Manager, R.M.V.H.S.S., Perinjanam; Unnikrishnan T.K; Thulasiranga P.P; Praseetha M.P; Hema M.B. v. State of Kerala; Director of Public Instructions Kerala; Deputy Director of Education, Trichur; District Educational Officer, Chavakkad, Trichur District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 22ND DAY OF MAY 2017/1ST JYAISHTA, 1939** **WP(C).No. 30597 of 2009 (T) ----------------------------** ## **PETITIONER(S):** **-------------** **1. MANAGER,** - **R.M.V.H.S.S, PERINJANAM,, PERINJANAM.P.O, TRICHUR DISTRICT.** **2. UNNIKRISHNAN.T.K, RETIRED PRINCIPAL, R.M.V.H.S.S, PERINJANAM, PERINJANAM.P.O, TRICHUR DISTRICT.** **3. THULASIRANGA.P.P,** - **H.S.A.(NS), R.M.V.H.S.S, PERINJANAM, PERINJANAM.P.O, TRICHUR DISTRICT.** **4. PRASEETHA.M.P,** - **U.P.S.A, R.M.V.H.S.S, PERINJANAM, PERINJANAM.P.O, TRICHUR DISTRICT.** **5. HEMA.M.B, U.P.S.A, R.M.V.H.S.S, PERINJANAM, PERINJANAM.P.O, TRICHUR DISTRICT.** **BY ADVS.SRI.M.S.UNNIKRISHNAN SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.S.KARTHIKA** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, KERALA, THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR OF EDUCATION, TRICHUR.** **4. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, TRICHUR DISTRICT.** **BY SENIOR GOVERNMENT PLEADER SMT MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WPC 30597 OF 2009:** ## **------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **---------------------** - **P1: TRUE COPY OF THE STAFF FIXATION ORDER OF THE SCHOOL FOR THE ACADEMIC YEAR 2007-2008.** - **P2: TRUE COPY OF THE MEMO DATED 11/6/2007 ISSUED BY THE 2ND PETITIONER.** - **P3: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 21.5.2008.** - **P4; TRUE COPY OF THE REPLY DATED 24.10.2008 ISSUED BY THE 1ST PETITIONER.** - **P5; TRUE COPY OF THE ORDER DATED 24.10.2008 ISSUED BY THE 2ND RESPONDENT.** - **P6: TRUE COPY OF THE AROUND NOTE SUBMITTED BY THE PETITIONER DATED 20.6.2009.** - **P7: TRUE COPY OF THE ORDER DATED 10.7.2009.** - **P8: TRUE COPY OF THE JUDGMENT DATED 25.6.2009 IN WA 1288/07.** - **P9: TRUE COPY OF THE CERTIFICATE ISSUED BY THE 2ND PETITIONER.** - **RESPONDENT(S)' EXHIBITS NIL -----------------------** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## **P.V.ASHA, J.** ----------------------------------------------------- W.P(C) No.30597 of 2009-T ---------------------------------------------------------------------Dated this the 22[nd ] day of May, 2017 ## **JUDGMENT** The Manager of R.M.E H.S.S, Perinjanam, the retired Principal of the School along with three teachers has filed this writ petition challenging the orders Exts.P5 and P7, by which two divisions were reduced in this School, on the basis of inspections by the Super Check Cell. 2. As per Ext P1 staff fixation order for the academic year 2007-2008, 25 divisions were sanctioned in the High School and 7 in the UP Section with corresponding number of posts as against 28 divisions in High School and 9 divisions in UP section sanctioned in the previous year. The case of the petitioners is that the Super Check Cell of the DPI conducted an inspection in the School on 04.10.2007, when several pupils were absent due to Ramadan fasting, hartal in Kodungallur Thaluk and prevalence of contagious diseases like chickunguinea. Petitioner's case is that a second visit was conducted on 3.1.2008; but they did not verify the student strength and only adopted the visit report of the first inspection. W.P(C) No.30597 of 2009-T 2 3. The Super Check Cell had conducted surprise visit on the basis of certain complaints received. A second inspection was conducted on 03.01.2008 when a shortage of 219 students, who were absent on 04.10.2007 also. Based on the reports, the Director of Public Instructions issued Ext P3 show cause notice dated 21.05.2008 finding that staff fixation order Ext P1 was liable to be revised as the same was made on the basis of inflated strength by way of bogus admissions and seeking explanation from the Principal, against the proposal to abolish the 3[rd] division in standard VI, 8[th] division in standard VIII and one post each of UPSA and HSA. It was found that the Headmaster who is responsible for the admissions, removal, maintenance of records and supervision of work of subordinates, has to make good the loss caused to government. Explanation was sought against the proposal to recover the pay and allowances disbursed to the excess teachers, expenditure incurred by way of various scholarships, grant etc. to the pupils found as of bogus admissions. 4. The Principal of the school submitted Ext.P4 explanation stating that the first day visit was during the Ramzan month and it was a hartal day in Kodungallur taluk; there was eruption of epidemics like flue and Chickunguinea W.P(C) No.30597 of 2009-T 3 during that period, etc. There was a number of absentees at the time of visit on 04.10.2007. It was further pointed out that out of the 207 pupils branded as bogus, several of the students were continuing studies in the school during the academic year; 82 pupils referred to were also on the rolls of the school. They were removed from the rolls due to their continuous absence for more than 15 days, as it was the duty of the Headmaster to remove such pupils; therefore, those 82 pupils who were removed from the rolls after the verification on sixth working day was not liable to be branded as bogus admission. The Principal pointed out that when the super check cell's visit was made in the month of October, i.e after September, 10% allowance was to be made as per rules and that the visit of the super check cell shall be over by 30[th] November of every year. But the second visit was conducted on 3.1.2008. According to the Principal, the absentees were not on bogus admission. Thereafter Ext.P5 order was passed by the D.P.I, after hearing the Principal , Manager and the affected teachers, modifying the staff fixation reducing 2 divisions and abolishing 2 posts- one each in UP and High School section. The petitioner took up the matter before Government in Ext P6 and Government by Ext P7 order W.P(C) No.30597 of 2009-T 4 confirmed the order of the DPI. This writ petition is filed in the above circumstances. 5. The respondents have filed counter affidavit reiterating their stand in the impugned orders. It is stated that the super check cell conducted inspection based on complaints received. In the surprise visit on 4.10.2007, it found short fall of a number of students and noticed that a number of students were enrolled on bogus admissions. The short fall of the very same students as found on 4.10.2007 was found in the second visit also. DPI issued show cause notice seeing that staff fixation was liable to be revised with reduction of one division each in the UP and High School section and effecting consequential reduction of two posts. Ext P5 order was passed after hearing the petitioners and examining their contentions. Govt passed Ext P7 order after hearing the parties. It is stated that based on the directions issued by the Govt and the DPI, the 3[rd] and 4[th] respondents were to initiate recovery proceedings after ascertaining the eligibility of the teachers for protection or retention under 1:40 ratio during 2007-08 and 2008-09. The 3[rd] petitioner was found eligible for retention under 1:40 ratio and she was shifted to retirement vacancy from 1.6.09 and hence she was W.P(C) No.30597 of 2009-T 5 found eligible for salary from 15.7.2007. Petitioners 4 and 5 did not have any vacancy and were retrenched and they were reappointed from 1.6.2009. The claim for 10% concession was stated to be inapplicable in the case. 6. Government found that DPI had issued Ext.P5 order after properly assessing the report of the super check cell and after examining the explanation and contentions of the petitioners. It was further stated that the existing system of calculating the effective strength of students by adding 5% or 10% of roll strength, to the verified attendance was the major reason for maintaining inflated roll strength by the school authorities. The Headmaster of the school, being the head of the institution, was found responsible for admission and maintenance of official records and hence responsible for the loss to the public exchequer. 7. I heard the learned Counsel appearing for the petitioner and the learned Government Pleader and considered the pleadings and contentions. 8. One of the contentions raised by the petitioners is regarding recovery ordered from the Headmaster. The learned Counsel for the petitioners relies on Ext.P8 judgment in W.A.No.1288 of 2007, wherein this Court held that there is W.P(C) No.30597 of 2009-T 6 no provision for recovery from the Headmaster for any loss suffered by the Government consequent to the sanctioning of additional divisions based on bogus admission of students. Para.2 of the judgment reads as follows: “2. No provision has been brought to our notice, which enables the DPI while passing an order in the nature of Ext.P2 to order recovery from the Headmistress, the loss suffered by sanction of additional class divisions, given based on bogus admissions of students. It may be permissible to recover loss from the Headmistress as part of the disciplinary proceedings. So, no recovery shall be made from the appellant solely based on Ext.P2. We clarify this legal position and dispose of the Writ Appeal. If, in the disciplinary action, any recovery is ordered, the appellant will be free to resist it raising all the contentions available to her under law.” The position of law continues to be the same. It is admitted that no disciplinary action was taken against the Principal and he retired from service on 31.03.2009. The learned Counsel for the petitioners pointed out that the pensionary benefits of the 2[nd] petitioner are not paid on account of this liability. 9. The directions in Ext.P5 as well as Ext.P7 orders to the extent it relates to recovery from the Headmaster/2[nd] petitioner cannot therefore be sustained in view of Ext.P8 judgment. The 2[nd] petitioner will therefore be entitled to the entire DCRG due to him without any deduction on account of the orders Exts.P5 and P7. W.P(C) No.30597 of 2009-T 7 10. Regarding the findings as to the bogus admission, which resulted in reduction of divisions and posts, it is seen that the Director of Public Instructions as well as the Government had looked into the report of the super check cell which found that there were bogus admissions which warranted revision of staff fixation and reduction of 2 divisions and 2 posts of teaching staff and 2 posts of non-teaching staff. 11. From Ext P3 and P5 orders of the DPI it is seen that there were 375 absentees when the Super Check Cell conducted its first visit on 4.10.2007. On verification of admission records of the students in the rolls of School and on enquiries, it found that the admission of 207 students in various classes was bogus. The very same 207 students in the various divisions and standards were found absent in the second verification held on 03.01.2008 also. Seeing that none of those 207 pupils attended the school on any day after reopening and teachers were regularly marking their attendance, the Super Check Cell reported that those pupils were retained on rolls in order to inflate the roll strength for getting more class divisions sanctioned in the staff fixation. Apart from that it was found that 82 students from various divisions were removed from the rolls for long absence after W.P(C) No.30597 of 2009-T 8 the one day strength verification. Thus it had found the total number of bogus admissions on rolls as 289 during the year 2007-08. On direction of the Super Check Cell to the Headmaster to remove all bogus pupils from the rolls, he submitted a list of 103 pupils after the first visit and another list of 34 pupils after 5.11.2007 apart from the 82 pupils he had already removed. The DPI has issued Ext P5 order after hearing the petitioners. Out of the list of 207 bogus admissions, DPI dropped the objection against 25 students, accepting the explanation of the Principal. Even thereafter there were 264 bogus admissions including that of the 82 students removed after the 1[st] day strength verification for staff fixation. The reasons stated by the Principal for the large scale absence was found not acceptable as it was found on inquiry that no circumstance existed then, preventing the pupils to attend the school. The DPI has issued modified orders of staff fixation based on the total strength of 1521, after deducting the 264 bogus pupils and sanctioned 30 divisions in the place of 32 divisions reducing one division each in standard VI and VIII and abolishing 1 post of UPSA and 1 post of HSA from 15.7.2007. Government confirmed the order of DPI, after considering the contentions of the W.P(C) No.30597 of 2009-T 9 petitioners. The petitioners were not able to substantiate the genuineness of the reasons furnished by them for the absence of the very same students on both the days. 12. One of the contentions raised by the learned counsel for the petitioners is that the second inspection was conducted only for confirmation/verification of the attendance of the absentees in the first visit as stated in the order Ext P7 and therefore the findings rendered without verification of the physical strength of the students on the day of the second visit and the orders issued based on that are illegal. When the Super Check Cell noticed the absentees in the first visit, they are duty bound to verify whether those absentees were present and confirm whether the very same pupils were absent on the second day also, and also to enquire into the reasons for such absence. The Super Check Cell found that the very same pupils were absent in both the inspections. Such absenteeism could be confirmed in the 2[nd] visit. No rule was brought to my notice, which requires verification of the physical strength in the class on the second visit, even after it found the absence of large number of the very same pupils in both the inspections. The DPI has modified the staff fixation only after deducting the 25 pupils from the list of 289 bogus W.P(C) No.30597 of 2009-T 10 admissions, in whose case alone the petitioners could furnish some valid explanation. The petitioners do not dispute the fact that the super check cell officers had visited the school on both days and they do not have a case that any of those absentees as pointed out by the super check cell officers were present on the day of 2[nd] visit. 13. Yet other contentions are that there shall be 10% concession on students strength when the revision is after September as per Rule 15A of Chapter XXIII KER, and that the second visit was made only in January 2008 beyond the prescribed period. In this case the order Ext P5 is issued under Rule 12E(3) read with Rule 16 of Chapter XXIII of the KER. Rule 16 of Chapter XXIII of KER provides as follows: “Notwithstanding anything contained in these rules, any Officer authorised by the Government in this behalf shall, for the purpose of checking the staff fixation proceedings made by the Educational Officers, enter any School, or any office under the Education Department, call for the relevant records and make enquiries to find out whether any irregularity has been committed in staff fixation. In the course of the said enquiry the authorised officer can inspect schools, verify the strength of pupils, check the area of class-rooms,call for records from Headmasters, Managers and Educational Officers and do such other acts as may be deemed necessary. W.P(C) No.30597 of 2009-T 11 As soon as the enquiry is over the authorised officer shall send a detailed report thereon to the Director of Public Instruction for appropriate action in the matter.” The action of the officers of the Supercheck cell is therefore in tune with the aforesaid provision under Rule 16 and they found the irregularities in the staff fixation and reported the matter to DPI. There is no time limit fixed under this rule. No concession is also provided when verification of strength is made under this rule which contains a non-obstante clause. Rule 15 A will not have any application when the action of DPI is under Rule 16, as held in the judgment in **Beena v. State of Kerala: 2000(2) KLT 545.** In the above circumstances, I do not find any reason to interfere with the modification of staff fixation ordered in Exts.P5 and P7. However those orders to the extent those relate to the direction for recovery of the monetary loss from the Headmaster of the school -the 2[nd] petitioner are illegal and the orders Exts.P5 and P7 to the extent recovery is ordered from the 2[nd] petitioner, are set aside. As it is pointed out that the DCRG due to the 2[nd] petitioner is not granted to him, on account of the recovery W.P(C) No.30597 of 2009-T **==> picture [14 x 8] intentionally omitted <==** ordered in Ext P5, there shall be a direction to the respondents to see that the pensionary benefits of the 2[nd] petitioner are released, in case it is withheld on account of Exts.P5 and P7 orders, within a period of two months from the date of receipt of a copy of the judgment. **==> picture [414 x 14] intentionally omitted <==** lsn