Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNESDAY, THE10H DAY OF JUNE201520TH JYAISHTA, 1937 WP(C).NO. 1168 OF2012(U) --------------------------- PETITIONER(S): -------------- T.S.JYOTHI AGED34YEARS W/O. T.S.RAJAN, UPPER PRIMARY SCHOOL ASSISTANT AIDED UPPER PRIMARY SCHOOL THESSERY, KANAKAMALA THRISSUR DISTRICT680689. BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMNENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM695001.
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM695014.
3. THE DEPUTY DIRECTOR OF EDUCATION THRISSUR AT AYYANTHOLE680003.
4. THE DISTRICT EDUCATIONAL OFFICER IRNJALAKUDA THRISSUR DISTRICT680 121.
5. THE ASSISTANT EDUCATIONAL OFFICER CHALAKKUDY, THRISSUR DISTRICT680307.
6. THE MANAGER AIDED UPPER PRIMARY SCHOOL, THESSERY, KANAKAMALA THRISSUR DISTRICT680689.
7. SMT. K.A.SHYLA LOWER PRIMARY SCHOOL ASSISTANT {NOW WORKING AS UPPER PRIMARY SCHOOL ASSISTANT, AIDED UPPER PRIMARY SCHOOL THESSERY, KANAKAMALA THRISSUR DISTRICT680689. R7 BY ADV. SRI.P.K. JOSE R7 BY ADV. SMT. TESSY JOSE R6 BY ADV. SRI.N.P.SAMUEL R6 BY ADV. SRI.PLEASANT.T.SAMUEL ADDL--R8 BY ADV. SRI.DILIP J.
AKKARA BY GOVERNMENT PLEADER SMT.SUNITHA VINOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON1006-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).NO. 1168 OF2012(U) APPENDIX PETITIONER(S) EXHIBITS: EXT.P1 TRUE COPY OF THE JUDGMENT
OF THIS HON'BLE COURT IN WPC. 21646/2010-E DT.20.08.2011. EXT.P2 TRUE COPY OF THE APPOINTMENT ORDER
DT.11.9.2002 AND THE APPROVAL THEREOF DT.14.12.2011. EXT.P3 TRUE COPY OF THE APPOINTMENT ORDER
DT.15.1.2003 AND THE APPROVAL THEREOF DT.14.12.2011. EXT.P4 TRUE COPY OF THE APPOINTMENT ORDER
DT.14.3.2011 AND THE APPROVAL THEREOF DT.14.12.2011. EXT.P5 TRUE COPY OF THE APPOINTMENT ORDER
DT.18.7.2005 AND THE APPROVAL THEREOF DT.14.12.2011. EXT.P6 TRUE COPY OF THE STAFF FIXATION ORDER
NO.C/1848/2010/D.DIS.DT.28.8.2010 OF THE ASSISTANT EDUCATIONAL OFFICER DT.28.8.2010. EXT.P7 TRUE COPY OF THE APPEAL FILED BEFORE THE2D RESPONDENT DT.20.10.2010. EXT.P8 TRUE COPY OF THE ORDER
NO.C-2164/2010/K.DIS OF THE ASSISTANT EDUCATIONAL OFFICER DT.28.12.2011. EXT.P9 TRUE COPY OF THE GO MS NO.42/2011/ G.EDN OF THE GOVERNMENT DT.16.12.2011. EXT.P10 TRUE COPY OF THE LETTER NO.35528/J3/04/G.EDN.DT.11.10.2004 OF THE GOVERNMENT. EXT.P11 TRUE COPY OF THE DECISION REPORTED IN2011(1) ILR KER, 895 DT.22.12.2010. EXT.P12 TRUE COPY OF THE DECISION REPORTED IN2011(2) KHC550DT/29.3.2011. EXT.P13 TRUE COPY OF THE INTERIM ORDER
IN WPC. 8284/2011-1 OF THIS HON'BLE COURT. EXT.P14: TRUE COPY OF THE JUDGMENT
IN W.A.NO.1903 OF 2011 DATED21.2012 EXT.P15: TRUE COPY OF THE JUDGMENT
IN W.A.NO.119 OF 2012 DATED231.2012 EXT.P16: TRUE COPY OF THE G.O.(P) NO.85/2011/G.EDN.DATED73.2011 EXT.P17.TRUE COPY OF THE REQUEST OF THE PETITIONER DATED172.2012 RESPONDENTS' EXHIBITS : EXT.R6(A):PHOTO COPY OF LETTER NO.NVA/AUPS/13/2011 DTD.21.12.2011 SENT BY MANAGER TO ASST.EDL.OFFICER, CHALAKUDY EXT.R6(B):PHOTO COPY OF APPEAL SUBMITTED BY MANAGER TO DIST.EDL.OFFICER ON161.2012 //TRUE COPY// P.A TO JUDGE A.K.JAYASANKARAN NAMBIAR, J.
............................................................. W.P.(C).No.1168 of 2012 ............................................................. Dated this the 10th day of June, 2015
JUDGMENT
The petitioner was appointed as UPSA in the School under the management of the 6th respondent during various spells namely, from 11.09.2002 to 14.01.2003, 15.01.2003 to 13.03.2003, 14.03.2003 to 28.03.2003, and thereafter, from 18.07.2005 onwards. The appointments for all the aforesaid spells were approved by the education authority. During the academic year 2010-2011, pursuant to the staff fixation orders that were passed for the said year, two posts of LPSAs were reduced. During the said period, there were five posts of UPSAs and four posts of LPSAs in the School. Pursuant to the staff fixation order, an LPSA was adjusted against the post of UPSA held by the petitioner and the services of the petitioner was terminated with effect from 15.07.2010. This was on the basis that the LPSA in question was senior to the petitioner in the common seniority list of LPSAs and UPSAs that was maintained in the School. It is not in dispute that despite Ext.P8 order dated 28.12.2011 of the Assistant Educational Officer terminating the services of the petitioner, the petitioner continued in the School. In the writ petition, Ext.P8 order of the Assistant Educational Officer is impugned along with Ext.P9 W.P.(C).No.1168 of 2012 2 Government Order to the extent it contemplates the inter se transfer between the post of LPSA and UPSA while identifying the teacher that was to be retrenched pursuant to a division fall that was noticed in the staff fixation.
2. I have heard Sri.V.A.Muhammed, the learned counsel for the petitioner, Sri.N.P.Samuel, the learned counsel for the 6th respondent Manager and the learned Government Pleader for respondents 1 to 5.
3. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that the issue involved in the writ petition is no longer res integra. By the decision of a Full Bench of this Court in Thresia v. Preethy [2014 (4) KLT837, it has been clarified that LPSAs and UPSAs are separate categories for the purposes of seniority and retrenchment and that, a common seniority of LPSAs and UPSAs is contemplated only for the purposes of promotion to the post of Headmaster. It follows, therefore, that UPSAs cannot be retrenched to accommodate LPSAs when reduction of posts of LPSAs has occurred in the School consequent to a division fall noticed in the staff fixation order for any particular academic year. As a matter of fact, the Full Bench judgment of this Court specifically upholds the W.P.(C).No.1168 of 2012 3 earlier decision of this Court in Praveena V.Kamath v. State of Kerala [2011 (2) KLT S.N.93]. In the light of the Full Bench judgment of this Court, the present writ petition is allowed by quashing Exts.P8 and P9 to the extent impugned in the writ petition and declaring that the staff fixation for the academic year 2010- 2011 would now stand governed by the principles laid down by the decision of the Full Bench of this Court referred to above. The 5th respondent is directed to pass consequential orders in the matter, based on this judgment, within a period of two months from the date of receipt of a copy of this judgment. While passing consequential orders, the 5th respondent shall also deal with the entitlement of the petitioner to continue in the School during the academic years subsequent to 2010-2011. Based on the consequential orders to be passed by the 5th respondent, the petitioner shall be paid the salary and other allowances that are due to her, immediately, and at any rate, within a period of three months from the date of passing of the consequential orders. A.K.JAYASANKARAN NAMBIAR JUDGE mns