IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 WA.No. 25 of 2011() ------------------- ( AGAINST THE JUDGEMENT IN WPC.27985/2010 Dated 22/12/2010 .................... APPELLANT/1ST RESPONDENT ------------------------------------------- THE MANAGER, M.M.U.P. SCHOOL, KUPPAM, THALIPARAMBA, KANNUR DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS/PETITIONER & RESPONDENTS 2-5 ------------------------------------------------------------------------- 1. SAKUNTHALA K.V., W/O. KUNHIKANNAN, AGED 53 YEARS, UPSA, M.M.U.P.SCHOOL, KUPPAM, THALIPARAMBA TALUK, KANNUR DISTRICT 670144. 2. THE ASSISTANT EDUCATIONAL OFFICER, TALIPARAMBA, KANNUR DISTRICT 670 141. 3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR-2, KANNUR DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, KANNUR-2, KANNUR DISTRICT. 5. THE HEADMISTRESS, M.M.U.P.SCHOOL, KUPPAM, TALIPARAMBA, KANNUR DISTRICT 670 144.. BY GOVERNMENT PLEADER, SMT.T.B.RAMANI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13/01/2011, ALONG WITH WA NO. 26 OF 2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.N.Ramachandran Nair & Bhabani Prasad Ray, JJ. =================---------=================== W.A.Nos.25 & 26 of 2011 ====================---------================ Dated this the 13th day of January, 2011. JUDGMENT Ramachandran Nair, J. The common judgment passed by the learned single Judge in two writ petitions, one filed by the appellant manager and the other filed by the fourth respondent in W.A.26/11 is under challenge in these appeals. We have heard Sri.George Poonthottam, advocate appearing for the appellant, counsel appearing for the fourth respondent in W.A.26/11, who is the first respondent in the connected writ appeal and Government Pleader for the State and various educational authorities. 2. The facts leading to the controversy are the following: The respondent teacher was appointed as a U.P.School Assistant in the appellant school vide Ext.P1 dated 2.6.1982 produced in W.A.25/11. Even though she was appointed as a UPSA, she was also engaged in the L.P.section under the same management until WA25&26/11 -:2:- 1996. Thereafter, the respondent teacher was teaching only in the U.P. School. However, in 2009 a vacancy arose in the L.P.School of the appellant consequent upon the retirement of a teacher and to fill up that vacancy the appellant shifted the respondent teacher from U.P.School to L.P.School. When the respondent teacher challenged the same before the Deputy Director of Education, he interfered with the order of the appellant finding that the respondent is entitled to continue as U.P.School teacher. The Deputy Director held that the respondent, having served for over fourteen years as a U.P.School teacher, should be allowed to continue for a little over one year because she is about to retire on 31.3.2012. The appellant filed the writ petition challeging the decision of the Deputy Director and when this Court issued a stay order, appellant manager again shifted respondent to the L.P.School against which she also filed a writ petition. The learned single Judge heard both the writ petitions together and upheld the order of the D.D.E., holding that the respondent teacher cannot be shifted from U.P.School to L.P.School by the management. It is against this common judgment, appeals are WA25&26/11 -:3:- filed by the Manager. 3. Counsel appearing for the appellant relied on Rule 34 (b) of Chapter XIV K.E.R. which entitles the manager to keep a combined seniority list of U.P.School and L.P.School teachers. Relying on this rule and the judgment of this Court in W.P.C.20376/07 confirmed in W.A.394/07 the appellant contended that the management, at its discretion, can shift L.P.School teacher to U.P.School and vice versa. Counsel for the respondent teacher and the Government Pleader on the other hand contended that even though management had the discretion in regard to working arrangement in L.P.School and U.P.School, what was done by the appellant in this case is an irregular thing, because, when the vacancy in the L.P.School arose he ought to have only appointed a teacher in the L.P.School to fill up that vacancy. On the other hand, what the appellant did was to shift the respondent teacher from the U.P.School where she was employed from the very beginning to the L.P.School as an L.P.School teacher for filling up the vacancy that arose in the U.P.School with a fresh WA25&26/11 -:4:- hand. Counsel for the appellant management has also contended that the respondent teacher is in no way adversely affected on account of the shift from U.P.School to L.P.School as the pay and allowance and pensionary benefits are the same for L.P. and U.P.School teachers. Counsel appearing for the respondent teacher, on the other hand, contended that shifting of the U.P.School teacher to an L.P.School teacher on the verge of retirement is a demotion and a stigma on her, who had served as U.P.School teacher for long years. He also pointed out that the decision of this Court above referred does not apply to the facts of this case because as the teacher involved in that case was appointed as an L.P.School teacher and there was no case of demotion of U.P.School teacher as an L.P.School teacher. We notice that the case decided by this Court pertains to a person appointed as an L.P.School teacher and was made to work in the U.P.School for sometime and was sent back to the L.P.School in the rolls of which she continued as an L.P.School teacher on regular basis. Therefore we have to proceed to decide this case on merits. WA25&26/11 -:5:- 4. In the absence of specific rules prohibiting shifting of L.P.School teachers to U.P.School or U.P.School teachers to L.P.School, until at least higher qualification was fixed for U.P.School teachers, the management was free to make working arrangements. However, this does not mean that the management can act in an unfair manner by shifting a U.P.School teacher against a vacancy arising in the L.P.School and consequently create a vacancy in the U.P.School and then appoint a teacher in the U.P.School. Even though counsel for the appellant contended that there was fall in division in the U.P.School and therefore a teacher would be a surplus, the same is not borne out by any of the orders produced in this Court or in the averments made by the appellant in writ petition or writ appeal filed before this Court. If a fall in division in the U.P.School arose and the same leads to the respondent teacher becoming a surplus, then she becomes a protected teacher and probably has to accept posting in the L.P.School instead of going elsewhere on posting as a protected teacher. Here again the question to be considered is WA25&26/11 -:6:- whether the fall in division leads to protection of the respondent teacher or any other teacher which is probably based on the seniority of the teachers and since the appellant has no such case before the learned single Judge, we do no think there is any need to consider the consequences of a surplus teacher in the U.P.School on account of fall in division, if any. If this happens, it is open to the appellant to take further steps for making arrangement for posting the protected teacher and if the respondent teacher happens to be the first person to be retrenched on account of surplus age of teachers after fall in division, it is for the appellant to make appropriate arrangement for posting of teacher, in accordance with rules, with the approval of the educational authority. Writ appeals are dismissed with the above observations. C.N.Ramachandran Nair, Judge. Bhabani Prasad Ray, Judge. sl.