IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 29177 of 2007(W) ------------------------------------------ PETITIONER(S): ------------------------- SMT.LINI.K. ASSISTANT TEACHER, CHERUMAVILAYI U.P.SCHOOL, RESIDING AT KARUNA, KANNUR. BY ADV.MR.M.CHATHUKUTTY NAMBIAR RESPONDENT(S): --------------------------- 1. THE ASSISTANT EDUCATIONAL OFFICER, KANNUR SOUTH. 2. THE DISTRICT EDUCATIONAL OFFICER, KANNUR. 3. THE DIRECTOR OF PUBLIC INSTRUCTION STATE OF KERALA, THIRUVANANTHAPURAM. 4. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 5. THE MANAGER, CHERUMAVILYI U.P.SCHOOL, KANNUR DISTRICT. 6. SMT.RAJA P.K., D/O. KUNHIKANNAN, SAROVARAM, P.O. MUNDALLOR. R1 TO R4 BY GOVERNMENT PLEADER MR.T.T.MUHAMOOD R5 BY ADV. MR.M.SASINDRAN R6 BY ADV. MR.POOVAMULLE PARAMBIL ABDULKAREEM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29177/2007 W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DTD. 10/06/2002. EXT.P2: COPY OF THE APPOINTMENT ORDER OF SMT.NISHA DTD. 25/06/1999. EXT.P3: FIXATION ORDER REGARDING THE ESTABLISHMENT OF THE PRIMARY SCHOOL FOR THE PERIOD 2002-2003 DTD.12/07/2002. EXT.P4: REJECTION ORDER PASSED BY THE A.E.O. DTD.31/01/2003. EXT.P5: COPY OF THE GOVT. ORDER DTD. 31/01/2004. EXT.P6: COPY OF THE JUDGMENT IN W.P.C.NO.(C) 19830/2004 DTD. 26/06/2007. EXT.P7: APPELLANT ORDER OF THE DEO DTD. 31/03/2003. EXT.P8: REJECTION ORDER OF APPROVAL BY A.E.O. DTD. 13/09/2007. RESPONDENT'S EXHIBITS: EXT.R6(G): COPY OF THE ORDER NO.E/2336/07/K.DIS.DTD. 29/09/2007. /TRUE COPY/ P.S.TO JUDGE Kss P.N.Ravindran, J. ================== W.P.(C) No.29177 of 2007 ===================== Dated this the 25th day of March, 2009. JUDGMENT Heard Sri. M.C. Nambiar, the learned counsel appearing for the petitioner, Sri. T.T.Muhamood, the learned Government Pleader appearing for respondents 1 to 4, Sri. M.Sasindran, the learned counsel appearing for the fifth respondent and Sri.P.A. Abdulkareem, the learned counsel appearing for the sixth respondent. 2. The fifth respondent Manager appointed the petitioner as Assistant Teacher on 10.6.2002 in the leave vacancy of Smt. N.B.Nisha who proceeded on maternity leave for the period from 5.6.2002 to 17.10.2002. Ext.P1 is the order of appointment issued by the Manager on 10.6.2002 appointing the petitioner as Assistant Teacher in the said maternity leave vacancy. The petitioner and Smt. N.B.Nisha in whose leave vacancy the petitioner was appointed as Assistant Teacher are both B.Ed. degree holders. The Assistant Educational Officer passed Ext.P4 order dated 31.1.2003 declining to grant approval mainly for the reason that the petitioner being a B.Ed. degree holder is ineligible for appointment as Lower Primary School Assistant (LPSA). The Manager unsuccessfully challenged Ext.P4 before the Government in revision. The petitioner thereafter filed W.P.(C) No.19830 of 2004 in this Court. By Ext.P6 judgment delivered on 26.6.2007, this Court held that without WP(C) 29177/07 -: 2 :- determining whether Smt. N.B.Nisha in whose leave vacancy the petitioner was appointed as LPSA was working as LPSA or UPSA, it cannot be decided whether the petitioner was appointed as LPSA. This Court accordingly directed the Assistant Educational Officer to reconsider the issue afresh. 3. As directed by this Court, the Assistant Educational officer reconsidered the matter and passed Ext.P8 order on 13.9.2007 declining to approve the appointment of the petitioner on the ground that Smt. N.B.Nisha was appointed as LPSA and that the petitioner being a B.Ed. degree holder cannot therefore be appointed as LPSA. Ext.P8 is under challenge in this Writ Petition. The petitioner contends that the stand taken by the Assistant Educational Officer in Ext.P8 is not tenable. 4. The official respondents have filed a counter affidavit justifying the stand take by the Assistant Educational Officer in Ext.P8. They contend that the petitioner being a B.Ed. degree holder, cannot be appointed as LPSA. According to the official respondents, Smt. N.B.Nisha in whose leave vacancy the petitioner was appointed, was appointed as LPSA and therefore, the petitioner's appointment cannot be approved. The sixth respondent has filed a counter affidavit contending that she was appointed as UPSA with effect from 1.6.2007 and that her appointment has been approved. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. Ext.P8 discloses that there WP(C) 29177/07 -: 3 :- were 11 teachers in the UP and LP sections of the school. 4 of them are admittedly TTC holders. The sanctioned strength of teachers who can be accommodated in the LP section is 4 and the sanctioned strength of teachers in the UP section is 7. The Assistant Educational Officer has no case that and in any case, no case was pleaded before me that there were excess teachers in the school either in the UP section or in the LP section when the petitioner was appointed as LPSA. Going by the materials on record, 4 TTC holders can be accommodated in the LP section and the remaining 7 teachers who are admittedly B.Ed. degree holders can be accommodated in the UP section. Smt. N.B.Nisha was admittedly a B.Ed. degree holder. She was appointed on 25.6.1999 by Ext.P2 order. Ext.P2 does not state that she was appointed as LPSA. As on that date, Government orders prohibiting the appointment of B.Ed. degree holders in LP section were in force. Going by the number of teachers and their qualifications, I am not persuaded to agree with the Assistant Educational Officer that Smt. N.B.Nisha, a B.Ed. degree holder, was appointed as LPSA, though it is not dispute that she had taken classes in the LP section also. The Assistant Educational Officer has in Ext.P8 stated that the Manager has in the statement dated 27.9.2002 stated that Smt. N.B.Nisha was appointed as LPSA. A copy of the said statement has not been placed on record. In my opinion, the Assistant Educational Officer ought to have taken note of the observations made by this Court in Ext.P6 judgment that without determining whether Smt. N.B.Nisha was WP(C) 29177/07 -: 4 :- appointed as LPSA or UPSA, it was improper to finally conclude as to whether the petitioner was appointed in a vacancy of LPSA or UPSA. On the materials available I am persuaded to agree with the petitioner that the Assistant Educational Officer ought to have approved her appointment as UPSA. The sixth respondent was admittedly appointed only in the year 2007 and the said appointment was also approved. At that time, W.P.(C) No.19830 of 2004 was pending in this Court. The Department has no case that she is an excess teacher. Therefore she will take her place below the petitioner who was appointed on 10.6.2002. The sixth respondent can therefore continue to work in the school only subject to the superior claim of the petitioner for re-appointment under Rule 51A of Chapter XIV A of the KER. 6. In the view that I have taken, I allow this Writ Petition, quash Ext.P8 and direct the Assistant Educational Officer, Kannur South to approve the appointment of the petitioner as LPSA for the period from 10.6.2002 to 17.10.2002. Final orders in that regard shall be passed within two months from today. Payment of arrears of salary and allowances shall also be made expeditiously thereafter. Needless to say, the petitioner will be entitled to all consequential benefits including the right to be reappointed under Rule 51A of Chapter XIV A of the Kerala Education Rules. P.N.Ravindran, Judge. ess 5/4