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2000 DIGILAW 114 (KER)

Rajasree v. Secretary to Government

2000-02-21

K.NARAYANA KURUP, K.V.SANKARANARAYANAN

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Judgment :- K. Narayana Kurup, J. One Smt. Gangakumari was appointed as U.P.S.A. 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 re-appointed 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 Chapter XIV-A of the Kerala Education Rules. Pursuant to Ext. P9 judgment, the Government, after hearing all the affected parties, passed Ext. Pll 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. PI 1, 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. PI 1 and declaring that Ext. P4 reqlinquishment letter has no statutory basis and the same has to be ignored. 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. PI 1 and declaring that Ext. P4 reqlinquishment 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 Chapter XFV-A of K.E.R 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. 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 U.P.S.A. 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. 4. Learned counsel for the appellants would contend that it was only due to the fact that the schools (UPSA in High school) are under different managements that Ext. P4 relinquishment letter was obtained by the Manager to protect the interest of the management of the High School. Having bestowed our anxious consideration to the aforesaid contention, we are of the opinion that it is not liable to be upheld. P4 relinquishment letter was obtained by the Manager to protect the interest of the management of the High School. Having bestowed our anxious consideration to the aforesaid contention, we are of the opinion that it is not liable to be upheld. It has come out of record that the High Schools and U.P. Schools are under the same management and they are taken as one unit in the matter of appointment and promotion.' Ganga Kumari in her counter-affidavit as 3rd respondent in O.P. 15040/98 has stated that as early as in 1964, U.P.S. As. of the U.P. Division were promoted as H.S.As. in the High School. She has given various instances of such promotions. It is a clear indication to hold that the UP and High School divisions are considered as a single unit for the purpose of appointment and promotion. Therefore, the aforesaid contention of the appellants is erraneous and unsustainable. Besides, they have not agitated this contention before the Government nor seen seriously pressed before the learned Single Judge. Accordingly, we negative this contention as devoid of any merit. 5. Learned counsel for the appellant also relied on Ext. P12 circular to bring home the fact that there is no apprehension of an involuntary relinquishment of right of future promotions by a teacher. However, we find that Ext. P12 circular dated 6.1.1997 cannot have a bearing as far as the facts of the present case is concerned. Since the alleged relinquishment in this case occurred as per Ext. P4 on 25.1.1995. Ext. P12 circular dated 6.1.1997 can hardly have any application. Therefore Ext. P12 circular will not be of any assistance to the appellants. 6. The appellants have a further case that Ext. P11 is vitiated in as much as they were not furnished with a copy of the revision petition by the Government in the R.92 proceedings. Here again the contention is devoid of any merit since the rules do not mandate serving a copy of the revision petition filed to the Manager. From a reading of the relevant rule, viz., sub-r.2 of R.92 of Chap. XIV-A K.E.R. it is clear that the mandate of serving the copy of the petition will come into play only when the hearing in person of the party concerned is dispensed with. It is clear from Ext. P10 notice and Ext. From a reading of the relevant rule, viz., sub-r.2 of R.92 of Chap. XIV-A K.E.R. it is clear that the mandate of serving the copy of the petition will come into play only when the hearing in person of the party concerned is dispensed with. It is clear from Ext. P10 notice and Ext. P11 order that both the Manager and the affected teacher viz., Rajasree were personally heard in the revision petition. Moreover both the Manager and the affected teacher effectively participated in R.92 proceedings without insisting for a copy of the revision petition. At any rate, in our considered opinion, no prejudice has been caused either to the Manager or to the affected teacher since they are fully posted with the facts of the case as the revision itself was the product of the direction issued by this Court in a Writ Petition in which they were parties. Therefore, we have no hesitation in repelling this contention also. Learned counsel for the appellant brought to our notice certain decisions rendered by this Court in support of their contentions. Having perused the said decisions, we are of the considered opinion that the said decisions will not give any mileage to the appellants as the facts presented in those cases are clearly distinguishable. In the result, we confirm the judgment of the learned Single Judge and dismiss these appeals.