment letters from all senior claimants before filling up the resignation vacancy, which arose on 16.10.2004. Aggrieved by the said decision of the Government, the Writ Petition was filed. When the Writ Petition came up before the learned Single Judge, it was referred to the Division Bench, noticing the apparently conflicting decisions regarding relinquishment of promotion. The Division Bench, which heard the writ petitioner felt that the decision of this Court in George v. State of Kerala, 1998 2 KerLT 637, which was approved in Rajasree v. Secretary to Government,2000 2 KerLT 248, was not in accordance with the Note to Rule 44 (1) of Chapter XIV-A of the K.E.R. Therefore, the Writ Petition was referred for hearing by the Full Bench,