IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 WP(C).No. 23606 of 2008(I) PETITIONER(S): 1. PREETHY M.P., MNAJLY HOUSE, VANIYAMPARA P.O.,VANIYAMPARA, THRISSUR DISTRICT 2. JASEENA P.M., PATHIYASSERY HOUSE NELLIYAMKUNNAM, ALATHUR PO,PALAKKAD DISTRICT BY ADV. SRI.P.SANKARANKUTTY NAIR SRI.V.PURUSHOTHAMA PANICKER RESPONDENT(S): 1. THE SECRETARY TO GOVERNMENT GENERAL EDUCATION, DEPARTMENT GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANNTHAPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER ALATHUR, PALAKKAD DISTRICT 4. THE MANAGER, KARUNA U.P.SCHOOL THENNILAPURAM, ALATHUR, PALAKKAD DISTRICT 5. THRESIA M.L., LOWER PRIMARY SCHOOL ASSISTANT, KARUNA U.P.SCHOOL, THENNILAPURAM ALATHUR, PALAKKAD DISTRICT 6. GOKUL NAIR, LOWER PRIMARY SCHOOL ASSISTANT KARUNA U.P.SCHOOL, THENNILAPURAM, ALATHUR, PALAKKAD DISTRICT ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R5 & 6 SRI.T.C.SURESH MENON FOR R5 & 6 SRI.JIBU P THOMAS FOR R5 & 6 SRI.P.S.APPU FOR R5 & 6 GOVERNMENT PLEADER SMT. SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: W.P.C. NO. 23606/2008 -------------------------------------------------------------------- EXT.P1 TRUE COPY OF APPOINTMENT ORDER DT. 7.6.2002. EXT.P2 DO. DT. 1.10.2002. EXT.P3 DO. DT. 2.6.2004. EXT.P4 DO. DT. 29.10.1997. EXT.P5 DO. DT. 4.1.1999. EXT.P6 DO. DT. 15.3.2002. EXT.P7 STAFF FIXATION ORDER DT.21.7.2007. EXT.P8 ORDER DT. 12.12.2007. EXT.P9 GOVT. ORDER DT. 8.6.2000. EXT.P10 DO. DT. 24.6.2008. EXT.P11 DO. DT. 11.10.2004. EXT.P12 DO. DST. 4.6.2002. EXT.P13 STAFF STATEMENT AS ON 1.6.2005. EXT.P14 DO. AS ON 12.6.2006. EXT.P15 ORDER DT. 26.6.2000. EXT.P16 GOVT. ORDER DT.3.7.2007. RESPONDENTS' EXHIBITS: ------------------------------------- EXT.R6(a) TRUE COPY OF DISABILITY CERTIFICATE DT. 27.12.2006. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 23606 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 14th day of February, 2011. J U D G M E N T The petitioners were U.P. School Assistants in the 4th respondent's school, which is an aided school. The school consists of L.P. section as well as U.P. section. For the year 2007-2008, there was a division fall in standards 1 and 2 comprised of the L.P section. According to the petitioners, in view of Exts.P9 and P12 amendments to Rules 4 and 8 of Chapter XXXI of KER, L.P. section and U.P. section are distinct and separate and for division fall in the L.P. School, only L.P. School Assistants can be retrenched and not U.P. School Assistants and vice versa. But, on account of the division fall in 2007- 2008, instead of retrenching respondents 5 and 6, who were L.P. School Assistants, the petitioners, who were U.P. School Assistants, were retrenched by Ext. P7 order. The petitioners' appeal and revision were dismissed by Exts.P8 and P10 orders. It is under the above circumstances, the petitioners have filed this writ petition seeking the following reliefs: “(a) Issue a writ of certiorari or any other appropriate writ, order or direction to quash Ext. P7 to the extent of orders for termination of service of the petitioners Exts.P8 and P10; (b) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 1 to 3 to reinstate the petitioners in service immediately with retrospective effect from 15.7.2007 with all service benefits including the salary for the period for which they were kept out of service illegally.” 2. The learned Government Pleader appearing on behalf of respondents 1 to 3 as well as counsel appearing for respondents 5 and 6 take the contention that in view of Rule 34 of Chapter XIVA of W.P(C) No. 23606/08 -: 2 :- the KER prescribing drawing up of a common seniority list of L.P. School and U.P. School Assistants, retrenchment has to be from the junior-most in the common seniority list of L.P. School Assistants and U.P. School Assistants, whether L.P. School Assistant or U.P. School Assistant. They would further submit that the amendment to Rules 4 and 8 are regarding qualifications for the post of L.P. School Assistant and U.P. School Assistant, which makes TTC qualification compulsory for L.P. School Assistants, whereas in the case of U.P. School Assistants, persons having B.Ed. qualification also can be considered. According to them, that does not mean that the retrenchment on division fall should be separately for L.P. School and U.P. School, particularly when Rule 34 of Chapter XIVA prescribes drawing up of a common seniority list for L.P. School Assistants and U.P. School Assistants. 3. I have considered the rival contentions in detail. 4. I had already considered the legal position in a reverse set of facts where L.P. School Assistants were sought to be retrenched on account of division fall in U.P. Section. That was in W.P(C) No. 3427/2006. In that judgment, after considering identical contentions based on Rule 37 of Chapter XIVA of the KER, I held thus: “4. I have considered the rival contentions in detail. Regarding the first contention that the petitioner has not been heard before passing Exts.P2 and P3 orders, I feel that for the purpose of hearing the petitioner, the matter need not be remanded because I am inclined to consider all contentions of the petitioner in this writ petition itself and the matter need not be prolonged further by remanding the matter to the Government for fresh consideration after hearing the petitioner. W.P(C) No. 23606/08 -: 3 :- 5. Exts.P2 order proceeds on the basis that when a reduction in staff strength occurs in a U.P. Section of a School, the junior-most U.P. School Assistant has to be retrenched and not a L.P. School Assistant on the basis of a common seniority list among UPSAs and LPSAs depending on their comparative length of service. To me that appears to be the correct legal position. Admittedly, U.P. Section and L.P. Section are separate. Scale of pay of U.P. School Assistant and L.P. School Assistant are different. U.P. School Assistant is a promotion post for L.P. School Assistant. I am of opinion that the word ‘grade’ referred to in Rule 37 of Chapter XIVA cannot be the primary grade mentioned in Rule 2 of Chapter II. If that interpretation is accepted that would militate against commonsense. In fact, in this connection I may also refer to a decision of the Supreme Court in Harinandan Sharan Bhatnagar Vs. S.N. Dikshit and another [AIR 1970 SC 40], wherein it has been held that all officials working in the same scale of pay in a department, although holding posts with different designations, shall be deemed to be holding posts in the same grade, because their rank in the same department will be the same and equal to one another. As far as U.P. School Assistant and L.P. School Assistant are concerned, their scales of pay are different. For all purposes U.P. Section and L.P. Section are treated separately. While fixing all staff strength, the staff strength is fixed separately for U.P. Section and L.P. Section. Therefore, when reduction of staff strength occurs in U.P. School, the junior-most U.P. School Assistant alone can be retrenched. Otherwise, an anomalous situation would occur. For example, if there is reduction of staff strength in the L.P. Section and if there is a U.P. School Assistant who is appointed after the appointment of the junior-most L.P. School Assistant then the U.P. School Assistant would have to be retrenched which does not stand to reason. Further a common seniority list among U.P. School Assistant and L.P. School Assistant is beyond comprehension. Therefore, I am of opinion that when reduction of staff strength occurs in U.P. Section, the junior- most U.P. School Assistant has to be retrenched and not the junior most among U.P. School Assistants and L.P. School Assistants put together. In that view, it is clear that the petitioner who is the junior-most U.P. School Assistant herein should be retrenched and not the 4th respondent who is the junior most L.P. School Assistant. In the above circumstances, there is no merit in W.P. (C) No.3427/06 and accordingly the same is dismissed. In view of dismissal of W.P.(c) No.3427/06, the petitioner in W.P.(c)No.25115/06 becomes eligible for all W.P(C) No. 23606/08 -: 4 :- service benefits as if she had continued in service validly and monetary benefits arising there from shall be disbursed to her accordingly. If increments and other allowances admissible to the petitioner in W.P.(c) No.25115/06 has not been granted, the same shall also be disbursed to her. These shall be done within a period of one month from the date of receipt of a copy of this judgment.” In fact, another learned Judge of this Court has, in W.P(C) No. 25667/2010, relying on the decisions of this Court in Mery George v. State of Kerala, 1999(3) KLT 912 and Rejimol v. Asst. Educational Officer, 2004 (2) KLT 899), held that L.P. School section and U.P. School section are separate water-tight compartments and therefore for the purpose of retrenchment, the two sections have to be considered separately. In view of the said decisions, the petitioners are entitled to succeed in this writ petition. 5. Accordingly, following those decisions, the impugned orders are quashed. It is declared that in view of the fact that the reduction in divisions was in the L.P. School Section only L.P. School Assistants could have been retrenched and not the petitioners. Therefore, the petitioners are entitled to reinstatement in service, salary and other benefits as if they have never been retrenched. 6. Counsel for respondents 5 and 6 would contend that the petitioners have already been again appointed in June, 2008 and November, 2010. Learned counsel for the petitioners has no information regarding the same. Whether they have been appointed so or not, they are entitled to continue in service without any break as if they were never retrenched. Orders in this regard shall be issued by the 4th respondent by retrenching the junior most L.P. School teachers and permitting the W.P(C) No. 23606/08 -: 5 :- petitioners to continue without any break as if they had not been retrenched and forward the same to the 3rd respondent as if they have now been so retrenched. If subsequent vacancies have arisen, it is up to the manager to adjust respondents 5 and 6 against such vacancies. The 3rd respondent shall approve the same and arrange to disburse all monetary benefits due to the petitioners as expeditiously as possible, at any rate, within two months from the date of receipt of the order from the 4th respondent. It is open to respondents 1 to 3 to decide whether at the time of payment of salary to the petitioners any salary paid to respondents 5 and 6 are to be recovered from them or not in accordance with law. But the petitioners are entitled to the monetary benefits arising from this judgment. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/ The word “now” occurring in the 11th line of the 6th paragraph of the judgment dated 14.2.2011 in W.P(C) No. 23606/2008 is substituted by the word “never” as per order dated 4.3.2011 in R.P. No. 159/2011 in W.P(C) No. 23606/2008. Sd/- Register (Judicial)