Manager Sankaran Nair Upper Primary School, Kodunthirappully, Palakkad-678 004 v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942** ## **WP(C).No.14955 OF 2020(T)** ## **PETITIONER:** ## **MANAGER** **SANKARAN NAIR UPPER PRIMARY SCHOOL, KODUNTHIRAPPULLY, PALAKKAD-678 004. (ANUP KUMAR P.V. AGED 54 YEARS, S/O. P.V.R. KUTTY MENON, P.V. HOUSE, KANHIKULAM, PALAKKAD-678 596).** ## **BY ADV. SRI.U.BALAGANGADHARAN** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT (ANNEX), THIRUVANANTHAPURAM-695 001.**| |**2**|**THE DIRECTOR OF GENERAL EDUCATION**| ||**(FORMER DIRECTOR OF PUBLIC INSTRUCTIONS), THIRUVANANTHAPURAM-**| ||**695 014.**| |**3**|**THE DISTRICT EDUCATIONAL OFFICER**| ||**CIVIL STATION, PALAKKAD-678 001.**| |**4**|**THE ASSISTANT EDUCATIONAL OFFICER**| ||**PALAKKAD-678 001.**| ## **OTHER PRESENT:** ## **SR.GP-SRI.P.M.MANOJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.14955 OF 2020(T)** **2** ## **J U D G M E N T** The Manager of “Sankaran Nair Upper Primary School”, Palakkad, has approached this Court impugning Ext.P8 order, as per which, his request for shifting a certain Smt.Aparna - who was originally appointed as an Upper Primary School Assistant (UPSA) - into the post of a Lower Primary School Assistant (LPSA), so as to accommodate a fresh hand to the resultant vacancy in the former post, has been rejected, for the reason that, as per the judgment of a Full Bench of this Court in **Thresia M.L. v. Preethy M.P and others [2014 (4) KLT 837],** shifting of a UPSA as an LPSA is not permissible and also since this has been done without the consent of the Authorities. 2. The learned counsel for the petitioner - Sri.U.Balagangadharan, contended that nowhere in **Thresia M.L** (supra), has the learned Full Bench held that a UPSA, who is qualified to hold the post of LPSA, cannot be so shifted; and that even the provisions of Chapter XXXI of the Kerala Education Rules (KER) does not prohibit it. He contended that, in fact, what the Government intended by the amendment to the afore Chapter of the KER, which is available in Ext.P9, is that unqualified teachers may not be appointed as a LPSA and that **WP(C).No.14955 OF 2020(T)** **3** unqualified teachers may not be shifted between UPSA and LPSA, in order to accommodate a B.Ed holder in the U.P. Section. 3. Sri.U.Balagangadharan, then submitted that what has been done in this case is in complete confirmity with the intent of the Government, since Smt.Aparna is a TTC holder and therefore, qualified to hold the post of LPSA; while the fresh hand appointed to the post of UPSA is a B.Ed holder. He contended that, therefore, the views recorded by the Government in Ext.P8 order are untenable and therefore, reiteratingly prayed that same be set aside. 4. The learned Senior Government Pleader, Sri.P.M.Manoj, in response, submitted that a counter affidavit has been filed by the 4th respondent, wherein, the following have been stated: “3. The appointment of Smt.Aparna as LPSA in the retirement vacancy of Smt.Valsamma w.e.f. 03.06.2013 and this office has approved the same. Thereafter no need of declaration from Smt.Aprana in connection with shifting to the post of LPSA w.e.f. 01.06.2017 without the consent of this office. The shifting is carried out by the manager as UPSA. This is irregular and not approved by this office. The service records also shows that Smt.Aparna is continuing as LPSA w.e.f. **WP(C).No.14955 OF 2020(T)** **4** 03.06.2013 till date. The shifting is not allowed as per per Government letter No.17607/J3/2007/G.Edn dated 26.06.2007. The appeal submitted against the rejection order of this office has been rejected by the District Educational Officer, Palakkad and the Director General of Education and Government. The shifting of posts from LPSA to UPSA and vise versa cannot be practice w.e.f 18.06.2000 as per GO.No.2047/2020/DPI dated 18.06.2000. This office has not been issued order since 18.06.2000, approving such shifting of teachers and posts.” 5. The learned Senior Government Pleader submitted that since Smt.Aparana is still shown as continuing as a LPSA in the service records from 03.06.2013 till date, the shifting done by the Manager is improper and therefore, that it cannot be granted approval. The learned Senior Government Pleader thus prayed that this writ petition be dismissed. 6. When I evaluate the afore rival submissions, it is evident that the real issue in this case as to whether the shifting of Smt.Aparna from the post of UPSA to LPSA was in order, going by the judgment of this Court in **Thresia M.L** (supra) and the provisions of Chapter XXXI of the KER. That said, as far as Ext.P8 Order is concerned, it does not deal with this specifically but proceeds on the assumption that **Thresia M.L** (supra) prohibits transfer of teachers from UPSA to LPSA. **WP(C).No.14955 OF 2020(T)** **5** 7. However, even a close reading of the said judgment, does not show that a transfer of such nature is prohibited; but the issue considered in the said judgment was whether retrenchment of teachers is to be based on a combined seniority list of LPSA and UPSA of the L.P Section, and U.P Section, or whether it should be based on separate seniority list of LPSAs and UPSAs. The view of the learned Full Bench, of course, was that for the purpose of retrenchment, separate seniority list of UPSAs and LPSAs has to be maintained and that the combined seniority list can be adopted only for the purpose of promotion as a Primary School Headmaster. 8. Obviously, therefore, the fact that these two categories are independent and that they are governed by separate seniority lists are without doubt; but the question whether an UPSA can be shifted as a LPSA, when that teacher is fully qualified to hold the latter post, has not been in any manner considered in **Thresia M.L** (supra). 9. In that context, I find favour with Sri.U.Balagangadharan to the extent that the views of the Government in Ext.P8, that **Thresia M.L** (supra) prohibits transfer of an UPSA to LPSA, does not appear to be correct. 10. That apart, going by the amendment brought into **WP(C).No.14955 OF 2020(T)** **6** Chapter XXXI of the KER, as is available from Ext.P9, the intent of the Government, indubitably is to prohibit transfer of B.Ed holders working as UPSAs, to accommodate another B.Ed holder in the U.P Section. In the case at hand, Smt.Aparana is stated to be a TTC holder, who is qualified to be a LPSA and the petitioner - Manager says that he has accommodated a B.Ed holder to the resultant vacancy of an UPSA. Luculently, therefore, the facts involved in this case are not par with the facts noticed by the learned Division Bench in **Thresia M.L** (supra); and am consequently, of the view that Government must reconsider the request of the petitioner for approval of transfer of Smt.Aparana from UPSA to LPSA, based on the provisions of Chapter XXXI of the KER, particularly Rule 4A thereof. In the afore circumstances, I order this writ petition and set aside Ext.P8; with a consequential direction to the Government to reconsider the matter, after affording an opportunity of being heard to the petitioner - Manager as also ― Smt.Aparana, who is the teacher affected either physically or ― through video conferencing and decide whether transfer of the said teacher as a LPSA is in confirmity with law and **WP(C).No.14955 OF 2020(T)** **7** resultantly, whether the action of the Manager in having appointed a fresh hand to the resultant vacancy in the post of UPSA is in order. The afore exercise shall be completed by the Government as expeditiously as is possible but not later than three months from the date of receipt of a copy of this judgment. **SD/-** **DEVAN RAMACHANDRAN JUDGE** rp **WP(C).No.14955 OF 2020(T)** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF ORDER DATED 19.1.2017 ISSUED BY THE 4TH RESPONDENT ALONG WITH TYPED COPY. EXHIBIT P2 A TRUE COPY OF LETTER DATED 26.6.2007 ISSUED BY THE GOVT.** **EXHIBIT P3 A TRUE COPY OF DECLARATION SUBMITTED BY SMT. APARNA DATED 1.6.2017** **EXHIBIT P4 A TRUE COPY OF APPOINTMENT ORDER ISSUED TO SMT. PREETHY DATED 1.6.2017.** **EXHIBIT P5 A TRUE COPY OF ORDER OF 4TH RESPONDENT DATED 20.9.2017. EXHIBIT P6 A TRUE COPY OF ORDER OF THE THIRD RESPONDENT DATED 29.1.2018. EXHIBIT P7 A TRUE COPY OF ORDER OF THE SECOND RESPONDENT DATED 5.7.2018. EXHIBIT P8 A TRUE COPY OF GOVT. ORDER DATED 18.6.2020. EXHIBIT P9 A TRUE COPY OF GOVT. ORDER DATED 9.9.2009. EXHIBIT P10 A TRUE COPY OF FULL BENCH JUDGMENT IN THRESIA M 2014(4) KHC 822 DATED 13.11.2014 OF THIS HON'BLE COURT.**