Jasheela K., U.P.S.A., A.U.P.SCHOOL, Palakode, Kothakurussi, Ottapalam Sub District, Palakkad v. Deputy Director of Education, Palakkad; Assistant Educational Officer, Ottapalam; Manager, A.U.P School, Palakode, Ottapalam Sub District, Palakkad; SMT. Divya C., L.P.S.A., A.U.P School, Palakode, Ottapalam Sub District, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938** ## **WP(C).No. 6575 of 2012 (V)** ## **---------------------------** ## **PETITIONER :** **----------------------** **JASHEELA.K., U.P.S.A., A.U.P.SCHOOL, PALAKODE, KOTHAKURUSSI, OTTAPALAM SUB DISTRICT, PALAKKAD.** **BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH** **RESPONDENT(S):** **----------------------------** **1. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD.** ## **2. THE ASSISTANT EDUCATIONAL OFFICER,** - **OTTAPALAM.** ## **3. THE MANAGER,** - **A.U.P SCHOOL, PALAKODE, KOTHAKURUSSI,** - **OTTAPALAM SUB DISTRICT, PALAKKAD.** ## **4. SMT. DIVYA C.,** - **L.P.S.A., A.U.P SCHOOL, PALAKODE, KOTHAKURUSSI,** - **OTTAPPALAM SUB DISTRICT, PALAKKAD.** **R1 & R2 BY GOVERNMENT PLEADER SRI.BEJOY CHANDRAN R3 BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) R4 BY SRI.C.P.SUDHAKARA PRASAD,SENIOR ADVOCATE ADVS. SRI.S.RAMESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.6575/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** ## **EXHIBIT P1: TRUE COPY OF THE ORDER DATED 1.6.2009 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT.** **EXHIBIT P2: TRUE COPY OF THE STAFF FIXATION ORDER DATED 14.8.2010 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3: TRUE COPY OF THE ORDER DATED 9.5.2011 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P4: TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P5: TRUE COPY OF THE ORDER DATED 2.3.2012 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P6: TRUE COPY OF THE JUDGMENT DATED 29.3.2011 IN W.P.(C) NO.25061/2010 AND CONNECTED CASES OF THIS HON'BLE COURT.** **EXHIBIT P7: TRUE COPY OF THE ORDER DATED 12/4/2012 IN IA.NO.4022/2012 IN WPC.NO.24656/2011 OF THIS HON'BLE COURT** **EXHIBIT P8: TRUE COPY OF THE ORDER NO.K.DIS.B5/5376/12 DATED 23/8/2012 ISSUED BY THE 1ST RESPONDENT** ## **RESPONDENTS' EXHIBITS** **EXHIBIT R4(A): COPY OF THE SENIORITY LIST DATED 01/01/2010 BY THE MANAGER EXHIBIT R4(B): COPY OF THE SENIORITY LIST DATED 01/01/2012** **EXHIBIT R4(C): COPY OF THE WARRANT DATED 30/08/2010 ISSUED BY THE KERALA STATE BHARAT SCOUTS & GUIDES** **EXHIBIT R4(D): COPY OF THE GO(P) NO.403/2002/G.EDN DATED 4/12/2002** **EXHIBIT R4(E): COPY OF THE G.O(MS).NO.42/2011/G.EDN DATED 16/02/2011** **EXHIBIT R4(F): COPY OF THE STAFF FIXATION ORDER DATED 8/8/2011 ISSUED BY THE A.E.O., OTTAPALAM.** **EXHIBIT R4(G): COPY OF THE CIRCULAR DATED 6/6/2012 ISSUED BY THE GOVERNMENT EXHIBIT R4(H): COPY OF THE ORDER G.O. DATED 6/8/2015 ISSUED BY THE GOVERNMENT** **2/-** **-2-** ## **WP(C).NO.6575/2012** **EXHIBIT R4(I): COPY OF THE JUDGMENT DATED 14/2/2008 IN W.A.NO.394/2008 OF THIS HON'BLE COURT.** **EXHIBIT R4(J): COPY OF THE ORDER, G.O. DATED 24/2/2011 ISSUED BY THE GOVERNMENT** **EXHIBIT R4(K): COPY OF THE AMENDMENT TO THE RULE ISSUED AS PER NOTIFICATION DATED 7/3/2011** **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 6575 of 2012 ----------------------------------------------Dated this the 17[th] October, 2016** ## **JUDGMENT** The question raised in this writ petition is with regard to the eligibility of the petitioner vis-a-vis 4[th] respondent for continuance in service on the basis of the staff fixation order issued for the academic year 2010-2011. The writ petitioner is an Upper Primary School Assistant (UPSA), who was appointed on 1.6.2009. The appointment was approved on 9.10.2009 with effect from the date of appointment. By Exhibit P2 staff fixation order, one post of Lower Primary School Assistant (LPSA) was abolished due to fall in student strength. The 4[th] respondent was the juniormost LPSA. Since the post which was reduced was that of an LPSA, the staff fixation order provided that the 4[th] respondent, who had continuous service as LPSA from 9.8.2008, would be retrenched from service. 2. It appears that the 4[th] respondent had preferred an appeal against the staff fixation order. By Exhibit P3, the Assistant Educational Officer reviewed the order and relying on G.O(MS) No.42/2011/E.Edn. dated 16.2.2011 held that the petitioner, who was the juniormost hand in the school, is liable to be retrenched and not the 4[th] respondent. Exhibit P3 order is dated 9.5.2011. It is, therefore, clear that the petitioner had continued for the period from 15.7.2010 to May, 2011 2 _**WP(C).6575/12**_ on the strength of Exhibit P2. On 31.3.2011, a retirement vacancy arose in the school and the 4[th] respondent was also accompanied in the said vacancy. Therefore, the only question which arises for consideration is with regard to the comparative eligibility of the petitioner and the 4[th] respondent for continuance in the school for the academic year 2010-2011. By Exhibit P5 order issued by the Deputy Director of Education on an appeal preferred by the petitioner, the salary and allowances drawn by the petitioner for the period from 15.7.2010 to 30.4.2011 were directed to be recovered and the amounts were directed to be paid to the 4[th] respondent. Pursuant to an interim order issued by this Court, the recovery has not been effected. 3. Heard learned counsel for the petitioner and the learned counsel appearing for the 4[th] respondent as well as the learned Government Pleader. 4. It is contended by learned counsel for the petitioner that Rule 34(b) of Chapter XIVA KER was amended by substitution on 18.3.2011. The amendment to Rule 34(b) was to be retrospective in operation with effect from 18.12.1984. Rule 34(b) prior to its amendment by G.O. (P) No.85/2011/G.Edn dated 7.3.l2011 w.e.f. 18.12.84 rads as follows: _“34(b). In the case of Upper Primary School and Lower Primary Schools, a combined seniority list of teachers if any, specified in clauses (iii), (iv) and (v) of Rule 3, Chapter XXIII shall be prepared.”_ 3 _**WP(C).6575/12**_ Rule 34(b), as amended, read thus: _“34(b). In the case of Upper Primary Schools and Lower Primary Schools, a combined seniority list of Upper Primary School Assistants, Lower Primary School Assistants, Junior Language Teachers and Specialist Teachers specified in Rules 3 and 4 Chapter XXXI, shall be prepared. The purpose of the seniority list will be only to determine the position of persons eligible for promotion as Primary School Headmaster by virtue of length of service and prescribed qualifications for promotion as Primary School Headmaster.”_ 5. It is, therefore, contended that the purpose of a common seniority list of UPSA and LPSA being only to determine the position of persons eligible for promotion as Primary School Headmaster, the said seniority list could not have been operated for the purpose of retrenchment. It is further contended that the operation and effect of the Government order relied upon to deny the benefit of the petitioner had been considered by this Court in Exhibit P6 judgment and it was held that an executive order or circular cannot go against the statutory prescription and therefore, all orders of retrenchment issued on the basis of common seniority list were bad in law. Exhibit P6 judgment was rendered as early as on 23.9.2011. Thereafter, the question whether the combined seniority list of LPSA and UPSA prepared under Rule 34(b) could be followed for the purpose of retrenchment was given a quietus by the Full Bench of this Court in its decision reported 4 _**WP(C).6575/12**_ in _**Thresia v. Preethy**_ [2014(4) KLT 837(FB)]. Considering the provisions of the unamended and the amended Rule, the Full Bench held that the posts of UPSA and LPSA are treated as different categories and the seniority list in terms of Rule 34(b) as amended with effect from 18.12.1984 is for the limited purpose of determining the position of persons eligible for promotion as Primary School Headmaster and nothing else. Examining the earlier decisions of this Court on the point, the Full Bench declared that teachers in LP Section and the teacher in UP Section belong to two different categories and that if there is occasion of retrenchment of UPSA or LPSA, the seniority that is to be followed is the seniority in the respective category and not the common seniority list prepared under Rule 34(b). In the light of the authoritative pronouncement of law by the Full Bench, it is contended that the petitioner would be entitled to continue in service for the academic year 2010-2011 and the 4[th] respondent would have to be accompanied in the vacancy which arose on 31.3.2011. The learned counsel for the petitioner would also submit that it is trite law that the law declared by the Full Bench should be read to have been a declaration of law as the High Court admittedly has no power retrospective of overruling. 6. Learned counsel appearing for the 4[th] respondent would, on the other hand, submit that the Rules as it stood on the date of the 5 _**WP(C).6575/12**_ staff fixation order were to the effect that the common seniority list of LPSA and UPSA could be followed for all purposes. It is submitted that by a retrospective amendment to Rule 34(b) made on 18.3.2011, the rights accrued to the 4[th] respondent cannot be taken away. It is further contended that until the Full Bench laid down the law as to the entitlement of teachers in the different categories to continue on the basis of seniority in the respective category in case of retrenchment, the position of law was not clear. In the above circumstances, it is contended that the prescription contained in the Government order dated 16.2.2011 was perfectly in order as on the date of its issuance. Therefore, the 4[th] respondent was entitled to continue during the academic year 2010-2011, since that was the effect of the Rules then in force. It is further contended that the clear effect of the amendment in 2011 and the different dates of effect given to sub-rules (a) and (b) of Rule 34 of Chapter XIVA KER would go to show that the purpose of the amendment was not to take away the accrued rights of teachers on the basis of seniority list already prepared by the unamended provision of Rule 34(b). It is further contended that the explanatory note to the amendment, which is produced as Exhibit R4(k) would make it evident that there is no such intention for taking away of accrued right by the amendment. Learned counsel for the 4[th] respondent placed reliance on the decision of the Apex Court reported 6 _**WP(C).6575/12**_ in _**P.Sudhakar Rao v. U.Govinda Rao**_ [(2013)8 SCC 693] to contend that the rights accrued on the basis of pre-existing Rules cannot be taken away by retrospective amendment thereof. The learned counsel also placed reliance on the decision of the Apex Court in _**State of Punjab v. Rafiq Masih (White Washer)**_ [2015(1) KLT 429 (SC)] and a bench decision of this Court in _**Mohanan C. and others v. State of Kerala and others**_ [2013(3) KHC 678] to contend that no recovery of amounts paid could be made in case appointments were made in accordance with the Rules existing at the time of such appointment. 7. I have considered the contentions advanced on either side. The question which arises for consideration before this Court is only with regard to the eligibility of the petitioner as against the 4[th] respondent for continuance consequent on reduction of the post during the academic year 2010-2011. The petitioner being a UPSA, contends that she should have been retained since the post reduced is that of LPSA. The 4[th] respondent, on the strength of the unamended Rule 34(b) of Chapter XIVA KER would contend that she is entitled to continue, since she is senior to the petitioner in service, though in a different category. The question with regard to the retrenchment of UPSA or LPSA, and the basis on which such retrenchment is to be effected, has been given a quietus by the Full Bench of this Court in _**Thresia's case (supra)**_ . The entire gamut of Division Bench decisions had been _**WP(C).6575/12**_ 7 placed for consideration before the Full Bench. After considering the provisions of the amended and unamended Rules as well as the earlier decisions on the point, the Full Bench came to the conclusion that LPSA and UPSA are different categories of posts. It was further held that if there is an occasion for retrenchment of LPSA or UPSA on account of reduction of staff strength, the seniority that is to be followed is the seniority in the respective category and not the common seniority. 8. Though the learned counsel appearing for the 4[th] respondent contended that the effect of the explanatory note was not brought to the notice of the Full Bench which resulted in the said judgment, I am unable to accept the above contentions. I am fully bound by the declaration of law as laid down by the Full Bench and any attempt to make any deviation from such declaration would be impermissible. The 4[th] respondent, who has not raised any direct challenge to the amendment to Rule 34(b) KER with retrospective effect, cannot claim the benefit of any protection of her accrued rights in these proceedings. The Full Bench did not confine the effect of its judgment to retrenchment made after the date of amendment to Rule 34(b) of Chapter XIVA KER but declared that in view of the retrospective amendment, retrenchment would have to be on the basis of seniority in the respective category. Therefore, the finding of the Full Bench to the effect that retrenchment of teachers of primary sections is to be 8 _**WP(C).6575/12**_ done on the basis of seniority in the concerned category is squarely binding in this case. In the result, I hold that the petitioner was entitled to continue during the academic year 2010-2011 and that the retrenchment of the 4[th] respondent by Exhibit P2 was well in order. Therefore, it is clear that there is absolutely no justification for the official respondents to make any recovery of salary paid to the petitioner. It is declared that the petitioner is entitled to continue during the academic year 20102011. The 4[th] respondent's retrenchment was also in order and she would be entitled to approval of appointment with effect from 1.4.2011 in the retirement vacancy of Smt.Chandramathy. The writ petition is ordered accordingly. **ANU SIVARAMAN JUDGE** _vgs20/10_