Sherin Annie Joseph v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941** ## **WP(C).No. 34590 of 2018-W** ## **PETITIONER/S:** **SHERIN ANNIE JOSEPH,AGED 38 YEARS W/O BIJU GEORGE, T.S.A.(MALAYALAM), A.M.M.T.T.I. AND U.P.SCHOOL, MARAMON, PATHANAMTHITTA DISTRICT, PIN 689549. RESIDING AT MALAYIL THADATHIL, KADAMMANITTA P.O., NARANGANAM, PATHANAMTHITTA-689 649.** **BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SMT.N.R.REESHA** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTIONS,**| |---|---| ||**THIRUVANANTHAPURAM-695001.**| |**3**|**THE DISTRICT EDUCATIONAL OFFICER,**| ||**THIRUVALLA - 689 101.**| |**4**|**THE MANAGER,**| ||**A.M.M.T.T.I AND U.P.SCHOOL, MARAMON, PATHANAMTHITTA**| ||**DISTRICT, PIN-689549.**| |**5**|**SMT.DEEPA RACHAL GEORGE,**| ||**H.S.A. (MALAYALAM), M.M.A.H.S., MARAMON,**| ||**MARAMON.P.O.,**| ||**PATHANAMTHITTA - 689549.**| |**6**|**SMT.SUNU GEORGE,**| ||**H.S.A. (MALAYALAM), M.M.A.H.S., MARAMON,**| ||**MARAMON.P.O.,**| ||**PATHANAMTHITTA - 689549.**| **BY ADVS. GOVERNMENT PLEADER SRI.R.SANTHOSH BABU SRI.S.PRAKASH SRI.R.SANTHOSH BABU** ## **OTHER PRESENT:** **SMT.G.RANJITA ,GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.34590/18 ## **JUDGMENT** The petitioner who was appointed as Training School Assistant (TSA) as per Ext.P4 order dated 20.06.2016 and got approval with effect from the same date has filed this Writ Petition challenging Exts.P7 and P13 orders consequent to which she has been retrenched. 2. There are two schools under the 4[th] respondent management; AMM High School and A.M.M.T.T.I & UP School. The petitioner was appointed as TSA (Malayalam)in A.M.M.T.T.I & UP School under the 4[th] respondent as per Ext.P4 order dated 20.06.2016 against a retirement vacancy of Smt.Laila Thomas and it was approved as per endorsement dated 12.12.2017. In Ext.P5 staff fixation proceedings dated 27.06.2018 for the year 2018-19, in respect of AMMTTI & UP school, the number of posts of TSAs sanctioned continued to be 3 as in the previous year. But there was reduction of one post of HSA Malayalam in the AMM High School as per W.P.(C) No.34590/18 :4: Ext.P6 staff fixation proceedings dated 28.06.2018 for the year 2018-19. Two posts of HSA Malayalam were sanctioned in 2017-18. It got reduced to 1 in 2018-19, consequent to fall in student strength. In instruction no.3 in Appendix II of Ext.P6 staff fixation proceedings, the name of 3 HSAs who were found surplus in the respective subjects were given. The name of Smt.Deepa Rachel-the 5[th] respondent was shown as the excess hand against HSA Malayalam. The Manager was instructed to re-arrange the excess teachers who are eligible for protection,in accordance with DPIs letter no.H2/44444/17 dated 01.07.2017 ( Ext.P14 letter). 3. The Manager thereafter issued Ext.P7 order, under the guise of the instructions of the DEO in Ext.P5 and P6 orders retrenching the petitioner; shifting the 6[th] respondent who is the senior most HSA in Malayalam in AMM High School to AMMTTI, stating that she is having the qualification prescribed for TSA and retaining the 5[th] respondent who was found as surplus hand in the post of HSA Malayalam in AMMHS against the only sanctioned post of HSA Malayalam. W.P.(C) No.34590/18 **==> picture [12 x 8] intentionally omitted <==** 4. The petitioner challenged Ext.P7 order filing W.P.(C) No. 23436 of 2018. As per Ext.P11 judgment dated 13.09.2018 the writ petition was disposed of directing the DEO to pass orders with respect to the legality of Ext.P7 order of the Manager, after hearing all the parties. DEO thereafter passed Ext.P13 order approving the action of Manager in Ext.P7. It was stated that both the AMMTTI and AMM High School were functioning as a single unit; a common seniority list of teachers of both the Schools- AMM HS and AMMTTI & UP School, as on 01.01.2017 was approved under Rule 35A of Chapter XIVA KER; TSA and HSAs are in the same scale of pay;qualification for both the posts are the same and therefore Ext.P7 order passed by the Manager was correct. 5. This writ petition is filed thereafter challenging the orders Exts.P7 and P13. Petitioner points out that qualification for the posts of TSAs and HSAs are different; posts are not interchangeable or equivalent; there is no instruction to accommodate the excess HSA in the AMMHS; when the staff fixation is W.P.(C) No.34590/18 **==> picture [12 x 8] intentionally omitted <==** not varied, petitioner cannot be retrenched and the 5[th] respondent cannot be retained. 6. It is also the contention of the petitioner that as long as Ext.P6 staff fixation order abolishing one post of HSA and directing the retrenchment of the 5[th] respondent is not challenged or varied retention of the 5[th] respondent is unauthorised. Yet another contention is that the 6[th] respondent does not have 55% marks in Post Graduate Degree examination and she is not qualified for appointment as TSA, as required in Ext.P8 order of the DPI. The learned counsel for the petitioner points out that there is no provision in Rule 34 or 35 of Chapter XIVA KER which provides that HSAs and TSAs shall be included in a common seniority list. 7. In the counter affidavit of the 3[rd] respondent it is stated that consequent to division fall found in the staff fixation for 2018-19, the 3[rd] respondent had directed the Manager to arrange the excess teachers in accordance with the seniority list; a single seniority list is followed for transfer and promotion to these W.P.(C) No.34590/18 **==> picture [12 x 8] intentionally omitted <==** two schools under the management. Consequent to this the Manager retrenched the petitioner who is the junior most TSA and appointed the 5[th] respondent, who is qualified for appointment as TSA in her place and accommodated 6[th] respondent in the place of 5[th] respondent. According to the 3[rd] respondent TSA and HSA are included in the common seniority list as per Rule 34A of Chapter XIVA KER, as clarified in the circular dated 22.10.2018 of Govt. It is stated that as per the byelaw of these Schools High School Section and TTI section are considered to be a single unit. As per this circular, the qualification, scale of pay and the posts of TSA and HSA are the same. Therefore it is stated that the action of the Manager is correct. 8. The 5[th] respondent also relies on the very same circular dated 22.10.2018 and has stated that the posts of TSAs and HSAs are one and the same with equal pay, qualification, in common seniority list, etc. It is also stated that the 5[th] respondent who commenced service as HSA in 2006 is eligible for protection whereas the petitioner who was appointed only in 2016 W.P.(C) No.34590/18 **==> picture [12 x 8] intentionally omitted <==** is not eligible for protection; the Manager has adjusted her in the post available in the Schools available under it in accordance with seniority and in accordance with the byelaw; therefore 6[th] respondent was appointed as TSA in the place of petitioner who is not eligible for protection, in order to retain the 6[th] respondent who is eligible for protection, in tune with Rule 51 of Chapter XIVA KER. The 5[th] respondent points out that as per Ext.R5(b) norms of NCTE issued in the notification dated 28.11.2014, the percentage of marks required in post graduate Degree examination is only 50 and not 55 as provided in Ext.P8 circular of DPI and therefore 5[th] respondent is fully qualified for appointment as TSA. Relying on Ext.R3(a)/R5(c) government circular, it is stated that the posts of TSA and HSA are equivalent with same pay scale, qualification and all other respects. 9. The learned counsel for the petitioner relied on the judgments in _**State of Kerala vs. Ciji P.Jose : 2015 (1) KLT 458**_ (paragraph 5), _**State of Kerala vs. Sunitha : 2014 (2) KLT 986**_ , ILR 1975 (1) Kerala 54, W.P.(C) No.34590/18 :9: _**Sanjeevan vs. District Educational Officer : 2000 (2) KLT 130**_ , _**Sub-Inspector Rooplal and another vs.**_ ## _**Lt.Governor through chief Secretary, Delhi and others :**_ _**2000 (1) SCC 644**_ and argued that as far as the staff fixation proceedings are not varied, the Manager or the DEO cannot take any action as against the said proceedings. When the 5[th] respondent was found excess, the Manager cannot retain her in the very same school and retrench the petitioner from a School where there was no excess post. It was also pointed out that posts cannot be said to be equated merely based on the scale of pay attached to the posts. 10. Having heard the learned Counsel appearing on both sides and the learned Government Pleader, it is necessary to examine the contents of Ext.R3(a)/R5(c) circular issued by the Government, since all the respondents rely on it asserting that TSAs and HSAs are equated posts to be included in a common seniority list. 11. A reading of the circular would indicate that the Director of Higher Secondary Education had sought W.P.(C) No.34590/18 :10: for a clarification from Govt. pointing out that the Principals/TSAs of TTIs are not included in the feeder category in Rule 4 of Chapter XXXII of KER for appointment by transfer to the post of Principal/HSST(Jr) or HSST in Higher Secondary Schools. While considering this Government stated that the qualification and scale of pay attached to the posts of HSAs and TSAs are identical; similar is the case of Principal of TTI and Headmaster of High School; Under Rule 34A of Chapter XIA of KER both TSAs and HSAs are to be included in the very same seniority list; Stating all these Government ordered that Principals of TTIs and TSAs can be considered for appointment by transfer to the post of Principals and HSST/HSST Jr respectively. The eligibility for inclusion in the feeder categories of Principal or HSST or HSST junior covered by Chapter XXXII is not at all a question which arises for consideration in this case. However the correctness of those observation requires to be considered as those observations are the basis for Exts.P7 and P13 orders. As far as the scale of pay is W.P.(C) No.34590/18 **==> picture [17 x 8] intentionally omitted <==** concerned, there is no dispute. However a mere look at Ext.P8 circular as well as Ext.5(b) notification of NCTE would show that post graduation with 55/50% marks and B.Ed/M.Ed is the qualification prescribed for TSA whereas PG Degree or any prescribed percentage of marks is not required for HSAs in chapter XXXI of KER. Therefore the observation that qualification prescribed is one and the same in the circular dated 22.10.2018 is without any basis and incorrect. The authority to prescribe qualification of teaching posts in TTIs is NCTE. At any rate the 5[th] respondent has produced Ext.R4(b) notification, which also requires PG Degree with prescribed percentage of marks which is not required for appointment of HSAs. Therefore Government of Kerala does not have any authority to dilute those qualifications, though it would be open to it to prescribe more or higher qualifications than those prescribed in Ext.R5(b), as done in Ext.P8 order of DPI, in which 55% marks in PG Degree is insisted. At any rate the circular issued for the purpose of promotions/appointments to be made under Chapter XXXII W.P.(C) No.34590/18 **==> picture [18 x 8] intentionally omitted <==** KER cannot be relied on to arrive at a finding for the purpose of retrenchment or retention based on staff fixation orders. Therefore Ext.R3(a)/R5(c) circular which is relied on by the respondents cannot have any relevance for the purpose of shifting of HSAs to the post of TSAs or in re-arranging the two categories consequent to the staff fixation. It is also pertinent to note that the duties attached to the post of TSAs and that of HSAs are not the same. TSAs are teaching teacher training students whereas HSAs are teaching students of standard VIII to X. 12. Neither the Government nor respondents 5 and 6 have produced any order which provides that TSAs and HSAs are interchangeable or that a common seniority list of the staff of Teachers Training Institute as well as that of High School under the same management has to be prepared and maintained either under Rule 34 or 35 of Chapter XIVA KER or that the staff of either of these schools can be interchanged in order to accommodate a teacher who is found excess in one school. W.P.(C) No.34590/18 :13: 13. As respondents have stated that a common seniority list of TSAs and HSAs are required under Rule 34 of Chapter XIVA of KER, it is also necessary to have a look at Rule 34. Rule 34 provides that every management shall subject to the provisions contained in rule 37, prepare and maintain in Form II-A a staff list/seniority list each for the teachers in the High Schools and those in the Primary Schools as specified therein. Clause (a) of rule 34 provides that there shall be a combined seniority list for High school Assistants, HSA (Languages) etc without prejudice to the interse seniority. It also provides that the purpose of seniority list shall be only to determine the relative position of persons who shall be eligible for promotion as High School Headmaster by virtue of length of service and prescribed qualifications for promotion. 14. Rule 35 of Chapter XIV A provides that if the educational agency has got more than one school in a district they shall be constituted into one unit and common seniority shall be prepared for all the schools W.P.(C) No.34590/18 :14: in the unit together and shall be submitted to the DEO for approval. Similarly, if there are schools in more than one district common seniority list shall be prepared for all the schools together and submitted to DPI for approval. The 2[nd] proviso to Rule 35 provides that the educational agency may at its option constitute the existing Girls High Schools and Training Schools for women under it as a separate unit and draw up a separate seniority list for teachers of those institutions solely intended for women. It also provides that the option of the teachers shall be ascertained for inclusion in one list or the other. These provisions also do not provide for a common seniority list for teachers in a Training School and High School. The school referred to in this chapter cannot be of different class or grade. 15. Chapter II of KER, provides for classification of Schools. Schools for General Education and those for Special Education come under Clause (1) and (ii) respectively of Rule 2 of Chapter II. Under Rule 3(i) Training Schools providing instruction and training for W.P.(C) No.34590/18 :15: Teacher's certificate examination come under the purview of Schools for Special Education. It only provides for two grades of Schools-Primary and Secondary. Note (ii) below Rule 2 of Chapter II of KER provides that the terms secondary school and Training School shall be taken to include the Upper Primary and Lower Primary standards attached to them. No provision is seen in KER or seen or pointed out by the respondents which provide for reckoning training School along with High School or which provides for a common seniority list for both. 16. The only Chapter in KER which relates to Teachers Training Schools is Chapter XXV. It provides for admission to Teachers Training School in rule 1 to ## 3. Rule 3 of Chapter XXV reads as follows: _3. Every Training School shall have a Primary School upto and including Standard VII attached to it as demonstration school. The Headmaster of the demonstration school shall, in academic matters, be under the orders of the Headmaster of the training school to which it is attached. Till the separation of Training Schools from High Schools, the Lower and Upper Primary Sections of the Secondary Schools may be used as the demonstration schools. If the number of divisions in a demonstration school is not found sufficient, the Director may allow the Lower and Upper Primary sections of a neighbouring Secondary School even if it is under a different management to be utilised as the demonstration school for Training School._ W.P.(C) No.34590/18 **==> picture [18 x 8] intentionally omitted <==** 17. There is no provision in KER which provides for qualification for appointment of the staff of the Teachers' Training School. Chapter XXV only provides for admission to the Teachers' Training School. The qualifications as well as method of appointment are provided only in the orders issued by Government or DPI from time to time. The minimum qualification required for appointment of teachers in TTIs are as determined by National Council for Teacher Education(NCTE). In tune with the norms laid down by NCTE, the DPI has issued Ext.P8 order on 19.02.2009 which provides that vacancies in the Teachers Training Institute in the post of Principals as well as Teachers shall be filled up from among the Headmasters/HSAs who are having Post Graduate Degree with 55% marks and with M.Ed/B.Ed. However respondents 5 and 6 have stated that as per Ext.R5(b) notification of NCTE the percentage of marks prescribed for PG Degree is only 50 and therefore 5[th] respondent is fully qualified for appointment as TSA. But no corresponding amendment is seen made to Ext.P8 order of the DPI. NCTE has only prescribed the minimum W.P.(C) No.34590/18 **==> picture [18 x 8] intentionally omitted <==** qualification. That does not stand in the way of prescription of standard higher to those laid down by NCTE, by the State Government. Chapter XXV only provides for attaching the UP school along with the TTI, as UP Schools can be utilized as demonstration schools. 18. The respondents have stated that the re- arrangement was made as per Ext.P14 order. But that order only provides for accommodating a teacher who is found excess in the respective category of post. As per Ext.P14 the teachers who were found surplus consequent to division fall are to be adjusted against the vacancies if any available in other schools under the management in the respective category and that shall be furnished to the Deputy Director of Education. It is also provided that the particulars of teachers who are eligible for protection has to be furnished to the educational authorities through concerned AEO/DEO for inclusion in the teachers' bank. 19. As pointed out by the learned Counsel for the petitioner either Ext.P5 or Ext.P6 provides for ## W.P.(C) No.34590/18 :18: retention of any teacher in another category in order to avoid retrenchment. Ext.P6 had only provided to arrange the teachers found excess in accordance with seniority if vacancies are available in other Schools. 20. In the above circumstances, Ext.P7 order of the management under the guise of the instructions given in to Appendix II to the staff fixation proceedings Ext.P6 is absolutely unsustainable. Ext.P13 is also equally unsustainable. The fact that the petitioner was appointed only in 2016 shall not have any relevance as long as there is no reduction of post in the Teachers Training Institute. 21. In normal case the parties would have been relegated to the statutory authorities. But the Writ Petition is considered on merits because it required interpretation of Ext.R3(a) circular. Therefore, Exts.P7 and P13 orders shall stand set aside. The petitioner is entitled to continue as TSA without any retrenchment based on Ext.P5 staff fixation proceedings subject to further orders on staff fixation. The petitioner will also be entitled to all W.P.(C) No.34590/18 **==> picture [18 x 8] intentionally omitted <==** benefits as if she continued as TSA in the Teachers Training Institute. The Writ Petition is allowed to the above extent. ## **Sd/-** ## **P.V.ASHA** **JUDGE** rkc W.P.(C) No.34590/18 :20: ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE M.A. DEGREE CERTIFICATE OF THE PETITIONER AWARDED BY THE M.G.UNIVERSITY. EXHIBIT P2 TRUE COPY OF THE MARK LIST OF THE PETITIONER FOR M.A. DEGREE. EXHIBIT P3 TRUE COPY OF THE B.ED. DEGREE CERTIFICATE OF THE PETITIONER AWARDED BY THE UNIVERSITY OF KERALA.** **EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER DATED 20.6.2016 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE STAFF FIXATION ORDER DATED 27.6.2018 ISSUED BY THE 3RD RESPONDENT IN RESPECT OF A.M.M.T.T.I AND U.P. SCHOOL, MARAMON, FOR THE ACADEMIC YEAR 2018-2019. EXHIBIT P6 TRUE COPY OF THE STAFF FIXATION ORDER DATED 28.6.2018 ISSUED BY THE 3RD RESPONDENT IN RESPECT OF M.M.A. HIGH SCHOOL, MARAMON, FOR THE ACADEMIC YEAR 2018-2019. EXHIBIT P7 TRUE COPY OF THE ORDER NO.004/2018 DATED 9.7.2018 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P8 TRUE COPY OF THE CIRCULAR DATED 19.2.2009 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 13.7.2018 IN WPC.NO.23436/2018 OF THIS HON'BLE COURT. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 13.8.2018 IN WPC.NO.23436/2018 OF THIS HON'BLE COURT.** W.P.(C) No.34590/18 :21: **EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 13.9.2018 IN WPC.NO.23436/2018 OF THIS HON'BLE COURT. EXHIBIT P12 TRUE COPY OF THE HEARING NOTE SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXHIBIT P13 TRUE COPY OF THE ORDER NO.B1/5839/2018 K.DIS. DATED 15.10.2018 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P14 TRUE COPY OF THE CIRCULAR DATED 1.7.2017 ISSUED BY THE 2ND RESPONDENT.** ## **RESPONDENTS' EXHIBITS** **EXT.R5A: TRUE COPY OF GO(P) NO.29/16/DE DT.29.1.16 OF R1** **EXT.R5B: TRUE COPY OF NCTE NORMS NOTIFICATION DT.28.11.14** **EXT.R5C: TRUE COPY OF GOVERNMENT ORDER NO.SC.1/136/2018/GEN/EDN/DT.22.10.18** **EXT.R5D: TRUE COPY OF ORDER NO.B1/5839/2018/K.DIS DT.15.10.18 OF R3** **EXT.R5E: TRUE COPY OF INTERIM ORDER IN WPC NO.34590/18 DT.24.10.18 OF THIS HON'BLE COURT.** **EXT.R3A: TRUE COPY OF THE CIRCULAR NO.S/C1/136/18/GEN.EDN DT.22.10.18 OF GENERAL EDUCATION (SC) DEPT.**