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."

Service of order of termination does not give rise to cause of action but only a right of action; writ petition maintainable only in the territorial jurisdiction of the HC where an 'integral part of the cause of action has arisen', rules a Full Bench of the Kerala High Court

A Full Bench of the Kerala High Court comprising Justice Antony Dominic, Justice K. Ramakrishnan and Justice Anil K. Narendran has overruled the dictum laid down in Selvin Abraham v. Punjab & Sind Bank¹ and held in Registrar, Indian Maritime University v. V. Viswanathan² that a writ petition can be entertained only in a High Court within the territorial jurisdiction of which an 'integral part of the cause of action has arisen'. 

 The Full Bench was answering a reference made by a Division Bench of the Kerala High Court which had doubted the correctness of Selvin Abraham (supra) on the ground that the same is apparently in conflict with the principles laid down by a Full Bench of the Kerala High Court in Nakul Deo Singh v. Deputy Commissioner³. The Division Bench which made the reference was considering an appeal filed by the Indian Maritime University against the order dated 27.11.2013 of the learned Single Judge in W.P. (C) No. 22184/2013 holding the writ petition as maintainable after rejecting the objection of the respondent-University that since the entire cause of action had arisen outside Kerala, the writ petition was not maintainable. 

In Selvin Abraham (supra), the correctness of which was doubted by the Division Bench making the reference, while working as Assistant Manager in the Punjab & Sind Bank at Coimbatore, the appellant Selvin Abraham was proceeded against for certain misconduct which culminated in an order of dismissal issued by the Disciplinary authority which order was served on him at his native place in Kerala. His appeal and review against the order of dismissal were also dismissed, whereupon he had filed a writ petition before the Kerala High Court challenging the said orders. The learned Single Judge accepted the objections raised by the Bank that the High Court lacked the territorial jurisdiction to entertain the writ petition as the entire cause of action arose outside the State.  Selvin Abraham, assailing the judgment of the  learned Single Judge contended before the Division Bench that the order of dismissal became effective only when it was served on him at his address at Kottayam in Kerala and therefore, an integral part of the cause of action arose within the jurisdiction of the Kerala High Court. The Division Bench accepted the contention of the appellant and held that “an order of dismissal when it becomes effective definitely forms an integral part of the cause of action, and that service of notice of an order of dismissal is not mere service of notice, it definitely gives rise to a cause of action and such service of notice forms an integral part of the cause of action.”

In Nakul Deo Singh v. Deputy Commissioner (supra), the Full Bench had considered the question whether the decision rendered by an authority located outside the jurisdiction of the Kerala High Court, when communicated to the party while he is within the jurisdiction of the Kerala High Court is a fact in the bundle of facts constituting the cause of action. The Full Bench in Nakul Deo Singh (supra) observed that what really arose for its decision was whether the fact that on communication of the order, it becomes effective as far as the person is concerned, gives him the right to approach the High Court for relief. Answering the reference in that case, the Full Bench had held that receipt of communication by itself does not constitute a cause of action and that at best, receipt of the order or communication only gives the party right of action based on the cause of action which already arose out of the action complained of. On that basis the Full Bench in Nakul Deo Singh (supra) took the view that when the action complained of takes place outside the territorial jurisdiction of the High Court and an appeal therefrom is also dismissed by an authority located outside the jurisdiction of the High Court, cause of action wholly arises outside the jurisdiction of the High Court and Article 226(2) of the Constitution cannot be invoked to sustain a writ petition on the basis that an integral part of the cause of action has arisen within the jurisdiction of the Kerala High Court. The Full Bench also held that the fact that until it is published or made known, an order does not become effective is not a ground to hold that the communication of the order to the aggrieved person forms part of the cause of action. It was also found by the Full Bench in Nakul Deo Singh (supra) that the fact that a person who was dismissed from service while he was in service outside the State, would have to suffer the consequence of the dismissal when he is in his native place is not a fact which constitutes the bundle of facts giving rise to a cause of action in his favour. 

In holding that a writ petition can be entertained only in a High Court within the territorial jurisdiction of which an 'integral part of the cause of action has arisen', the Full Bench in Registrar, Indian Maritime University v. V. Viswanathan (supra) inter alia referred to and relied on the principle laid down in the judgment of the Apex Court in Kusum Ingots & Alloys Ltd. v. Union of India⁴ to the effect that  (i) the facts pleaded in the writ petition must have a nexus, on the basis whereof, the prayer can be granted and when those facts have no nexus, it cannot be said to be given rise to a cause of action which would confer jurisdiction on the Court, and (ii) even if a small part of the cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merits, and that in appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. The Full bench also held that it is also a settled principle of law that in a service dispute, issue of an order of termination gives rise to cause of action and service of that communication, though is necessary to give effect to the order, does not amount to a part of the cause of action much less an integral part of the cause of action. In other words, the issue of the order gives rise to the cause of action and the service of the order gives rise to a right of action. 

The Full Bench in Registrar, Indian Maritime University v. V. Viswanathan (supra) after thus considering a catena of decisions on the point held that Selvin Abraham (supra) does not lay down good law as the principles laid down therein are contrary not only to the Full Bench judgment in Nakul Deo Singh (supra) but also to the Apex Court judgments referred to and therefore, overruled the same.  

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1. 2013 KHC 404: 2013 (3) KLT 481

2. 2014 (4) KHC 451 (FB)

3. 1999 KHC 647: 1999 (3) KLT 629

4. 2004 KHC 1435 : 2004(6) SCC 254