IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 WP(C).No. 5600 of 2010(Y) ------------------------------------ PETITIONER: ------------------- MNJULA.V., ASSISTANT TEACHER, KOTTAKUNNU U.P SCHOOL, KANNUR DISTRICT. BY ADV. SRI.R.K.MURALEEDHARAN. RESPONDENTS: ------------------------ 1. THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 3. THE ASSISTANT EDUCATIONAL OFFICER, PAPPINISSERY. 4. THE MANAGER, KOTTAKUNNU U.P SCHOOL, KANNUR DISTRICT. 5. P.P.JAYASREE, ASSISTANT TEACHER, KOTTAKUNNU UP SCHOOL. 6. V.S. LAL, ASSISTANT TEACHER, KOTTAKUNNU UP SCHOOL. R1 TO R3 BY GOVT. PLEADER SRI. SANDESH RAJA, R4 TO R6 BY ADV. SRI.V.A.MUHAMMED. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.5600/2010-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPROVAL FOR THE PERIOD FROM 22/07/96 TO 31/03/98. EXT.P.2: COPY OF THE LIST FOR THE YEAR 2009-10. EXT.P.3: COPY OF THE STAFF FIXATION ORDER DTD. 15/07/2009. EXT.P.4: COPY OF THE ORDER NO. D. DIS/86196/09/RA (3)/DPI DTD. 09/02/2010. EXT.P.5: COPY OF THE APPOINTMENT ORDER. EXT.P.6: COPY OF THE STAFF LIST OF THE TEACHERS OBTAINED UNDER R T I ACT FOR THE YEAR 2004-05. EXT.P.7: COPY OF THE INFORMATION RECEIVED UNDER RTI ACT DTD. 18/12/2009. EXT.P.8: COPY OF THE COMMUNICATION OF THE SECRETARY TO GOVERNMENT DTD. 26/06/2007 TO THE R.1. RESPONDENTS' EXHIBITS: EXT.R5.A: COPY OF THE APPOINTMENT ORDER DTD. 05/06/2002. EXT.R5.B: COPY OF THE LETTER NO. 35528/J3/04/G. EDN. OF THE GOVERNMENT DTD. 11/10/2004. EXT.R5.C: COPY OF THE JUDGMENT IN W.P.(C).NO.3427/2006 DTD. 19/10/2007. //TRUE COPY// P.A. TO JUDGE. Prv. C.T. RAVIKUMAR, J. -------------------------------------------------- WP (C) NO. 5600 of 2010 --------------------------------------------------- Dated this the 27th day of May, 2010 J U D G M E N T The question posted for consideration in this writ petition is whether a combined seniority list prepared in terms of Rule 34 (b) of Chapter XIV A of the Kerala Education Rules (for short 'KER'), can be taken as a basis for deciding the juniority or seniority for effecting deployment or retrenchment. Incidentally, the question whether Upper Primary School Assistant and Lower Primary School Assistant are belonging to one and the same grade also crop for consideration. This question arises for consideration in the following factual matrix:- The petitioner pursuant to his appointment, as per Exhibit P1, joined the Kottakunnu UP School on 22.07.1996. The said appointment was approved initially as a temporary LPSA and she has continuous service from 01.04.1998. The 5th respondent was appointed in the same school as a UPSA as per No. R5(a) from 05.06.2002. Admittedly, she has a WP (C) NO. 5600 of 2010 2 continuous service in the school from 05.06.2002 onwards. A combined seniority list was maintained for UPSA and LPSA of the said School in tune with the provisions under rule 34 (b) of Chapter XIV A of the KER. Exhibit P2 is the combined seniority list which is drawn in respect of the said school. In Exhibit P2 the petitioner holds the rank No.13 where as the name of the 5th respondent figures at serial No.15. Exhibit P3 is the staff fixation order for the year 2009-10. The said staff fixation order results in reduction of one division in Standard II. Consequently, the petitioner was ordered to be deployed. The petitioner challenged the same by filing a petition before the first respondent. It was rejected as per Exhibit P4, and Exhibit P3 staff fixation order was confirmed. It is in this circumstance that this writ petition has been filed challenging Exts. P3 and P4 orders. 2. In order to assail Exts.P3 and P4 orders the petitioner is mainly relying on Exhibit P2 combined WP (C) NO. 5600 of 2010 3 seniority list prepared in tune with the provisions under rule 34 (b) of Chapter XIV A of KER. That apart, according to the petitioner the word 'grade' employed on Rule 37(1) of chapter XIV A shall be understood and construed as one made taking into account and with reference to the scales of pay attached to posts as well. In short, the contention of the petitioner is that as long as the scales of pay attached to the posts of UPSA and LPSA are the same, the said two posts should constitute one and the same grade. The learned counsel for the petitioner also brought my attention to Rule 51 of Chapter XIV A and clause 2 of Rule 2 of Chapter II of KER. In the light of the aforesaid provisions the petitioner contends that LPSA and UPSA are to be treated as belonging to one and the same grade and therefore in the light of seniority position in Exhibit P2 the petitioner should not have been ordered to be deployed whilst the 5th respondent should have been chosen for deployment and she should have been accommodated WP (C) NO. 5600 of 2010 4 against the resultant vacancy. 3. The 5th respondent has filed a counter affidavit in this writ petition resisting the claims and contentions of the petitioner. According to the 5th respondent the seniority position in the combined seniority list marked as Exhibit P2 prepared in terms of Rule 34(b) of Chapter XIV A cannot be taken as the basis for identifying the teacher to be deployed or retrenched. To buttress the contention the 5th respondent relied on the decision of this Court reported in Mary George v. State of Kerala reported in 1999 (3) KLT 912 and also a common judgment of this court in WP (C) Nos.3472/06 and 25115/06. It is further contended that in the light of Note to Rule 45 of Chapter XIV-A a combined seniority list of UPSA, LPSA, Language and specialist teachers, could also be prepared for the sole purpose of effecting appointment to the post of Headmaster to UP School or schools under the education agency. 4. No separate counter affidavit has been filed by the WP (C) NO. 5600 of 2010 5 respondents 1 to 3. However, the learned Government Pleader submits in the light of Mary George Vs. State of Kerala (supra) that LPSA and UPSA are two different grades and can only be treated as different grades for the purpose of retrenchment and deployment in the light of Rule 3 and Rule 4 of Chapter XXXI of KER. Rule 3 provides the qualifications for appointment to the various posts in Upper Primary School and Rule 4 provides the qualifications for appointment to the various posts in Lower Primary School. In the light of the said provisions and also the decision in Mary George's case (supra) it is submitted that for the purpose of identifying the teacher to be retrenched or deployed pursuant to staff fixation the posts of UPSA and LPSA are to be treated as different and distinct grade/categories. 5. As noticed herein before, the core contention of the petitioner is that the posts of LPSA and UPSA are belonging to one and the same grade/category and the said position is WP (C) NO. 5600 of 2010 6 obvious from Rule 34 (b) of chapter XIVA, KER. Relying on the said provision it is contended that, combined seniority list of teachers prepared in a school alone can be taken as the basis for identifying the teacher to be deployed/ retrenched as a consequence of staff fixation. Since the petitioner holds higher rank in Exhibit P2 seniority list than the 5th respondent she should not have been ordered to be deployed pursuant to Exhibit P3 staff fixation while retaining the 5th respondent who holds the rank No.15 in the said list. For the purpose of deciding the sustainability or otherwise of the said contention the very purpose and intent for preparing and maintaining the seniority list as per rule 34 (b) of Chapter XIV-A of the KER have to be looked into. It reads thus:- “Extract” A scanning of the aforesaid rule would reveal that it contemplates preparation and maintenance of a combined seniority list of teachers, if any specified in clauses (iii), (iv) and (v) of rule 3 of chapter XXIII. For proper understanding of the said provision, WP (C) NO. 5600 of 2010 7 various posts of teachers referred in clauses (iii), (iv) and (v) of rule 3 of Chapter XXIII have also to be looked in to. The said rule, in so far as it is relevant for the purpose of Rule 34 (b) reads thus:- Rule 3:- The strength of the teaching staff in Upper Primary and Secondary Schools shall be fixed on the basis of the number of recognized class divisions and periods of work. The various post of teachers shall be referred to by the following designations:- (Emphasis supplied) (iii) Upper Primary School Assistant. (iv) Lower Primary School Assistant (v) Language teachers (vi) Specialist teacher. 6. To know the purpose and intent of preparation and maintenance of such a combined seniority list one has to look into Rule 44 of Chapter XIV A of the KER as well. The said rule, in so far as it is relevant, reads thus:- “The appointment of Headmasters shall ordinarily be according to the seniority from the seniority list prepared and maintained under clauses (a) and (b) as the case may be of rule 34. The manager will appoint the Headmaster subject to Rules laid down in the matter.” WP (C) NO. 5600 of 2010 8 7. A conjoint reading of the aforesaid two provisions under Chapter XIV A of the KER would reveal that the list prepared and maintained in terms of Rule 34 (b) is for the purpose of looking into the seniority position for effecting appointment to the Headmaster in terms of Rule 44. Whether the said combined seniority list can be taken as the basis for the purpose of identifying the teacher to be retrenched or deployed in case of such necessity pursuant to the staff fixation as contended by the petitioner is now to be analyzed. As noticed earlier the contention of the petitioner is that UPSA and LPSA are belonging to one and the same grade. As per Rule 3 of Chapter XXIII the various posts of teachers are referred to by the designations such as UPSA, LPSA, Language Teacher, Specialist Teacher etc. In other words, there are various posts of teachers carrying different designations. The petitioner has relied on Rule 37 (1) of Chapter XIV A. The same reads thus:- (1) Seniority of teacher in any grade in any unit shall be decided with reference to the length of continuous WP (C) NO. 5600 of 2010 9 service in that grade in that unit provided he is duly qualified for the post. 8. The contention of the petitioner is that the expression 'seniority of teacher in any grade in any unit' can only be taken as seniority of teachers carrying the same scales of pay. In short, according to the learned counsel for the petitioner 'grade' means 'scale of pay'. It is therefore, contended that since the posts of UPSA and LPSA carry the same scale of pay they could only be treated as belonging to one and the same grade. To fortify the said contention Rule 51 of Chapter XIV A and Clause 2 of Rule 2 of Chapter II of KER are also brought to my attention. They read thus:- Rule 51:- “When a vacancy in any category of post terminates necessitating the relief of a teacher, senior hands shall ordinarily be retained in preference to junior hands with due regard to the requirements of subjects determined by the Director under sub-rule (1) of rule 1 and to the instruction issued by him under sub-rule (4) of the Rule.” Sub-rule 2 of Rule 2 of Chapter II:- WP (C) NO. 5600 of 2010 10 “The first seven standards i.e:Std.I., Std.II, Std.III, Std.IV, Std.V, Std.VI and Std.VII shall be collectively known as the Primary Grade and shall be sub-divided into two sections” “Extract (a) and (b) of Sub-rule 2 of Rule 2” “Extract” Extract (a) and (b) of Sub-rule 2 of Rule 2 9. In the light of the aforesaid provisions the learned counsel for the petitioner submits that, UPSA and LPSA forms one category of post and therefore going by Rule 51 whenever the question of relief of teacher is necessitated senior hand has to be retained in preference to a junior hand. According to the petitioner the question of seniority, or juniority has to be decided and can be decided only by looking into and with reference only to the combined seniority list of the concerned category of post. Such a list is prepared and maintained only in terms of Rule 34 (b) of Chapter XIV A of the KER, it is contended. It is in the light of the afore said provisions, that the petitioner contends that he is senior to the fifth respondent, and therefore, pursuant to Exhibit P3 staff fixation order she should not have been deployed or retrenched while retaining the fifth WP (C) NO. 5600 of 2010 11 respondent. The provisions under Rule 51 of Chapter XIV A would reveal that the seniority or juniority in any category of post is to be determined with due regard to the requirement of subject determined by the Director and under Sub rule (1) of Rule 1 and also the instructions issued by him under Sub Rule 4. The aforesaid provisions cannot have any application in the facts of the case. 10. I have already referred the provisions under Rule 34 and 44 of Chapter XIV A of KER. A close scrutiny of those provisions, bearing in mind the questions to be decided in this case would reveal that the list prepared in terms of the former provision can be taken as a list prepared for the purpose of effecting promotions in terms of the latter provision and at any rate the said combined list cannot be taken as the basis for deciding the juniority or seniority for the purpose of effecting deployment/ retrenchment pursuant to and in consequence of staff fixation in school. Relying on the various provisions WP (C) NO. 5600 of 2010 12 referred to above the petitioner contended that UPSA and LPSA belonging to one and the same grade or category. I am of the opinion that, the said contention is absolutely bereft in that basis. Going by the provisions under Rule 3 of Chapter XXIII, UPSA and LPSA are different and distinct posts of teachers carrying different designations. Rule 1 of Chapter XXIII provided that the strength of teaching staff of Lower Primary Schools shall be fixed in accordance with the provisions there under. Sub-rule (b) (ii) thereunder reads thus:- (b) (ii) As many posts of Lower Primary School Assistants as the number of class divisions reduce by one. 11. Thus it is evident that the strength of LPSA is to be fixed in terms of Rule (b) (ii) of Rule 1, of Chapter XXIII. The sanctioning of staff strength of teaching staff in Upper Primary Schools and Secondary Schools is dealt with under Rule 3 of Chapter XXIII. Rule 5 there under reads thus: “In every Upper Primary School there may be (i) One post of Headmaster; (ii) As many posts of Upper Primary School Assistants WP (C) NO. 5600 of 2010 13 as the number of class divisions, reduced by one (iii) As many posts of Lower Primary School Assistants as there are divisions in the Lower Primary School classes. 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” 12. Rule 6 in chapter XXIII is also relevant for the purpose of deciding whether LPSA and UPSA can be considered as one grade or category. A closest scrutiny of the various provision under Rule 6 of Chapter XXIII would undoubtedly make clear that these two posts cannot be treated as belonging to the same grade or category. A perusal of Rule 37 (1) would definitely will support the same. It says the seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in the unit provide he is duly qualified for the post. Therefore, Chapter XXXI seems relevant in the context of the contentions raised in this case. Chapter XXXI deals with the qualifications of private school WP (C) NO. 5600 of 2010 14 teachers. Rule 3 in Chapter XXXI provides the qualifications for appointment to the post of Upper Primary School Assistants. Rule 4 of Chapter XXXI prescribes the qualification for appointment to the post of Lower Primary School Assistants. A bare perusal of those two provisions would reveal that possession of a degree in any subject and B.Ed/BT/LT confirmed by or recognized by Universities in Kerala is also prescribed as a qualification for appointment to the post of Upper Primary School Assistant. But in the case of appointment to the post of Lower Primary School Assistant Degree in any subject and B.Ed/BT or LT is not at all prescribed as a qualification. In fact a person with B.Ed degree lacking TTC qualification cannot be appointed as LPSA. In short, the qualifications for appointment of LPSA and UPSA cannot be treated as one and the same in the light of the provisions under Rule 3 and 4 of Chapter XXXI. If both LPSA and UPSA are belonging to one and the same grade/category separate qualifications would not have been WP (C) NO. 5600 of 2010 15 prescribed under Rule 3 and 4 in Chapter XXXI for appointment to the posts of UPSA and LPSA. It is taking into account all those relevant provisions that while issuing an order for fixing the staff fixation, the Educational authorities are specifically mentioning the number of posts sanctioned in the LP School and UP School. Owning to the fact that both the posts of LPSA and UPSA carry the same scale of pay and the post of UPSA cannot be regarded as a promotion post of LPSA. Now as far as the provisions under the KER is concerned prime importance is given to the qualification prescribed for the post in identifying whether the said posts are one and the same. Reference to the provisions under Rule 3 and 4 of Chapter XXXI of the KER would reveal that different qualifications have been prescribed for appointment to the post of UPSA and LPSA. When appointment is effected as LPSA and UPSA, looking into the qualifications prescribed under Rule 3 and 4 of Chapter XXXI A, that cannot be ignored in toto, for the WP (C) NO. 5600 of 2010 16 purpose of identifying the teacher to be retrenched or deployed pursuant to staff fixation of any school. If the teacher in a LPSA post is facing deployment/retrenchment pursuant to staff fixation, merely because of his date of continuance in service under the school commenced prior to the date of commencement of continuance service of that of the junior person in the category of UPSA the concerned teacher in the category of LPSA cannot canvass the position that she is senior to the teacher in the category of UPSA and therefore despite the fact that the teacher to be deployed or retrenched is from the category of LPSA the junior most in the UPSA category has to be deployed/retrenched since his continuous service commence later than that of the concerned junior most person in the LPSA category. If the appointment as UPSA has to be effected only by looking into the qualifications prescribed under Rule 3, a person appointed as LPSA, not possessing prescribed qualifications for appointment as WP (C) NO. 5600 of 2010 17 UPSA cannot as a matter of right cannot contend that he should be regarded as UPSA that too, when the person who is appointed in the school as UPSA would face retrenchment or deployment. A person appointed as UPSA cannot be retrenched or deployed when going by staff fixation order, the person to be deployed or retrenched is one belonging to the LPSA category. The contention of the petitioner that for the purpose of identifying the person to be retrenched by saying UPSA and LPSA is one grade or category would definitely be against the very scheme of KER. I am fortified in view by the decisions of this Court in 1999 (3) KLT 912 and also in a common judgment in WP(C) No. 3472/06 and 25115/06. 13. The amendment that was brought into Rule 4A of Chapter XXXI with effect from 9.9.2009 also assumes relevance. Rule 4A as amended reads thus:- “Not with standing anything contained in sub-rule (1) of Rule 4 the Education Officer shall be competent to approve WP (C) NO. 5600 of 2010 18 appointments of candidates possessing their qualifications provided they have the training qualification stipulated in the said sub-rule.” Relying on the said provision learned counsel appearing for the petitioner submits that prior to the amendment to the said rule the posts of LPSA and UPSA were interchangeable. However, no provision was brought to my notice under the KER which would say that these two posts are one and the same or belonging to the same grade or category. Therefore, as long as the provisions under the KER give two different designations to these different posts of teachers such as UPSA and LPSA and provide different qualifications for appointment to the said posts under Chapter XXIII under different rules. I am of the considered view that the amendment brought to Rule 4 A cannot be a reason for holding that the said two posts are belonging to the same cadre or category. 14. In this case evidently the petitioner was appointed as LPSA in the school where as the fifth respondent was WP (C) NO. 5600 of 2010 19 appointed as UPSA in the school. Though a contention was raised by the petitioner that as per Exhibit P6 the fifth respondent was categorized as LPSA. It is a fact that the same was not approved by authorities. That apart, so far as the fifth respondent is concerned, her appointment was to the post of UPSA and Educational authorities have also approved the same. In view of these facts, provisions and also the decisions referred supra I am of the view that the orders passed by the Educational authorities in Exhibit P4 calls for no interference. The decisions in Exhibit P6 is one in tune with the various provisions of the KER and therefore I am of the view that there is no merit in the contentions raised by the petitioner. This writ petition is therefore liable to fail and accordingly, it is dismissed. C.T.RAVIKUMAR, JUDGE.