IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16966 of 2008(T)
1. K.KRISHNAVENI, (RETIRED HEADMISTRESS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DISTRICT EDUCATIONAL OFFICER,
3. THE ASSISTANT EDUCATIONAL OFFICER,
4. THE MANAGER, EDAMUTTAM U.P. SCHOOL,
For Petitioner :SRI.N.P.SAMUEL
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :30/10/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C.) No.16966 of 2008
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Dated, this the 30th day of October, 2008
J U D G M E N T
The petitioner retired from service as Headmistress of
Edamuttom U.P.School, Valappad with effect from
30/06/2005. The petitioner was the senior most Primary
School Assistant. On 01/04/2005, a vacancy of Headmaster
arose in the school and the petitioner was promoted as
Headmistress as per Ext.P1 order. Approval was sought and
that was rejected by the 3rd respondent as per Ext.P2 order
on the ground that the petitioner had permanently
relinquished the post of Headmistress with effect from
31/03/1986. Appeals filed against the said order were also
rejected by Ext.P4 order of the 2nd respondent, and Ext.P9
order passed by the Government.
2. In the aforesaid circumstances, this writ petition is
filed challenging Exts.P2, P4 & P9 orders and a direction is
sought to the respondents to approve the appointment of the
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petitioner as Headmistress with all consequential benefits
including arrears of pay, pensionary benefits etc.
3. The learned Government Pleader refers to Ext.P10
relinquishment given by the petitioner on 31/03/1986.
According to the learned Government Pleader,
relinquishment made by the petitioner is permanent and
she also makes particular reference to the last sentence of
Ext.P10, which reads as under:-
“I also will not put-forth any future claim for
Headmastership.”
Based on this, it is stated that the petitioner, having
permanently relinquished the post of Headmistress, could
not have been appointed to that post with effect from
01/04/2005. On this basis, the learned Government Pleader
seeks to sustain the impugned orders.
4. I have considered the submissions made. It is
true that on 31/03/1986, the petitioner had relinquished the
post of Headmistress and stated that she had no objection
to the appointment of Shri.M.Ravindran as Headmaster in
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the vacancy which arose on 31/03/1986. It is also stated in
Ext.P10 that she will not put-forth any future claim for the
post of Headmistress.
5. The effect of Ext.P10 is what is required to be
considered in this writ petition. Appointment to the post of
Headmaster in an aided school is as per Rule 44, Chapter
49, of the K.E.R. The Note attached to the said Rule, which
provides for relinquishment in the nature of Ext.P10, is
extracted below for reference :-
“Note :- 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.”
This Note provides that “whenever the Manager intends to
appoint” a person as Headmaster, who is not the senior
teacher, the manager shall obtain a written consent from
the senior teacher renouncing his/her claim permanently. It
is in pursuance to the note referred to above, that Ext.P10
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relinquishment has been given by the petitioner. The effect
of Ext.P10 has been considered by this Court in various
judgments. In George Vs. State of Kerala (1998(2) KLT
637, this Court has held as follows :-
“Secondly, going by the Note itself, the said relinquishment
itself cannot be used on each and every occasion. The
expression “Whenever the Manager intends to appoint”
would show that whenever manager overlooks the claim of
a senior teacher to be appointed as Headmaster, manager
has to get a written consent from such senior claimant
renouncing his claim permanently. In other words, there
cannot be any permanent relinquishment to the post of
Headmaster. Apart from that, Ext.R3(a) cannot have any
legal validity, since no approval was obtained from the
educational officer concerned. Therefore, the same cannot
be given effect to for all years to come”.
This judgment has been quoted with approval by a Division
Bench judgment of this Court in Rajasree Vs. Secretary to
Government (2000(2) KLT 248), wherein it has held that :
“Scope of R.44(I) was considered by this Court in George
Vs. 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
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relinquishment.”
Following these two judgments, a Division Bench of this
Court, in Mariam Koshy Vs. Jolly Varghese, (2007(4)
KLT 803) held that whenever the Manager intends to
appoint a person as Headmaster other than a senior
claimant, the Manager shall obtain a written consent from
such senior claimant renouncing his claim permanently.
Therefore, the law laid down by the aforesaid three
judgments is to the effect that there is no permanent
relinquishment of the post of Headmaster, but whenever the
manager intends to make appointment to the post of
Headmaster by a person other than the senior claimant, the
manager has to obtain a written consent from the senior
claimant. Similar is the view taken by another bench of this
Court in Muhammed Ashraf Vs. State of Kerala ( 2007(3)
KLT 667).
6. The learned Government Pleader relied on a
Division Bench judgment of this Court in Joseph Vs. State
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of Kerala (1987(2) KLT 579). According to the learned
Government Pleader, going by the law laid down in this
judgment, once a permanent relinquishment is made, the
teacher is not entitled to claim promotion to the post of
Headmaster.
7. However, I am not persuaded to accept the
contention raised by the learned Government Pleader. That
was a case where, though the teacher had relinquished his
claim for promotion, subsequently he was promoted to the
post of Headmaster and thereafter he claimed seniority over
the person, who was promoted as Headmasters during the
time when his relinquishment was in operation. In such
circumstances, the Division Bench held that once
appointment to the post of Headmaster has been
relinquished, it is not open to the teacher to claim seniority
over the persons, who were promoted as Headmaster. In
my view, the principle laid down by this Court in the
judgment relied on by the learned Government Pleader
cannot be imported to the facts of this case, where the
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petitioner is claiming promotion to the post of Headmaster
and is not claiming seniority over the persons, who were
promoted to the vacancies that arose prior to 01/04/2005.
8. For all these reasons, I hold that Exts.P2, P4 & P9
are illegal and the petitioner is entitled to approval as
Headmistress with effect from 01/04/2005. Therefore, the
writ petition is allowed, and the respondents are directed to
approve the appointment of the petitioner as Headmistress
with effect from 01/04/2005 with all consequential benefits
including arrears of pay and pensionary benefits and all such
other benefits.
The writ petition is allowed as above.
(ANTONY DOMINIC, JUDGE)
jg