IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 WP(C).No. 22884 of 2008(Y) ----------------------------------------- PETITIONER(S): ------------------------- SHEEJA A.K., LPSA, VPLP SCHOOL, P.O. CHOKLI, KANNUR DISTRICT. BY ADV. SRI.POOVAMULLE PARAMBIL ABDUL KAREEM RESPONDENT(S): ----------------------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, THALASSERY. 3. THE ASSISTANT EDUCATIONAL OFFICER, CHOKLI,KANNUR DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER SMT. RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.22884/2008 Y APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER DTD. 30/07/2003. P2: COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DTD. 7/10/2003 REJECTING THE PROPOSAL FOR APPROVAL OF THE PETITIONER. P3: COPY OF THE ORDER OF THE 1ST RESPONDENT DTD. 2/03/2006. P4: COPY OF THE STAFF FIXATION ORDER DTD. 13/07/2005 OF V.P.L.P. SCHOOL. P5: COPY OF THE RELEVANT PAGES OF THE STAFF FIXATION ORDER DTD. 3/09/2005 OF V.P.ORIENTAL HIGH SCHOOL. P6: COPY OF THE COMMUNICATION DTD. 27/11/2006. P7: COPY OF THE JUDGMENT IN WP(C) NO.34368/06 DTD. 21/03/2007. P8: COPY OF THE NOTICE DTD. 4/05/2007. P9: COPY OF THE ORDER DTD. 18/04/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.22884/2008-Y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 20th day of June, 2011 J U D G M E N T The petitioner is aggrieved by Ext.P9 order by which the revision petition was disposed of by the Government against her. 2. The learned counsel for the petitioner submitted that a hearing of the revision petition was conducted on 30/05/2007 as evident from Ext.P8 notice but the order Ext.P9 is passed after a long gap, i.e. on 18/04/2008. Apart from that it is also pointed out that the basis of the findings made against the petitioner cannot be sustained. An order passed by the Deputy Director of Education, Kannur dated 19/05/2009 which has got some bearing in respect of the findings against the petitioner in Ext.P9 is also relied on, in this context. 3. The petitioner was appointed as Lower Primary School Assistant in V.P.L.P School, Chokli with effect from 02/06/2003 on 30/07/2003, in the promotion vacancy W.P.(C). No.22884/2008 -:2:- of Smt.C.K.Jalaja Bai, as per Ext.P1 order. There were objections with regard to the approval of the same in the light of the fact that the appointment of the Manager was not approved finally. The said dispute was resolved by the Government by Ext.P3 letter. The petitioner's appointment was approved from 30/07/2003. 4. The Manager is also having a high school with U.P Section, namely, V.P.Oriental High School. The present dispute arose after the staff fixation became final in respect of the school, viz. V.P.L.P School for the year 2005-06. Three posts of Lower Primary School Assistants and one post of Headmaster were sanctioned for the four divisions sanctioned as evident from Ext.P4 order of the third respondent. In the High School, one post of Upper Primary School Assistant was reduced for want of students' strength as evident from Ext.P5. It appears that after a few months, the District Educational Officer issued a direction as per Ext.P6 to recover pay and allowances paid to the junior W.P.(C). No.22884/2008 -:3:- most teacher and to transfer a T.T.C qualified U.P.S.A to V.P.L.P. School, Chokli shifting the lien of senior U.P.S.A working against the reduced post in V.P.O.H.S., Chokli to V.P.L.P School, Chokli with retrospective effect from 15/07/2005. It is the contention of the petitioner that she was not heard before passing Ext.P6. It is also pointed out that the said order is passed in violation of Rule 12 C of Chapter XXIII Kerala Education Rules. Against the same, the petitioner filed a revision petition which was disposed of by Ext.P9 order passed by the Government in the light of the direction issued by this Court in Ext.P7 Judgment. 5. The learned counsel for the petitioner submitted that as far as staff fixation of the L.P School is concerned, there is no reduction of the posts. There was no direction in any of the staff fixation orders to transfer the U.P.S.A or to retrench the petitioner. Therefore, the salary paid to the W.P.(C). No.22884/2008 -:4:- petitioner cannot be recovered. It is pointed out that the shifting of U.P.S.A as L.P.S.A is also not permissible in the light of the Judgment of this Court in Manager, M. M. U. P. School v. Deputy Director of Education [2011 (1) KLT 663]. It is pointed out that the qualifications of L.P.S.A and U.P.S.A have been amended from 08/06/2000 onwards and therefore, no shifting is possible in violation of the rules. 6. In the order passed by the Deputy Director of Education, Kannur viz. Order No.B3/8249/08 dated 19/05/2009 what is pointed out is that after 08/06/2000 the post of U.P.S.A and L.P.S.A are different categories and, therefore, for paying salary to Shri P.K.Jayathilakan U.P.S.A the petitioner could not have been kept out of service. Finally, by the said order, a direction is issued to recover salary paid to the U.P.S.A in V.P.O.H School, Chokli from the Headmistress and the District Educational Officer. The said order will also advance the plea of the petitioner. W.P.(C). No.22884/2008 -:5:- 7. In that view of the matter, the Government will reconsider the entire issue. Evidently, Ext.P6 order was passed without hearing the petitioner also. 8. P9 is thus quashed. There will be a direction to the Government to reconsider the revision petition filed against Ext.P6 order after hearing the petitioner and other affected parties and the Manager within a period of three months from the date of receipt of a copy of this Judgment. In the meanwhile, there will be no recovery against the petitioner. The writ petition is disposed of as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms