IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 OP.No. 8268 of 2001(H) -------------------------------- PETITIONER: ------------------- THE MANAGER, PALAKKAL MUSLIM L.P. SCHOOL, THEVALAKKARA, KOLLAM DISTRICT. BY ADV. SRI.M.V.THAMBAN. RESPONDENTS: ------------------------ 1. ASSISTANT EDUCATIONAL OFFICER, CHAVARA, KOLLAM. 2. DEPUTY DIRECTOR (EDUCATION), KOLLAM. 3. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 5. M. UMMERKUTTY, L.P.S.A, PALAKKAL MUSLIM L.P. SCHOOL, THEVALAKKARA, KOLLAM DISTRICT. BY GOVT. PLEADER MUHAMMED P.T. ADV. SRI.K.B.SURESH, ADV. SRI.JOSE K.UTHUP. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/03/2008, ALONG WITH O.P. NO. 14583/2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 8268/2001-H: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE JUDGMENT DTD. 17/07/1996 IN O.P. NO. 5782/92. EXT.P.2: COPY OF THE ORDER NO. B2-27897/97 DTD. 05/10/98 ISSUED BY THE R.1. EXT.P.3: COPY OF THE REVISION PETITION DTD. 12/03/1997 FILED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P.4: COPY OF THE G.O. (RT). NO. 2300/2000/G. EDN. DTD. 07/06/2000 ISSUED BY THE GOVERNMENT. EXT.P.5: COPY OF THE JUDGMENT DT. 27/05/2003 IN W.A. NO. 1554/97. EXT.P.6: COPY OF THE JUDGMENT DTD. 15/02/2007 IN O.P. NO. 19567/2000. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. S.SIRI JAGAN, J. ================== O.P.Nos.8268 & 14583 of 2001 ================== Dated this the 6th day of March, 2008 J U D G M E N T In both these original petitions the petitioner is the Manager of Palakkal Muslim L.P.School, Thevalakkara, Kollam, under the same educational agency. There are two schools. One is Issatul Islam U.P. School and the other is Palakkal Muslim L.P.School. Originally there was only U.P. School. Later on the educational agency acquired the L.P. School also. There was a dispute as to whether these schools should be regarded as one unit or as two separate units. At the instance of a teacher who claimed relief in respect of a vacancy which arose on 2.12.1991, Ext.P1 judgment came to be passed wherein a learned Single Judge of this court in O.P.No.5782/1992 and connected cases, held that at least upto 2.12.1991 these two schools were one integrated unit, since the permission from the Director of Public Instruction to treat these schools as separate units was granted only on 2.12.1991. The 5th respondent in O.P.No.8268/2001 was a teacher retrenched for want of vacancy on 14.7.1995 from the U.P. School. Later on he o.p.8268/01 & cc. 2 was accommodated in the L.P. School with effect from 8.2.1997. He raised a claim for being accommodated in the L.P. School in 1995-96 itself as a senior Rule 51A claimant, which was allowed by the educational authorities, which culminated in Ext.P4 Government order in favour of the 5th respondent. That decision was rendered relying on Ext.P1 judgment. That is under challenge in that O.P. In O.P.No.14853/2001, the 5th respondent in that original petition was retrenched from U.P. School with effect from 15.7.2000. However, as a protected teacher, she was allowed to continue in that school. But the AEO refused to pay salary to her since there was vacancy in the L.P. School in which another teacher was appointed, to which vacancy the 5th respondent should have been accommodated. By Ext.P5 order, the Deputy Director of Education rejected the representation filed by the 5th respondent in this regard, pursuant to which, by Ext.P6 the AEO sought to implement the same. The manager is challenging Exts.P5 and P6 in that O.P. 2. The contention of the petitioner in these two original petitions is that the educational authorities could not have passed the impugned orders by relying on Ext.P1 judgment alone since o.p.8268/01 & cc. 3 that was taken in appeal in W.A.No.1111/1997, in which the Division Bench had specifically held that the two schools continued to be one single unit only upto 2.12.1991 and from 2.12.1991 onwards, from which date the Director of Public Instruction granted permission to treat these two schools as separate unit, the two schools were liable to be treated separately for all purposes. The contention of the petitioner is that in view of the fact that the cause of action in these two original petitions arose on 14.7.1995 and 15.7.2000, ie. subsequent to 2.12.1991, the educational authorities could not have passed the impugned orders based on Ext.P1 judgment alone which was further clarified by Ext.P5 judgment in the writ appeal. 3. I have considered the rival contentions in detail. 4. As is clear from the pleadings, the impugned orders can be upheld only if these two schools were one integrated unit on 14.7.1991 and 15.7.2000 respectively in the two original petitions. In Ext.P5 judgment the Division Bench specifically held as follows: “6. The first issue raised by Sri.Thamban is no more res o.p.8268/01 & cc. 4 integra. It has been held by the Full Bench of this Court in Trikkur Panchayat Sarvodaya School v. Suma reported in ILR 2003(2) Kerala page 1, that “Rule 51 A gives a statutory right to the teachers, whose services are terminated in accordance with Rules 49, 52, or on account of termination of vacancies, for preference for appointment to future vacancies in schools under the same educational agency or an educational agency to which the school was subsequently transfered”. It is the admitted case of the management that only by proceedings dated 2.12.1991 the Director of Public Instruction gave approval to treat the Palackal Muslim Lower Primary School under separate management. It is not in dispute that Palackal Muslim Lower Primary School was purchased by the Manager by assignment deed dated 4.6.1991. As per Rule 35 of Chapter XIV-A, KER “if the educational agencies have more than one school in a district they shall be constituted into one unit and a common seniority list shall be prepared for all the schools in the unit together ...”. Of course, the educational agency has the option to treat a newly transferred school as a separate unit. But it requires prior approval from the Director, as mandated under the proviso to Rule 36-A which reads as follows: “Provided however, that the educational agency to which the transfer is made, shall have the option to treat the teachers in the school on the date of such transfer, as a separate unit, their promotions being confined to the posts in the transferred school. The option shall be exercised by the concerned agency with the approval of the Director and prior to the transfer of the school......”. The approval to treat the Palackal Muslim Lower Primary School as a separate unit having been accorded only with effect from 2.12.1991, necessarily till that date both schools have to be treated as a single unit from 4.6.1991 to 2.12.1991 for the purpose of appointment and promotion. Therefore, the learned single Judge was perfectly justified in declaring that the claimant-teacher is entitled for appointment in the vacancy which arose in the Palackal Muslim L.P.School on 20.6.1991.” From the above it is abundantly clear that the Division Bench has categorically held that the schools were one integrated unit only upto 2.12.1991 and, after 2.12.1991 they are to be treated as two separate units. Since the issue involved in these original petitions arose on 14.7.1995 and 15.7.2000, clearly in view of o.p.8268/01 & cc. 5 the Division Bench decision, the two schools could not have been treated as one single unit as has been done in the impugned orders. Consequently, the impugned orders are quashed. The original petitions are allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.8268/01 & cc. 6 S.SIRI JAGAN, J. ================ O.P.Nos.8268-(H) & 14583(J)- of 2001 =============== J U D G M E N T 6th March, 2008 o.p.8268/01 & cc. 7