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.
 

____________

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."

Magistrate, in exercise of jurisdiction under Section 173(8) Cr.P.C, cannot direct investigation by a central agency, i.e, the CBI or an investigating agency different from the investigating agency, which has already submitted a report under Section 173(2) Cr.P.C, rules a Division Bench of the High Court of Kerala

A Division Bench of the High Court of Kerala comprising Acting Chief Justice Ashok Bhushan and Justice A.M. Shaffique setting aside the judgment of a learned Single Judge permitting the Magistrate to refer the case to the Central Bureau of Investigation under Section 173(8) Cr.P.C if he came to that conclusion after perusing the investigation files, has held that a Magistrate, in exercise of jurisdiction under Section 173(8) Cr.P.C, cannot direct investigation by a central agency, i.e., Central Bureau of Investigation, or a different investigating agency from the investigating agency, which has already submitted a report under Section 173(2) Cr.P.C. 

The writ petitioner had two sons, namely, Vino George, and Vipin George. On 30.8.2009 at 1.30 a.m, while they were riding on a motor cycle, they met with an accident on the road in front of Pala Bishop House on the Pala-Ettumanoor road and both of them succumbed to the fatal injuries while undergoing treatment in the General Hospital, Pala. The First Information Report was lodged by one Sri.Thomas, a relative of the writ petitioner. Investigation was conducted by the local police. The case thereafter was handed over to the Crime Branch Police, which took over the investigation on 24.9.2009. After questioning 42 witnesses and recording their statements and getting the statement of the occurrence witnesses under Section 164 of Code of Criminal Procedure (Cr.P.C), the Crime Branch Police submitted factual report before the Judicial First Class Magistrate Court, Pala on 29.4.2010 to the effect that death of the two youngsters was accidental. The petitioner had suspicion that while his sons were riding the motor cycle, the police jeep hit them from back, due to which they died. The petitioner sent a complaint dated 8.9.2009 to the Home Minister of Kerala, which was produced as Exhibit P8 to the Writ Petition. In the said complaint the petitioner made a request that necessary investigation may be ordered against the accused to render justice. He also made allegations against the son of his elder brother, who had altercation with his sons on previous day and who conspired with Police. Under these factual circumstances, the Writ Petition was filed seeking a direction from the High Court to get the case further investigated by the Central Bureau of Investigation

The learned Single Judge disposed of the writ petition holding as follows: 

"In the light of Sakkiri Vasu v. State of Uttar Pradesh 2008 (1) KLT (724) SC and Thomas V.C v. Achama Thomas and another 2009 2 KHC 693, the forum to be approached by the petitioner for further investigation is the Magistrate concerned, who is the J.F.C.M Court, Pala. The petitioner may move the said Magistrate for appropriate directions. In case the Magistrate after perusing the investigation files comes to the conclusion that this is a case for further investigation, the Magistrate will be entitled to refer the case to the Central Bureau of Investigation under Section 173(8) Cr.P.C as directed in Kashmeridevi v. Delhi Administration (1988) SCC Criminal 864." 

It was assailing the said judgment of the learned Single Judge that the Central Bureau of Investigation filed the writ appeal to the Division Bench. Standing Counsel for the Central Bureau of Investigation, the appellant contended before the Division Bench that no Magistrate, in exercise of power under Section 173 (8) Cr.P.C, can direct investigation by Central Bureau of Investigation,  when   the    investigation    is   being conducted by Police/Crime Branch of the State, and further that, the decision in Kashmeridevi v. Delhi Administration (supra) relied upon by the learned Single Judge was not applicable to the facts of the case. 

The State Government filed a counter affidavit stating that no Court subordinate to the High Court can be empowered to issue any direction to the Central Bureau of Investigation to investigate a case. 

The Division Bench held that Section 173 clearly delineates that further investigation, which is contemplated in the sub- Section is by the "officer in charge of the police station", i.e., the officer, who has undertaken the investigation and submitted a report under sub-Section (2) of Section 173 Cr.P.C. Section 173, thus, contemplates further report/reports by the officer in charge of the Police Station, who is entrusted with the investigation. Thus, Section 173(8) Cr.P.C contemplates further investigation by the same Police Officer, who has conducted the investigation and submitted a report under Section 173(2) Cr.P.C. Section 173(8) Cr.P.C cannot be read in a manner as to empower the Magistrate to direct any central agency to conduct a further investigation, said the Division Bench. 

Relying on the decision of the Apex Court in Central Bureau of Investigation, Jaipur v. State of Rajasthan (AIR 2001 SC 668) the Bench  held that a Magistrate, in exercise of power under Section 173(8) Cr.P.C, cannot direct investigation to be conducted by a central agency, i.e., Central Bureau of Investigation and that the power under Section 173(8) Cr.P.C can be utilised for further investigation by the same investigating authority, who has submitted report under Section 173(2) Cr.P.C. The Division Bench also held that the order of the Apex Court in Kashmeri Devi's case (supra) relied on by the learned Single Judge, is referable to exercise of jurisdiction by the Apex Court under Article 142 of the Constitution, and that in the said judgment no such ratio was laid down that the Magistrate, in exercise of power under Section 173(8) Cr.P.C, can direct for further investigation by a central agency, the Central Bureau of Investigation, i.e., different agency from the one which has already conducted the investigation.

The Bench observed that while in Kashmeri Devi's case (supra) the Supreme Court, after noting all the events and incidents of the case, came to the opinion that effort has been made to protect and shield the guilty police officers, and it had formed an opinion that it was a fit case for directing fresh investigation through an independent authority, in the case at hand, neither did the learned Single Judge record his satisfaction after considering the materials on record that present is a fit case for issuing a direction to the Central Bureau of Investigation to take over the investigation, nor was the Division Bench of the view that there are enough materials on record on which any direction can be issued to the Central Bureau of Investigation to conduct investigation, "especially when more than five years have elapsed from the accident, which took place on 30.8.2009".

The Division Bench accordingly held that the Magistrate, in exercise of jurisdiction under Section 173(8) Cr.P.C, cannot direct for investigation by a central agency, i.e., Central Bureau of Investigation, or a different investigating agency from the investigating agency, which has already submitted a report under Section 173(2) Cr.P.C. The power under Section 173(8) Cr.P.C has to be exercised for further investigation by the same investigating agency, which had conducted investigation and submitted a report under Section 173(2) Cr.P.C. "The direction of the learned Single Judge giving discretion to the authorised Magistrate to direct for further investigation by Central Bureau of Investigation was clearly erroneous and cannot be sustained", ruled the Division Bench of the High Court of Kerala, and set aside the second direction of the learned Single Judge permitting the Magistrate to refer the case to the Central Bureau of Investigation under Section 173(8) Cr.P.C if he came to that conclusion after perusing the investigation file. 

Court Fees Act: the purpose for which the property is being put to use, and not the nomenclature of any document, is material in determining whether court fee is to be paid on the basis of market value under Section 7(2) or 7(3), holds the High Court of Kerala

Relying on the dictum laid down in Narayanan Nair v. Dr.Lokeshan Nair¹  that the predominant purpose for which the land is used is material in determining whether sub-section (2) or sub-section (3) of Section 7 Kerala Court Fees and Suits Valuation Act would apply in the matter of determination of market value for the purposes of paying court fee, the Kerala High Court in Soudamini v. A. Padmanabhan Namboodiri² has held that the purpose for which the property is put to use, rather than the nomenclature shown in any document, is to be the basis for the purpose of fixing court fee under Section 7 of the Kerala Court Fees and Suits Valuation Act ("the Act" for short). 

Sub-sections (1), (2) and (3) of Section 7 of the Kerala Court Fees and Suits Valuation Act are extracted below:

7. Determination of market value.-(1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint:

(2)The [“market value of agricultural land”] in suits falling under section 25 (a), 25 (b), 27 (a), 29, 30, 37 (1), 37 (3), 38, 45 or 48 shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government.

 (3) The market value of the building shall in cases where its rental value has been entered in the registers of any local authority, be ten times such rental value and in other cases the actual market value of the building as on the date of the plaint.

  [“(3A). The market value of any property other than agricultural land and building falling under sub-sections (2) and (3) shall be the value it will fetch on the date of institution of the suit.”]

In Soudamini (supra), in a suit for injunction, when the defendants disputed the title of the plaintiff over the plaint schedule property, issue on title was framed and the court below directed to remit court fee under Section 27(a) of the Court Fees and Suit Valuation Act. The plaintiff calculated the market value of the property under Section 7 (2) of the Act treating the suit property as agricultural land and claimed that he is only bound to pay court fee on that basis. This stand of the plaintiff was disputed by the defendants by pointing out that the property in question is a garden land with a residential building therein and if that be so, court fee will have to be paid under Section 7 (3A) of the Act. The Trial Court upheld the objection of the defendant and passed the impugned order directing the plaintiff to pay court fee under Section 7 (3A) of the Act.The plaintiff assailed the said order in the High Court of Kerala. 

Mr. P.V. Kunhikrishnan, the Counsel for the petitioner/plaintiff assailing the order passed by the Trial Court contended that merely because the property is described as garden land in the plaint, it does not mean that it cannot be used for agricultural purpose. Relying on Narayanan Nair v. Dr.Lokeshan Nair  (supra), he contended that the court below has to ascertain the purpose for which the property is put to use and fix court fee on that basis and not on the basis of nomenclature shown in any document. Nomenclature of the property shown in any of documents is not the sole criteria. But the actual purpose for which the property is put to use should determine the issue. The Counsel for the defendants, Mr. T. Sethumadhavan, Senior Advocate, on the other hand supported the order passed by the trial Court. He contended that having shown the property as garden land in the plaint and without amending the plaint, it cannot be now termed as agricultural land. It was also pointed out that the petitioner had assigned a portion of her property to her daughter in which too, the property is shown as garden land, and that it is an admitted fact that there is a residential building in the property. These facts cannot be lost sight of and if these aspects are taken into consideration, it follows that the property is not an agricultural property, contended the learned Counsel for the respondents/defendants. 

The High Court of Kerala speaking through Justice P. Bhavadasan accepted the contentions of the petitioner/plaintiff in the light of the dictum laid down in Narayanan Nair v. Dr.Lokeshan Nair  (supra) that Sub-section (3) of Section 7 of the Court Fees Act would apply only where the property consists of the building and not where a building is situated in an agricultural land. In that case, the High Court had held thus:

"The predominant purpose for which the land is used is material in determining whether sub-section   (2) or sub-section (3) would apply. If a commercial building  is  situated   in   a  property   and   the   predominant purpose is to generate income from the building and not from the land, it would be a case where sub-section (3) of S.7 of the Court Fees Act would apply.  On the other hand, when the predominant purpose is agricultural operation or agricultural operation-cum-residence, I am of the  view that sub-section (2) of S.7 of the Court Fees Act would apply. Sub-section (3A) of S.7 of the Court Fees Act would apply only when sub-sections (2) and (3) of S.7 would not apply."

Answering the contention of the respondents that in the documents executed by the petitioner assigning portion of the property to her daughter, the property was shown as garden land, the High Court of Kerala said that as long as agricultural land is not defined under the Court Fees and Suits Valuation Act and given the fact that there is no prohibition that garden land cannot be used as agricultural land, the dictum laid down in Narayanan Nair v. Dr.Lokeshan Nair  (supra) squarely applies to the facts of the case and held that nomenclature of the land as specified in the plaint or in the document may not have much relevance in the context."

The High Court of Kerala accordingly, held that the Trial Court had erred in directing the petitioner to pay court fee under Section 7 (3A) of the Court Fees and Suits Valuation Act, and going by the decision in Narayanan Nair v. Dr.Lokeshan Nair (supra), the property qualifies as agricultural property and that the petitioner needs to pay court fee under Section 7 (2) of the Act.

_____________

1. 2014 (2) KLT 868

2. O.P. (C).No. 1435 of 2014 (O) decided on 30.10.2014

AGM of Kerala High Court Advocates' Association to be held on December 1

The Annual General Meeting of the members of the Kerala High Court Advocates' Association will be convened on the 1st of December, 2014, to consider the following agenda:

"1. Annual Report regarding the working of the association during the year 2014;
2. Accounts and Auditor's report, for passing the same;
3. To appoint the Returning Officer for the ensuing election to the Executive Committee -2015; and
4.any other matters with the permission of the Chair"

The Executive Committee of the Kerala High Court Advocates' Association has requested that all members attend the AGM on 01.12.2014.