Point of law: Explanation which provides that, the relinquishment of right of promotion shall entail loss of seniority, only clarifies the position flowing from Rule 38.

JUDGMENT :

The writ petitioner joined the service of the first respondent/Kerala State Financial Enterprises Ltd. ('KSFE' in short) on 06.11.2004 as Junior Assistant. He was promoted thereafter and at present, he is now working as Assistant Manager (Non Cadre) at Pala-II Branch. His elder son aged 17 years is a differently abled child with 75% disability and is handicapped by Autism (Attention Deficit Hyper Active Disorder (ADHD)). Since the child required constant attention of the petitioner and his wife, petitioner submitted Ext.P3 representation before the KSFE seeking favourable posting on promotion, at some station near his residence. While so, he was issued with Ext.P4 promotion order dated 29.11.2016. He submitted a representation seeking favourable posting. Consequently, by Ext.P6 transfer order, he was posted at Kothamangalam, which was 60 kms away from the residence of the petitioner. Lamenting that the said posting also caused much inconvenience to him, by Ext.P7 communication dated 26.12.2016, he requested for temporary relinquishment of his promotion for a period of one year or as and when vacancy arises in a nearby branch, whichever was earlier. This was accepted by Ext.P8 memo dated 03.01.2017. Immediately, on completion of one year period, by Ext.P9, the petitioner was promoted and posted at Piravom. Again, claiming that, he was unable to accept the posting at Piravom, which was about 40kms away from his residence, the petitioner submitted Ext.P10 representation requesting to extend the period of relinquishment for promotion, for a further period of two years from 29.12.2017. By Ext.P11 order dated 16.03.2018, he was informed that, relinquishment of promotion was permitted only once in service, as per Rule 38 of KSSR. Hence, his request for extension of relinquishment for a further period could not be considered and he was informed that, his relinquishment for promotion will be treated as permanent relinquishment. He was also informed that, he will not be considered for promotion as Assistant Manager in future.

2. Aggrieved by Ext.P11, to the extent of treating his application as one for permanent relinquishment and informing him that, he will not be considered for promotion as Assistant Manager in future, petitioner has approached this Court. The contention of the writ petitioner was that, KSFE was not justified in treating his application for temporary relinquishment for a limited period of two years as an application for permanent relinquishment and thereby, deny him his due promotion, forever. The reliefs sought in the Writ Petition was to quash Ext.P11 and to direct the first respondent to consider Ext.P12 claim for promotion to the post of Assistant Manager.

3. The respondent/KSFE appeared and filed counter affidavit. It was stated that, petitioner was entitled to make a temporary relinquishment only once during the tenure, by virtue of GO(P).No.39/91/P & ARD dated 07.12.1991 produced along with the counter affidavit as Ext.R1(a). As per the above guidelines, temporary relinquishment from one grade to another can be permitted only once in the service of an officer. The petitioner was considered for promotion to permanent vacancy and an employee can withdraw the relinquishment of promotion, only if he has been offered a provisional promotion. Guidelines further stated that the employees have been relinquishing promotion for short period for the same grade, which have resulted in severe administrative inconveniences. To tide over that difficulty, the Government had issued Ext.R1(a) guidelines. As per the guidelines, temporary relinquishment from one grade to another shall be permitted only once in the service of an officer.

4. Heard the learned counsel for the writ petitioner and the learned Standing Counsel for the KSFE.

5. Basic facts are not in dispute. The short question that arises for consideration is whether Ext.P11 order, treating Ext.P10 application for temporary relinquishment for a period of two years