M.K.Mohammed Haji and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938** **WP(C).No. 28238 of 2009 (Y) ----------------------------** ## **PETITIONER(S):** ## **-------------** **1. M.K.MOHAMMED HAJI, MANAGER,** - **M.A.S.M. HIGHER SECONDARY SCHOOL, VENMENAD, PAVARATTY.P.O., 680570.** **2. REENA LOUIES H.S.A.,** - **M.A.S.M. HIGHER SECONDARY SCHOOL, VENMENAD, PAVARATTY.P.O., 680570.** **3. SAIRABI RAHMAN.P.V. H.S.A.** - **M.A.S.M. HIGHER SECONDARY SCHOOL, VENMENAD, PAVARATTY.P.O. 680570.** **4. SHIBI MOL C.J., U.P.S.A.,** - **M.A.S.M. HIGHER SECONDARY SCHOOL, VENMENAD,, PAVARATTY.P.O. 680570.** **5. JILSON THOMAS.C., TEACHER-IN CHARGE, M.A.S.M. HIGHER SECONDARY SCHOOL, VENMENAD, PAVARATTY.P.O. 680570.** **BY ADVS.SRI.M.S.UNNIKRISHNAN SMT.S.KARTHIKA SRI.M.R.ANISON SMT.K.P.GEETHA MANI** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVT. GENERAL EDUCATION DEPARTMNT SECRETARIAT, TRIVANDRUM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM.** **3. THE DIST. EDUCATIONAL OFFICER, CHAVAKKAD.** **BY GOVERNMENT PLEADER SRI.ALOYSCIUS THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 28238 of 2009** ## **APPENDIX** **EXHIBIT P1: COPY OF APPROVAL OF APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 2.6.2008. EXHIBTI P2: COPY OF APPOINTMENT ORDER OF THE 3RD PETITIONER DATED 2.6.2003. EXHIBIT P3: COPY OF APPROVAL OF APPOINTMENT ORDER OF THE 4TH PETITIONER DATED 24.10.2001. EXHIBTI P4: COPY OF NOTICE DATED 22.12.2008. EXHIBIT P5: COPY OF THE RELEVANT PAGES OF THE REPORT. EXHIBTI P6: COPY OF THE EXPLANATION DATED 18.1.2009. EXHIBIT P7: COPY OF THE EXPLANATION DATED 18.1.2009. EXHIBT P8: COPY OF THE EXPLANATION DATED 18.1.2009. EXHIBT P9: COPY OF THE EXPLANATION DATED 18.1.2009. EXHIBTI P10: COPY OF THE EXPLANATION DATED 18.1.2009. EXHIBT P11: COPY OF THE EXPLANATION DATED 18.1.2009. EXHIBIT P12: COPY OF THE EXPLANATION DATED 18.1.2009. EXHIBT P13:COPY OF ORDER DATED 16.7.09 MODIFYING STAFF FIXATION ORDER OF THE SCHOOL. EXHIBT P14: COPY OF LETTER DATED 7.4.09 ISSUED BY THE DPI. EXHIBIT P15: COPY OF STAFF FIXATION ORDER OF THE SCHOOL FOR THE YEAR 2002-2003. EXHIBIT P16: COPY OF STAFF FIXATION ORDER OF THE SCHOOL FOR THE YEAR 2003-2004. EXHIBIT P17: COPY OF STAFF FIXATION ORDER OF THE SCHOOL FOR THE YEAR 2004-2005. EXHIBIT P18: COPY OF THE DUPLICATE COPY OF S.S.L.C.CERTIFICATE. EXHIBIT P19: COPY OF THE DUPLICATE COPY OF S.S.L.C.CERTIFICATE. EXHIBIT P20: COPY OF THE DUPLICATE COPY OF S.S.L.C.CERTIFICATE. EXHIBIT P21: COPY OF DUPLICATE SSLC REGISTER. EXHIBIT P22: COPY OF DUPLICATE SSLC REGISTER. EXHIBTI P23: COPY OF DUPLICATE SSLC REGISTER. EXHIBIT P24: COPY OF DUPLICATE SSLC REGISTER. EXHIBIT P25: COPY OF BOGUS COMPLAINT OBTAINED BY THE 5TH PETITIONER UNDER RIGHT TO INFORMATION ACT.** **/TRUE COPY/** **PS TO JUDGE** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No.28238 of 2009 ----------------------------------------------Dated this the 23[rd] June, 2016** ## **JUDGMENT** The challenge raised in this writ petition is as against Exhibits P13 and P14 orders issued by the District Educational Officer, Chavakkad and the Director of Public Instruction respectively, refixing the staff strength of the aided school managed by the first petitioner for the years 2002-2003, 2003-2004 and 2004-2005 respectively. By Exhibit P14 order, the Director of Public Instruction had authorised the refixation of the staff strength. It is the case of the petitioners that petitioners 2 to 5, who are teachers working in the school, would be rendered surplus on account of the refixation of the staff strength as per Exhibit P13, which was on the strength of Exhibit P14 sanction accorded by the second respondent. 2. Heard Sri.M.R.Anison, learned counsel for the petitioners and Sri.Aloysious Thomas, learned Government Pleader appearing for the respondents. 3. It is the specific case of the petitioners that the staff fixation had been completed in accordance with the Kerala Education Rules during the relevant academic years. There was found to be sufficient student strength to justify the continuance of petitioners 2 to 5 on 2 _**WP(C).28238/09**_ the basis of the staff fixation orders so issued. It is alleged that the Vigilance and Anti Corruption Bureau had conducted a visit in the first petitioner's school on 31.12.2002. Statement had been recorded from the teachers as well. However, for more than six-and-a-half years, nothing further was heard. Then, by Exhibit P4 dated 22.2.2008, the first petitioner, teacher-in-charge, was directed to appear for an enquiry before the Joint Director of Public Instruction. It is submitted that a portion of the enquiry report, which is produced as Exhibit P5, was handed over to the teacher-incharge and a reply was called for. Though explanations of the class teachers were submitted through the Headmistress, it is stated that Exhibit P13 order modifying the staff fixation orders for the years from 2002-2003 to 2004-2005 was issued by the District Educational Officer. On application under the RTI Act, the first petitioner was also served with Exhibit P14 order of the Director of Public Instruction sanctioning the refixation of staff strength for the years in question. These orders are under challenge in this writ petition. 4. Exhibit P14 order is challenged by the petitioners on the ground that it is _ultra vires_ the enabling provision contained in Rule 15 of Chapter XXIII KER. Rule 15 enables refixation of staff strength 3 _**WP(C).28238/09**_ with notice to the affected parties at any time during an academic year. The petitioners challenge Exhibit P14 order on the ground that it was one issued without notice, and that too, long after the time limit prescribed in the Rules. The learned counsel for the petitioners would submit that while a report submitted by the Vigilance and Anti Corruption Bureau could be treated as a material on which the Director of Public Instruction can consider the necessity for refixing the staff fixation for a particular academic year, it can, by no stretch of imagination, be the foundation for an order of refixation in violation of the provisions of the Rules relating to the fixation of staff. 5. Staff fixation is to be carried out in aided schools in strict conformity with the provisions of Chapter XXIII KER. Students strength is to be assessed at the commencement of the academic year and fixation of staff strength is to be based on such students strength available. Any refixation has to be in terms of the visit of the super check cell or superior officers in the Education Department or on any other material, which can be legally looked into by the educational authorities. While the report of the inspection conducted by the Vigilance and Anti Corruption Bureau could possibly be treated as an information warranting consideration 4 _**WP(C).28238/09**_ by the Director of Public Instruction as to whether refixation in respect of a particular year is to be undertaken or not, it cannot be construed to override the provisions of the Statute. 6. Rule 15 of Chapter XXIII of the Kerala Education Rules reads as follows: _**“15.** Notwithstanding anything contained in these rules, if Educational Officers are satisfied for valid and sufficient reasons to be recorded in writing that the fixation of staff strength was obtained by bogus admission or attendance or by fraud or misrepresentation, and the like, the Educational Officers shall be competent to refix the staff strength at any time during the course of the year:_ _Provided that no order under this rule shall be issued without notice to the parties who are likely to be affected thereby.”_ 7. It is clear that what is contemplated is a refixation of the students strength during the course of the academic years in question. Construing Rule 12E and Rule 16 KER along with Rule 15 extracted above, this Court in _**Rajeev v. State of Kerala**_ [2009(4) KLT 802] held that the power for refixation under Rule 15 KER is available to be exercised “at any time during the course of the year”. The decision reported in _**Sali George v. State of Kerala**_ [2004(2) KLT 1051] was relied upon in support of this proposition. 5 _**WP(C).28238/09**_ 8. It is clear from the pleadings and the materials produced in the instant case that no meaningful opportunity was granted to the Manager or the other petitioners in the writ petition to show cause against the proposed action for refixation of the staff strength on the basis of an enquiry report said to be submitted nearly seven years before the impugned orders were rendered. Though the teacher-in-charge was given a notice to be present before the Director of Public Instruction, the intention behind the said notice or the nature of the action proposed to be taken was not disclosed. It is the specific case of the petitioners, which is practically admitted in the counter affidavit, that even the full text of the report of the VACB was never served on the Manager or even on the fifth respondent teacher-in-charge, in spite of her request. No notice as required under Rule 15 was ever served on the teachers who would be effected by the refixation of the students strength. The first petitioner would submit that had he been put on notice, he could have produced the material that he has produced along with this writ petition to show that many of the students who were said to have been bogus admissions in the enquiry report had actually studied in the school and had passed out after completing SSLC from the very same school. Exhibits P18 to P24 certificates would 6 _**WP(C).28238/09**_ be a valid defence had such notice been served, it is submitted. Exhibit P14 is an order which has serious civil consequences on the petitioners in the writ petition. Punitive action and recovery of amounts are also directed to be taken against the persons responsible in the said order. Further, a reading of the impugned orders would reveal that there was no subjective satisfaction entered by the educational authorities that there is a necessity for the refixaion on the basis of the report of the VACB. 9. On an anxious consideration of the provisions of law applicable to the situation as well as the facts of the case as disclosed from the relevant pleadings and materials on record, I am of the view that an order in the nature of Exhibit P14 could not have been rendered without putting the first petitioner as well as all other persons affected, on notice. Further, nothing prevented the official respondents from taking up the material brought to their notice through the inspection report of the VACB within the period prescribed in the Statute, i.e., during the course of the academic year. There is also no whisper of any satisfaction on the part of the educational authorities, much less on valid and sufficient grounds recorded in writing, that the earlier staff fixation was obtained by misrepresentation or fraud. In the absence of any compelling 7 _**WP(C).28238/09**_ circumstances, I fail to see how the exercise of refixation of students strength could have been carried out on the strength of Rule 15 Chapter XXIII KER after nearly seven years from the date of submission of the inspection report. This definitely is not a procedure permitted by the Statute. In the above circumstances, Exhibits P13 and P14 orders are set aside. The staff fixation orders as issued by the competent authorities for the years from 2002-03 to 2004-2005 shall stand without modification. The writ petition is allowed as above. **ANU SIVARAMAN JUDGE** _vgs_