The Manager, SNVTTI, Kakkazham, Alappuzha v. State of Kerala, represented by the Secretary, General Education Department, Government Secretariat, Thiruvananthapuram; The District Educational Officer, Alappuzha; Sri. Premchand R Nair, Sr Government Pleader

``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` MONDAY, THE 22[ND]DAY OF AUGUST 2022 / 31ST SRAVANA,1944 ``` ## **`WP(C) NO. 14448 OF 2020`** ## **`PETITIONER:`** ``` THE MANAGER SNVTTI, KAKKAZHAM, ALAPPUZHA-688005. BY ADVS. R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA -688001. SRI.PREMCHAND R NAIR, SR GOVERNMENT PLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGFINALLYHEARDON 22.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.14448 of 2020 2 ## **JUDGMENT** The Manager of the SNVTTI Kakkazham has approached this Court seeking to quash Exts.P3 and P5 orders and for a further direction to the 2nd respondent to approve the appointment of Anjana Sekhar as Lower Primary School Assistant (“LPSA”) retrospectively with effect from her date of appointment and disburse the arrears of salary therefrom. 2. It is the case of the petitioner herein that after the introduction of the Karyakshamatha Varsham Scheme, the shift system was abolished by the 1st respondent as per Ext.P1 order. While issuing Ext.P1, the 1st respondent insisted that (1) no additional division shall be sanctioned, (2) no new appointment shall be approved, (3) the school shall have infrastructure as prescribed under KER, and (4) the vacancies that may occur in future shall be filled with protected teachers. The conditions are strictly followed, and LPSAs and UPSAs were appointed in terms of Ext.P1. 3. The petitioner asserts that in view of the enactment of the Right of Children to Free and Compulsory Education Act, 2009 (“RTE Act”), Ext.P1 order cannot have any relevance. Referring to Ext.P6 to P6B staff fixation W.P.(C) No.14448 of 2020 3 orders, it is contended that for the academic year 2016-17, 9 divisions, 9 posts of Upper Primary School Assistants (“UPSA”) and 8 posts of LPSAs were sanctioned. This was followed up in the academic year 2017-18 as well. It is contended that the respondents have applied the Teacher-Pupil ratio, 1:30 and 1:35 in the case of LPSA and UPSA, respectively, and thereby they have altered the conditions of Ext.P1. It is contended that the effect of Ext.P1 and P2 virtually stands effaced, particularly in view of the law laid down in **Thresia M.L v. Preethi M.P and others** [2014 (4) KLT 837], wherein it was held that UPSA and LPSA are distinct and separate and not in the same cadre. It is further stated that it would be evident from the staff fixation orders for the years 2018-2019 and 2019-2020 that there was a clear vacancy of UPSA, and no additional posts had been sanctioned despite the coming into force of the RTE Act and the altering of the pupil-teacher ratio. 4. While so, during the academic year 2018-2019, one of the 8 Lower Primary teachers expired on 13.07.2018, and in the resultant vacancy, the Manager appointed a certain Anjana Sekhar with effect from 26.07.2018. However, the proposal for approval of the appointment was rejected by Ext.P3 order in view of Ext.P1. W.P.(C) No.14448 of 2020 4 ## 5. It is on these contentions that this writ petition is filed seeking the following reliefs: i) issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to and culminating in Ext.P3 and P5 and quash the same as illegal, arbitrary and unconstitutional and without application of mind. ii) issue a writ of mandamus or other appropriate writ, order or direction directing the 2nd respondent to approve the appointment of Anjana Sekhar as LPSA retrospectively w.e.f her date of appointment viz.26.7.2018 and disburse the arrears of salary there from. iii) Declare that Ext.P1 is obsolete and otiose in view of the Right to Free and Compulsory Education Act, 2009 and the interpretation imparted by this Hon’ble court and confirmed by the Hon’ble Apex Court. 6. A statement has been filed by the 2nd respondent wherein it is stated that the SNVTTI is an aided school having standards I to VII and also a Teachers Training Institute. The School was functioning with shift system in Standard I. Based on the request made by the manager, the shift system was abolished by order dated 17.12.2007 subject to the condition that no additional division shall be sanctioned, no new appointment shall be approved, and vacancies that may arise in the future shall be filled with protected teachers. While so, the manager appointed Anjana Shekhar with effect from 26.07.2018 in a sanctioned post which occurred due to the death W.P.(C) No.14448 of 2020 5 of one LPSA on 13.07.2018. The proposal for approval submitted by the manager was rejected on the ground that Ext.P1 Government Order was violated. In the said circumstances, a direction was issued to the Manager that E. Reena, LPST, who was retained in an additional division vacancy, should be accommodated in the vacancy which arose on 13.07.2018 due to the demise of Smt. Sheeba V. Further vacancy, i.e., the 8th post of LPSA should be filled up with protected teachers. It is stated that the contentions raised by the petitioner are without merit. 7. Heard the learned counsel appearing for the petitioner, Sri.R. Rajashekharan Pillai, and the learned Government Pleader, and I have considered the submissions advanced. 8. Ext.P5 order would reveal that during the academic year 2008-2009, due to a reduction in class strength, there occurred a division fall in the school and a certain Smt. Reena E. was retrenched. During the academic year 2009-2010, due to a reduction in class strength, Smt. P. Vidya, LPST, was retrenched. In the year 2010, a post was sanctioned, and Smt. P. Vidya was appointed as LPSA. As no staff fixation was conducted during the academic years 2011-2012 to 2014-2015, Smt. Vidya was able to continue in W.P.(C) No.14448 of 2020 6 service. While so, a vacancy arose in the year 2016-2017 and Smt. E. Reena was appointed to that vacancy. While so, a regular vacancy arose due to the death of Smt. Sheeba V., one of the eight Lower Primary School Assistants working in the school, and in that vacancy, the Manager proceeded to appoint Smt. Anjana Sekhar on 26.7.2018. While rejecting the proposal for approval, the manager was directed to accommodate Smt. E.Reena, who has been working in an additional division vacancy, to the regular vacancy wherein Smt. Anjana Sekhar has been appointed and to fill up the resultant eighth post by accommodating a protected teacher. 9. It would be relevant to note at this juncture that Exhibit P1 is dated 17/12/2007. As rightly submitted by Sri. Rajasekharan, elementary education has undergone a transformation after the coming into force of Act 35 of 2009. This Court in **Kerala Aided LP and UP School, Kollam v. State of Kerala and another** [2018 (1) KLT SN 13] had held that the stipulation of following the ratio of 1:45 as per KER would stand nullified in elementary education; for the reason of the stipulation under the RTE Act of 1:30 and 1:35, which is mandatory. Furthermore, in **Thresia** (supra), it was held by this Court that the teachers in the UP Section and the teachers in the W.P.(C) No.14448 of 2020 7 LP Section of a school belong to two different and separate categories, and therefore, a UPSA cannot claim the post of LPSA and vice versa. While considering the contentions advanced by the petitioner to assail Exhibit P1 and to seek approval, the impact of the law laid down by this Court in the above judgments needs to be appreciated. 10. In the case on hand, Anjana Sekhar was appointed in a vacancy that arose when a teacher working as an LPST expired. Exhibit P6, P6A, and P6B staff fixation orders reveal that for the academic year 2016-2017, nine posts of UPSAs and eight posts of LPSAs were sanctioned. This was continued in the subsequent years as well. The appointment of Anjana Skehar was neither in a newly created vacancy nor in an additional vacancy but in an existing clear vacancy that arose due to the death of an LPSA. In the facts and circumstances, I am of the view that no purpose would be served in accommodating Smt E. Reena, who has been working since 2016 in the regular vacancy wherein Smt Anjana Sekhar was appointed, and in filling up the resultant 8th post by accommodating a protected teacher. In view of the discussion above, the petitioner is entitled to succeed. Exhibits P3 and P5 will stand quashed. There will be an order directing the W.P.(C) No.14448 of 2020 8 2nd respondent to approve the appointment of Anjana Sekhar as LPSA with effect from 26.07.2018 and disburse the consequent benefits due to her. The needful shall be done expeditiously, in any event, within a period of three months from the date of receipt of a copy of this judgment. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP W.P.(C) No.14448 of 2020 9 ## **`APPENDIX OF WP(C) 14448/2020`** ``` PETITIONER'S EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF THE ORDER DATED 17.12.2007 OF THE 1ST RESPONDENT. EXHIBIT P2TRUE COPY OF THE ORDER NO.B2/16194/09/D.DIS DATED 31.10.2009 OF THE DEPUTY DIRECTOR. EXHIBIT P3TRUE COPY OF THE ORDER DATED 29.06.2019 OF THE 2ND RESPONDENT. EXHIBIT P4TRUE COPY OF THE JUDGMENT DATED 5.12.2019 IN WP(C) NO.33039/2019 OF THIS HON'BLE COURT. EXHIBIT P5TRUE COPY OF THE ORDER G.O(MS) NO.2065/2020/GENL.EDU DATED 18.06.2020. EXHIBIT P6TRUE COPY OF THE STAFF FIXATION ORDER DATED 25.04.2016 FOR THE ACADEMIC YEAR 2016-2017. EXHIBIT P6(A)TRUE COPY OF THE STAFF FIXATION ORDER DATED 13.10.2017 FOR THE ACADEMIC YEAR 2017-2018. EXHIBIT P6(B)TRUE COPY OF THE STAFF FIXATION ORDER DATED 3.7.2018 FOR THE ACADEMIC YEAR 2018-2019. EXHIBIT P7TRUE COPY OF THE STAFF FIXATION ORDER DATED 15.07.2019 FOR THE ACADEMIC YEAR 2019-2020. ``` ``` RESPONDENTS' EXHIBITS: ``` ``` ANNEXURE R2(A)A TRUE COPY OF THE ORDER SNVTTI/27/2016-17 DATED 17.09.2016 ```