High Court of KeralaSingle Judge2021-03-31Petition allowed; Ext.P10 quashed; Government t...

SANGEETHA S.K. v. THE STATE OF KERALA & OTHERS

Case / Petition Number:WP(C).No.1296 OF 2012(J)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2021-03-31
Court Decision / Holding: Writ petition allowed. Ext.P10 (Government order) is set aside. The competent Authority is directed to reconsider the entire matter after affording an opportunity of being heard to all parties, including the Manager of the School, either physically or via video conferencing, and to pass an appropriate order thereon, adhering to the ratio in Thresia v. Preethy, as expeditiously as possible but not later than three months from the receipt of a copy of this judgment.
Final Disposition: Petition allowed; Ext.P10 quashed; Government to reconsider the matter with hearing within three months in light of Thresia v. Preethy.

Parties to the Case

Appellants / Petitioners

SANGEETHA S.K., UPSA, Yogini Matha Girls' High School, Kollengode

Respondents

The State of Kerala represented by the Secretary to Government, General Education Department, Government Secretariat, Thiruvananthapuram - 695001
Director of Public Instruction, Thiruvananthapuram - 695001
District Educational Officer, Palakkad - 678001
Manager, Yogini Matha Girls' High School, Kollengode, Chittur Taluk, Palakkad District - 678101
Headmistress, Yogini Matha Girls' High School, Kollengode, Chittur Taluk, Palakkad District - 678101
Smt. Mini Gopalakrishnan, L.P. School Assistant, Yogini Matha Girls' High School, Kollengode, Chittur Taluk, Palakkad District-678101

Legal Representation & Advocates

Counsels for Petitioners

• Sajan Varghese K.
• Liju M.P.

Counsels for Respondents

• Dr. George Abraham
• Sri.K.E.Hamza
• Sri.V.A.Muhammed
• Sri.P.M.Manoj

Case Synopsis & Summary

The petitioner, Sangeetha S.K., is an Upper Primary School Assistant (UPSA) at Yogini Matha Girls’ High School, Kollengode. In 2010-11, a post in the Lower Primary School (LPS) was abolished, reducing one division, while another division was added to the Upper Primary (UPS) section. Although she is a B.Ed. holder, she lacks TTC qualification and could have continued only as a UPSA. Through Exts.P6, P7 and P10, authorities shifted the sixth respondent (then LPST) to a UPSA, resulting in retrenchment of the petitioner as she stood as the junior UPSA. The petitioner contends the impugned orders are illegal because the LPSA and UPSA units cannot be treated as a single unit, nor can a common seniority list be prepared except for promotion to the post of Headmaster, a principle laid down by the Full Bench in Thresia v. Preethy (2014(4)KLT 837). She seeks to set aside Exts.P6, P7 and P10. Respondents counter that UPSAs and LPSAs are to be treated as a single unit, citing GO(MS) No.42/2011/G.Edn and Rule 34(b) of Chapter XIVA of the Kerala Education Rules, to justify the accommodation and seniority reckoning. The Court, applying the ratio in Thresia, finds Ext.P10 contrary and sets it aside, directing the Government to reconsider the matter after hearing all parties, including the Manager, within three months, expediting a lawful resolution.

Provisions of Law Cited

Rule 34(b) of Chapter XIVA of the Kerala Education Rules (KER)

Legal Doctrines & Maxims

Ratio in Thresia v. Preethy (2014(4)KLT 837): No common seniority list for LPSAs and UPSAs except for promotion to Headmaster.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that the 2010-11 staff reorganization abolished a post in LPS and added a division to UPS, forcing retrenchment of the petitioner who is junior to the sixth respondent. Her B.Ed. stands without TTC, limiting her to UPSA. She submits that LPSA and UPSA cannot be treated as a single unit, and a common seniority list cannot be prepared except for Headmaster promotion, as held by the Full Bench in Thresia v. Preethy. Exts.P6, P7 and P10 shifting an LPST to UPSA and the consequent retrenchment are therefore illegal. She seeks setting aside of Exts.P6, P7 and P10 and restoration of her status.

Contentions of Respondents

The respondents contend that UPSAs and LPSAs are to be treated as a single unit with seniority reckoned accordingly. They rely on GO(MS) No.42/2011/G.Edn (16-02-2011) and GO(RT) 4/2012? clarifications, and Rule 34(b) of Chapter XIVA of the Kerala Education Rules to justify the accommodation of the sixth respondent and the reclassification. They argue that the petitioner cannot challenge Ext.P10 since the government acted within its powers and the seniority was determined to maintain balance of student divisions.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Thresia v. Preethy	2014(4)KLT 837	Positive	The court relies on the Full Bench decision that no common seniority list for LPSAs and UPSAs exists except for Headmaster promotion; Ext.P10 is seen as contrary to this ratio and must be reconsidered.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943** ## **WP(C).No.1296 OF 2012(J)** ## **PETITIONER:** **SANGEETHA S.K., U.P.SCHOOL ASSISTANT, YOGINI MATHA GIRLS' HIGH SCHOOL, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695 001.** - **3 THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD-678 001.** - **4 THE MANAGER, YOGINI MATHA GIRLS' HIGH SCHOOL, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT -678 101.** - **5 THE HEADMISTRESS, YOGINI MATHA GIRLS' HIGH SCHOOL, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT 678 101.** - **6 SMT. MINI GOPALAKRISHNAN, L.P.SCHOOL ASSISTANT, YOGINI MATHA GIRLS' HIGH SCHOOL, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101.** - **BY ADVS. DR.GEORGE ABRAHAM SRI.K.E.HAMZA SRI.V.A.MUHAMMED SRI.P.M.MANOJ-SR.GP.** - **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** - **31.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.1296 OF 2012(J)** **-2-** ## **JUDGMENT** ## **Dated this the 31st day of March 2021** The petitioner says that she is working as an Upper Primary School Assistant (UPSA), in the services of 'Yogini Matha Girls High School', Kollengode. According to her, in the academic year 2010-11, there was a reduction of a post in the Lower Primary School Section of the School, leading to reduction of one division therein, while another division was added to the UP School. 2. The petitioner says that she is a B.Ed. holder and does not have TTC qualification; and, therefore, could have continued only as an UPSA. She says that, however, through Exts.P6, P7 and P10 orders, the educational Authorities, including the Government, have ordered to shift respondent No.6 - who was working as a Lower ## **WP(C).No.1296 OF 2012(J)** **-3-** Primary School Teacher (LPST) - as a UPSA in the said School and resultantly to retrench her, since she is the junior most UPSA. She asserts that the impugned orders are illegal, because the Lower Primary School Section and Upper Primary School Section cannot be deemed as a single unit, nor can a common seniority list for it be prepared, except for the purpose of effecting promotion to the post of Headmaster, and that this has been well declared by the Full Bench of this Court in **Thresia v. Preethy [2014(4)KLT 837].** The petitioner, therefore, prayed that Exts.P6, P7 and P10 be set aside and her retrenchment be declared to be illegal. 3. The afore submissions of the petitioner, made by her learned Counsel – Sri.Sajan Varghese, was refuted by Dr.George ## **WP(C).No.1296 OF 2012(J)** **-4-** Abraham – learned counsel appearing for the 6[th] respondent, by saying that since his client is qualified to be both LPSA and UPSA, the impugned orders cannot be found to be in error, since she had approved service in LPSA and then was shifted to the post of UPSA, when there was a reduction post in the Lower Primary Section. He submitted that, therefore, the petitioner cannot challenge the impugned orders and thus prayed that this writ petition be dismissed. 4. The learned Senior Government Pleader – Sri.P.M.Manoj, submitted that Ext.P10 order has been issued by the Government since UPSAs and LPSAs are to be taken as a single unit, and that their seniority is to be determined like wise. He submitted that this is because the Government, by an earlier order, namely GO(MS)No.42/2011/G.Edn dated 16.02.2011, had ## **WP(C).No.1296 OF 2012(J)** **-5-** clarified that in the event of retrenchment of teachers, Rule 34(b) of Chapter XIVA of the Kerala Education Rules (KER) will have to be observed. He, thus argued that the Government was completely without error in having approved Ext.P7 Order of the Director of Public Instruction (DPI), particularly because it also directed accommodation of the petitioner, after assessing the number of students and the consequent numbers of divisions to be sanctioned. The learned Senior Government thus prayed that this writ petition be dismissed. 5. Even though I have recorded the afore dialectical contentions of the rival parties, the fact remains that the issues impelled in this case certainly can only be evaluated, adverting to the ratio in **Thresia** (supra), because a learned Full Bench of this Court has ## **WP(C).No.1296 OF 2012(J)** **-6-** declared it affirmatively that except for the purpose of promotion to the post of Headmaster, no common seniority list of LPSAs and UPSAs can be prepared or enforced. However, Ext.P10 order of the Government has proceeded, as stated by the learned Senior Government Pleader, on the assumption that UPSAs and LPSAs must be deemed as a single unit and their seniority will have to be reckoned in such manner. This, _prima facie,_ appears to be contrary to the ratio in **Thresia** (supra); and am, therefore, of the firm view that the matter will require to be re-considered by the Government appositely, adverting to the conclusive declarations in the said judgment. **==> picture [391 x 13] intentionally omitted <==** speaking any further on the merits of the rival contentions of the parties, I set aside Ext.P10 ## **WP(C).No.1296 OF 2012(J)** **-7-** order of the Government; with a consequential direction to its competent Authority to re-consider the entire matter, after affording an opportunity of being heard to all the parties in this case, including the Manager of the School – either physically or through video conferencing – thus culminating in an appropriate order thereon, specifically adverting to **Thresia** (supra), as expeditiously as is possible, but not later than three months from the date of receipt of a copy this judgment. This writ petition is thus ordered. **Sd/-** **DEVAN RAMACHANDRAN JUDGE** akv **-8-** ## **WP(C).No.1296 OF 2012(J)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE APPOINTMENT ORDER**| |---|---| ||**DATED 01/06/2005 OF THE PETITIONER AS**| ||**UPSA IN YOGINI MATHA GIRLS' HIGH SCHOOL**| ||**AT KOLLENGODE IN PALAKKAD EDUCATION**| ||**DISTRICT.**| |**EXHIBIT P2**|**TRUE COPY OF THE APPOINTMENT ORDER**| ||**DATED 01/06/2007 OF THE PETITIONER AS**| ||**UPSA IN YOGINI MATHA GIRLS' HIGH SCHOOL**| ||**AT KOLLENGODE IN PALAKKAD EDUCATION**| ||**DISTRICT.**| |**EXHIBIT P3**|**TRUE COPY OF THE APPOINTMENT ORDER**| ||**DATED 01/06/2009 OF THE PETITIONER AS**| ||**UPSA IN YOGINI MATHA GIRLS' HIGH SCHOOL**| ||**AT KOLLENGODE IN PALAKKAD EDUCATION**| ||**DISTRICT.**| |**EXHIBIT P4**|**TRUE COPY OF THE STAFF FIXATION ORDER**| ||**OF THE YEAR 2010-11.**| |**EXHIBIT P5**|**TRUE COPY OF THE COMMUNICATION DATED**| ||**09/02/2011 MADE BY THE RESPONDENT NO.3**| ||**TO THE RESPONDENT NO.5.**| |**EXHIBIT P6**|**TRUE COPY OF THE ORDER NO.**| ||**K.DIS.EM1/43802/11/DPI. DATED**| ||**02/09/2011 ISSUED BY THE RESPONDENT**| ||**NO.2.**| |**EXHIBIT P7**|**TRUE COPY OF THE GO(MS)**| ||**NO.42/2011/G.EDN. DATED 16/02/2011.**| |**EXHIBIT P8**|**TRUE COPY OF THE INTERIM ORDER DATED**| ||**13/10/2011 PASSED IN WPC 27024/2011 ON**| ||**THE FILE OF OF THIS HON'BLE COURT.**| |**EXHIBIT P9**|**TRUE COPY OF THE JUDGMENT DATED**| ||**03/11/2011 PASSED IN WPC NO.27024/2011**| ||**ON THE FILE OF THIS HON'BLE COURT.**| **-9-** ## **WP(C).No.1296 OF 2012(J)** **EXHIBIT P10** **TRUE COPY OF GO(RT) NO. 64/2012/G.EDN. DATED 04/01/2012 PASSED BY THE RESPONDENT NO.1.** **EXHIBIT P11** **TRUE COPY OF THE ORDER NO.L.DIS.B3/9299/11 DATED 16/01/2012, PASSED BY THE RESPONDENT NO.3.** **ANNEXURE A TRUE COPY OF THE LETTER DATED 28/01/2012 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT NO.3.** **ANNEXURE B TRUE COPY OF THE LETTER DATED 31/01/2012 SUBMITTED BY THE RESPONDENT NO.5 BEFORE THE RESPONDENT NO.3.** **ANNEXURE C TRUE COPY OF THE LETTER DATED 01/02/2012 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT NO.3.** **ANNEXURE D** **TRUE COPY OF THE LETTER DATED 09/02/2012 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT NO.3.** **RESPONDENT'S/S EXHIBITS :** **EXHIBIT R6(A) TRUE COPY OF APPOINTMENT ORDER OF THE PETITIONER IN THE LEAVE VACANCY OF THE 6TH RESPONDENT.** **EXHIBIT R6(B) TRUE COPY OF LETTER ISSUED BY THE MANAGER DATED 24/06/2003 REGARDING REJOINING THE SCHOOL BY 6TH RESPONDENT AFTER LEAVE.** //TRUE COPY// P.A. TO JUDGE