W.A.No.148 of 2017 (V) in WP(C).6575/2012, High Court of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 25TH DAY OF JANUARY 2017/5TH MAGHA, 1938 WA.No. 148 of 2017 (V) IN WP(C).6575/2012 ------------------------------------------- WEDNESDAY, THE 25TH DAY OF JANUARY 2017/5TH MAGHA, 1938 AGAINST THE JUDGMENT IN WP(C) 6575/2012 of HIGH COURT OF KERALA DATED 17-10-2016 ## APPELLANT/4TH RESPONDENT: ---------------------------------------------- DIVYA.C LOWER PRIMARY SCHOOL ASSISTANT (LPSA), A.U.P.SCHOOL, PALAKODE, KOTHAKURUSSI, OTTAPALAM SUB DISTRICT, PALAKKAD 679501 BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SMT.ASHA BABU SMT.R.S.ASWINI SANKAR ## RESPONDENTS/PETITIONER & RESPONDENTS: -------------------------------------------------------------------- 1. SMT.JASHEELA.K U.P.S.A.,(UPPER PRIMARY SCHOOL ASSISTANT) PALAKODE, KOTHAKURUSSI, OTTAPALAM SUB DISTRICT, PALAKKAD-679 501 2. THE DEPUTY DIRECTOR OF EDUCATION PALAKKAD - 678 001. 3. THE ASSISTANT EDUCATIONAL OFFICER OTTAPALAM, PALAKKAD DISTRICT, PIN 679101 4. THE MANAGER A.U.P. SCHOOL, PALAKODE, KOTHAKURUSSI, OTTAPALAM SUB DISTRICT, PALAKKAD 679501 R1 BY ADVS. SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH R2 & R3 BY SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE R4 BY ADV.SRI.G.SREEKUMAR (CHELUR) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV **C.R.** ## **K.SURENDRA MOHAN & A.M.BABU, JJ. --------------------------------------------W.A.No.148 of 2017 ---------------------------------------------Dated this the 25[th] day of January, 2017** ## **J U D G M E N T** ## Surendra Mohan, J. The fourth respondent in W.P.(C).No.6575 of 2012 is in appeal, challenging the judgment of the learned Single Judge dated 17.10.2016 allowing the writ petition. 2. The writ petitioner had approached this Court by filing the writ petition claiming that she was entitled to continuance in service on the basis of the staff fixation order issued for the academic year 2010-11. According to the writ petitioner, she was appointed as an Upper Primary School Assistant (UPSA) on 01.06.2009. The appointment was approved on 09.10.2009, with effect from the date of appointment. While so, one post of Lower Primary School Assistant (LPSA) was abolished due to fall in student strength. The appellant/fourth respondent was the junior most LPSA. Therefore, the staff fixation order provided that, she would be sent out from service. She has continuous service from 09.08.2008, on which date she was appointed as an LPSA. 3. Aggrieved by the staff fixation order, the appellant preferred an appeal. The Assistant Educational Officer reviewed the order and held that, the first respondent, who was the junior most in W.A.No.148 of 2017 2 the school was liable to be retrenched and not the appellant. Later on, a retrenchment vacancy arose in the school and the appellant was accommodated in the said vacancy. The question that arose for consideration was regarding the comparative eligibility of the appellant and the first respondent to continue in service of the school for the academic year 2010-11. As per Ext.P5 order passed by the Deputy Director of Education on an appeal preferred by the first respondent, the salary and allowances drawn by her were directed to be recovered and the amounts were directed to be paid to the appellant. It was at the said stage that, the first respondent had filed the writ petition. 4. After considering the contentions of the respective parties, the learned Single Judge has held that, the first respondent being an UPSA, she was entitled to continuance in service, taking into account the fact that, it was the post of an LPSA that was reduced. It is the said finding that is called in question before us. 5. According to the learned Senior Counsel Sri.K.Ramakumar, as per the dictum laid down by a Full Bench of this Court in _**S.N.D.P. L.P. School v. Roy [2006 (4) KLT 497 (FB)]**_ , a combined seniority list of UPSAs and LPSAs is to be drawn up and maintained. The right to be considered for the promotion post of Headmaster of a Lower Primary School is available not only to LPSAs W.A.No.148 of 2017 3 but also to UPSAs, who are to be borne on the combined seniority list. Since the combined seniority list is prepared and seniority is the criteria for promotion as the Headmaster of a L.P School, in the case of retrenchment of teachers due to fall in division also, it is contended that, the same principle should be maintained and it is the juniormost in the combined seniority list, who should be retrenched. Instead of following the said principle, for the purpose of retrenchment, the senior teacher is sent out, while the junior is retained in the school. It is contended that the said anomaly requires to be explained and clarified. According to the learned Senior Counsel, the learned Single Judge has placed reliance on the decision of another Full Bench in _**Thresia v. Preethy [2014 (4) KLT 837 (FB)]**_ . The dicta in the Full Benches conflict with each other and, according to the learned counsel, it requires to be settled. It is further contended that, the seniority that is acquired by a teacher cannot be taken away by anyone and any law that denies the benefit of seniority to the teacher would be bad in view of Article 16 of the Constitution. 6. Per contra, the learned Government Pleader, who appears for respondents 2 to 4, points out that, the Full Bench decision in _**S.N.D.P. L.P.School**_ 's case (supra) was rendered before Rule 34(b) of Chapter XIV A, KER was amended. After the amendment, W.A.No.148 of 2017 4 according to the learned Government Pleader, it is clear that the combined seniority list is meant only for the purpose of effecting promotion to the post of Headmaster of an L.P.School. The above aspect has been taken note of and considered in the subsequent Full Bench decision reported in _**Thresia**_ 's case (supra). Therefore, according to the learned Government Pleader, there is absolutely no conflict as sought to be made out by the learned counsel for the appellant. 7. Adv.Sri.Elevin Peter, who appears for the fourth respondent, also supports the contentions of the learned Government Pleader and points out that, the apparent conflict between the Full Bench decision in _**2006 (4) KLT 497**_ and _**2014 (4) KLT 837**_ (supra) has been taken note of and explained by a subsequent Full Bench. Therefore, it is contended that there is nothing to be clarified further. 8. Heard. A perusal of the judgment of the learned Single Judge shows that, Rule 34(b) Chapter XIV A as it stood prior to the amendment as well as the present Rule have been extracted and considered by the learned Single Judge. It is worth noticing that, as per the amendment it has been clarified that the purpose of the seniority list prepared will be only to determine the position of the persons eligible for promotion as Primary School Headmaster by W.A.No.148 of 2017 5 virtue of length in service and the clarifications prescribed. Rule 34 (b), in its present form reads as under : _“34. Seniority list. xxxx_ _(a) xxxxx_ _(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.”_ (emphasis supplied) As a result of the amendment effected, it has been clarified that the purpose of preparing the combined seniority list is only for the purpose of determining the promotion to the post of a Primary School Headmaster. 9. A perusal of the Full Bench decision in _**S.N.D.P.L.P.School**_ 's case (supra) shows that, the question involved in the said case was regarding the entitlement of a teacher for promotion to the post of L.P.School Headmaster and whether, only LPSAs were eligible to be considered for such promotion. The Full Bench has considered the various provisions applicable and has held that, in view of Rule 34(b) as it stood prior to the amendment, W.A.No.148 of 2017 6 promotion would have to be made in accordance with the seniority in the combined seniority list of UPSAs and LPSAs. 10. In the subsequent Full Bench decision in _**Thresia**_ 's case (supra), the question that arose for consideration was whether seniority was to be followed in the matter of retrenchment of a UPSA or LPSA or whether such retrenchment was to be made on the basis of the seniority in the respective category of UPSAs or LPSAs as the case may be. The above question has been answered in paragraph 17 of the judgment by the Full Bench, in the following words : _“17. In our considered opinion, in the light of the language of R.34(b) of Chapter XIV A K.E.R., the judgments noticed above lay down the correct principle of law that the teachers in the U.P.Section and the teachers in the L.P.Section of a school belong to two different and separate categories and that, therefore, if there is occasion for retrenchment of an U.P.S.A. or a L.P.S.A., the seniority that is to be followed is the seniority in the respective category and not the common seniority as canvassed before us.”_ We notice that, in paragraph 16, the Full Bench has taken note of the earlier Full Bench decision in _**S.N.D.P.L.P.School**_ 's case and has found that, the question that arose for consideration before the Full Bench in the present case had not arisen for consideration of the earlier Full Bench. 11. The above being the position, we are not satisfied that W.A.No.148 of 2017 7 there is any conflict between the Full Bench decisions as sought to be made out by the learned Senior Counsel. 12. The other contention that is put forward by the learned Senior Counsel is that, since seniority in the combined seniority list is the criteria for promotion to the post of Headmaster of an L.P.School, the same criterion should be followed for the purpose of retrenchment of teachers also. The said contention cannot be accepted for the reason that, a teacher can be retained in the school, only as long as there is a vacancy available. The vacancy position in a school is determined by the staff fixation orders passed in accordance with the provisions of the Kerala Educational Act and the Rules thereunder. If as a result of the staff fixation, there is reduction in the vacancy of a LPSA, it can only be a LPSA who has to go out. The question as to which teacher has to be sent out, would have to be determined on the basis of the seniority in the said category, as held by the Full Bench. In _**Thresia**_ 's case (supra) as is also clear from a reading of Rule 34(b) of Chapter XIVA what is held is that, the common seniority list that is prepared is only for the purpose of promotion to the post of Headmaster of an LP School. Therefore, the said seniority list cannot determine as to which teacher should be sent out. We are also not satisfied that, the right of the appellant, under Article 16 of the Constitution is violated in W.A.No.148 of 2017 8 the said process, for the reason that, it is not possible to retain her in service, in the absence of a vacancy. For the foregoing reasons, we find that the learned Single Judge has considered the issues in the proper perspective and that, no interference therewith is called for in appeal. This Writ Appeal fails and accordingly, the same is dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **A.M.BABU JUDGE** AV /True Copy/ P.A to Judge