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Deepa Rachal George v/s Sherin Annie Joseph & Others


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    WA. No. 1365 of 2019

    Decided On, 18 November 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE A.M. SHAFFIQUE & THE HONOURABLE MR. JUSTICE T.V. ANILKUMAR

    For the Appellant: Kaleeswaram Raj, Varun C. Vijay, A. Aruna, Thulasi K. Raj, Riya Raymol Iype, Maitreyi Sachidananda Hegde, Advocates. For the Respondents: R2-R4, Sr. Government Pleader, R1, P.J. Elvin Peter, T. Rajasekharan Nair, R5, S. Subhash Chand, Advocates.



Judgment Text

Shaffique, J.

1. The appellant Smt.Deepa Rachel George was the 5th respondent in WP(C) No. 34590/2018. The writ petition was filed by the 1st respondent herein challenging Exts.P7 and P13 and sought for a direction to respondents 1 to 4 to allow the petitioner to continue as Training School Assistant (T.S.A.) (Malayalam) in preference to the 6th respondent and to direct respondents 3 and 4 to retrench the 5th respondent from service. The petitioner Sherin Annie Joseph was appointed by the 4th respondent Manager of A.M.M.T.T.I. and U.P. School, Maramon as T.S.A. (Malayalam) on 20/6/2016 in a retirement vacancy. Her appointment had been approved by the educational authorities. The 5th and 6th respondent were working as HSA (Malayalam) in the school managed by the very same Manager, the 4th respondent. The 6th respondent was senior to the 5th respondent. During 2018-19 when the staff fixation order dated 28/6/2018 of the M.M.A. High School was published, there occurred a division fall in the High School division of Malayalam. In Ext.P6 staff fixation order, the educational authorities found that Smt.Deepa Rachel George being the Junior requires to be retrenched. The Manager by Ext.P7 order dated 9/7/2018 appointed the 6th respondent Smt.Sunu George as T.S.A. (Malayalam) in the place of the petitioner and the 5th respondent who was not qualified to be appointed as T.S.A.(Malayalam) was accommodated in the vacancy of the 6th respondent and thereby retrenched the petitioner who was the junior most. By Ext.P13 order dated 15/10/2018, the District Educational Officer has approved Ext.P7 order.

2. The learned Single Judge by the impugned judgment arrived at a conclusion that in so far as the posts of TSA and HSA are not interchangeable and no material had been produced to show that those were interchangeable posts, the fact that a common seniority list of the staff and teachers of the training institute and the High School under the same management had been prepared, by itself does not indicate that the staff of either of the schools could be interchanged in order to accommodate a teacher who is found excess in one school. Accordingly, the writ petition was allowed setting aside Exts.P7 and P13 orders.

3. Learned counsel for the appellant Smt.Aruna A. submits that in the judgment in Sanjeevan v. District Educational Officer (2000 (2) KLT 130), a Division Bench of this Court has approved that a training institute and a regular school managed by the same management have to be treated as a single unit and therefore a claim under Rule 43 of Chapter XIVA of KER cannot be overlooked. That apart, it is argued that when the 6th respondent was qualified to be appointed as T.S.A., in the light of Ext.P6 order itself, it was open for the Manager to make suitable arrangements to ensure that the retrenched teacher is accommodated in terms with the order dated 1/07/2017 of the Director of Public Instruction. It is submitted that the 5th respondent was appointed as HSA (Malayalam) in the High School in the year 2006 and the 6th respondent was working earlier as TSA (Malayalam) from 5/6/1995 in different spells and it was thereafter she was appointed as HSA(Malayalam) in the High School. In so far as the scale of pay of TSA (Malayalam) and HSA (Malayalam) being one and the same, shifting of 6th respondent from the school to the training institute as TSA (Malayalam) is legal and proper. Manager was only rearranging the teachers of both the school on the basis of seniority and qualification and therefore there was no reason for the learned Single Judge to have interfered in the matter. She also argued that the Government itself has in its circular dated 22/10/2018 had treated the TSA of a training school and HSA of the High School as similar posts.

4. Learned counsel for the Manager Sri.Subhash Chand supported the appellant and contended that though the qualification for TSA and HSA are different, in respect of a Corporate Management, a person qualified to be a TSA and working as HSA can be interchanged to ensure that junior-most among the teachers is retrenched. The attempt of the Manager was only to ensure that the junior-most teacher is retrenched rather than retrenching a teacher having long service and senior to the petitioner. Learned Government Pleader also supported the view taken by the Government authorities.

5. Learned counsel for the petitioner Sri.Elvin Peter however while supporting the judgment of the learned Single Judge placed reliance on the judgment of a learned Single Judge of this Court in Aleyamma v. Sosamma and Others (1975 (1) ILR Ker.55). That was a case in which a question arose whether a qualified teacher working as Specialist teacher can be relieved and the Lower Primary School Assistant who became surplus can be again posted as Specialist teacher in that post. It was held by this Court that the petitioner who was qualified for the Specialist post has every right to continue in that post till that post is abolished and her continuance cannot in any way depend upon the abolition of the post of LPSA in which another teacher was appointed. That was a case in which the first respondent was working as a full time sewing teacher. She was deputed for TTC Course. In that vacancy, petitioner was appointed as Specialist Teacher (Sewing). When the first respondent returned after training, petitioner was relieved. First respondent was confirmed as Sewing Teacher. Subsequently, regular vacancy of LPSA arose in the school and the first respondent was appointed as LPSA which was approved by the department. In that vacancy, petitioner was appointed as Specialist Sewing Teacher, which was also approved. Some years later, one class division was abolished and the first respondent who was the junior-most LPSA was thrown out. It is in the said background that this Court held that though the pay scales in both the posts were same and the first respondent was working earlier as Specialist Teacher, once the petitioner was appointed in the Specialist post, she has a right to continue till that post is abolished. Reference is also made to the judgment in State of Kerala v. Ciji P.Jose (2015 (1) KLT 458). This judgment has been cited to emphasise the fact that the Circular dated 22/10/2018 has no legal implication in so far as it is against the statutory provisions. Learned counsel points out that the Government has mentioned in the said order that the HSA of a school and TSA of the training institute are having the very same qualification. It is pointed out that as far as TSA is concerned, teachers should have postgraduate qualification as provided under the National Council for Teacher Education. It is specifically mentioned that teacher educators should have Master's Degree in Social Science/ Humanities/ Science/Maths/language with 50% marks and M.Ed with 50% marks or M.A.(Education) with 50% marks etc. When the qualification itself is different, merely for the reason that the schools come under the same Corporate Management and a common seniority list is being prepared, does not indicate that there could be interchange among the teachers employed as TSA and HSA. As far as HSA is concerned, the minimum qualification is only graduation with B.Ed and M.Ed is not an essential qualification. That apart, this is a case in which the appellant had to be retrenched in terms of the staff fixation order and it is for the appellant to be accommodated as per the directions issued by the Director of Public Instruction, whereas the Manager had instead of retrenching the appellant had transferred the 6th respondent to the training school where there was no division fall at all. It is argued that in so far as the petitioner is appointed as a Specialist teacher for training teachers, the posts of HSA and TSA, even though under the same management, are not interchangeable. Reference is also made to the judgment of the Apex Court in Sub Inspector Rooplal v. Lt. Governor [(2000) 1 SCC 644] wherein the Apex Court had held that equation of posts had to be determined by taking into account the nature of duties of the post, the responsibilities and powers, exercised by the officer holding a post, extent of territorial or other charge held or responsibilities discharged, minimum qualifications, if any, prescribed for the recruitment to the post and salary of the post. It was further held that salary of a post is the last criteria for the purpose of finding equivalence of posts. If the first three criteria are fulfilled, the fact that salaries of two posts are different would not in any way make the post not equivalent. It was therefore argued that in so far as the nature of duties and posts are different, and the minimum qualification prescribed are also different, HSA of a school and TSA of a training institute cannot be treated as equivalent posts. Learned counsel for the appellant Smt.Aruna A. had placed reliance on the judgment in Sanjeevan (supra) in order to emphasise the issue that the posts are interchangeable.

6. Apparently this is a case in which there was a division fall in the High School section and one HSA(Malayalam) has to be retrenched and the junior-most is the appellant. Under normal circumstances, she has to be retrenched. But to avoid the same, Manager appointed the 6th respondent as TSA in the Training Institute and in turn appointed the appellant in the vacancy of 6th respondent. Petitioner was retrenched from the post of TSA.

7. In Sanjeevan's case (supra), the appellant was appointed as TSA in a retirement vacancy on 2/6/1997. The District Educational Officer did not approve the same stating that the claim of one Smt.Pushpalatha was not considered under Rule 43 of Chapter XIVA of KER. Though the Manager challenged the same, it was without any effect and writ petition filed was also dismissed against which the appeal was filed. The 5th respondent joined as UPSA in Sree Narayana AUP School run by the same management on 15/6/1992. The said school is the demonstrational school of the Teaching Institute. When the vacancy of TSA arose in the said Institute consequent to the retirement of another teacher, the question was whether in between the appellant and the 5th respondent, who was the legitimate claimant. That was a situation when, Rule 43 claimant had a preference in the matter of appointment over a Rule 51A claimant. This Court observed that, if it is found that the UP School and the Training Institute are treated as a single unit, claim of the 5th respondent cannot be overlooked in so far as she is a Rule 43 claimant. One of the contention raised by the appellant was that the Upper Primary school and the training school are independent entities and therefore 5th respondent cannot have a claim under Rule 43. It was held that in so far as the upper primary school was the demonstrational school of the Training Institute, both the schools have to be treated as a single unit in which event a claim under Rule 43 cannot be overlooked. Apparently, the issue dealt with by the Division Bench in Sanjeevan's case (supra) has no resemblance to the facts of the present case.

8. The school in issue in the present case is not a demonstrational school of the Training Institute. That apart, the question that was being considered in Sanjeevan's case (supra) was regarding the seniority among teachers who were appointed in the very same school, i.e., the training institute and the demonstrational school which forms part of it. Whereas, in the case on hand, we are concerned with two different entities under the same Corporate Management, one is a High School and the other is a Training Institute which has class up to the Upper Primary level. It is needless to mention that a training school does not have a high school division whereas it has only up to Upper Primary level. Therefore Sanjeevan's case (supra) is not an authority for the proposition that both the schools being under the same Corporate Management, the teachers in the school are interchangeable, if they are qualified.

9. There is no dispute about the fact that a common seniority list is being prepared by the management with reference to teachers in the Training Institute as well as in the High School. This is an instance where a teacher from the High School who is qualified to become a TSA is transferred to the Training Institute. The fundamental question is whether it is possible or not? If it is to be made possible, the two posts have to be claimed as equal. The Apex Court had in Sub Inspector Rooplal's case (supra) held at paragraph 17 as under:

“17. In law, it is necessary that if the previous service of a transferred official is to be counted for seniority in the transferred post then the two posts should be equivalent. One of the objections raised by the respondents in this case as well as in the earlier case of Antony Mathew is that the post of Sub-Inspector in BSF is not equivalent to the post of Sub-Inspector (Executive) in the Delhi Police. This argument is solely based on the fact that the pay scales of the two posts are not equal. Though the original Bench of the Tribunal rejected this argument of the respondent, which was confirmed at the stage of SLP by this Court, this argument found favour with the subsequent Bench of the same Tribunal whose order is in appeal before us in these cases. Hence, we will proceed to deal with this argument now. Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than “pay” will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India v. P.K. Roy. In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganisation Act, 1956. These four factors are: (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criteria. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different would not in any way make the post “not equivalent”. In the instant case, it is not the case of the respondents that the first three criteria mentioned hereinabove are in any manner different between the two posts concerned. Therefore, it should be held that the view taken by the Tribunal in the impugned order that the two posts of Sub- Inspector in BSF and Sub-Inspector (Executive) in the Delhi Police are not equivalent merely on the ground that the two posts did not carry the same pay scale, is necessarily to be rejected. We are further supported in this view of ours by another judgment of this Court in the case of Vice-Chancellor, L.N. Mithila University v. Dayanand Jha wherein at SCC para 8 of the judgment, this Court held: (SCC pp. 10 & 11)

“Learned counsel for the respondent is therefore right in contending that equivalence of the pay scale is not the only factor in judging whether the post of Principal and that of Reader are equivalent posts. We are inclined to agree with him that the real criterion to adopt is whether they could be regarded of equal status and responsibility. … The true criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts.”

Though the Government in its circular dated 22/10/2018 observes that the qualification for the two posts are same, it is virtually admitted that the qualification for the two posts are different [Ext.R5(c)]. In fact, in Ext.R5(c), the very purpose of issuing the order is for appointment to

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the post of Principal. In terms of Rule 4 of Chapter XXXII, to appoint a person as Principal of a Higher Secondary School, those qualified Headmasters, from HSSTs and junior HSSTs and qualified HSAs can be appointed by way of by transfer. However, no reference was made for appointing persons who are qualified from among Principal of teachers training institute and TSAs. In order to clarify the same, this order had been issued stating that HSA and TSA are of the same scale of pay and qualification. Similarly, High School Headmaster and Teachers' Training Institute Principal/Headmaster are equal. It was therefore ordered that Aided Teachers' Training School Principal/Headmaster, are also persons who could be appointed as Higher Secondary School Principal and TSAs could be appointed as HSST/HSST(Junior) posts. This order apparently does not help the appellant in so far as there is no reference to a by transfer appointment from HSA of a school to TSA of a training institute. 10. It is true that petitioner is the junior most from among the persons in the common seniority list prepared by the Corporate Management. But both the posts of HSA and TSA cannot be equated together merely on account of the fact that the pay scales are same. The qualification is different. For becoming a TSA, one requires a post graduate degree which is not an essential qualification for the post of HSA. When both the posts cannot be equated and by transfer is not permissible, the Manager was not justified in issuing Ext.P7 order and consequently Ext.P13 order passed by the 3rd respondent confirming Ext.P7 does not survive. Learned Single Judge was therefore justified in allowing the writ petition. We do not find any ground to interfere with the said Judgment. Writ appeal is dismissed.
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23-09-2019 C. Hari Padmanaban & Another Versus The State represented by the Secretary to Government, Hindu Religious and Charitable Endowments Department, St. George Fort, Chennai & Others Before the Madurai Bench of Madras High Court
19-09-2019 M.M. Joseph Versus Yoonus & Others High Court of Kerala
19-09-2019 Sanga Sirantha & Another Versus The State Rep By Its Home Secretary Government of Tamilnadu St.George Town Chennai & Others High Court of Judicature at Madras
19-09-2019 M/s. Kotak Mahindra Bank Ltd., Egmore, Chennai, Represented by Chief Manager, Stephen Joseph, Kochi Versus Joseph Mohanan & Another High Court of Kerala