IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 WP(C).No. 35332 of 2010(N) ---------------------------------------- PETITIONER(S): ----------------------- P. PRASHOBH, LPSA, PATTUVAM UP SCHOOL, P.O. PATTUVAM, KANNUR DISTRICT, RESIDING AT PRABHA, KODIYERI, P.O. PARAL, THALASSERY, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM - 695 001. 3. ASSISTANT EDUCATIONAL OFFICER, TALIPARAMBA NORTH, TALIPARAMBA.P.O, KANNUR DISTRICT -670 141. 4. MANAGER, PATTUVAM UP SCHOOL, P.O. PATTUVAM, KANNUR DISTRICT - 670 143. 5. M.V. MINI, MUNDAYATTUVALAPPIL, P.O. KUPPAM, MUKKUNNU, TALIPARAMBA, KANNUR DISTRICT - 670 141. R1 TO R3 BY GOVT. PLEADER SMT.RANI DIOTHIMA R5 BY ADV. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.35332/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER DTD. 1.6.2009 ISSUED BY THE 4TH RESPONDENT. P2:- COPY OF THE G.O.(MS) 4830/2010 DTD. 30.10.2010. P3:- COPY OF THE STAFF FIXATION ORDER DTD. 2.9.2010 ISSUED BY THE 3RD RESPONDENT. P4:- COPY OF THE GO(P) 191/10/G.EDN. DTD. 22.9.2010. P5:- COPY OF THE RPERESENTATION DTD. 11.11.2010. P6:- COPY OF THE REVISED STAFF FIXATION ORDER NO.D.DIS. NO.C 3535/2010 DTD. 16.11.2010 ISSUED BY THE 3RD RESPONDENT. P7:- COPY OF THE JUDGMENT DTD. 19.10.07 IN WPC. 25115/06 OF THIS HONOURABLE HIGH COURT. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.35332 Of 2010 ----------------------------------------------------- DATED THIS THE 3rd DAY OF JUNE, 2011 J U D G M E N T The petitioner is aggrieved by Exhibit P2 order passed by the Government whereby the 5th respondent was directed to be adjusted against a vacancy of LPSA available from 15.7.2008. This is a case where competing claims have arisen between the petitioner and 5th respondent, for adjudication. 2. The petitioner was appointed as Lower Primary School Assistant from 1.6.2009 as per Exhibit P1 order. This was approved on 13.10.2009, going by the endorsement. As far as the 5th respondent is concerned, she was appointed as an Upper Primary School Assistant in the school during 2005-06 and the appointment was approved as UPSA. When student strength was reduced she was retrenched from service during 2008-09 on 14.7.2008. It is the case of the petitioner that this was never challenged by her by filing an appeal or revision. But, two years after she filed a revision petition before the Government and thereafter she approached this Court in a Writ Petition seeking for W.P.(C)No.35332/10 -2- a direction to dispose of the Revision Petition. Without considering the appointment of petitioner as LPSA, by Exhibit P2 order the Government directed to adjust the 5th respondent as LPSA in the vacancy which arose on 15.7.2008. It is pointed out that the said order is illegal as the 5th respondent being a B.Ed.holder and having no qualification of TTC could not be approved as an LPSA. 3. With regard to the year 2010-11, it is pointed out that during the staff fixation, one post of LPSA and UPSA each were reduced. The petitioner, being the juniormost LPSA was retrenched with effect from 14.7.2010 as per Exhibit P3 order . Even though the petitioner sought for the benefit of 1:40 ratio, that was not granted and 5th respondent was granted the said benefit by Exhibit P6 order. These orders are thus challenged by the petitioner. 4. It is the contention of the learned counsel for the petitioner that the order Exhibit P2 cannot be supported on various reasons. Firstly, it is pointed out that a revision petition said to have been filed after a number of years is considered on merits. Mainly, it is pointed out that 5th respondent being a W.P.(C)No.35332/10 -3- B.Ed.holder she cannot be adjusted against the vacancy of LPSA in the light of the relevant rules fixing qualifications for these posts. It is pointed out that the said shifting has been held as illegal by this Court in the judgment reported in Manager, M. M. U. P. School v. Deputy Director of Education(2011 (1) KLT 663). Reliance is also placed on the common judgment in W.P. (C)No.23519/2010 and connected cases in this context. 5. It is pointed out that for the year 2010-11, the petitioner had to face retrenchment only since the 5th respondent was appointed against the vacancy of LPSA. 6. The learned counsel appearing for the 5th respondent submitted that the petitioner has no claim over the years 2008- 09 and 2009-10. It is pointed out that the amendment to Rule 3 (1) in Chapter XIV-A of KER produced as Exhibit R5(a) dated 16.9.2009 will show that the shifting is possible prior to the said amendment. It is further pointed out that the 5th respondent had been pursuing her remedies by filing appeal and revision against her retrenchment and accordingly Exhibit P2 order has been passed. W.P.(C)No.35332/10 -4- 7. The Rule prescribing qualifications for LPSA under Rule (4) of Chapter XXXI of KER and that of UPSA were amended with effect from 8.6.2000. Going by the amendment, B.Ed.holder can be appointed only as UPSA and only TTC qualified hands can be appointed as LPSA. Therefore, the question whether a shifting of the LPSA as UPSA is possible was considered in Manager, M. M. U. P. School's case (2011(1)KLT 663) and this Court has taken the view that the same is not possible as these categories of posts are different, in nature and duties. The said judgment has been upheld by a Division Bench of this Court in Writ Appeal Nos.25 and 26 of 2011. This Court in Manager, M. M. U. P. School v. Deputy Director of Education (2011(1)KLT 663) held thus in paragraphs 14, 15 and 18 as follows: “The scope of the amendment introduced as per Ext.P3 of Rr.3 and 4 of Chap.XXXI is only that R.3 permits appointments of graduates with B.Ed. as UPSA and R.4 shows that as far as LPSAs are concerned, persons with SSLC or its equivalent or a pass in Pre-degree and a pass in TTC could be appointed as LPSA. Going by R.3, persons having SSLC or its equivalent or a pass in Pre-degree examination conducted by any of the Universities in Kerala, W.P.(C)No.35332/10 -5- etc. and having TTC/TCH qualification, can also be appointed as UPSA. Therefore, it is not a case where after the coming into force of the amendment, persons working as UPSA and not having B.Ed. lose their right to continue as UPSA which warrants a shifting to the LP cadre. Such is not the intention of the rules. Therefore, it is not legally permissible for the Manager to contend that the fourth respondent is liable to be shifted as LPSA when a retirement vacancy arose on 1.6.2009. The posts of UPSA and LPSA are different in category and the nature of duties are different. Both these categories of teachers are not one and the same. They are different in nature and duties. The Manager will have to conduct the school strictly in accordance with the provisions of the Act and orders issued from time to time by the Government and the department. He cannot assume certain powers by himself other than that is conferred by the Act and Rules as Manager of the school. Recognition of such a wide power de hors the express power conferred on the Manager will go clearly against the provisions of the Act, Rules and the object underlining the provisions of the Act and Rules. Such unbridled power if recognized, the Manager can play havoc in the Management of the School. Therefore, the W.P.(C)No.35332/10 -6- contention raised by the counsel for the petitioner Manager that in the absence of a prohibition, the Manager can order shifting of a UPSA as LPSA, cannot be accepted.” 8. In the subsequent decision in W.P.(C)No.23519/2010 and connected cases reported as Praveena V.Kamath & Ors. v. State of Kerala & Ors. (2011(2)KHC 550), after considering various judgments of this Court this position was reiterated. This Court had examined the said question in Mary George v. State of Kerala (1999(3) KLT 912) and Rejimol v. Assistant Educational Officer (2004(2) KLT 899). It is evident therefrom that the question of shifting a UPSA having B.Ed. and not having TTC as LPSA cannot be permitted. More so because it has resulted in the retrenchment of petitioner as LPSA, although there is a valid approval. Evidently, a B.Ed.holder cannot be thus accommodated as LPSA, under the guise of shifting. 9. Herein the Government by Exhibit P2 order has taken the view that since the post of LPSA is available, the 5th respondent should be adjusted with a further rider that she will be shifted as UPSA in the next arising vacancy. The learned counsel for the 5th respondent submitted that there is nothing W.P.(C)No.35332/10 -7- illegal in it , as the petitioner's appointment is later. But, learned counsel for the petitioner submitted that Exhibit P2 is applied against the petitioner after its issuance and hence the petitioner is affected adversely by its implementation in 2010-11. Evidently, in the light of the various judgments of this Court, the order cannot survive. What is impermissible under the rules cannot be done indirectly. 10. In that view of the matter, Exhibit P2 order cannot be supported and the same is quashed. Consequently, Exhibit P6 is also quashed to the extent it affected the petitioner's claim for benefit of 1:40 ratio. Exhibit R5(a) is also not of any help to the 5th respondent. 11. What remains is the claim raised by the petitioner for continuance in the post of LPSA. Appropriate orders will be passed by the Assistant Educational Officer in the light of the above findings. 12. The learned counsel for the 5th respondent submitted that for the year 2008-09 and 2009-10 the 5th respondent has already drawn salary and Exhibit P2 order will not affect the petitioner so far as these two years are concerned. Therefore the W.P.(C)No.35332/10 -8- salary paid to the 5th respondent for the said years cannot be recovered. 13. Consequential orders will be passed by the Assistant Educational Officer in the light of the findings above within two months. By an interim order passed by this Court dated 25.11.2010 , the petitioner was allowed to continue in service on condition that the salary paid will be subject to the result of the Writ Petition. It is submitted that no salary was paid even though interim order was granted. Consequent on the passing of the revised order by the Assistant Educational Officer, the petitioner will be entitled for payment of salary also. The Writ Petition is allowed as above. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn