IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 WP(C).No. 33810 of 2007(Y) --------------------------------------- PETITIONER: ------------------- K. LEELAMONY, U.P.S.A, V.K.N.M V.H.S SCHOOL, VAYYATTUPUZHA, PATHANAMTHITTA. BY ADVS. MR.R.RAJASEKHARAN PILLAI, SMT.SABINA JAYAN, MR.R.S.KRISHNAKUMAR. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA AT THIRUVALLA. 3. THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA. 4. THE MANAGER, VKNM VHS SCHOOL, VAYYATTUPUZHA, PATHANAMTHITTA. R1 TO R3 BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR, R4 BY ADV. MR.S.D.ASOKAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.33810/2007-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER DTD. 03/05/2002 OF THE R.3. TO THE R.4. EXT.P.2: COPY OF THE LETTER DTD. 17/08/2002 FROM THE R.3. TO THE R.4. EXT.P.3: COPY OF THE G.O.(MS) 140/86/G. EDN. DTD. 14/08/86 ISSUED BY THE R.1. EXT.P.4: COPY OF THE LETTER DTD. 03/08/06 FROM THE R.2. TO THE R.4. EXT.P.5: COPY OF THE JUDGEMENT DTD. 14/11/2006 IN W.P.(C).NO.29987/2006 OF THIS HONOURABLE COURT. EXT.P.6: COPY OF THE REQUEST DTD. 11/10/07 FROM THE PETITIONER TO THE R.1. EXT.P.7: COPY OF THE ORDER NO. G.O.(RT).NO.1687/07/G. EDN. DTD. 14/04/07 OF THE R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 33810 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 3rd June, 2009. J U D G M E N T The petitioner entered service in an aided school as an UPSA on 15-7-1986. She was promoted as HSA on 4-6-1990. Both appointments were approved by the educational authorities. During the academic year 2001-2002 on account of reduction of student strength and consequent reduction of staff strength, the petitioner was reverted as UPSA as per Exts.P1 and P2 orders. The petitioner is aggrieved by the refusal on the part of the respondents to grant her protection of pay as applicable to HSA. According to the petitioner, Ext. P3 Government Order governs the issue, which specifically protects pay of High School Assistants reverted as UPSA, in the scale of pay applicable to HSA. The petitioner therefore seeks the following reliefs: “(i) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to and culminating in Ext. P2 P4 and P7 and quash the same as arbitrary, illegal and without jurisdiction. (ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to protect the pay of the petitioner as HSA w.e.f. 5.6.2002 and disburse her all the consequential benefits including the arrears as expeditiously as possible”. 2. A counter affidavit has been filed by the 2nd respondent. The contention therein is that Ext. P3 Government Order is not applicable to the petitioner. It is applicable only to High School Assistants who have been accommodated in a free vacancy of UPSA unoccupied by anybody. According to 2nd respondent, when an UPSA is retrenched for the purpose of accommodating the petitioner, the petitioner cannot claim protection of pay as HSA. The learned Government Pleader would also contend that the retrenched UPSA has been W.P.C. No. 33810/07 -: 2 :- deployed to other Government schools. 3. I have considered the rival contentions in detail. 4. Since the petitioner's claim is based on Ext. P3, I shall extract the same here: “In the Govt. order read as 1st paper above it was, inter alia clarified that protected HSAs would be allowed to be posted in the arising vacancy of UPSA or LPSA in the same management giving protection of salary. Now the Director of Public Instruction has brought to the notice of Govt. that certain managements are making fresh appointments in arising vacancies of UPSA/LPSA even though there are protected has under the same management awaiting absorption. Govt. have examined the matter in detail and they now order that whereever there are protected HSAs awaiting absorption, the arising vacancies of UPSA/LPSA in the same management should be filled up by those protected HSAs. They will however be given protection of salary. Fresh appointments in the arising vacancies of UPSAs/LPSAs will be approved only if the above condition is also satisfied.” I am of opinion that if on account of reduction in staff strength the HSA has to be reverted and at the same time, has to be paid salary in the scale of pay applicable to HSA, the very concept of reversion would be meaningless. Ext. P3 is a special benefit given to HSAs who have been appointed directly, who had been retrenched on account of reduction in staff strength in the next arising vacancy of UPSA in the same school and not where UPSAs promoted as HSAs are later on reverted as UPSA, consequent on reduction of staff strength. An UPSA promoted as HSA who is later reverted as UPSA on reduction in staff strength, has a right to be accommodated as UPSA, if necessary, by retrenching the junior-most UPSA. In such cases, such teacher W.P.C. No. 33810/07 -: 3 :- cannot claim protection of pay on the basis of Ext. P3. Ext. P3 envisages a totally different situation, which is not applicable to the petitioner. Therefore, I do not find any merit in the writ petition and accordingly the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/