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2002 DIGILAW 306 (KER)

Kumar v. State of Kerala

2002-05-27

K.BALAKRISHNAN NAIR

body2002
Judgment :- K. Balakrishnan Nair, J. The petitioner who is the Professor and Head of the Department of Psychiatry, Medical College, Trivandrum has filed this Original Petition aggrieved by the omission of the Government to promote him as Principal after his withdrawal of relinquishment of promotion to the post of Principal. The brief facts necessary for the disposal of the case are the following: 2. The petitioner is the senior-most Professor among the Professors under the Directorate of Medical Education. As per Ext. PI (a) order dated 21.10.1999, the petitioner and two others were promoted to the cadre of Principal/Joint Director, Medical Education. The promotion was a temporary promotion under R.31 of the KS & SSR. Owing to personal reasons, the petitioner relinquished the said promotion by Exts. P2 and P2(a) dated 21.10.1999. ' Ext. P2(a) is a relinquishment given in the prescribed form relinquishing his right for promotion as Principal permanently. Ext. P2 is the covering letter by which he has relinquished the promotion ordered to him as per Ext. Pl(a). Thereafter, the petitioner submitted Ext. P3 representation dated 10.12.1999. As per the said representation, he requested to permit him to withdraw the relinquishment submitted by him. The relevant portion of Ext. P3 reads as follows: "This being the situation, I request that I may be permitted to withdraw the request for relinquishment of posting as Principal that I happened to submit in distress on the day of receiving the promotion transfer order. I have been informed thatthe Government has permitted many officers to withdraw request for permanent relinquishment of promotion submitted early. Relinquishment of promotion being a serious service loss, Government has granted this mercifully to many others. I may be allowed to exert the privilege of permitting walk-over by junior officer to be promoted as Principal, until I am given a posting as Principal, Medical College, Thiruvananthapuram after the term of Dr. V. G. Chellam is over. " 3. From the above it is clear that the petitioner intended to withdraw the permanent relinquishment given as per Exts. P2 and P2(a). It is also clarified therein that he is withdrawing the relinquishment with effect from the date Dr. V. G. Chellam is completing her term as Principal at Thiruvananthapuram. From the pleadings of the parties, it is evident that the date of retirement of Dr. V. G. Chellam is 30.4.2001. The Government by Ext. P2 and P2(a). It is also clarified therein that he is withdrawing the relinquishment with effect from the date Dr. V. G. Chellam is completing her term as Principal at Thiruvananthapuram. From the pleadings of the parties, it is evident that the date of retirement of Dr. V. G. Chellam is 30.4.2001. The Government by Ext. P4 order dated 28.12.1999, inter alia, accepted the relinquishment of the petitioner made as per Exts. P2 and P2(a) dated 21.10.1999. The Government have a case that Ext. P3 though dated 10.12.1999, was received in the second respondent's office only in February, 2000 and before the same was received, Ext. P4 order was passed. 4. Thereafter, the third respondent Director of Medical Education by Ext. P5 communication recommended to permit to withdraw the relinquishment of promotion made by the petitioner and to promote him as Joint Director of Medical Education and post him as Project Director of the Behaviour Sciences Training Programmes. While so, the Government by Ext. P6 order dated 8.6.2000 provisionally promoted the fourth respondent as Principal/Joint Director of Medical Education and posted her as joint Director of Medical Education (M) in the Directorate of Medical Education, Thiruvananthapuram. The petitioner filed this Original Petition challenging Exts. P4 and P6. He also seeks for a direction to the Government to consider Ext. P5 and appoint him as Joint Director of Medical Education and retain him as Director for the Training Programme on Behavioural Sciences with effect from 9.5.2000. A declaration is also sought that Ext. P2(a) will affect only the relinquishment of the promotion made as per Ext. P1 (a). R.38 of the General Rules and the Executive Order dated 7.12.1991 issued thereunder are also challenged. He also seeks a disposal of Ext. P3. 5. Respondents 1 to 3 have filed a counter affidavit contending that by Exts. P2 and P2(a) the petitioner has permanently relinquished all promotions and before Ext. P3 was received, Ext. P4 order has been passed accepting Exts. P2 and P2(a). Therefore, it is submitted by the said respondents that the petitioner is not entitled to any relief. It is also submitted that Ext. P3 was received only in February, 2000 after Ext. P4 order was passed accepting the relinquishment. It is also submitted that by Ext. R2(a) dated 7.12. 2000 passed during the pendency of the Original Petition, Ext. P3 was rejected. It is also submitted that Ext. P3 was received only in February, 2000 after Ext. P4 order was passed accepting the relinquishment. It is also submitted that by Ext. R2(a) dated 7.12. 2000 passed during the pendency of the Original Petition, Ext. P3 was rejected. The fourth respondent has filed a counter affidavit supporting the impugned orders and opposing the grant of relief to the petitioner. Two juniors of the petitioner in the cadre of Professor have got themselves impleaded as additional respondents 5 and 6. They have also filed counter affidavits supporting the impugned orders. The juniors of the petitioner will get promotion earlier, if he is sidelined. Indian Pharmaceutical Association, Kerala State Branch has also got itself impleaded in the Original Petition. Though they are not concerned with the promotions in this case, it appears, they are interested in the principles that may be laid down in this case. 6. I heard both sides. The learned senior counsel for the petitioner relied on the decision of this Court in State of Kerala v. Suseela George (2000 (3) KLT 295). The learned counsel for the contesting respondents relied on the decision of this Court in Joseph v. State of Kerala (1987(2) KLT 579) and of the Apex Court in K. Viswambharan v. State of Kerala & Ors. (1998 (9) SCC 432). The outcome of this case will depend upon the interpretation of R.38 of KS & SSR and also the legal effect of Exts. P2 and P2(a) relinquishment letters and Ext. P3 withdrawal of relinquishment. 7. R.38 is extracted below for convenient reference: "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. (Explanation:-The relinquishment of the right for promotion under this rule shall entail loss of seniority and a relinquishment of the right for promotion shall not be permissible unless such relinquishment entails loss of seniority. (Explanation:-The relinquishment of the right for promotion under this rule shall entail loss of seniority and a relinquishment of the right for promotion shall not be permissible unless such relinquishment entails loss of seniority. )" The first part of the Rule enables any person to relinquish any right or privilege to which he may be entitled to under these Rules or the Special Rules. On such relinquishment, the right or privilege to the extent if has been relinquished will not be recognised. The relinquishment will take effect only on approval of the same by the appointing authority. The approval is granted taking into account whether the relinquishment is opposed to public interest or not. In the light of the scheme of the Rule, the appointing authority is concerned only with the aspect whether the relinquishment of the right or privilege by the person will adversely affect public interest. If it will affect, the permission for relinquishment has to be rejected. The acceptance of the relinquishment only means that the relinquishment will not affect public interest. It does not prevent the petitioner from withdrawing relinquishment. The explanation to the Rule was added in 1982 stating that if the right for promotion is relinquished, it shall entail loss of seniority. The effect of that explanation has been the subject matter of decision by a Division Bench of this Court in Joseph v. State of Kerala (1987 (2) KLT 579). The loss of seniority contemplated is not in the feeder category, but in the promoted category. As a result of relinquishment, the juniors who were promoted can retain their seniority in the promotion post. Even if the senior who relinquished promotion is subsequently promoted, he cannot get seniority over those juniors who were promoted earlier. That is the effect of the new explanation. This Court in the above said decision has held that even before the introduction of the explanation, the effect of relinquishment was loss of seniority in the promotion post with reference to those juniors promoted earlier. A provisional promotee will not get seniority in the promoted cadre. This is evident from R.31(c), (d) and (e) of KS & SSR. So, the explanation to R.38 dealing with loss of seniority is applicable only to regular promotions. 8. The case of the petitioner is that what is relinquished by him under Exts. P2 and P2(a) is only provisional promotion. This is evident from R.31(c), (d) and (e) of KS & SSR. So, the explanation to R.38 dealing with loss of seniority is applicable only to regular promotions. 8. The case of the petitioner is that what is relinquished by him under Exts. P2 and P2(a) is only provisional promotion. The learned counsel for the petitioner would point out that since Ext. P1 (a) is referred in Ext. P2, what is relinquished should be taken as the promotion granted under the said order: So, according to the petitioner, even if he has relinquished something permanently, it applies only to what has been offered to him under Ext. PI (a). But, on the contrary, the learned counsel for the contesting respondents would point out that he has relinquished all promotions permanently. The Rule does not contemplate the relinquishment of promotion at a point of time far ahead of the date of promotion. In other words, normally a relinquishment is made of something which is offered to him or which is in the process of being offered to him. In the case at hand, what has been offered is only a provisional promotion and immediately he has relinquished it permanently. Even assuming that as contended by the contesting respondents the relinquishment is permanent, it can only be in relation to provisional promotion which has been granted to him. Therefore, the effect of Exts. P2 and P2(a) concerns only with provisional promotion to the post of Principal/ Deputy Director. 9. The next point to be considered is the legal effect of Ext. P3 withdrawal of relinquishment. The contention of the respondents is that once the relinquishment is accepted, the same cannot be withdrawn. The said contention appears to be not correct in the light of the scheme of the Rules, As stated earlier, "acceptance" of a relinquishment by the appointing authority is concerned only with the fact whether the relinquishment will affect public interest or not. In other words, acceptance of relinquishment means that the Government found that there is no harm in the person relinquishing his right or privilege. But, the acceptance does not have the efficacy to prevent the person from retreating his steps unlike in the case of a resignation or voluntary retirement. Even after the acceptance of the relinquishment of promotion, the employer-employee relationship continues. But, the acceptance does not have the efficacy to prevent the person from retreating his steps unlike in the case of a resignation or voluntary retirement. Even after the acceptance of the relinquishment of promotion, the employer-employee relationship continues. The Government's finding that the petitioner's relinquishment will not affect public interest will not prevent the petitioner from coming up and saying that he is withdrawing his relinquishment. Even in the case of voluntary retirement, it can be withdrawn before the person is actually relieved from service. The Supreme Court in a recent decision in Shambhu Murari Sinha v. The Project & Development (India) Ltd. (AIR 2002 SCW 1165) has held that an application for withdrawal of the request for voluntary retirement can be submitted before the actual date of release from service. It was held that the date of effect of the application for voluntary retirement is the date of release, and not the date when the management has accepted the application for voluntary retirement. In that case, the appellant applied for voluntary retirement on 18.10.1995. It was accepted by the management on 30. 7.1997. The appellant withdrew the voluntary retirement application by submitting a letter on 7.8.1997. He was released from the Company on 26.9.1997. On these facts, the Apex Court said that the letter of withdrawal was liable to be accepted because the same was submitted before the date of actual relief, which should be taken as the effective date of voluntary retirement. 10. In the case at hand, on the relinquishment of promotion by the petitioner, if somebody is promoted in his place, that should be treated as the date of effect of his relinquishment. As stated earlier, Ext. P4 by which his relinquishment was accepted, has nothing to do with the date of effect of relinquishment as Ext. P4 is concerned with the public interest involved in allowing him to exercise the relinquishment. If the petitioner has the right to relinquish his promotion, he must have the right to withdraw it also. The finding of the authority that his relinquishment is not against public interest, will not stand in the way of exercising his right to withdraw the relinquishment. Any other interpretation of R.38 will be violative of the fundamental rights of a senior employee guaranteed under Arts.14 and 16 of the Constitution of India and his legal rights under Rr. The finding of the authority that his relinquishment is not against public interest, will not stand in the way of exercising his right to withdraw the relinquishment. Any other interpretation of R.38 will be violative of the fundamental rights of a senior employee guaranteed under Arts.14 and 16 of the Constitution of India and his legal rights under Rr. 28 and 31 of KS & SSR, as the same will deny him the right of being considered for promotion. So, in the case at hand, what has been relinquished by the petitioner is only temporary (provisional) promotion and that has been withdrawn as per Ext. P3 with effect from 30.4.2001. The petitioner has not relinquished his claim for regular promotion. This view that the relinquishment relates only to provisional promotion finds support from the Division Bench decision of this Court in State of Kerala v. Suseela George (2000 (3) KLT 295). 11. In case after the date of Ext. P1 (a), if any of his juniors has been promoted on a regular basis as Principal/Joint Director, the petitioner's claim for regular promotion is also liable to be considered in accordance with law, eninfluenced by Exts. P2 or P2(a). It is declared so. In view of my above finding regarding relinquishment, there is no necessity to quash Ext. P4. 10. The promotion given to the fourth respondent under Ext. P6 is only a provisional promotion and since the petitioner has as per Ext. P3 relinquished provisional promotion upto 30.4.2001, he cannot object to the promotion given to the fourth respondent as per Ext. P6. Therefore the challenge against Ext. P6 is repelled. 13. It is declared that respondents 1 and 2 are bound to accept the withdrawal of relinquishment as prayed for in Ext. P3 and the claim of the petitioner for provisional promotion after 30.4.2001 shall be considered in accordance with law. 14. In view of my finding that the petitioner has not relinquished his claim for regular promotion, the petitioner's claim for regular promotion shall be considered in accordance with law having regard to his seniority ignoring Exts. P2 and P2(a). 15. The above directions shall be carried out by the respondents within three months from the date of receipt of a copy of this judgment. The petitioner will be entitled to all consequential benefits except arrears of salary. P2 and P2(a). 15. The above directions shall be carried out by the respondents within three months from the date of receipt of a copy of this judgment. The petitioner will be entitled to all consequential benefits except arrears of salary. He will be entitled to arrears of salary only with effect from today. In view of the above directions, it is not necessary to go into the feeble challenge raised in the Original Petition against R.38. The executive order dated 7.12.1991 regarding relinquishment should be understood and implemented in the light of the interpretation given to R.38 hereinabove. The Original Petition is disposed of as above.