C.P. Pocker v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941** ## **WP(C).No.4407 OF 2013(A)** ## **PETITIONER/S:** **C.P.POCKER, AGED 66 YEARS, MANAGER, C.P.P.H.M.H.S.S, OZHUR, VELLACHAL P.O., MALAPPURAM DISTRICT.** **BY ADVS. SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.P.A.RINUSA** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY ITS SECRETARY TO GOVERNMENT,**| ||**GENERAL EDUCATION DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM -695 001.**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTION,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**3**|**THE DEPUTY DIRECTOR OF EDUCATION,**| ||**MALAPPURAM -676 505.**| |**4**|**THE DISTRICT EDUCATIONAL OFFICER,**| ||**TIRUR - 676 505.**| ||**R1 TO R4 BY SMT. MARY BEENA JOSEPH, SENIOR GOVERNMENT**| ||**PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-112019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)No.4407 of 2013** **2** **C.R.** ## **JUDGMENT** This writ petition is filed by the Manager of C.P.P.H.M. H.S.S., Ozhur, Malappuram District, which is an aided High School, seeking to quash Ext.P2 notice issued by the Director of Public Instruction to the Manager, the Headmaster and the affected teachers of the school in question, abolishing the 19[th] division in Standard-VIII, 15[th] division in Standard-IX and 21[st] division in Standard-X, and consequent posts of High School Assistants (core subject) in the school with effect from 15.07.2007 for the academic year 2007-2008, and thereupon, the total number of divisions were reduced to 52 from 55, as allowed by the District Educational Officer. It was further held that, only 7 posts of H.S.A (Malayalam) can be allowed and the Malayalam High School Assistants approval of the appointments before 2000-2001 can be retained as per the terms and conditions contained in G.O. (Ms.)No.305/2000/G.Edn. dated 29.09.2000, and the District Educational Officer was directed to examine the possibility. Petitioner also seeks to quash Ext.P3 order of the Director of Public Instruction dated 17.11.2008, and the consequential order passed by the ## **W.P.(C)No.4407 of 2013** ## **3** District Educational Officer, Tirur dated 04.08.2009, marked as Ext.P4, revising the staff fixation order and Ext.P11 order dated 08.11.2012 passed by the State Government in revision against Ext.P3 order, and for other consequential and related reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. In the staff fixation order of the school for the academic year 2007-2008, total number of 55 divisions were sanctioned, evident from Ext.P1 order dated 29.12.2007. The Super Check Cell of the Director of Public Instruction conducted inspection in the school on 28.11.2007 and 06.02.2008. At the time of the second visit, there was considerable increase in the students strength. But, on that day, the Super Check Cell adopted random checking method to verify the students' strength. Therefore, the contention advanced by the petitioner is that, the exact number of students present on that day was not verified by the Super Check Cell. Anyhow, based on the report of the Super Check Cell, 2[nd] respondent issued Ext.P2 show cause notice dated 19.06.2008 to the petitioner, proposing to abolish three divisions in the school. Thereupon, petitioner submitted a written explanation dated ## **W.P.(C)No.4407 of 2013** **4** 15.07.2008, and at the time of personal hearing, an argument note was also submitted on 13.10.2008, and has also produced documents including A.B. list of the students, i.e., the list of students appeared for S.S.L.C examination for the Academic Year 2007-2008 to prove that there was no bogus admission in the school. 3. It is also stated that, the 2[nd] respondent by accepting AB list, issued an order dated 17.11.2008, declaring that the students who had appeared in the S.S.L.C examination during the academic year 2007-2008 are genuine students. However, the 2[nd] respondent did not accept the contention that there are no bogus students in the school and ordered to abolish two divisions in the school, evident from Ext.P3. Petitioner challenged the above order before the 1[st] respondent by filing a revision petition dated 22.12.2008. In the meanwhile, by Ext.P4 order dated 04.08.2009, the 3[rd] respondent revised Ext.P1 staff fixation order. Thereupon, petitioner has also challenged Ext.P4 before the 1[st] respondent by filing a separate revision dated 27.08.2009. 4. The 1[st] respondent conducted a personal hearing on 28.05.2010, evident from Ext.P5 notice. On the date of hearing, petitioner's representative **5** ## **W.P.(C)No.4407 of 2013** appeared before the 1[st] respondent and submitted a detailed argument note along with relevant documents like AB list for the years 2008-2009 and 2009-2010, verification reports in respect of students strength prepared by the Educational Officers etc. A copy of the argument note is produced along with the writ petition as Ext.P6. 5. According to the petitioner, the alleged bogus students were actually studying in the school, which is discernible from the verification reports prepared by the Educational Officers for preparing the staff fixation orders of the school for the academic years 2008-2009 and 2009-2010, and based on the actual number of students, the Educational Officer issued the staff fixation order of the school for the aforesaid academic years. However, by deducting equal number of students who were found bogus by the Super Check Cell, those Staff Fixation orders were revised, which is evident from Exts.P7 and P8 orders dated 16.03.2010 and 21.04.2012 issued by the Deputy Director of Education, Malappuram, and the Director of Public Instruction, Thiruvananthapuram, who are respondents 3 and 2 respectively in this writ petition. The list of alleged bogus students, according to the petitioner, ## **W.P.(C)No.4407 of 2013** ## **6** have actually appeared in the S.S.L.C examination, by undergoing regular course in the petitioner's school with reference to AB list, and the same are produced as Exts.P9 and P10 respectively. 6. The paramount contention advanced by the petitioner is that, though the hearing was conducted by the 1[st] respondent as early as on 28.05.2010, no orders were issued by the 1[st] respondent within a reasonable period. In the above circumstances, petitioner filed W.P.(C) No.19230 of 2011, which was disposed of by the judgment dated 15.07.2011, directing the 1[st] respondent to pass final orders in the revision petition filed by the petitioner within two months. Since the 1[st] respondent had failed to comply with the time limit prescribed in the judgment, petitioner through his counsel, sent a notice dated 31.03.2012 to the 1[st] respondent. However, later, petitioner was served with an order dated 08.11.2012 by the 1[st] respondent, dismissing the revision petition filed by the petitioner against Ext.P3 order, without considering any of the contentions raised by the petitioner. It is also pointed out that, the other educational authorities have passed Exts.P3 and P4 without taking into account the core contentions raised by the **W.P.(C)No.4407 of 2013** **7** petitioner, which are vital for the disposal of the appeal as well as revision by the educational authorities. These are the basic background facts projected by the petitioner. 7. A statement is filed by the 1[st] respondent, disputing the allegations and claims and demands raised by the petitioner. The roll strength of pupils and verified attendance as per Higher Level Verification Report are also provided and the facts and figures are as follows: |as follows:||||| |---|---|---|---|---| ||VIII|IX|X|Total| |Roll Strength|916|723|975|2614| |Verified<br>attendance|800|631|889|2320| |Effective<br>strength|846|667|938|2451| |No.<br>of<br>Division<br>sanctioned|19|15|21|55| 8. It is also pointed out that, on receipt of several complaints regarding bogus admissions and irregular retention of bogus pupils in the rolls, the Super Check Cell Officer, Kozhikode made a surprise visit in the petitioner's school on 25.10.2007. But the Cell did not conduct physical verification of pupils, due to the visit of Deputy Director of **W.P.(C)No.4407 of 2013** **8** Education, Malappuram, for Higher Level Verification on that day. Later, on 28.11.2007, Super Check Cell visited the school and conducted physical verification of pupils on the rolls, and verified attendance as on 28.11.2007, and the details are as follows: ||VIII|IX|X|Total| |---|---|---|---|---| |Verified<br>strength by<br>Super Check<br>Cell<br>on<br>28.11.2007.|758|603|830|2191| 9. It is also submitted that, the Super Check Cell noticed many irregularities in the petitioner's school including large number of bogus admissions and irregular retention in the rolls. It was also found that two class divisions each in Std.VIII & IX were not functioning. Moreover, the names of pupils who are absent for long periods are kept in the rolls, without removing from the register. Therefore, the Cell directed the Headmaster to remove all bogus admissions from the rolls. But, it was not complied with by the Headmaster. 10. The Super Check Cell again visited the school on 06.02.2008, for ascertaining the genuineness of the absentees on 28.11.2007. Thereupon, it was found that, large number of absentees on 28.11.2007 were again ## **W.P.(C)No.4407 of 2013** ## **9** absent on 06.02.2008 also. It was also found that the class teachers had given bogus attendance to most of such absentees and many of them were absent on One Day Verification on 10.07.2007 and the date of visit of the Deputy Director of Education, Malappuram for Higher Level Verification on 25.10.2007. Altogether 311 bogus admissions were detected during 2007-08. It was accordingly that the Director of Public Instruction issued show cause notice and conducted personal hearing. 11. It is also submitted that, the Director Public Instruction have considered the contention put forth by the petitioner in the argument note and the AB list of pupils appeared for the S.S.L.C examination, March, 2008, the enlisted bogus names as Sl.Nos.91 to 180 was considered to be genuine students. Hence, the objection raised against such 90 pupils was dropped. Even though the above 90 pupils, out of the 311 enlisted bogus names are found genuine, the petitioner or the school authorities have not put forth any convincing evidence to prove the genuineness of the other 221 pupils. Therefore, the findings recorded by the Super Check Cell visit report dated 19.06.2008 is sustainable. 12. The sum and substance of the contention put **W.P.(C)No.4407 of 2013** ## **10** forth by the 1[st] respondent is that, many of the students admitted in the petitioner's school are not actually pursuing their studies in the school and they are studying in a nearby unaided unrecognised school. The Director of Public Instruction have considered all aspects in the matter and it was accordingly that the revised staff fixation for 2007-08 by excluding the 221 bogus students was fixed by order dated 17.11.2008, by applying the ratio of 1:40 to accommodate the affected teachers eligible for protection. In accordance with the revisions filed by the petitioner dated 22.12.2008 and 04.08.2009, the Government conducted a personal hearing on 28.05.2010 and rejected the revisions filed by the petitioner. 13. In fact, the officer who heard the matter was transferred. The hearing officer himself suggested to obtain further report regarding the veracity of the argument of the Manager and based on the report and after considering all records available, the Government issued the impugned order dated 08.11.2012. It was accordingly that the Deputy Director of Education, Malappuram re-visited the school on 07.10.2011 and verified the records and furnished the report to the Director of Public Instruction. The Deputy Director of ## **W.P.(C)No.4407 of 2013** ## **11** Education found that 104 bogus pupils studied in a nearby unrecognised unaided school and they had attended the examination in the petitioner's school. However, they have never attended the classes in the school till the S.S.L.C examination. 14. A detailed reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition, and also assertively contending that since the Secretary who heard the revision petition was transferred, the successor incumbent in the office ought to have provided an opportunity of hearing to the petitioner. 15. I have considered the rival submissions made across the Bar and perused the pleadings and the documents on record. 16. One thing I have noticed in the pleadings put forth by the petitioner is that, the paramount contention advanced by the petitioner is violation of the principles of natural justice, and the consequent arbitrariness, since the officer who heard the matter did not pass an order, and the succeeding incumbent in the office has passed the order without hearing the petitioner. However, it is important to note that the show cause notice was issued by the Director of Public **W.P.(C)No.4407 of 2013** **12** Instruction by providing the complete details of the bogus students in the school and providing sufficient details with respect to the manner in which the bogus students are included in the attendance register of the school. 17. It is also clear from the show cause notice and the order passed by the authority that a large number of students who are shown in Ext.P2 show cause notice were the students of a nearby unrecognised unaided school and they were included in the attendance register of the school in question, and it was thereupon that the staff fixation order was made excluding those students who are not actually studying in the school. It was clearly found in Ext.P3 order passed by the Director of Public Instruction, after providing sufficient opportunity of hearing and verifying the documents that only Sl.Nos.91 to 181, contained in the list provided in the show cause notice are, genuine students and rest of the students are bogus. It is a factual finding rendered by the authority taking into account the records, the contentions put forth by the petitioner as well as the argument notes put forth by the petitioner. **W.P.(C)No.4407 of 2013** **13** 18. There is no counter documents or other satisfactory evidence or pleading before this Court to show that the facts and figures elicited by the Director of Public Instruction are not based on the documents, report of Super Check Cell and the physical verification done, or it has no foundation or basis. Therefore, it cannot be said that the findings of the authorities below and the revisional authority are perverse, arbitrary and illegal, especially when the order is passed after providing sufficient opportunity of hearing to the petitioner. 19. True, it is clear that, in the revision filed by the petitioner before the Government, the officer who heard the petitioner was not the authority who passed the order. However, it is evident that the said authority has passed the order taking into account the entire inputs provided by the petitioner and securing a report from the educational authority. Anyhow, even assuming that the successor authority ought to have heard the petitioner, since I find that in order to remand the matter to the State Government, at this distance of time, there is no convincing proof or even evidence before this Court to show that, if remanded, the revisional authority would be able to adjudicate **14** ## **W.P.(C)No.4407 of 2013** the issue and arrive at a different conclusion than the one rendered in Ext.P11 order dated 08.11.2012 by the State Government. In this context, it is also worthwhile to note that, Rule 92 of Chapter XIV-A do not contemplate a personal hearing, even under severe situation of imposing penalty etc. etc. and therefore, the petitioner is not entitled as of right a hearing. True, if any of the aspects was not considered by the authority, that would have been a ground for interference for violation of the principles of natural justice, irrespective of any statutory hearing provided under law. **==> picture [397 x 11] intentionally omitted <==** convincing proof, pleading or documents are not before this Court to remand the matter for re-consideration by the State Government. It is also clear that the Deputy Director of Education has passed the order taking into account various factual circumstances and providing absolute and clear opportunity to the petitioner and no prejudice is caused to the petitioner, and, therefore, remanding the matter, at this distance of time, to the revisional authority is only a futile exercise, is my considered view. Which thus means, the remand can only be termed as an empty/useless formality, and there is **W.P.(C)No.4407 of 2013** **15** no likelihood of the revisional authority arriving at a different conclusion than the one provided in Ext.P11. 21. Bearing in mind the factual situations on hand, it is worthwhile to note the judgment of the apex court in ' _**Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, Gauhati & Others**_ ' [(2015) 8 SCC 519], which dealt with the useless formality test/test of prejudice and held that, there may be situations, where it is felt that hearing would make no difference, meaning that a hearing would not change the ultimate conclusion reached by the decision maker; then no legal duty to supply a hearing arises. In such circumstances, fair procedures appear to serve no purpose since the right result can be secured without according such treatment to the individual. Further, it may not be necessary to strike down the action and refer the matter back to the authorities, to take fresh decision after complying with the procedural requirements in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken and therefore, every violation of a fact of natural justice may not lead to the conclusion that the order passed is always null and void. It is also held that the validity of the order has to be **W.P.(C)No.4407 of 2013** **16** decided on the touchstone of prejudice and the ultimate test is always the same viz., the test of prejudice or the test of fair hearing. But at the same time, the authority is not vested with power to dispense with the requirement of the principles of natural justice on the ground that affording such an opportunity will not make any difference i.e., that no prejudice will be caused to the person against whom the action is contemplated. Therefore, the ratio is, it is only for the court to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice is caused to the person. To put it otherwise, the principles of natural justice is not a rigid formula, thus providing sufficient leverage and fair play in the joints, enabling the constitutional courts to have a flexible approach to the issue. 22. So also, I could not locate any allegations of _malafides_ on the part of the educational authorities, or any ill-will nurtured against the Manager of the school in question. The aforesaid cluster of factual and legal events lead me to a safe conclusion that there are no reasons to interfere with Ext.P11 order passed by the State Government in the revision, or the orders passed by the educational authorities below, **W.P.(C)No.4407 of 2013 17** leading to Ext.P11 order in the revision. Upshot of the above discussion is, writ petition fails, accordingly it is dismissed. **Sd/-** ## **SHAJI P.CHALY** **JUDGE** **St/-16.11.2019** **W.P.(C)No.4407 of 2013** **18** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE STAFF FIXATION ORDER DATED 29-12-2007.** **EXHIBIT P2 TRUE COPY OF THE SHOW CAUSE NOTICE NO.SC191/07-08/KKD DATED 19-06-2008.** **EXHIBIT P3 TRUE COPY OF ORDER NO.SC/191/07-08/KKD DATED 17-11-2008.** - **EXHIBIT P4 TRUE COPY OF THE ORDER NO.B3/6615/2008 DATED 04-08-2009.** - **EXHIBIT P5 TRUE COPY OF THE ORDER NO.55494/A2/2009/G.EDN. DATED 13-05-2010.** - **EXHIBIT P6 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER DATED 28-05-2010.** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO.B3/6615/2008 DATED 16-03-2010.** - **EXHIBIT P8 TRUE COPY OF THE ORDER NO.RA(3)/88712/11/DPI DATED 21-04-2012.** - **EXHIBIT P9 TRUE COPY OF THE LIST OF ALLEGED BOGUS STUDENTS WHO WERE ACTUALLY APPEARED IN THE SSLC EXAMINATION.** - **EXHIBIT P10 TRUE COPY OF THE AB LIST OF THE PETITIONER'S SCHOOL.** - **EXHIBIT P11 TRUE COPY OF G.O(RT)NO.5356/2012/G.EDN. DATED 08/11/2012.** ## **RESPONDENTS' EXHIBITS: NIL**