IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25667 of 2010(G)
1. THE MANAGER, M.M.U.P.SCHOOL, KUPPAM,
... Petitioner
Vs
1. THE DEPUTY DIRECTOR OF EDUCATION,
... Respondent
2. THE DISTRICT EDUCATIONAL OFFICER,
3. THE ASSISTANT EDUCATIONAL OFFICER,
4. K.V.SAKUNTHALA, L.P.S.A.,
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent :SRI.V.T.MADHAVANUNNI
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :22/12/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) Nos. 25667/2010-G &
27985/2010-W
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Dated this the 22nd day of December, 2010.
JUDGMENT
The writ petitions concern a common issue arising between the
parties and therefore they are disposed of by a common judgment. In W.P.
(C) No.25667/2010 the petitioner is the Manager of the school and in W.P.
(C) No.27985/2010 the petitioner is working as a UPSA in the school, who
is the fourth respondent in W.P.(C) No.25667/2010.
2. The main question raised in the writ petition filed by the Manager
is the right of the Manager to shift a teacher working in the U.P. section as
U.P.S.A. to the L.P. section. It is argued that in the absence of a
prohibition in the Kerala Education Act and Rules, the Manager can do so
in exercise of the right of management of a school. The circumstances
leading to the dispute, as pleaded in W.P.(C) No.25667/2010, are the
following:
3. The main challenge in the writ petition is against Ext.P1 order
passed by the Deputy Director of Education, Kannur whereby the appeal
filed by the fourth respondent teacher was allowed and she is further
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allowed to continue in the post of U.P.S.A. A vacancy in the post of
L.P.S.A. arose in the L.P. Section with effect from 1.6.2009 consequent on
the retirement of Smt .K.V. Devi. She was a TCH holder. According to the
Manager, till the amendment of the rules as per Ext.P3 in the year 2000,
teachers who possessed higher qualification were also allowed to take
classes in the L.P. section, which cannot be done after the amendment of the
rules. The said position has been reiterated by a recent amendment produced
as Ext.P4. It is stated that the Manager decided to shift the fourth
respondent who is also a TCH holder, to the L.P. section consequent on the
retirement of Smt.K.V. Devi. Ext.P5 is the copy of the staff fixation order
for the year 2009-2010 which according to the Manager, approved the
shifting. Ext.P6 is the copy of the seniority list of the teachers of the school.
Based on the representation made by the fourth respondent, the Asst.
Educational Officer by Ext.P7 held that the shifting is not permissible and
therefore she being a UPSA, should be allowed to continue in that post.
This was challenged by the Manager before the District Educational Officer,
who passed Ext.P8 order which was in turn challenged by the fourth
respondent before the Deputy Director of Education, who passed Ext.P1
order.
4. One of the contentions raised by the petitioner Manager is that the
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appeal before the Deputy Director of Education was not competent. What is
mainly argued is that going by the qualification of the fourth respondent,
she can be only accommodated as an LPSA. Four posts are allowable in the
L.P. section and there are only three teachers and the Manager will have to
make arrangements to conduct the classes.
5. In W.P.(C) No.27985/2010 the teacher challenges Ext.P10
communication issued by the Manager dated 27.8.2010 directing the
Headmistress to implement the orders of the Manager. This order is issued
relying upon the interim order in W.P.(C) No.25667/2010. It is the
contention of the petitioner therein that she was appointed as a UPSA as per
Ext.P1 order and she is about to retire on 31.3.2012. The posts of LPSA and
UPSA are different in nature and duties. Ext.P2 is the copy of the document
showing the class charges of the teachers working in the school from 1998
to 2009 to show that she is working in the U.P. section throughout. Ext.P3
therein is the direction issued by the Manager on 29.9.2009 to the
Headmistress to instruct the petitioner to do the teaching work in the L.P.
section. It is pointed out that there is no power for the Manager to shift her
to the L.P. Section.
6. The counter affidavit filed on behalf of the Deputy Director of
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Education in W.P.(C) No.25667/2010 reveals the following facts. From
1.4.2009 onwards due to retirement of Smt.K.V. Devi, one LPSA post and
due to the retirement of Shri P.V. Balakrishnan, one post of UPSA became
vacant in the school. Against the retirement vacancy of LPSA, the Manager
appointed one Shri T.V. Muhammed Ameen, a B.Ed. holder which cannot
be approved, as the vacancy arose in L.P. section. The fourth respondent
was appointed in the school as UPSA on 2.6.1982 which was approved by
the Asst. Educational Officer. Going by the Govt. Order dated 11.10.2004
the post of LPSA and UPSA are different and the nature of duties are also
different and they are different categories. The Manager has no power to
shift the fourth respondent to LP section from U.P. section with effect from
1.6.2009. On enquiry, it is seen that she was not actually shifted with effect
from 1.6.2009 and was continuing in the U.P. section during the last so
many years including 2009-2010. The Manager has not given any
application before the Educational authorities for shifting the fourth
respondent from U.P. section to L.P. section. The matter of shifting is not
shown in the Staff Fixation Order 2009-2010. The post of LPSA and UPSA
are different in nature, in duties and are different categories as held by this
Court. Ext.P6 seniority list was not approved by the Asst. Educational
Officer, nor submitted to that office for approval.
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7. Heard learned counsel for the Manager Shri George Poonthottam,
Shri V.T. Madhavanunni, learned counsel for the Teacher and Shri Sandesh
Raja, learned Govt. Pleader.
8. Learned counsel for the Manager submitted that actually four posts
of LPSA are available in the school. The fourth respondent is not a B.Ed.
holder. Therefore, she was liable to be shifted to the L.P. section in terms of
the staff fixation order. The retirement vacancy arose in the L.P. section. It
is argued that there is no prohibition under the Act and Rules for the
Manager to exercise such a power. Learned counsel further submitted that
even going by the approved seniority list, etc. the seniority of the fourth
respondent is not affected. The new appointee being a B.Ed. holder, can be
appointed only as a UPSA. It is pointed out that the amendment of the rules
in the year 2000 to Chapter XXXI providing for qualifications of the
LPSAs and UPSAs require a shifting of persons not having the B.Ed.
qualification and the action of the Manager cannot be said to be illegal.
9. Shri Madhavanunni, learned counsel appearing for the Teacher
pointed out that the fourth respondent was working as UPSA. The Manager
has only issued a direction to the Headmistress as per Ext.P3 produced in
W.P.(C) No.27985/2010 which has no statutory backing. The fourth
respondent being a UPSA, cannot thus be shifted and there is no provision
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in the KER which allows such a shifting. Even the amended rules do not
provide for any such shifting.
10. Shri Sandesh Raja, learned Govt. Pleader submitted that in the
light of the decision of this Court in Mary George v. State of Kerala (1999
(3) KLT 912), which was followed in Rajimol v. Asst. Educational
Officer (2004 (2) KLT 899), it can be seen that the post of LPSA and
UPSA are different in nature and duties. Therefore, there cannot be any
arrangement by which a UPSA can be shifted to the post of LPSA. It is
therefore pointed out that the step taken by the Manager cannot be justified,
as the Manager is bound to comply with the provisions of the Act and Rules
and there is no absolute power for the Manager to provide for such a
shifting.
11. Certain factual aspects will have to be gone into to examine the
question raised herein. Admittedly, the vacancy in the L.P. section arose on
1.6.2009 consequent on the retirement of Smt.K.V. Devi, LPSA. The
Manager claims that the shifting was done consequent on the retirement of
Smt.Devi which was effected and approved by the Staff Fixation Order for
the year 2009-2010. Ext.P5 is the copy of the Staff Fixation Order. It only
shows in the Appendix the number of teaching staff including Headmaster,
UPS Assistants and LPS Assistants as well as language and specialist
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teachers. In the category of LPSA four posts have been sanctioned. Ext.P5
does not show any approval for the shifting of the fourth respondent as
LPSA as contended by the Manager. The controversy herein arose when the
Manager issued a direction as per Ext.P3 produced in W.P.(C)
No.27985/2010. The same is dated 29.9.2010, much after the staff fixation
order. The said proceedings directs the Headmistress to have the academic
work in U.P. section exclusively by trained graduates and academic work of
TTC/TCH should be utilized in L.P. section. Accordingly, the
Headmistress is directed to instruct the fourth respondent to do the teaching
work in L.P. section. The said letter alone generated the subsequent
proceedings. Therefore, the reliance placed by the Manager on Ext.P5 Staff
Fixation Order as a justification for shifting, is not correct. Evidently, even
in Ext.P3 produced in W.P.(C) No.27985/2010 the Manager has not taken
the stand that shifting is approved by the department.
12. The other document relied upon by the Manager is Ext.P6, stated
to be a seniority list. Evidently, going by the counter affidavit filed by the
first respondent, the same has not been approved by the Asst. Educational
Officer and not submitted to the office for approval till date. Therefore, the
same cannot have any legs to stand in deciding the controversy herein.
13. In Ext.P7, the Asst. Educational Officer took the view that the
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post of LPSA and UPSA are different categories and therefore in the
retirement vacancy which arose in L.P. Section, a UPSA cannot be shifted
and there is no provision for that also. While considering the appeal filed
by the Manager, in Ext.P8 the District Educational Officer also held that the
arguments raised by the Manager is not sustainable. But, the District
Educational Officer recognized the right of the Manager on the plea that
shifting was made prior to 9.9.2009, the date of amendment of the rules by
Ext.P4 produced in W.P.(C) No.25667/2010. Actually the said amendment
is not one concerning the shifting of UPSA to L.P. Section and vice-versa.
The amendment was made to Rule 4A of Chapter XXXI of K.E.R. Rule 4A
only provided that notwithstanding anything contained in sub-rule (1) of
Rule 4, the Educational Officer shall be competent to approve appointments
of candidates possessing higher qualifications, provided they have any of
the training qualifications approved by the Government of Kerala. The
latter limb of the rule is replaced by the words “provided they have the
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training qualification stipulated in the said sub-rule”, by the present
amendment. In the Explanatory Note, it is mentioned that the amendment
is required, since certain Managers shifted B.Ed. holders working as UPSA,
as LPSA to accommodate another B.Ed. holder in the U.P. section. The
amendment is only to remedy the said mischief. What is noted in the
Explanatory Note is the shifting of a B.Ed. holder working as UPSA, as
LPSA. Therefore, the basis for the findings of the District Educational
Officer is evidently unsustainable, as the amendment had nothing to do with
the questions raised herein. The said order was therefore set aside in
Ext.P1.
14. The scope of the amendment introduced as per Ext.P3 of Rules 3
and 4 of Chapter XXXI is only that Rule 3 permits appointments of
graduates with B.Ed. as UPSA and Rule 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 Rule 3, persons
having SSLC or its equivalent or a pass in Pre-degree examination
conducted by any of the Universities in Kerala, 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
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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.
15. The posts of UPSA and LPSA are different in category and the
nature of duties are different. This question was examined in Mary
George’s case (1999 (3) KLT 912). The issue was examined while
considering the right of a UPSA for appointment as LPSA under Rule 51A
of Chapter XIV-A K.E.R. This Court held that both these categories of
teachers are not one and the same. They are different in nature and duties.
The findings contained in paragraphs 10 and 11 in that regard are
reproduced below:
“Applying these principles it has to be examined as to whether a
post of L.P.S. Assistant and U.P.S. Assistant are two different
posts or posts of similar nature. According to the petitioners,
posts of L.P.S. Assistant and U.P.S. Assistant are two different
and distinct categories as per Chapter XXIII and XXXI of K.E.R.
Qualifications prescribed for these posts are SSLC and TTC. The
senior claimants about whom reference had been made by the
Educational Authorities are persons appointed as U.P.S. Assistants
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with B.Ed. qualification. They did not have TTC qualification.
Chapter XXIII of the K.E.R. deals with fixation of strength of
teachers in Departmental and Aided Schools. R. 5 of the above
Chapters deals with staff of the Upper Primary Schools and Lower
Primary Schools. The above Rule mentions separately the posts of
U.P.S. Assistants and L.P.S. Assistants. Chapter XXXI of the
K.E.R. deals with the qualifications of Private School Teachers.
R.3 of the above Chapter mentions qualifications prescribed for
U.P.S. Assistants. R. 4 specifies the qualifications of L.P.S.
Assistants. In both these posts, pass in SSLC and pass in TTC
examination are the qualifications prescribed. No B.Ed.
qualification has been prescribed for appointment as either U.P.S.
Assistant or L.P.S. Assistant. L.P.S. Assistants are teaching
students in L.P. School and U.P.S. Assistants are teaching students
in the U.P. Schools. From these circumstances, it can be safely
inferred that both these categories of teachers are not one and the
same. They are different in nature and duties. The defence set up
in the counter affidavit is that the Government have clarified in
various orders that trained graduates could also be appointed in
the vacancy of L.P.S. Assistants. It was further stated in the
counter affidavit that the petitioners are SSLC and TTC holders
and at the time of their appointment there were several claimants
under R.51A of Chapter XIV-A K.E.R. who were awaiting
appointments under the Management. But all these claimants
were formerly appointed as U.P.S. Assistants and not as L.P.S.
Assistants. Thus it cannot be said that there were valid claimants
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of L.P.S. Assistants under R.51A of the K.E.R. at the time of the
appointment of the petitioners. As already indicated, U.P.S.
Assistants have no preferential claim for appointment as L.P.S.
Assistants under R.51-A of the K.E.R. over persons who were
appointed as L.P.S. Assistants.”
The amendment by Ext.P3 also did not vary the legal position that the posts
of UPSA and LPSA are different in nature.
16. In the latter decision in Rejimol’s case (2004 (2) KLT 899) also
a similar question was examined. Therein, the seniormost L.P. S.A. was
promoted as Headmistress and the petitioner in the writ petition, a UPSA
staked claim for appointment. In para 6, while discussing the legal aspects
concerning the matter, it was held thus, relying upon Mary George’s case
(1999 (3) KLT 912):
“The question is what will be the situation in a school having both
Lower Primary and Upper Primary sections and where the
Headmaster is to be from the Lower Primary Section? Before
tackling the question yet another issue also has to be analysed.
Whether a Lower Primary School Assistant can teach in an Upper
Primary class and vice versa? That question is no more res
integra. In Mary George v. State of Kerala, 1999 (3) KLT 912, it
has been held that both the categories of teachers are not one and
the same and that they are different in nature and duties. In the
judgment dated 8.1.1996 in W.A. No.1499/1995 also a Division
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Bench of this Court has held that under R.51-A of Chapter XIV-A
KER a retrenched H.S.A. cannot claim the vacancy of an UPSA
and a retrenched UPSA cannot claim the vacancy of a LPSA.
Therefore, there cannot be a dispute on the position that a Lower
Primary School Assistant cannot teach in an Upper Primary class.”
17. Ext.P13 produced in W.P.(C) No.27985/2010 also lays down that
the posts of LPSA and UPSA are different in nature and duties. Therefore,
it is clear from the said judgment also that a LPSA cannot teach in Upper
Primary class and vice-versa. Therefore, the nature of duties of LPSA and
UPSA are quite different. Hence, the teachers in these posts cannot be
shifted at the whims and fancies of the Manager.
18. The next question is whether in the absence of a prohibition in
the rule the Manager can shift a teacher working as UPSA to the L.P.
section. Herein, evidently the vacancy arose in the cadre of LPSA on
1.6.2009. Section 7 of the Act and Rule 9 of Chapter III are relevant in this
context. Section 7(2) provides that the Manager shall be responsible for the
conduct of the school in accordance with the provisions of the Act and the
Rules thereunder. The position is evident from Rule 9 of Chapter III of the
Rules which deals with the duties and powers of the Managers of Aided
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schools. Sub-rule (1) provides as follows:
“The Manager shall be responsible for the conduct of the school
strictly in accordance with the provisions of the Kerala Education
Act and the Rules issued thereunder. He shall also abide by the
orders that may be issued from time to time by the Government and
the Department in conformity with the provisions of the Act and the
rules issued thereunder.”
Therefore, 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 dehors 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 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.
19. There cannot be any dispute also that the fourth respondent is
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working as UPSA in the school, going by the pleadings of the parties. She
was appointed as UPSA which is evident from Ext.P1 order of appointment
produced in W.P.(C) No.27985/2010. The approval was granted as
Assistant Teacher. Ext.P2 produced therein will show that she had been in
the U.P. section from 1998 to 2009, even though the Manager by producing
copies of certain attendance registers, contends that in the earlier period she
was taking certain classes in L.P. Section. Even the documents produced
by the Manager leading to the shifting will show that she was working as
UPSA. Along with I.A. No.16960/2010 in W.P.(C) No.25667/2010, the
Manager has produced Ext.P11 which expressly states that “Smt.K.V.
Sakunthala (T.C.H.) working in the school as U.P.S.A. is shifted as L.P.S.A.
w.e.f. 1.6.09 in the vacancy of Smt.K.V. Devi, retired from service on
31.3.2009.” Ext.P12 is stated to be a statement of change of staff, wherein
against column 2 showing the designation of the 4th respondent, it is clearly
noted as “U.P.S.A.”. Therefore, it cannot be the case that she was not in the
U.P. Section as U.P.S.A., especially since the Manager has actually shifted
her to the L.P. Section. Therefore, no amount of argument can be accepted
to show that she was not appointed as U.P.S.A. As evident from the
counter affidavit of the first respondent also, during the year 2009-2010 also
she was taking classes in the U.P. section. Therefore, the Manager could
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not have taken the advantage of a vacancy in L.P. section to shift a
U.P.S.A. as L.P.S.A. Ext.P14 produced by the Manager cannot also help
the contentions of the Manager, since that is not a general order passed by
the Government laying down any principle, but on the facts of the said case
the Government by way of work arrangement permitted a UPSA to work as
LPSA to avoid her retrenchment. That cannot be treated as a relevant
document at all.
20. The Manager has also raised a contention that the Deputy
Director of Education was not competent to consider the appeal. The appeal
was disposed of by the Deputy Director of Education in the light of the
direction issued by this Court in the judgment in W.P.(C) No.16085/2010
produced as Ext.P7 in W.P.(C) No.27985/2010. Evidently, no contention
was raised by the Manager before the Deputy Director of Education
challenging his jurisdiction. Therefore, the same cannot be raised for the
first time in the writ petition. The Deputy Director of Education is also an
appellate authority from the orders of the District Educational Officer under
Chapter XIV-A K.E.R. Apart from that, the contention regarding
jurisdiction need not deter this Court from accepting its validity for another
reason also. If the order of the Deputy Director of Education is set aside,
that will result in revival of the order passed by the District Educational
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Officer, which is illegal and unsustainable. Therefore, under Article 226
of the Constitution of India, this Court can refuse to interfere with the order
under challenge if it results in resurrection of an illegal order passed by
another authority. On that principle also the challenge against Ext.P1 order
in W.P.(C) No.25667/2010 fails. Since the issue raised is one regarding the
powers of the Manager to shift a UPSA as LPSA, the said aspect was gone
into by the Deputy Director of Education, which is in tune with the
principles stated by this Court in the decisions considered above.
For all these reasons, W.P.(C) No.25667/2010 in dismissed. W.P.(C)
No.27985/2010 is allowed by quashing Ext.P10 order of the Manager which
was issued on the basis of the interim order passed in W.P.(C)
No.25667/2010. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/