Partly allowed

Anand.a. v. the Director of Public Instruction& Ors.

Kerala HC16 Jun 2016WP(C)/10503/2011

Case brief

AI extract

What is this about?

The Court held that transfers between LP and UP sections are impermissible. It quashed orders for revising staff fixation because the Director ignored a senior teacher's claim, directing fresh hearings for all affected parties to determine retrenchment fairly.

What did the court decide?

Orders Ext.P17 and Ext.P18 quashed; DPI directed to pass fresh orders after hearing all affected parties within two months.

Anand.a. Vs the Director of Public… — Pension and Retirement Benefits | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 16TH DAY OF JUNE 2016/26TH JYAISHTA, 1938

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WP(C).No. 10503 of 2011 (K)

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PETITIONER :

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ANAND A., MANAGER, ARIANCHIRA A U P SCHOOL, KALLIPPADAM, SHORNUR, PALAKKAD-679122.

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BY ADV. SRI.P.CHANDRASEKHAR

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RESPONDENT(S) :

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1. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM, PIN-695014.

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2. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD-678014.

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3. THE DISTRICT EDUCATIONAL OFFICER, OTTAPALAM, PIN-679101.

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4. THE ASSISTANT EDUCATIONAL OFFICER, SHORNUR, PIN-679121.

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5. P.P. CHANDRIKA, W/O.RAJAKUMARAN, KADAMANNIL HOUSE, ALANGAD P.O., KATAMPAZHIPPURAM, PALAKKAD-678 637.

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*ADDL. R6 IMPLEADED

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----------------------------------

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*ADDL.R6. SANTHILAL S., U.P.S.A., ARIYANCHIRA U.P. SCHOOL KALLIPADOM, SHORNUR PALAKKAD DISTRICT, PIN - 679 122.

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*IS IMPLEADED AS PER ORDER IN IA NO. 7771/2011 DATED 30/5/2011.

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R1 TO R4 BY SR. GOVT. PLEADER SRI. P. FAZIL

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R5 BY ADV. SRI.V.A.MUHAMMED ADDL.R6 BY ADVS. SRI.C.A.MAJEED SRI.K.H.ASIF

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-06-2016, ALONG WITH WP(C) NO. 11980/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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...2/-

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WP(C).No. 10503 of 2011 (K)

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APPENDIX

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PETITIONER'S EXHIBITS :

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EXT.P1	: TRUE COPY OF APPOINTMENT ORDER DATED 5.6.2002 APPOINTING THE 5TH RESPONDENT IN AUP SCHOOL, ARYANCHIRA.
EXT.P2	TRUE COPY OF RELEVANT PAGE OF THE SERVICE BOOK OF THE 5TH RESPONDENT.
EXT.P3	TRUE COPY OF STAFF STATEMENT AND SENIORITY LIST OF TEACHERS OF AUP SCNOOL, ARYANCHIRA.
EXT.P4	TRUE COPY OF FORM OF OPTION ALONG WITH STATEMENT FOR FIXATION OF PAY IN THE REVISED PAY SCALE SUBMITTED BY THE 5TH RESPONDENT.
EXT.P5	TRUE COPY OF ACQUITTANCE ROLL FOR THE APRIL 2004 OF AUP SCHOOL, ARYANCHIRA,.
EXT.P6	TRUE COPY OF APPOINTMENT ORDER OFR SHRI.K. KRISHNANKUTTY.
EXT.P7	TRUE COPY OF ORDER DATED 17.6.1987 APPOINTING SMT. JAYASREE C. AS ASSISTANT TEACHER.
EXT.P8	TRUE COPY OF APPOINTMENT ORDER DATED 5.8.83 APPOINT SMT. T. ELSY AS ASSISTANT TEACHER.
EXT.P9	TRUE COPY OF ORDER NO. M/1/2005 DATED 1.6.2005 OF THE MANAGER, ARIYANCHIRA UP SCHOOL.
EXT.P10	TRUE COPY OF ORDER DATED 26.6.2006 OF THE 3RD RESPONDENT.
EXT.P11	TRUE COPY OF ORDER DATED 25.10.2005 OF THE 4TH RESPONDENT.
EXT.P12	TRUE COPY OF THE ORDER NO. M/1/2005 DATED 1.6.2005 OF THE MANAGER.
EXT.P13	TRUE COPY OF CONSENT STATEMENT FOR CHANGE OF MANAGERMENT OF AUPS ARIYANCHIRA SIGNED BY THE TEACHERS OF THE SCHOOL.

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(Contd...)

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WP(C).No. 10503 of 2011 (K)

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EXT.P14 TRUE COPY OF STAFF FIXATION ORDER OF THE 4TH RESPONDENT FOR THE YEAR 2010-2011 IN RESPECT OF THE PETITIONER'S SCHOOL.

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EXT.P15 TRUE COPY OF APPEAL DATED 1.10.2010 BEFORE THE IST RESPONDENT FILED BY THE 5TH RESPONDENT.

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EXT.P16 TRUE COPY OF JUDGMENT DATED 15.10.2010 IN WP(C) NO. 31424 OF 2010 C.

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EXT.P17 TRUE COPY OF ORDER NO. AR(1) 74927/10/DPI DATED 15.1.2011.

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EXT.P18 TRUE COPY OF REVISED STAFF FIXATION ORDER NO. C/3617/2010 DATED 18.3.2011 OF THE 4TH RESPONDENT.

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RESPONDENT'S EXHIBITS :

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EXT.R5(a) : TRUE COPY OF THE LETTER NO. 35528/J3/04/G.EDN OF THE GOVERNMENT DATED 11-10-2004.

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EXT.R5(b) TRUE COPY OF THE DECISION REPORTED IN 2004 (2) K.L.T. 899 DATED 29-6-2004.

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EXT.R5(c) TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO. 3427/2006 DATED 19-10-2007.

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EXT.R5(d) TRUE COPY OF THE DECISION REPROTED IN 2011(1) OF K.L.T. 663 DATED 22-12-2010.

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EXT.R5(e) TRUE COPY OF THE LETTER NO. 77115/L3/09/G.EDN. OF THE GOVERNMENT DATED 21-4-2010.

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EXT.R5(f) TRUE COPY OF THE G.O.(MS) NO. 42/2011/G.EDN.OF THE GOVENRMENT DATED 16-2-2011.

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EXT.R5(g) TRUE COPY OF THE JUDGMENT IN WP(C) NO. 25061/2010 OF THIS HON'BLE COURT DATED 29-3-2011.

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(Contd...)

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WP(C).No. 10503 of 2011 (K)

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EXT.R5(h) TRUE COPY OF THE LETTER OF THE ASST. EDN. OFFICER DATED 13-5-2011.

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EXT. R6(A) PHOTOCOPIES OF THE FEES REGISTER OF THE CLASS IN WHICH THIS RESPONDENT WAS THE CALSS TEACHER.

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EXT. R6(B) A PHOTOCOPY OF THE OPTION FORM SUBMITTED BY THIS RESPONDENT DATED 5/7/2006.

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EXT. R6(C) A PHOTOCOPY OF THE REPLY PROVIDED BY THE 4TH RESPONDENT EDUCATIONAL OFFICER DATED 21/5/2011.

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EXT. R6(D) PHOTOCOPIES OF THE TRAINING CERTIFICATES ISSUED IN FAVOUR OF THIS RESPONDENT.

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EXT. R6(E) PHOTOCOPIES OF THE TIME-TABLE OF THE SCHOOL MANAGED BY THE PETITIONER.

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EXT. R6(F) A PHOTOCOPY OF THE PARTICULARS STRENGTH OF CLASS VII B OF THE SCHOOL MANAGED BY THE 5TH RESPONDENT.

//TRUE COPY//

P.S. TO JUDGE

P.V.ASHA, J.

W.P(C) Nos.10503 of 2011-K and 11980 of 2011-V

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Dated this the 16^th day of June, 2016

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JUDGMENT

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W.P(c) No.10503/2011 is filed by the Manager of Arianchira A.U.P School, which is an aided school (hereinafter referred to as 'the School'), challenging Exts.P17 and P18 orders issued by the Director of Public Instructions ('DPI' for short), who directed that Smt. P.P.Chandrika the 5^th respondent in this Writ Petition, who was appointed in August 2001, shall be retained in the U.P Section and staff fixation for the year 2010-11 should be revised accordingly. The very same orders are under challenge in Writ Petition No.11980/2011 filed by one Santhilal.S, who got himself impleaded as additional 6^th respondent in the writ petition filed by the Manager, but on different grounds. His grievance is that the DPI did not consider his case before issuing orders, despite his representation for a hearing and retention in UP School, based on his appointment and continuous service in UP Section since the year 1992. According to Sri Santhilal he, being senior

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W.P(C) Nos.10503 of 2011-K & 11980 of 2011-V

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in accordance with the date of appointment in the year 1992, is entitled to be included in the U.P Section while revising the Staff Fixation Orders.

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Since the issue arising in these cases is one and the same, i.e in respect of the staff fixation for the year 2010-11 and the shifting of LPSAs and UPSAs in the very same School, these two Writ Petitions are disposed of by a common judgment. The parties and documents are as referred to in W.P(c) No.10503/2011 unless otherwise specifically mentioned.

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In the staff fixation for the year 2010-11-Ext P14, one division each was reduced in the UP Section and LP section of the School by which there was a reduction of one post each of UPSA and LPSA. It was also ordered that the 5^th respondent Smt.Chandrika, LPSA was retrenched with effect from 15.7.2010. The 5^th respondent Smt.Chandrika challenged the same before the Director of Public Instructions submitting Ext.P15 petition and immediately thereafter she filed W.P(c) No.31424/2010. By Ext.P16 judgment dated 13.10.2010 this court directed the DPI to dispose of her revision petition after affording an opportunity of hearing to her and other affected

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W.P(C) Nos.10503 of 2011-K & 11980 of 2011-V 3

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parties. It was made clear that she would not be entitled to claim salary till the disposal of the Revision Petition, unless it was found that she could be accommodated regularly as UPSA. After notice to the 5^th respondent, the Manager, one Smt.P.R.Smitha, a UPSA and the Educational officers, the DPI passed Ext.P17 order after hearing them. The DPI found that the Manager was effecting illegal transfers of UPSAs and LPSAs from either section from time to time. Referring to the contentions raised by the 5^th respondent Chandrika, the DPI found several irregularities in accommodating Smt. Mini and Smt. Smitha in the UP Section, even with connivance of the educational officers, which was impermissible. Pointing out the amendment effected in Chapter XXXI of KER insisting the qualification of TTC for appointment as LPSAs, DPI stated that the Degree holders with B.Ed Degree, but without having TTC, could be appointed only in UP section, while TTC holders could be appointed as LPSAs as well as UPSAs. At the same time, it was found that the posts of LPSAs and UPSAs were distinct and different as per Rule 2(a) and (b) of Chapter II and Rules 5(2)(3) of Chapter XXIII of KER. DPI reminded that Government have

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W.P(C) Nos.10503 of 2011-K & 11980 of 2011-V 4

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issued orders directing that no transfer is admissible between LP section and UP section; it is found that in the light of the Government letter No.35528/J(3)/04 dt.11.11.2004, by which the Government had made it clear that transfers from LP section to UP section and from UP section to LP section cannot be permitted, Manager should not have transferred Smt. Chandrika the 5^th respondent who was appointed and approved in the post of UPSA, to LP section. DPI further found that Smt A.Mini and P.R.Smitha were shifted to the vacancy caused by shifting Smt.Chandrika, which was illegal. Therefore it was directed that, she should be accommodated in U.P Section and given approval. Accordingly the DPI directed the Assistant Educational Officer (AEO), Shoranur to revise the staff fixation directing that the junior most teacher should be retrenched. Thereafter the AEO issued Ext.P18 order accommodating Smt.Chandrika as UPSA.

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In the petition filed by Smt. Chandrika, her complaint was against the retention of one Smt. Smitha saying that she was retained overlooking her seniority.

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These writ petitions are filed in the above background challenging the orders Ext P17 and 18.

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W.P(C) Nos.10503 of 2011-K & 11980 of 2011-V

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The case of the Manager is that Smt. Chandrika was all along working as LPSA, though her appointment with effect from 6.5.2002, as per Ext.P1, was as Assistant Teacher (UPSA). In support of his contention he has produced Ext.P2 - the extract from her Service Book, Ext.P3 - the seniority list of teachers as on 23.3.2007, in which the 5^th respondent as well as the additional 6^th respondent, ie. M/s.P.P.Chandrika and Santhilal were shown as LPSA against which they have put signature, Ext.P4 - statement of fixation of pay submitted by Smt.Chandrika on 5.7.2006 and Ext.P5 acquittance register for April, 2004.

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The further case of the Manager is that as per Ext.P9 proceedings dated 1.6.2005, he made certain adjustments transferring teachers from L.P Section to U.P Section. In Ext.P9, the Manager himself has stated that in order to avoid the retrenchment of Smt. Mini who was the then junior most UPSA and who was on leave without allowance from 16.12.2003, he was transferring 2 teachers from LP Section to UP section and 3 teachers from UP Section to LP section. In this order the name of Smt.Chandrika is not seen. Thus Smt.Jaysaree LPSA, who was on leave without allowance, was transferred to U.P Section and

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W.P(C) Nos.10503 of 2011-K & 11980 of 2011-V 6

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Smt.Mini, who was UPSA on leave without allowance, was transferred as LPSA in the place of Smt. Jayasree. Simultaneously Smt.Girija LPSA was transferred from U.P Section to L.P Section; P.Saji in UP Section was transferred to LP School and Sri. Santhilal, UPSA (the additional 6^th respondent), was transferred to L.P Section.

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The 5^th respondent and additional 6^th respondent Santhilal have got a case that they are absolutely unaware of the shifting of their lien/transfer from U.P to L.P section of the school. Referring to Ext.P10 proceedings dated 26.6.2006, the petitioner claims that appointment of Smt.Smitha as UPSA against the leave vacancy of Smt.Mini, shifting her to the vacancy of Jayasree, was approved. Referring to another order Ext.P11 of the Assistant Educational Officer which also relates to Smt.Smitha's appointment, for the period from 30.7.2003 to 30.3.2005, the petitioner points out that the shifting was permitted by the Educational officers. Moreover, the petitioner relies on a consent statement obtained from the teachers at the time of change of management in which the teachers put their signature. In these proceedings dated 5.11.2009, Smt.Chandrika

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W.P(C) Nos.10503 of 2011-K & 11980 of 2011-V 7

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as well as Santhilal are shown as LPSAs.

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Smt. Chandrika has filed a counter affidavit raising the following contentions: She was appointed as Assistant Teacher from 9.8.2001 against the vacancy which arose when Smt.Jayasree was on leave without allowance for 5 years from 31.3.2000. Her appointment was approved for the period from 17.12.2001 to 31.3.2002 and from 5.6.2002 onwards. According to Smt. Chandrika she was the 5^th UPSA, when the staff fixation order for 2010-11 was issued. Her retrenchment was ordered since she was included in the list of LPSAs, while Smt.Smitha was shown in the list of UPSAs, even though her appointment was not approved. Ext.P17 order was passed by the DPI in accordance with law, seeing that transfer of UPSAs as LPSAs and vice versa was illegal, contrary to Rules 51 and 55 of Chapter XIVA of KER, various Government orders and judgments of this Court, especially Ext.R5(d) judgment Manager, M.M.U.P School v. D.D.E [2011 (1) KLT 663] confirmed in W.A. 26 of 2011, where this Court held that both the posts come under different categories and LP section and UP section are separate water tight compartments. Moreover Smt. Mini is far

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W.P(C) Nos.10503 of 2011-K & 11980 of 2011-V 8

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junior to him. Therefore, Exts.P17 and P18 orders are correct.

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Sri. Santhilal, who is the additional 6^th respondent, is the petitioner in W.P(c) No.11980/2011. His grievance is that even though he had been working in the UP section ever since his appointment on 24.1.1992, no notice was issued to him for the hearing held before the DPI who passed the order Ext.P17. It is his case that, he had submitted a representation before the DPI, on coming to know about the hearing being held by the DPI pursuant to the judgment of this Court. But the DPI did not afford an opportunity to him before Ext.P17 order was passed and therefore, there was no occasion to raise his contention against his inclusion in LP Section and his claim to be treated as UPSA on the basis of his appointment as early as in the year 1992. Pointing out that the direction of this Court was to issue orders after hearing all the affected parties, it is argued that, the refusal to afford him an opportunity has adversely affected him in so far as he has been treated as an LPSA in Ext.P18 order on account of the illegal shifting done by the Manager and he is under threat of retrenchment despite his appointment was much prior to that of Smt. Chandrika,

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W.P(C) Nos.10503 of 2011-K & 11980 of 2011-V

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In W.P(c) No.11980/2011, the Manager has produced the appointment order of Santhilal as Ext.R5(a), which shows that appointment was as Assistant Teacher w.e.f 24.1.1992 against the vacancy of Sri M.Mohanan and the appointment was approved as Assistant Teacher w.e.f the same date. It is pointed out that at the relevant time i.e in the year 1992, all the appointments in the U.P Schools were being made as Assistant Teachers without any reference to L.P or U.P Section. It is the case of Santhilal, the additional 6^th respondent (the petitioner in W.P(c) No.11980/2011), that all along he was taking classes in the U.P Section and the shifting if any of his lien to the L.P Section was never made known to him by the Manager. He was not affected on account of the shifting till the Staff Fixation Orders. From Ext.P9 order dated 1.6.2005 [Ext.R5(b) in W.P(c) No.11980/2011], it can be seen that Santhilal -the additional 6^th respondent who was described as UPSA, was transferred to L.P Section in order to avoid retrenchment of Smt.A.Mini.

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The District Educational Officer, Ottappalam has filed a counter affidavit in W.P(c) No.11980/2011 stating that, Santhilal was appointed with effect from 24.1.1992 as Assistant

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W.P(C) Nos.10503 of 2011-K & 11980 of 2011-V

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Teacher; his qualification is Pre Degree with TTC; he was teaching in UP section till 1.6.2005; Manager shifted him from the post of UPSA to LPSA on 1.6.2005; the illegal shifting is not approved by the Department; Santhilal did not raise any complaint against his illegal shifting till 6.12.2010; Santhilal has filed a reply affidavit in his writ petition stating that the Manager has resorted to the illegal shifting, in order to avoid the retrenchment of his elder sister Smt. A. Mini who is far junior to him and was continuing on leave without allowance. It is pointed out that the shifting is not entered in the service records. Santhilal has produced a series of documents for the period from 2002 onwards in order to show that he was taking classes in the U.P Section.

¶91

Heard the learned counsel appearing for the petitioners in the respective cases and the learned Government Pleader as well as the learned counsel appearing for the 5^th respondent and additional 6^th respondent. The question whether shifting of LPSA as UPSA and vice versa has been under consideration by this Court in a series of judgments and it is settled law now that LP Section and UP Section are two water

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W.P(C) Nos.10503 of 2011-K & 11980 of 2011-V 11

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tight compartments and there cannot be any transfer of LPSA as UPSA or a UPSA as LPSA, as argued by Smt. Raga, the learned counsel appearing for Sri Santhilal relying on the decisions reported in Manager, MMUP School, Kuppam v. Deputy Director of Education, Kannur & Ors. [2011 (1) KHC 477 ], Praveena V.Kamath and Ors. v. State of Kerala & Ors. [2011(2) KHC 550] and Thresia M.L. v. Preethy M.P and Ors. [2014(4) KHC 822(F.B)].

¶94

In Ext.P9 the Manager himself has stated that the transfers from LP Section to UP Section were made in order to avoid retrenchment of Smt. Mini, who is his elder sister. Ext.P9 as well as the counter affidavit of the DEO -the 3^rd respondent in W.P.(C) 11980 of 2011 and Ext R5(a) order produced by the Manager in that case would show that Sri Santhilal, who was appointed on 24.1.1992 as Assistant Teacher, was working in the UP Section and his transfer to LP section was not approved by the authorities. It is an admitted fact that the appointments of teachers were being made as Assistant Teachers without specifying LP or UP Section at the relevant time. The contention of Santhilal that this transfer was never made known to him

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W.P(C) Nos.10503 of 2011-K & 11980 of 2011-V 12

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cannot be disbelieved. At any rate, he is affected by such a shifting only after the staff fixation of 2010-11, when Ext.P18 order is passed. The admitted case of Smt. Chandrika is that her initial appointment in the School as leave substitute was in 2001 and regular appointment was as per Ext.P1 from 5.6.2002 and she is senior to M/s. Mini and Smitha. In Ext.P9, Manager stated that Smt. Mini was the junior most. Therefore, Sri. Santhilal, has got every right to be accommodated and retained in the UP Section in preference to anybody with date of appointment subsequent to 24.1.1992. But the DPI did not consider his case. DPI considered the case only with reference to the contentions raised in the petition filed by the 5^th respondent.

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The 5^th respondent Chandrika's claim before the DPI was for her retention in U.P Section, on the ground that Smt. Mini was junior to her. In her representations Sri. Santhilal was shown as LPSA. The DPI has not considered the claim of the Santhilal, while directing to revise the staff fixation including Chandrika in UP Section. The DPI should have considered the cases of all the teachers in the School, when it was found that the Manager has been illegally shifting teachers from UP to LP

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W.P(C) Nos.10503 of 2011-K & 11980 of 2011-V 13

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section and vice versa and especially when Sri Santhilal, had submitted his representation on 6.12.2010 (Ext.P3 in W.P.(C) No.111980 of 2011) and this court had in Ext.P16 judgment in W.P. © 31424 of 2010 filed by Smt. Chandrika had directed the DPI to pass orders after hearing the respondents 6 to 8 and any other affected party. Even though the DPI has followed the legal position correctly, while directing to revise the staff fixation, he failed to gather the factual situation in the School correctly, before directing the retention of Smt. Chandrika in the UP section. The case of the additional 6^th respondent Sri. Santhilal, who was continuing in the UP section since 24.1.1992, also should have been considered for retention in the UP section before directing retention of Smt. Chandrika, the 5^th respondent who commenced her service only in 2001. DPI passed the order as if no other teacher is affected by the illegal shiftings effected by the Manager.

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In the above circumstances, I dispose of these writ petitions in the following manner:

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i) Ext.P17 order is quashed to the extent it does not consider the claim of Sri. Santhilal the additional 6^th

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W.P(C) Nos.10503 of 2011-K & 11980 of 2011-V

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respondent and directs to retain Smt. Chandrika in the UP Section, without considering the case of the additional 6^th respondent Sri. Santhilal as UPSA. The consequential order Ext.P18 is also quashed;

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ii) There shall be a direction to the Director of Public Instructions to pass fresh orders on the question of retrenchment pursuant to Ext.P14 staff fixation proceedings of the School for the year 2010-11, after affording an opportunity of hearing to all the parties who are likely to be affected, including the Manager, the 5^th respondent Chandrika and additional 6^th respondent Santhilal, within a period of two months from the date of receipt of a copy of this judgment;

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iii) The Assistant Educational Officer shall thereupon pass the consequential orders within a further period of one month;

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iv) Till such time, status quo as on today shall be continued with respect to the 5^th respondent and additional 6^th respondent.

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Sd/-

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(P.V.ASHA, JUDGE)

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rtr/

Anand.a. v. the Director of Public Instruction& Ors.

Case brief

What is this about?

What did the court decide?

Anand.a. v. the Director of Public Instruction& Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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