IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 WP(C).No. 5935 of 2009(J) ------------------------------------- PETITIONER(S): ------------------------ T.C. RAJAN, U.P.S.A., MANNATHKAV U.P. SCHOOL, PATHIYARAKKARA, P.O. VADAKARA, CALICUT DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): ------------------------ 1. MANAGER, MANNATHKAV U.P.SCHOOL, PATHIYARAKKARA, P.O. VADAKARA, CALICUT DISTRICT. 2. ASSISTANT EDUCATIONAL OFFICER, VADAKARA. 3. DISTRICT EDUCATIONAL OFFICER, VADAKARA. 4. P. BALAKRISHNAN, ASSISTANT TEACHER, MANNATHKAV U.P.SCHOOL, PATHIYARAKKARA, P.O. VADAKARA, CALICUT DISTRICT. 5. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. * ADDL. R6 IMPLEADED ADDL. R6: SRI.K.K. BALAKRISHNAN, HEADMASTER-IN-CHARGE, MANNATHKAV U.P. SCHOOL, PATHIYARAKKARA, P.O. VADAKARA, KOZHIKODE DISTRICT. * IS IMPLEADED AS PER ORDER DATED 03/02/2010 IN I.A.1324/2010. R2, R3 & R5 BY GOVT. PLEADER SMT.NISHA BOSE. R4 & ADDL. R6 BY ADV. SRI.SANTHEEP ANKARATH, SMT.P.JAYALAKSHMI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/07/2011, THE COURT ON 05/08/2011 DELIVERED THE FOLLOWING: rs WP(C).No. 5935 of 2009(J) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER OF THE D.D.E. DATED 04/09/2007. EXT.P2: COPY OF THE STAFF FIXATION ORDER DATED 30/07/2007. EXT.P3: COPY OF THE ORDER OF THE A.E.O. DATED 25/09/2007. EXT.P4: COPY OF THE APPEAL FILED BY THE PETITIONER DATED 28/09/2007. EXT.P5: COPY OF THE ORDER DATED 21/12/2007 ISSUED BY THE D.E.O., VADAKARA. EXT.P6: COPY OF THE PETITION DATED 03/01/2008 FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT. EXT.P7: COPY OF THE ARGUMENT NOTE SUBMITTED ON PETITIONER'S BEHALF AT THE HEARING HELD ON 09/09/2008. EXT.P8: COPY OF THE GOVERNMENT ORDER DATED 24/12/2008. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE ORDER DATED 14/08/2007 ISSUED BY DEPUTY DIRECTOR OF EDUCATION, VADAKARA. //TRUE COPY// P.S. TO JUDGE rs T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.5935 of 2009-J - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August, 2011. JUDGMENT The petitioner who is aggrieved by Exts.P3, P5 and P8 orders, seeks to quash them. A further direction is sought to promote the petitioner as Headmaster of the school with effect from 1.4.2007 onwards. The rival claimant is the fourth respondent who is senior to the petitioner. The petitioner was initially appointed as UPSA on 15.7.1989. He is a graduate with B.Ed. The vacancy of Headmaster arose on 1.4.2007. The petitioner was promoted initially in the light of Rule 45 of Chapter XIV-A K.E.R. 2. The fourth respondent entered service on 4.6.1975. He is an undergraduate teacher having T.T.C. qualification. The fourth respondent staked his claim before the Assistant Educational Officer. He is having 31 years 9 months and 28 days service as on 1.4.2007. 3. The Assistant Educational Officer declined approval of promotion of the petitioner, as per Ext.P3 order. The main reason for rejecting approval is that the petitioner, during the year 2006-2007, was a protected teacher. The challenge made by the petitioner against the same, was rejected by the District Educational Officer as per Ext.P5. The further order wpc 5935/2009 2 passed by the Government in the revision petition, is produced as Ext.P8. 4. The Government, after examining various aspects, found that the petitioner was not holding a sanctioned post in terms of the staff fixation order in the years 2005-2006 and 2006-2007 and he being not a member of the staff of the school, is not entitled to get promotion in the vacancy that arose on 1.4.2007. It was also found that even though he drew salary from the school as a protected teacher, that will not entitle him to be a member of the staff of the school. Accordingly, it was held that the fourth respondent who is the seniormost teacher, is the rightful claimant for the post. 5. Heard learned counsel for the petitioner, learned counsel for the first respondent Manager, learned counsel for the fourth respondent and learned Govt. Pleader. 6. The counter affidavit filed by the third respondent District Educational Officer shows the following facts. The petitioner continued as a protected teacher for the years 2005-2006 and 2006-2007 without deployment. As per the staff fixation order, the sanctioned posts of UPSA for the above two years were only ten. Thus, it is pointed out that the petitioner, the 12th UPSA, was not a member of the staff of the school. Thus, he is not eligible for the benefit of Rule 45 of Chapter XIV-A K.E.R. 7. The counter affidavit filed by the fourth respondent also shows wpc 5935/2009 3 that the petitioner was under orders of deployment to G.H.S., Beypore as per order dated 23.7.2007. 8. In the reply affidavit, the petitioner has stated that even though the Deputy Director of Education had issued a deployment order on 23.7.2007, the same was cancelled by him as per Ext.P1 order dated 4.9.2007. 9. Learned counsel for the petitioner raised the following arguments: Even though the petitioner was retrenched for want of sufficient posts, he was retained in the parent school itself. The order of deployment by the Deputy Director of Education is dated 23.7.2007. That was unnecessary as three teachers in the school retired in the academic year 2007-2008. It is the case of the petitioner that the deployment was cancelled as per Ext.P1 order in the light of the above aspects. Reliance is placed on Ext.P2 staff fixation order also wherein it is mentioned that the petitioner has been called back. 10. In this context, learned counsel for the petitioner relied upon various decisions of this Court. Rule 45 of Chapter XIV-A K.E.R. as it stood at the relevant time, reads as follows: “45. Subject to rule 44, when the post of Headmaster of complete U.P. school is vacant or when an incomplete U.P. school becomes a complete U.P. School, the post shall be filled up from among the qualified teachers on the staff of the School or Schools under the Educational Agency. If there is a Graduate teacher with B.Ed. or wpc 5935/2009 4 other equivalent qualification and who has got at least five years experience in teaching after acquisition of B.Ed. Degree he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the seniormost under graduate teacher. If graduate teachers with the aforesaid qualification and service are not available in the School or Schools under the same Educational Agency, the senior most primary School Teacher with S.S.L.C. or equivalent and T.T.C. issued by the Board of Public Examination Kerala or T.C.H. issued by the Karnataka Secondary Education Examination Board, Bangalore or a pass in Pre-degree Examination with pedagogy as an elective subject conducted by the University of Kerala or any other equivalent training qualification prescribed for appointment as primary School Assistant may be appointed.” Going by the said rule, a teacher to be considered for promotion, should be one among the staff of the school. Going by the fact that the petitioner was retrenched for the years 2005-2006 and 2006-2007 as there were only 10 posts of UPSA, he cannot be counted as a staff member of the school. Learned counsel for the petitioner submitted that being a protected teacher, he had a lien in the post. But that will not obviously help the petitioner since the lien of a protected teacher only protects the preferential right when a vacancy arises in the parent school. This legal position is well settled by various decisions of this Court, viz. Manager, Mar Sleeba U.P. wpc 5935/2009 5 School v. State of Kerala (1990 (1) KLT 626) and Rahellamma v. State of Kerala (1997 (2) KLT 429). In the first of the decisions, it was held that “the word 'lien' used in the first Government Order dated 6.3.1969 providing for protection cannot be understood as it is defined in the K.S.R. and it can only be given the meaning of preferential claim for appointment to future vacancies.” In Rahellamma's case (1997 (2) KLT 429) the Division Bench held that a protected teacher cannot be treated as a member of the staff of the school. The said issue was considered while interpreting Rule 45 of Chapter XIV-A K.E.R. In para 9 of the judgment, the Division Bench held thus: “9. On an analysis of various provisions contained in the K.E.R. it is clear that a teacher who has been retrenched from service for want of vacancy is to be treated as not in service of that school even if he is deployed to work in another school under the scheme of protection given to the retrenched teachers. The protected teacher is allowed to work in another school, but his service cannot be counted for the purpose of seniority vis-a-vis the teachers working in the parent school. A teacher working on deployment is a protected teacher may be entitled to get increment and the service benefits for the period he had worked as a protected teacher. Under R.37 of Chap. XIV-A of the K.E.R. he cannot reckon his wpc 5935/2009 6 service for the purpose of seniority in any grade in any unit he had worked previously, namely, in his parent school. The service he has rendered as a protected teacher cannot be taken into consideration as service for the purpose of R.45 of Chap. XIVA of the K.E.R. For a qualified graduate teacher to claim preference over the junior-most qualified under graduate teacher, he should have got service equal to half of the period of the service in the school under the same management.” (emphasis supplied) 11. A Full Bench of this Court in Abraham v. State of Kerala (2009 (3) KLT 659 - FB) also examined the question whether protected teachers will lose seniority in their parent school on being deployed to Government schools. After considering the decisions of this Court in Manager Mar Sleeba U.P. School's case (1990 (1) KLT 626) and Rahellamma's case (1997 (2) KLT 429) the Full Bench was of the view that “the observation that service rendered as a protected teacher cannot be taken into consideration as service for the purpose of seniority in the present school is the correct legal position.” The Full Bench also considered the decision of the Division Bench in Leelabai v. Anandavally (2002 (3) KLT 942) wherein the principle stated by this Court in Rahellamma's case (supra), was reiterated. 12. In Prasad v. Philipose Mar Dilshus U.P. School (2005 (3) KLT wpc 5935/2009 7 487), another Division Bench, after following the decision in Mar Sleeba U.P. School's case (1990 (1) KLT 626), held that “protected teacher is not a member of the staff of the school and he has only a claim under Rule 51-A. 13. Learned counsel for the fourth respondent relied upon the decision of this Court in Lalitha v. State of Kerala (2008 (1) KLT 416) to contend that only a full time teacher who would be holding a post in terms of the staff fixation order, would be entitled to be promoted as a Headmaster in terms of Rule 45 of Chapter XIV-A K.E.R. In para 11, the legal position was laid down thus: “R.34 of Chap. XIV A requires that every management shall prepare and maintain a staff list called the seniority list of teachers. R.45 provides that the appointment to the post of Headmaster shall be from among the qualified teachers on the staff of the school or schools under the educational agency. The Note to R.45 further clarifies the situation that to be a teacher for the purpose of R.45, one has to be in the seniority list of teachers. This necessarily means that only a full time teacher, who would be holding a post in terms of the staff fixation order, would be entitled to be promoted as a Headmaster in terms of R.45 of Chap. XIV A, K.E.R. 14. The decision of the Full Bench in Pushparaj v. Manoharan (2006 (2) KLT 951 - FB) relied upon by the learned counsel for the petitioner is to the effect that a teacher, on his transfer under a different wpc 5935/2009 8 management, does not lose the benefit of the service rendered by him in the previous school for the purpose of determining his eligibility for promotion to the post of Headmaster. Therein, the Bench was of the view that the question of seniority is totally irrelevant even in the context of Rule 45 for deciding the question as to whether the graduate teacher has half of the period of service of the seniormost under-graduate teacher. But evidently, the said dictum will not help the petitioner herein because the situation is not identical and the petitioner was obviously a protected teacher who was not a member of the staff of the school. Similarly, the decision of a Division Bench of this Court, viz. Nanu v. Balan Master (2006 (4) KLT 702) which was relied upon by the learned counsel for the petitioner considered a case where the teacher was continuing in the school in a post sanctioned by the authorities applying the teacher student ratio of 1 : 40. Therefore, the teacher was continuing in a protected post in the same school and the Bench was of the view that the said period will have to be reckoned for the purpose of computing the total service. This decision also will not apply to the facts of this case, as no protected post was sanctioned herein for his accommodation. 15. Evidently, going by the staff fixation orders for the respective years, there was no post to accommodate the petitioner. The proposal was wpc 5935/2009 9 to deploy the petitioner. As evident from Ext.P2 staff fixation order also, it can be seen that the petitioner was ordered to be deployed to G.H.S., Beypore as per Order No.B4/19811/06 dated 23.7.2007. Therefore, it is idle for the petitioner to contend that he remained as a member of the staff of the school. Evidently, going by the dictum laid down in various decisions, a protected teacher's lien is only to have a preferential right to come back. It cannot be said that a protected teacher will remain as a member of the staff of the school. 16. Even though learned counsel for the petitioner submitted that the petitioner was continuing in the school and was drawing salary and therefore he has got an eligible right to get promotion, the same cannot be countenanced in the light of the legal position emerging as above. For the purpose of Rule 45, what is contemplated is the promotion of a teacher who is a member of the staff itself. Merely because the petitioner was there in the school as the order of deployment was not issued for some period, that will not enable him to get any legal right to raise a claim under Rule 45 of Chapter XIV-A K.E.R. Evidently, he was ordered to be deployed also, which is clear from the counter affidavit filed by the third respondent also. Herein, the petitioner is claiming promotion to the post of Headmaster. Such claim can be adjudicated only in terms of the relevant rules of Chapter wpc 5935/2009 10 XIV-A K.E.R. The vacancy of Headmaster arose on 1.4.2007 and as on that date he was continuing as a protected teacher and cannot be reckoned as in service in the school. 17. In fact, the amendment to Rule 37 of Chapter XIV-A K.E.R. as per S.R.O.No.732/2010 dated 23.7.2010 introducing a proviso to the effect that “the period of service rendered in the parent school or in another school by a teacher, who is relieved under Rule 52, shall be reckoned for seniority on his re-appointment to the parent school”, will not help the petitioner, since the same is not retrospective. Therefore, even if the petitioner was somehow continuing in the school without deployment, there cannot be any change of the status as a protected teacher and going by the dictum laid down in Manager, Mar Sleeba U.P. School's case (1990 (1) KL 626), Rahellamma's case (1997 (2) KLT 429), Leelabai's case (2002 (3) KLT 942), Prasad's case (2005 (3) KLT 487) and Lalitha's case (2008 (1) KLT 416), the petitioner has no legal right to claim promotion. For all these reasons, the writ petition fails and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/