Temporary Relinquishment Of Promotion Can Extend Beyond One Year: Kerala High Court

The Kerala High Court has ruled that the Government Order issued in 1991 mandating that temporary relinquishment of promotion shall be for a minimum period of one year only implies that it should be at least for a minimum period of one year and that it can go beyond one year.

A Division Bench of Justice Alexander Thomas and Justice Viju Abraham observed that the said Order was issued considering the administrative inconvenience caused due to repeated temporary relinquishment of promotion by employees for short periods to the same grade to suit their convenience. 

"Therefore the wording in Sub Clause (iii) of Clause 3 of Annexure-A6 Government Order that temporary relinquishment shall be for a minimum period of one year can only be read to understand that temporary relinquishment should be at least for a minimum period of one year and not that it can only be for a period of one year."

The respondent herein had entered service in the General Education Department in 1993 and is now a Primary Departmental Teacher in a Government Higher Secondary School. Meanwhile, she was promoted as Primary Headmistress at another Government School.

Since she could not take up the post due to her health, she submitted an application to relinquish her right for promotion temporarily for 5 years. However, no formal orders were issued on her request. 

One year later, the respondent received another order from the Deputy Director of Education, the petitioner herein, promoting her as Primary Headmistress at another school. Assuming this to be an oversight, she submitted a representation requesting to cancel her promotion.

Later, she came to know that the petitioner had decided to grant her relinquishment only for one year and also to grant no further relinquishment based on the Government Order dated 07.12.1991 in which it has been specified that temporary relinquishment can only be for a minimum period of one year.

Aggrieved by this, she approached the Kerala Administrative Tribunal challenging the second order of promotion and to permit relinquishment of her promotion for five years.

The Tribunal after appreciating Rule 38 of Part II Kerala State & Subordinate Service Rules and the Government Order observed that the Government Order only mandates that temporary relinquishment shall be for a minimum period of one year and held that the relinquishment can be for any period above one year.

Challenging the Tribunal's order, the petitioner moved the High Court through Senior Government Pleader Saigi Jacob Palatty. 

The Court noted that the only stipulation in the impugned Government Order was that temporary relinquishment shall be for a minimum period of one year and not that it cannot be beyond one year

Since the existing rules/guidelines do not limit the number of times an employee could relinquish promotion temporarily and no minimum period for such relinquishment has been prescribed by the existing Rules, the Government deemed it necessary to limit the number of times one can relinquish promotion temporarily and to stipulate a reasonable minimum period for such temporary relinquishment.

As such, it was held that Sub Clause (iii) of Clause 3 of Annexure-A6 Government Order does not put a rider for temporary relinquishment for a period of more than one year, and therefore the applicant in the O.A. is entitled to seek temporary relinquishment for a period of five years, for which she has rightly sought for as per Annexure-A2 statement of relinquishment.

The petition was dismissed accordingly.

Case Title: Deputy Director of Education & Ors v. P.A Suhura 

Citation: 2022 LiveLaw (Ker) 115

Click Here To Read/Download The Order