Retrenchment of UPSA/LPSA: Seniority to be followed is the seniority in the respective category and not the common seniority, rules the Full Bench of the High Court of Kerala

A Full Bench of the High Court of Kerala comprising Justices Antony Dominic, K. Ramakrishnan and Anil K. Narendran, has held vide judgment dated 13.11.2014 in W.A.No. 1108 of 2011, that in the event of retrenchment of Upper primary School Assistant/Lower Primary School Assistant, the seniority is to be followed is the seniority in the respective category and not the common seniority, as teachers in the U.P. Section and the teachers in the L.P. Section of a school belong to two different and separate categories. 

The Full Bench was answering a reference made by a Division Bench of the High Court of Kerala which had doubted the correctness of the judgments in Mary George v. State of Kerala¹ Rejimol v. Asst.Educational Officer², W.A. No.1903/11and the Full Bench judgment in S.N.D.P. L.P.School v. Roy³. 

The issues that arose for consideration of the Full Bench was whether retrenchment of teachers is to be based on the combined seniority list of LPSAs and UPSAs of L.P.Section and U.P. Section of the school under the same management or whether the retrenchment should be based on separate seniority list of LPSAs and UPSAs.In Mary George (supra), Rejimol (supra) and WA No.1903/11, the High Court had taken the view that the post of LPSAs and UPSAs belong to two different grades and categories, and therefore, separate seniority list of LPSAs and UPSAs should be the basis for reckoning the seniority for the purpose of retrenchment.

Referring to the provisions in Chapter II and Chapter XXIII of the Kerala Education Rules, the Full Bench observed that the said provisions of the Kerala Education Rules indicate that for all purposes, teachers in the Lower Primary Section and Upper Primary Section are treated as separate category of teachers with separate and distinct qualifications. The Court also observed that apart from Rule 34(b) of Chapter XIV A KER, there is no other provision in the Kerala Education Act or the Rules, for maintenance of combined seniority list of UPSAs and LPSAs. "Reading of the unamended Rule 34(b)⁴ shows that the combined seniority list was meant to be for all purposes and amended Rule 34(b)⁵ shows that the purpose of the combined seniority list is only to determine the position of persons eligible for promotion as Primary School Headmaster by virtue of length of service and prescribed qualifications for promotion as such. Once the purpose of the combined seniority is thus specified in the rule itself, it has to be concluded that the combined seniority list cannot be made use of for any purpose other than that is specified by the Rule making authority. Therefore, Rules show beyond any doubt that UPSAs and LPSAs, except for the purpose indicated in Rule 34(b), are treated for all other purposes as different categories and that the combined seniority list maintained in terms of Rule 34(b) as amended w.e.f. 18/12/1984, is for the limited purpose of determining the position of persons eligible for promotion as Primary School Headmaster and nothing else", said the Full Bench. 

The Full Bench observed that the principles laid down in the judgment of the Full Bench in S.N.D.P. L.P.School v. Roy (supra) held no relevance to the case at hand as the question that fell for consideration of the Full Bench in  S.N.D.P. L.P.School (supra) was whether a Lower Primary School Assistant possessing B.Ed degree but not TTC is qualified for the post of Headmaster of a Lower Primary School governed by the Kerala Education Rules, and is therefore totally different from what arises for resolution in the present cases before the Full Bench. 

The Court accordingly concluded that "the judgments noticed above lay down the correct principle of law that the teachers in the U.P.Section and the teachers in the L.P.Section of a school belong to two different and separate categories and that, therefore, if there is occasion for retrenchment of an UPSA or a LPSA, the seniority that is to be followed is the seniority in the respective category and not the common seniority."

The Full Bench thereafter proceeded to dismiss the writ appeals before it.
 

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1. 1999 (3) KLT 912

2. 2004 (2) KLT 899

3. 2006 (4) KLT 497

4. "34(b) In the case of Upper Primary School an Lower Primary school a combined       seniority list of teachers if any, specified in clauses (iii), (iv) and (v) of Rule 3, Chapter        XXIII shall be prepared."

5. "34(b) In the case of Upper Primary Schools and Lower Primary Schools, a combined seniority list of Upper Primary School Assistants, Lower Primary School Assistants, Junior Language Teachers and Specialist Teachers specified in Rules 3 and 4 chapter XXXI, shall be prepared. The purpose of the seniority list will be only to determine the position of persons eligible for promotion as Primary School Headmaster by virtue of length of service and prescribed qualifications for promotion as Primary School Headmaster."