Kerala High Court
Manoj Kumar M vs State Of Kerala on 5 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942
WP(C).No.15257 OF 2019(F)
PETITIONERS:
1 MANOJ KUMAR M, UPPER PRIMARY SCHOOL TEACHER,
UPPER PRIMARY SCHOOL, ELIPPAKULAM,
ELIPPAKULAM P.O, PALLICKAL, ALAPPUZHA,
PIN-690 503.
2 BINDU O, UPPER PRIMARY SCHOOL TEACHER,
UPPER PRIMARY SCHOOL ELIPPAKULAM,
ELIPPAKULAM P.O, PALLICKAL,
ALAPPUZHA, PIN-690 503.
3 SUMI SURENDRAN, UPPER PRIMARY SCHOOL TEACHER,
UPPER PRIMARY SCHOOL ELIPPAKULAM,
ELIPPAKULAM P.O, PALLICKAL,
ALAPPUZHA, PIN-690 503.
BY ADVS.
SRI.S.P.ARAVINDAKSHAN PILLAY
SMT.N.SANTHA
SRI.V.VARGHESE
SRI.PETER JOSE CHRISTO
SRI.S.A.ANAND
SMT.K.N.REMYA
SMT.L.ANNAPOORNA
SRI.VISHNU V.K.
KUM.ABHIRAMI K. UDAY
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
2 ASSISTANT EDUCATIONAL OFFICER,
KAYAMKULAM, ALAPPUZHA DISTRICT, PIN-690 502.
WP(C).Nos.15257 & 15356 OF 2019
2
3 MANAGER, UPPER PRIMARY SCHOOL ELIPPAKULAM,
ELIPPAKULAM P.O, PALLICKAL, ALAPPUZHA,
PIN-690 503.
4 SREELATHA S.L, LOWER PRIMARY SCHOOL TEACHER,
UPPER PRIMARY SCHOOL ELIPPAKULAM,
ELIPPAKULAM P.O, PALLICKAL,
ALAPPUZHA, PIN-690 503.
5 J. RAKHI, LOWER PRIMARY SCHOOL TEACHER,
UPPER PRIMARY SCHOOL ELIPPAKULAM,
ELIPPAKULAM P.O, PALLICKAL,
ALAPPUZHA, PIN-690 503.
BY ADVS. SRI.B.MOHANLAL
SRI.P M MANOJ, SR. GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05.02.2021, ALONG WITH WP(C).15356/2019(T), THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).Nos.15257 & 15356 OF 2019
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942
WP(C).No.15356 OF 2019(T)
PETITIONER:
SINDHU, AGED 32 YEARS, D/O.SASIDHARAN PILLAI,
SASI BHAVANAM, PANAYIL P.O., NOORANAD,
PIN- 690 504, ALAPPUZHA DISTRICT,
WORKING AS U.P.S.A., U.P.S.ELIPPAKULAM,
ELIPPAKULAM P.O., PIN- 691 551,
ALAPPUZHA DISTRICT.
BY ADV. SRI.V.VIJULAL
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN- 695001.
2 THE DEPUTY DIRECTOR OF EDUCATION,
OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
ALAPPUZHA, PIN- 688 001.
3 ASSISTANT EDUCATIONAL OFFICER,
OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER,
KAYAMKULAM, PIN- 690502.
4 MANAGER,
U.P.S.ELIPPAKULAM, ELIPPAKULAM P.O.,
PIN- 691551, ALAPPUZHA DISTRICT.
5 S.L.SREELATHA, D/O.N.SREEDHARAN NAIR,
VENATTU VEEDU, ELIPPAKULAM P.O.,
(VIA) PALLICKAL, PIN- 691551,
ALAPPUZHA DISTRICT.
WP(C).Nos.15257 & 15356 OF 2019
4
6 J.RAKHI,
D/O.CHANDRASEKHARAN PILLAI, SUBASH MANDIRAM,
ELIPPAKULAM P.O., KAYAMKULAM, PIN- 691551,
ALAPPUZHA DISTRICT.
7 NISHAKUMARI.S.,
NISHAS, PEROORKARANMA, CHARUMMOODU P.O,
ALAPPUZHA DISTRICT, PIN- 690505.
8 NISHA NAIR, NISHAS, PUTHANPALLYKUNNAM,
CHARUMMOODU P.O, ALAPPUZHA DISTRICT,
PIN- 690505.
BY ADVS. SRI.B.MOHANLAL
SRI.V.A.MUHAMMED
SRI.M.SAJJAD
SRI.P.M.MANOJ, SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05.02.2021, ALONG WITH WP(C).15257/2019(F), THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).Nos.15257 & 15356 OF 2019
5
JUDGMENT
Dated this the 5th day of February 2021
Four Upper Primary School Teachers
(UPSTs) of "Upper Primary School
Elippakulam", Alappuzha, has filed these two
writ petitions.
2. The challenge impelled in these
cases is against an order of the Government,
bearing number G.O(Rt.)No.1546/2019/G.Edn
dated 30.04.2019 (which has been produced as
Ext.P9 in W.P.(C) No.15356 of 2019 and as
Ext.P18 in W.P.(C) No.15257 of 2019), as per
which, two other teachers -
Smt.S.L.Sreelatha and Smt.J.Rakhi (who have
been arrayed as respondents 5 and 6 in
W.P(C) No.15356 of 2019 and as respondents 4
and 5 in W.P.(C)No.15257 of 2019) - until
then working as Lower Primary School
WP(C).Nos.15257 & 15356 OF 2019
Teachers (LPST) in the said school, have
been restored to the category of Upper
Primary School Teachers and placed senior to
the petitioners herein, on account of an
exercise of rearrangement of teachers in
these two categories.
3. The petitioners assert that even
though Smt.S.L.Sreelatha and Smt.J.Rakhi
were originally appointed as UPSTs, on
account of want of sufficient vacancies in
that category, they were accommodated
against the post of LPSTs and that they
continued in such position until the
impugned order was passed.
4. The petitioners further assert that
both Smt.S.L.Sreelatha and Smt.J.Rakhi were
shown as LPSTs in the various seniority
lists prepared by the Manager - produced on
record as Exts.P4, P5 and P6 along with W.P.
WP(C).Nos.15257 & 15356 OF 2019
(C) No.15257 of 2019 - and that these lists
were validly approved by the competent
Educational Authorities under the provisions
of the Kerala Education Rules ('the KER' for
short).
5. The petitioners thus assert that
even if Smt.S.L.Sreelatha and Smt.J.Rakhi
are found eligible to be reverted to the
posts of UPST, they cannot be given
seniority over them, since after 08.06.2000,
it is incontestable that both these
categories are distinct and not
interchangeable, as it was prior to that
date.
6. The petitioners, therefore, pray
that the impugned order of the Government be
set aside, to the extent to which it orders
reinstatement of Smt.S.L.Sreelatha and
Smt.J.Rakhi as UPSTs ahead of them in the
WP(C).Nos.15257 & 15356 OF 2019
seniority lists of such category.
7. In response to the submissions made
by Sri.V.Vijulal - learned counsel appearing
for the petitioner in W.P(C) No.15356 of
2019 and Sri.Peter Jose Christo - learned
counsel appearing for the petitioners in
W.P(C) No.15257 of 2019, the learned Senior
Government Pleader - Sri.P.M.Manoj,
submitted that the controversy in these
cases arose because, for the academic year
2015-2016, five posts of UPSTs and ten posts
of LPSTs were sanctioned in the school. He
submitted that, however, when an inspection
was conducted by the competent Authority
thereafter, it was found that seven teachers
were working as UPSTs, while only eight were
working as LPSTs; and therefore, that it was
necessary to rearrange the teachers, so as
to accommodate them against the existing
WP(C).Nos.15257 & 15356 OF 2019
available vacancies.
8. The learned Senior Government
Pleader, therefore, predicated that the
impugned order of the Government cannot be
found fault with, because both
Smt.S.L.Sreelatha and Smt.J.Rakhi were
originally appointed as UPSTs, as is evident
from their appointment orders; and
consequently, that when they were reverted
back to their "parent cadre", they were also
directed to be given seniority, since it is
admitted that in Exts.P4, P5 and P6 lists
aforementioned, these teachers were shown as
seniors to the other teachers, though
included in the category of LPSTs. The
learned Senior Government Pleader,
therefore, prayed that both these writ
petitions be dismissed.
9. Sri.B.Mohanlal - learned counsel
WP(C).Nos.15257 & 15356 OF 2019
appearing for Smt.S.L.Sreelatha and
Smt.J.Rakhi, submitted that a counter
affidavit has been filed on record by his
clients in W.P(C) No.15257 of 2019, wherein,
their appointment orders have also been
produced as Exts.R4(a) and R4(b)
respectively. He showed me that in both
these orders, his clients were appointed as
UPSAs (as the post was then designated) and
that they were approved in such posts with
effect from 05.06.1995 and 01.06.1998
respectively; but conceded that on account
of lack of vacancies to accommodate them in
such posts, they were asked to teach in
Lower Primary School Section, thus formally
called LPSA, though they always continued to
be in the cadre of UPSA.
10. Sri.B.Mohanlal then submitted that,
when it became incumbent for the Manager to
WP(C).Nos.15257 & 15356 OF 2019
rearrange the teachers to accommodate them
against the available vacancies of UPSTs and
LPSTs, his clients were given the benefit of
the original cadre and consequently ordered
to be placed in the seniority list prepared
by Government according to their original
position, namely, as per their appointments
in the year 1995 and 1998 respectively.
Sri.B.Mohanlal thus contended that the
petitioners cannot have any grievance with
this because, even going by the seniority
lists produced by them, his clients have
been shown as being seniors to them, though
working in the category of LPSTs.
Sri.B.Mohanlal, therefore, prayed that these
writ petitions be dismissed.
11. I have evaluated the afore
dialectical contentions of the parties and
have also examined the impugned order issued
WP(C).Nos.15257 & 15356 OF 2019
by the Government very carefully.
12. The undisputed facts in these cases
are that both Smt.S.L.Sreelatha and
Smt.J.Rakhi were originally appointed as
UPSTs, but accommodated against the
vacancies available for LPSTs, presumably
because, until 08.06.2000 when Rule 4
Chapter XXXI of the KER was amended, these
two categories were taken as being one and
its bifurcation formally happened only after
that date.
13. However, it is virtually conceded by
Sri.B.Mohanlal, that his clients never
worked as UPSTs immediately prior to 2000 or
thereafter, atleast until the impugned order
has been passed by the Government; and that
they were always accommodated against the
post of LPSTs.
14. Therefore, even though
WP(C).Nos.15257 & 15356 OF 2019
Smt.S.L.Sreelatha and Smt.B.Rakhi were
appointed as UPSTs, they were then
re-accommodated as LPSTs and their posts
were so shown in all the seniority lists
until now. This is pertinent because,
consequent to the amendment, which took
effect from 08.06.2000, there are two
distinct categories - UPST and LPST and
resultantly, if Smt.S.L.Sreelatha and
Smt.J.Rakhi were working as LPSTs then and
even thereafter, obviously, they can only be
included within that category and not in the
category of UPST for the purpose of fixing
seniority and other benefits.
15. There can be no doubt about this
because, hypothetically, had this school
been a Higher Secondary one, then going by
Rule 4 Chapter XXXII of the KER, the right
of UPSTs to be considered for appointment as
WP(C).Nos.15257 & 15356 OF 2019
an HSST is superior to that of LPSTs. I
have mentioned this only illustratively to
show that these two categories are certainly
distinct, with different career prospects
being granted under the provisions of the
KER.
16. In such perspective, since
Smt.S.L.Sreelatha and Smt.J.Rakhi were
continuing as LPSTs until now, when the
Educational Authorities directed
rearrangement of teachers to be done by the
Manager, it could not have upset the
seniority of the petitioners in the category
of UPSTs and said teachers could have only
been placed below them in the seniority list
with respect to that category.
17. Therefore, even though the
petitioners are the senior most LPSTs in the
school, when their category was changed by
WP(C).Nos.15257 & 15356 OF 2019
the Manager, giving them the benefit of
placement as UPST, they cannot steal a march
over others, who were already included in
the list, nor can their seniority be upset.
18. The question whether
Smt.S.L.Sreelatha and Smt.J.Rakhi could have
been even granted a "cadre change" of this
nature, is not something into which I am
called upon to answer and therefore, refrain
from making any observation regarding the
same.
19. As matters now stand, Government has
issued the impugned order restoring the
cadre of UPST to both Smt.S.L.Sreelatha and
Smt.J.Rakhi, consequent to the necessity for
rearrangement of the teachers to make it in
tune with availability of posts in these two
categories and axiomatically, therefore,
they can only aspire to be placed lowest in
WP(C).Nos.15257 & 15356 OF 2019
that category as per law.
In the above circumstances, I allow
these writ petitions and declare that
neither Smt.S.L.Sreelatha nor Smt.J.Rakhi
can be placed senior to the petitioners in
the seniority list of UPSTs and that they
will be assigned their due positions in the
said cadre, reckoning them to have been
shifted to the category with effect from the
date of the Government Order.
Needles to say, none of my observations
herein may be construed by any person or by
the official Authorities to mean that I have
spoken against restoration of the cadre of
Smt.S.L.Sreelatha or Smt.J.Rakhi as UPST and
certainly, therefore, they will be at
liberty to continue in that position,
enjoying all the benefits as have already
been approved to them, without being
WP(C).Nos.15257 & 15356 OF 2019
interfered in future.
After I dictated this part of the
judgment, the learned counsel for the
petitioner in W.P(C) No.15356 of 2019
submitted that his client has not been paid
salary; while Sri.B.Mohanlal, appearing for
Smt.Sreelatha and Smt.Rakhi prayed that the
benefits consequent to their restoration of
cadre be given at the earliest.
It goes without saying that the
Authorities must pay salary to the
petitioners and Smt.S.L.Sreelath and
Smt.J.Rakhi, consequent to my directions
above, without any further delay.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
akv
WP(C).Nos.15257 & 15356 OF 2019
APPENDIX OF WP(C) 15257/2019
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER
DATED 01.06.2005 OF THE 1ST
PETITIONER.
EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER
DATED 05.06.2006 OF THE 2ND
PETITIONER.
EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER
DATED 01.06.2009 OF THE 3RD
PETITIONER.
EXHIBIT P4 TRUE COPY OF THE SENIORITY LIST OF
THE TEACHERS OF THE SCHOOL AS ON
02.06.2008.
EXHIBIT P5 TRUE COPY OF THE SENIORITY LIST OF
THE TEACHERS OF THE SCHOOL AS ON
01.01.2011.
EXHIBIT P6 TRUE COPY OF THE SENIORITY LIST OF
THE TEACHERS OF THE SCHOOL AS ON
01.01.2015.
EXHIBIT P7 TRUE COPY OF THE STAFF FIXATION
ORDER OF THE SCHOOL FOR THE YEAR
1994-95
EXHIBIT P8 TRUE COPY OF THE STAFF FIXATION
ORDER OF THE SCHOOL FOR THE YEAR
1995-96
EXHIBIT P9 TRUE COPY OF THE STAFF FIXATION
ORDER OF THE SCHOOL FOR THE YEAR
1996-97
EXHIBIT P10 TRUE COPY OF THE STAFF FIXATION
ORDER OF THE SCHOOL FOR THE YEAR
1997-98
WP(C).Nos.15257 & 15356 OF 2019
EXHIBIT P11 TRUE COPY OF THE STAFF FIXATION
ORDER OF THE SCHOOL FOR THE YEAR
1998-99
EXHIBIT P12 TRUE COPY OF THE STAFF FIXATION
ORDER OF THE SCHOOL FOR THE YEAR
1999-2000
EXHIBIT P13 TRUE COPY OF THE STAFF FIXATION
ORDER OF THE SCHOOL FOR THE YEAR
2000-2001
EXHIBIT P14 TRUE COPY OF THE ORDER NO. FWC.
2886/99D. DIS DATED 07.09.1999 OF
THE 2ND RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE G.O(RT) NO.
2032/2017/GEDN DATED 24.06.2017
EXHIBIT P16 TRUE COPY OF THE COMMON JUDGMENT
DATED 05.10.2017 IN W.P(C) NO.
26143/2017 OF THIS HON'BLE COURT.
EXHIBIT P17 TRUE COPY OF THE HEARING NOTE
SUBMITTED BY THE PETITIONERS
BEFORE THE GOVERNMENT.
EXHIBIT P18 TRUE COPY OF THE G.O.(RT) NO.
1546/2019/GEDN DATED 30.04.2019.
RESPONDENT'S/S EXHIBITS:
EXHIBIT-R4(A) TRUE COPY OF THE APPOINTMENT ORDER
DATED 05/06/1995 AND ITS APPROVAL
ORDER NO. B-3367/1595/K.DIS DATED
30/08/1995 ISSUED BY THE A.E.O
PANDALAM.
EXHIBIT-R4(B) TRUE COPY OF THE APPOINTMENT ORDER
DATED 01/06/1998 AND ITS APPROVAL
ORDER NO. C-3438/98/D.DIS DATED
08/08/1998 ISSUED BY THE A.E.O
PANDALAM.
WP(C).Nos.15257 & 15356 OF 2019
EXHIBIT-R4(C) TRUE COPY OF THE ORDER NO. C-
2046/2015 DATED 12/07/2016 ISSUED
BY THE 3RD RESPONDENT
//TRUE COPY//
P.A. TO JUDGE
WP(C).Nos.15257 & 15356 OF 2019
APPENDIX OF WP(C) 15356/2019
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF APPOINTMENT ORDER DATED
05.05.2016 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P2 TRUE COPY OF STAFF FIXATION ORDER DATED
05.04.2016 FOR THE ACADEMIC YEAR 2015-
EXHIBIT P3 TRUE COPY OF COMMUNICATION DATED
27.10.2016 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P4 TRUE COPY OF REPRESENTATION OF 4TH
RESPONDENT DATED 25.08.2016 BEFORE THE
1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF COMMUNICATION DATED
14.12.2016 ISSUED BY THE 2ND
RESPONDENT.
EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 10.03.2017
IN W.P(C)NO.8182 OF 2017 OF THIS
HON'BLE COURT.
EXHIBIT P7 TRUE COPY OF G.O.(RT)NO.2032/2017/G.EDN
DATED 24.06.2017 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P8 TRUE COPY OF COMMON JUDGMENT DATED
05.10.2017 IN W.P(C)NOS.22565/2017,
26143/2017 AND 31599/2017 OF THIS
HON'BLE COURT.
EXHIBIT P9 TRUE COPY OF G.O.
(RT)NO.1546/2019/G.EDN. DATED
30.04.2019 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P10 TRUE COPY OF RELEVANT PAGE OF SERVICE
BOOK OF 5TH RESPONDENT.
WP(C).Nos.15257 & 15356 OF 2019
EXHIBIT P11 TRUE COPY OF FIXATION STATEMENT OF 5TH
RESPONDENT.
EXHIBIT P12 TRUE COPY OF STAFF FIXATION ORDER FOR
THE ACADEMIC YEAR 1995-96 DATED
14.07.1995 ISSUED BY THE ASSISTANT
EDUCATIONAL OFFICER, PANDALAM.
EXHIBIT P12A TRUE COPY OF STAFF FIXATION ORDER FOR
THE ACADEMIC YEAR 1996-97 DATED
31.07.1996 ISSUED BY THE ASSISTANT
EDUCATIONAL OFFICER, PANDALAM.
EXHIBIT P12B TRUE COPY OF STAFF FIXATION ORDER FOR
THE ACADEMIC YEAR 1997-98 DATED
08.07.1997 ISSUED BY THE ASSISTANT
EDUCATIONAL OFFICER, PANDALAM.
EXHIBIT P12C TRUE COPY OF STAFF FIXATION ORDER FOR
THE ACADEMIC YEAR 1998-99 DATED
13.07.1998 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P12D TRUE COPY OF STAFF FIXATION ORDER FOR
THE ACADEMIC YEAR 1999-2000 DATED
08.06.1999 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P12E TRUE COPY OF ERRATUM ORDER DATED
07.09.1999 FOR THE STAFF FIXATION ORDER
FOR THE ACADEMIC YEAR 1999-2000 ISSUED
BY THE 3RD RESPONDENT.
EXHIBIT P13 TRUE COPY OF SENIORITY LIST APPROVED BY
THE 3RD RESPONDENT AS ON 01.01.2012 OF
U.P.S.ELIPPAKULAM.
EXHIBIT P13A TRUE COPY OF SENIORITY LIST APPROVED BY
THE 3RD RESPONDENT AS ON 01.01.2015 OF
U.P.S.ELIPPAKULAM.
EXHIBIT P13B TRUE COPY OF SENIORITY LIST APPROVED BY
THE 3RD RESPONDENT AS ON 01.06.2015 OF
U.P.S.ELIPPAKULAM.
WP(C).Nos.15257 & 15356 OF 2019
RESPONDENT'S/S EXHIBITS:
EXHIBIT-R5(A) TRUE COPY OF THE APPOINTMENT ORDER
DATED 05/06/1995 AND ITS APPROVAL ORDER
NO. B-3367/1595/K.DIS DATED 30/08/1995
ISSUED BY THE A.E.O PANDALAM
EXHIBIT-R5(B) TRUE COPY OF THE APPOINTMENT ORDER
DATED 01/06/1998 AND ITS APPROVAL ORDER
NO. C-3438/98/D.DIS DATED 08/08/1998
ISSUED BY THE A.E.O PANDALAM.
EXHIBIT-R5(C) TRUE COPY OF THE ORDER NO. C-2046/2015
DATED 12/07/2016 ISSUED BY THE 3RD
RESPONDENT
//TRUE COPY//
P.A. TO JUDGE
