IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 WA.No. 1273 of 2004 ----------------------------- JUDGEMENT IN W.P.C. NO. 5628/2004 DATED 29/06/2004 .................... APPELLANT/ 3RD RESPONDENT: ------------------------------------------------ K.M. BHADRAN, KARIMALIPUZHA HOUSE, PAMPAVALLEY NORTH P.O., PANAPILAVU, KOTTAYAM DISTRICT. BY ADV. SRI.S.EASWARAN. RESPONDENTS/ PETITIONER & RESPONDENTS 1,2 AND 4: ------------------------------------------------------------------------------------ 1. REJIMOL K.K., WIFE OF VIJAYAN, KOCHUPARAMBIL, EDAKKADATHY P.O., KOTTAYAM DISTRICT. 2. THE ASSISTANT EDUCATIONAL OFFICER, KANJIRAPPALLY. 3. THE MANAGER, T.K.M.M.U.P.SCHOOL, EDAKKADATHY P.O., KOTTAYAM DISTRICT. 4. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER, ADV. SRI.N.SUGATHAN FOR R1, SMT.VARSHA BHASKAR FOR R1, SMT.R.SEEMA FOR R1, SRI.KRB.KAIMAL (SR.) FOR R3, SRI.SAJI KURIACHAN, SRI.M.R.NANDAKUMAR, SRI.PAUL ABRAHAM VAKKANAL, SRI.ESM.KABEER. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2008, ALONG WITH W.A NOS. 1277/2004 & 1274/2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. NO. 1273/2004: ORDER ON I.A. NO. 2101/2004 IN W.A. NO. 1273/2004 DISMISSED SD/- J.B.KOSHY, JUDGE. 11/08/2008. SD/- K.P.BALACHANDRAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. prv. J.B. Koshy & K.P.Balachandran, JJ. -------------------------------------- W.A. Nos.1273, 1274 & 1277 of 2004 --------------------------------------- Dated this the 11th day of August, 2008 Judgment Koshy,J. These writ appeals are filed from the common judgments of the learned single Judge dated 29.6.2004 regarding the appointment of teacher in U.P. School which has got upper primary section and lower primary section. Writ petitioner in W.P. (C) No.5628 of 2004 Rejimol K.K. was a teacher in the U.P. section with effect from 15.7.1997. She was a graduate teacher with B.Ed. qualification fully qualified to become a U.P.S.A. But, due to fall in division during the academic year 2000-2001, she had to be retrenched even though she continued in service in a leave vacancy up to 31.10.2001. Thereafter, she was retrenched. She is 51-A claimant to get next appointment. Meanwhile, the headmaster of the U.P.School retired with effect from 1.4.2002. One teacher from L.P. section was appointed in that vacancy with effect from 1.4.2002. Therefore, a vacancy of L.P.S.A. arose and manager appointed the petitioner in W.P.(C) No. 37879 of 2004 in that post. He is none other than the Manager's own son. He was having W.A.Nos. 1273, 1274 & 1277/2004 2 required T.T.C. qualification. Then the question arose whether the petitioner in W.P.(C) No. 5628 of 2004 is entitled to get appointment to that post on the basis of 51-A claim. Before amendment dated 8.6.2005, 51-A claimants are entitled to get appointment in the very same category of post from which they were retrenched. The manager took a stand that since the vacancy of L.P.S.A. arose due to the posting of the headmaster from an L.P. section, she is not entitled to be appointed in the vacancy in the L.P. section. She was also not qualified to be appointed as L.P.S.A. because she was not possessing T.T.C. qualification. When the Assistant Educational Officer rejected the claim of the petitioner, both parties approached this court. The learned single Judge took a stand that when the LPSA was appointed as headmaster of the UP section, vacancy arose in UP section. On the terms of the provisions of the Kerala Education Rules, that cannot be the position. 2. Rule 5 of chapter XXIII of the Kerala Education Rules reads as follows: "In every Upper Primary School there may be -- (i) One post of Headmaster; (ii) As many posts of Upper Primary School Assistants as the number of class divisions, reduced by one. W.A.Nos. 1273, 1274 & 1277/2004 3 (iii) As many posts of Lower Primary School Assistants as there are divisions in the Lower Primary School classes. Note:- If the Lower Primary section of the school is working on the shift system the number of Lower Primary School Assistants shall be fixed in accordance with Rule 1." There were three divisions in the U.P. school and, therefore, UPSAs required are two plus 1. With regard to the promotion to the post of headmasters, it is the common seniority that counts and qualified teacher has to be appointed as headmaster. When an L.P.S.A. is appointed as the headmaster, she has to teach in one division of UP section. Minimum qualification for UPSA is also SSLC with TTC. Therefore, when LPSA was promoted as headmaster of the UP section, a vacancy actually arose in LP section and, therefore, petitioner in W.P.(C) No.5628 of 2004 cannot be appointed as LPSA under rule 51A especially considering her qualification. Therefore, we are of the view that appointment of the petitioner in W.P.(C) No.37879 of 2004 as LPSA by the manager is correct in law and he is entitled to get the appointment approved with effect from that date. 3. By the time the writ appeal came up for admission, another vacancy of UPSA arose due to retirement of the headmaster W.A.Nos. 1273, 1274 & 1277/2004 4 of the U.P. school with effect from the academic year 2003-2004. Therefore, this court directed to appoint the petitioner in W.P. (C) No.5628 of 2004 in that vacancy and she was appointed on 17.12.2004 and her appointment was already approved. But, that vacancy actually arose with effect from the beginning of the academic year 2003-2004. Even though she is not entitled to backwages for the period till 17.12.2004, she will get service benefits as if she was appointed with effect from the beginning of the academic year 2003-2004 as UPSA on a notional basis and she is also entitled to get approval of her service accordingly. Revised appointment order should be issued by the Manager accordingly. We make it clear that she will be entitled to salary only from 17.12.2004, the actual date of appointment. All the writ appeals are disposed of accordingly. J.B.Koshy Judge K.P.Balachandran Judge vaa W.A.Nos. 1273, 1274 & 1277/2004 5 W.A.Nos. 1273, 1274 & 1277/2004 6 J.B. KOSHY AND K.P.BALACHANDRAN,JJ. ------------------------------------- W.A. Nos.1273, 1274 & 1277/2003 ------------------------------------- Judgment Dated:11th August, 2008