Kerala High Court
Sithara John vs State Of Kerala on 26 May, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 9TH DAY OF FEBRUARY 2018 / 20TH MAGHA, 1939
WP(C).No. 10946 of 2013
PETITIONER:
SITHARA JOHN,
HIGH SCHOOL ASSISTANT (H.S.A),
ST.GEORGE HIGH SCHOOL,
THOZHIYOOR, THRISSUR DISTRICT.
BY ADV.SRI.KALEESWARAM RAJ
RESPONDENT(S):
1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM-695 001.
3. DEPUTY DIRECTOR OF EDUCATION,
THRISSUR-680 001.
4. DEPUTY DIRECTOR OF EDUCATION,
PALAKKAD-678 001.
5. ASSISTANT EDUCATIONAL OFFICER,
CHAVAKKAD.
6. ASSISTANT EDUCATIONAL OFFICER,
KUNNAMKULAM, THRISSUR.
7. ASSISTANT EDUCATIONAL OFFICER,
THRITHALA, PALAKKAD.
8. THE MANAGER,
MALABAR INDEPENDENT SYRIAN CHURCH,
THOZHIYOOR, THRISSUR DISTRICT.
9. JIJILA VARGHESE,
U.P.S.A., M.K.M.U.P SCHOOL,
PORKULAM, THRISSUR-680 542.
2/-
-2-
WP(C).No. 10946 of 2013
10. A.SARI ANTHONY,
UPSA, C.M.UY.P.S, THOZHIYOOR,
THRISSUR-680 520.
11. HEADMASTER,
M.K.M.U.P. SCHOOL, PORKULAM,
THRISSUR-680 542.
12. HEADMISTRESS,
S.C.U.P.S, CHALISSERRY,
PALAKKAD-679 536.
13. HEADMASTER,
C.M.U.P.S., THOZHIYOOR,
THRISSUR-680 520.
R1 TO R7 BY GOVERNMENT PLEADER SRI.E.S.ASHRAF
R9 BY ADVS.SRI.S.SUBHASH CHAND
SRI.SHINDO VARGHESE
R10 BY ADV. SRI.V.A.MUHAMMED
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 09-02-2018,ALONG WITH WP(C).NO.12655 OF 2013 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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9/3/2018
WP(C).No. 10946 of 2013 (P)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1: TRUE COPY OF THE APPOINTMENT ORDER DATED 26.5.2004.
EXHIBIT P2: TRUE COPY OF THE INTERIM ORDER DATED 17.6.2011 IN
WPC NO.38606/2010 AND WPC NO.15805/2011.
EXHIBIT P3: TRUE COPY OF THE ORDER NO.EC5/3991/11/DPI/K.DIS
DATED 3.8.2011.
EXHIBIT P4: TRUE COPY OF G.O.(RT)NO.5143/2011 DATED 21.11.2011.
EXHIBIT P5: TRUE COPY OF THE ORDER NO.EC5-80466/11/K.DIS./DPI
DATED 6.11.2012 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P6: TRUE COPY OF THE ORDER NO.EC5/1337/2013/DPI/K.DIS
DATED 20.3.2013 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P7: TRUE COPY OF THE REPRESENTATION DATED 28.3.2012
(SIC-2013) SUBMITTED BY PETITIONER BEFORE THE IST
RESPONDENT.
EXHIBIT P8: TRUE COPY OF THE PROVISIONAL SENIORITY LIST PREPARED BY
THE CORPORATE MANAGER AS ON 31/3/2012
EXHIBIT P9: TRUE COPY OF THE ORDER DATED 4/9/2012
RESPONDENT'S EXHIBITS:
EXHIBIT R7(a) TRUE COPY OF THE LETTER DATED 07/04/2014
EXHIBIT R9(a) TRUE COPY OF THE STAFF FIXATION ORDER NO.D.DIS.D/2828/10
DATED 13/8/2010 ISSUED BY THE ASSISTANT EDUCATIONAL
OFFICER, THRITHALA.
EXHIBIT R9(b) TRUE COPY OF THE APPROVED PROMOTION ORDER OF SMT.NANCY
SIMON DATED 1/9/2008.
EXHIBIT R9(c) TRUE COPY OF THE ORDER DATED 1/9/2012 OF RESPONDENT NO.8
EVIDENCING THE PROMOTION OF THE PETITIONER AS HIGH
SCHOOL ASSISTANT (NATURAL SCIENCE) IN ST.GEORGE HIGH
SCHOOL, THOZHIYOOR WITH EFFECT FROM 4/9/2012.
/TRUE COPY/
P.A.TO JUDGE
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9/3/2018
ANU SIVARAMAN, J.
--------------------------------
W.P.(C) Nos.10946, 12655, 30003 of 2013
24993, 34938 of 2014 and 23809 of 2016
---------------------------------
Dated this the 9th day of February, 2018
JUDGMENT
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The issue raised in these writ petitions is with regard to the eligibility of an LPSA under a corporate educational agency for retention in preference to UPSA in a promotion vacany of LPSA in the CMUP School, Thozhiyoor. It is stated that the petitioner in W.P.(C) No.30003 of 2013, 34938 of 2014 and W.P.(C) No.23809 of 2016, was appointed as LPSA on 1.6.2007 at the MKMUP School, Porkulam. She was transferred to the SCUP School, Chalissery with effect from 16.7.2007 and approval was granted from 1.6.2007 and salary was also paid. It is stated that during the year 2009-10, there was a fall in students strength and the petitioner was not paid salary from that academic year onwards.
2. The petitioner had filed W.P.(C) No.30003/2013, seeking directions to accommodate her at the SCUP School, Chalissery under the 1:40 ratio. It is stated that in the W.P.(C) Nos.10946, 12655, 30003 of 2013 24993, 34938 of 2014 and 23809 of 2016 2 meanwhile, a promotion vacancy of LPSA arose in the CMUP School, Thozhiyoor during 2008-09. The vacancy arose due to the promotion of Smt. Nancy Simon as HM in the said school. However, the promotion was not approved and therefore the petitioner's appointment was also not approved. The petitioner had preferred W.P.(C) No.24993 of 2014 against the order of the DPI, where the 11 th respondent in the said writ petition one Smt. Sithara John who was a UPSA having graduation and B.Ed Degree was adjusted against the LPSA vacancy available in the CMUP School, Thozhiyoor. It is stated that only the lien of the teacher was adjusted against the said available vacancy and that Smt. Sithara John had not worked against the post. The petitioner had preferred a revision against the order of the Director which was directed to be considered by this Court in its judgment in W.P.(C) No.11231 of 2014. It is stated that pending consideration of the revision, Smt. Sithara John was paid salary by adjusting her lien against the LPSA vacancy. The revision petition preferred by the petitioner was dismissed and an order was passed permitting the retention of the lien of Smt. Sithara John against the vacancy of LPSA and the resultant retention W.P.(C) Nos.10946, 12655, 30003 of 2013 24993, 34938 of 2014 and 23809 of 2016 3 in service of a Junior UPSA Smt. Jijila Varghese. The petitioner has preferred W.P.(C) No.34938 of 2014, challenging the Government order issued.
3. W.P.(C) No.10946 of 2013 is filed by Sithara John challenging the orders transferring her and accommodating her in an LPSA vacancy in order to permit Smt. Jijila Varghese to continue as UPSA. W.P.(C) No.12655 of 2013 is filed by Smt. Jijila Varghese, the junior UPSA seeking payment of salary to her by retaining her as UPSA. The petitioner contends that in the meanwhile she had been accommodated as LPSA in the CMUP School, Thozhiyoor with effect from 11.9.2012. But the said appointment was also not approved on the ground that the appointment of the teacher in whose vacancy she was appointed had not been approved. The petitioner's contention is that the findings of the Government in the order impugned in W.P.(C) No. 34938 of 2014 are completely unsustainable and the petitioner was clearly entitled for approval of appointment as early as in the year 2009-10 against the available vacancy of LPSA in the CMUP School, Thozhiyoor. It is stated that the vacancy being that of LPSA, the shifting of the lien of UPSA against the said vacancy W.P.(C) Nos.10946, 12655, 30003 of 2013 24993, 34938 of 2014 and 23809 of 2016 4 and the retention of Smt. Sithara John and Smt. Jijila Varghese by such shifting was unjustifiable.
4. It is stated that all the other teachers have been drawing salary and allowances on the strength of orders issued by the educational authorities and the interim orders of this Court except the petitioner, who is continuing without salary from 2009-10. In any view of the matter, since the petitioner had since been appointed as LPSA in the CMUP School, Thozhiyoor against the vacancy of Smt. K.V Valsa whose appointment is also now been approved by Ext.P9 order in W.P.(C) No.23809 of 2016, I am of the opinion that there can be no objection whatsoever to the approval of the appointment of the petitioner as LPSA with effect from 11.9.2012 and the payment of salary to the petitioner from that date onwards at least.
5. The learned counsel places reliance on the decisions of a full Bench of this Court in Thresia v. Preethy (2014 (4) KLT 837) to contend that UPSA and LPSA are separate categories and the seniority list prepared in terms of Rule 34 (b) of Chapter XIVA KER is for the limited purpose of determining seniority for promotion and that in the matter of W.P.(C) Nos.10946, 12655, 30003 of 2013 24993, 34938 of 2014 and 23809 of 2016 5 retrenchment, the category wise seniority is to be looked into. It is stated that since the petitioner was a teacher who was facing retrenchment in the academic year 2009-10, the vacancy which was in existence in the CMUP School, Thozhiyoor which was that of an LPSA should have been taken into account and the petitioner should have been accommodated against the vacancy. The petitioner also places reliance on the decision of the Division Bench of this Court in Valsala Kumari Devi v. State of Kerala (2011 (3) KLT 549) to contend that once the claim of a teacher for appointment against the post is found, the consequent benefits of approval and payment of monetary benefits cannot be denied to such teacher.
6. A counter affidavit has been placed on record by the official respondents, it is contended therein that the accommodation of the lien of Smt. Sithara John against the vacancy of LPSA available in the CMUP School, Thozhiyoor which was an uneconomic school was done by the DPI and the Government only to protect senior teachers from retrenchment. It is contended that as per Ext.P6, the Government had directed the 2nd respondent to explore the W.P.(C) Nos.10946, 12655, 30003 of 2013 24993, 34938 of 2014 and 23809 of 2016 6 feasibility of accommodating the petitioner under the 1:40 ratio during the year 2009-10 and also to include her in the 'teachers package'. It is further stated that during 2008-09 the LPSA post had fallen vacant in the CMUP School, Thozhiyoor due to promotion of Smt. Nancy Simon as Headmistress. It is stated that Smt. Sari Antony, UPSA was working without approval. She had filed a writ petition seeking approval of her appointment and this Court had by judgment in W.P.(C) No.24758/2010 directed the DEO to issue appropriate orders on her request. It is stated hat the Educational Officer had issued orders, approving the appointment of Smt. Sari Antony from 1.6.2011 onwards.
7. The learned counsel for the contesting party respondent, Smt. Sithara John would contend that she was a UPSA appointed on 2.6.2004. She was therefore Senior to Smt. Jijila Varghese. Her contention is that she was entitled to accommodation against an available vacancy of UPSA and that her shifting to the LPSA post was unjustifiable in the facts and circumstances of the case. She also contends that she had been paid salary pursuant to interim orders of the Court and all arrears thereof have to be released to her since she was W.P.(C) Nos.10946, 12655, 30003 of 2013 24993, 34938 of 2014 and 23809 of 2016 7 entitled for approval of appointment in the post of UPSA itself.
8. The learned counsel appearing for Smt. Jijila Varghese would contend that the arrangement of shifting of lien had been done only to prevent retrenchment of senior teachers. It is contended that Smt. Sithara John was not physically posted as LPSA in the CMUP School, Thozhiyoor but her lien was only shifted to the said post. It is stated that the Government in its order had considered all the aspects of the matter and had held that the shifting of the lien was justified in the facts and circumstances of the case.
9. I have considered the contentions advanced on all sides. The issue is to be decided with regard to the retention of the lien of UPSA against the vacant post of LPSA stands covered by the full bench decision of this Court in Thresia's case (supra). Considering the provisions of Rule 34(b) of Chapter XIV A KER and Rule 1 to 3 of Chapter XXIII KER, this Court specifically held that LPSAs and UPSAs are distinct and different categories and the provisions for maintenance of combined seniority list of LPSA and UPSA is for the limited purpose of consideration of the seniority for the purpose of promotion. It was held that for the purpose of retrenchment, W.P.(C) Nos.10946, 12655, 30003 of 2013 24993, 34938 of 2014 and 23809 of 2016 8 the two posts should be treated as separate and distinct and retrenchment can be ordered only on considering the category wise seniority.
10. It is not in dispute before me that Smt. Jijila Varghese and Sithara John were both UPSAs, Sithara John being the senior. The lien of Smt. Sithara John was shifted to the post of LPSA only so that Smt. Jijila Varghese, a Junior hand, could be accommodated. On considering the findings in Ext.P14, it is clear that the Government had not taken note the provisions of Rule 34 (b), Chapter XIV A, KER in its proper prospective. However, the learned counsel appearing for Jijila Varghese, the teacher who would have faced retrenchment but for the shifting of the lien of Smt. Sithara John to the post of LPSA submits that she had drawn salary on the basis of orders of this Court and the amounts drawn by her are liable to be protected.
11. On consideration of the contentions advanced, I am of the opinion that the shifting of the lien of Smt. Sithara John to the vacancy of LPSA which arose in CMUP School, Thozhiyoor and the resultant retention of Smt. Jijila Varghese was due to the wrong application of the law by the DPI and W.P.(C) Nos.10946, 12655, 30003 of 2013 24993, 34938 of 2014 and 23809 of 2016 9 the Government. The pay and allowances due to Smt. Jijila Varghese had also been released on account of orders issued by the Educational authorities. However, I am of the opinion that the orders issued were unsustainable in view of the law laid down by the Division Bench of this Court in Thresya's case (Supra).
12. In the above view of the mater, I am of the opinion that the orders impugned in W.P.(C) No.34938 of 2014 and W.P.(C) No.24993 of 2014 cannot be sustained. The orders issued by the DPI as well as the Government directing the shifting of the lien of Smt. Sithara John against the vacant post of LPSA in CMUP School, Thozhiyoor are set aside. There will be a direction to the respondents to approve the appointment of the petitioner against the vacant post of LPSA in the CMUP School, Thozhiyoor with effect from the date of her retrenchment.
13. In the result, there will be a direction to the respondents to approve the appointment of the petitioner as LPSA in the CMUP School, Thozhiyoor with effect from 11.9.2012 and to release the salary due to her with effect from that date within a period of one month from the date of receipt W.P.(C) Nos.10946, 12655, 30003 of 2013 24993, 34938 of 2014 and 23809 of 2016 10 of a copy of this judgment. The petitioner's claim for approval against the post of LPSA in the CMUP School, Thozhiyoor which was available from the academic year 2008-09 onwards shall also be considered by the Government in the light of what is stated above and the petitioner's appointment shall be approved and monetary benefits granted, if it is otherwise in order. Orders in this regard shall be passed within a period of three months from the date of receipt of a copy of this judgment. It is made clear that no amounts which had been paid to the teachers against competent orders of approval shall be recovered from them, in spite of the orders rendered above. The contesting respondent Smt. Sithara John will be entitled to accommodation in one of the vacant post of UPSA and to all consequential benefits including any arrears of pay or emoluments which may be due to her on that cases.
These writ petitions are ordered accordingly.
ANU SIVARAMAN JUDGE sab