M.N. Anoop v. District Educational Officer, Pala; Deputy Director of Education, Kottayam; Director of Public Instructions, Trivandrum; State of Kerala; Manager, Amayannoor High School, Amayannoor P.O., Kottayam District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **WEDNESDAY, THE 31ST DAY OF AUGUST 2016/9TH BHADRA, 1938** **WP(C).No. 35286 of 2007 (A) ----------------------------** **PETITIONER(S):** **-------------** **M.N.ANOOP, LOWER GRADE SANSKRIT TEACHER, AMAYANNOOR HIGH SCHOOL, AMAYANOOR P.O., KOTTAYAM.** **BY ADVS.SRI.GEORGE ABRAHAM SRI.T.SREEKANTAN** **RESPONDENT(S):** **--------------** **1. DISTRICT EDUCATIONAL OFFICER, PALA, KOTTAYAM DISTRICT.** **2. DY. DIRECTOR OF EDUCATION, KOTTAYAM.** **3. DIRECTOR OF PUBLIC INSTRUCTION, DIRECTORATE OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM - 14.** **4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM.** **5. MANAGER, AMAYANNOOR H.S., AMAYANNOOR P.O., KOTTAYAM DISTRICT.** **R1-R4 BY GOVERNMENT PLEADER SRI.GIKKU JACOB R5 BY ADV. SRI.SURIN GEORGE IPE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 35286 of 2007 (A)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** **EXHIBIT P1 TRUE COPY OF APPOINTMENT ORDER DTD.6.11.2006 ISSUED TO PETITIONER.** - **EXHIBIT P2 TRUE COPY OF LETTER DTD.8.2.2007 ISSUED BY THE ACCOUNTS OFFICER, OFFICE OF THE D.D.E., KOTTAYAM.** - **EXHIBIT P3 TRUE COPY OF LETTER DTD.30.9.2005 ISSUED BY THE D.E.O. ASKING THE HEAD MASTER TO ENGAGE SANSKRIT TEACHER.** - **EXHIBIT P4 TRUE COPY OF STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2006-2007.** - **EXHIBIT P5 TRUE COPY OF COMMUNICATION DTD.7.3.2007 ISSUED BY D.D.E** **EXHIBIT P6 TRUE COPY OF ORDER ISSUED BY D.E.O., PALA DTD.25.1.2007.** **EXHIBIT P7 TRUE COPY OF ORDER OF THE D.P.I. DTD.20.6.2007.** **EXHIBIT P8 TRUE COPY OF STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2002-2003.** - **EXHIBIT P9 TRUE COPY OF REVISION DTD.30.7.2007 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF LETTER DTD.10.10.2007 ISSUED BY GOVERNMENT REJECTING EXHIBIT P9 REVISION.** - **EXHIBIT P11 TRUE COPY OF STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2007-2008.** - **EXHIBIT P12 TRUE COPY OF APPEAL DTD.15.10.2007 PREFERRED BY THE MANAGER BEFORE THE 3RD RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS** - **-----------------------** ## **NIL** **//TRUE COPY//** **Msv/** **P.S.TO JUDGE** ## C.K.ABDUL REHIM,J. ----------------------------------------------WP(C). No. 35286 of 2007 ----------------------------------------------Dated this the 31[st] day of August, 2016 ## JUDGMENT The petitioner was appointed as a Lower Grade Sanskrit Teacher (part time) in the 5[th] respondent's school with effect from 6.11.2006. The said appointment was made against a new vacancy sanctioned with respect to the academic year 2006-07 by virtue of Ext.P4 proceedings issued by the 1[st] respondent. Ext.P4 staff fixation order was issued based on a visit conducted by the Educational Authority on the 6[th] working day of the academic year 200607. Subsequently the 5[th] respondent requested for a revisit in order to re-fix strength of the teaching staff. The request for re-evaluation of the student strength was made raising an allegation that there was only reduced attendance of students on the date of the initial visit. Evidently, the 5[th] respondent was aggrieved by the denial of one additional WP(C).35286/2007 2 post of one lower grade Hindi teacher and also by the abolition of one out of the two full time menial post. Based on request of the 5[th] respondent, the Government directed the 2[nd] respondent to conduct a revisit to make a verification of the actual strength of the students. Accordingly a revisit was conducted on 3.11.2006. Based on the report of the revisit, the 1[st] respondent was directed to fix the staff strength afresh and to pass appropriate orders under Rule 12 of Chapter XXIII KER. Accordingly a revised order of staff fixation was issued. In the said order the additional post of Lower Grade Sanskrit Teacher, which was originally sanctioned under Ext.P4, was revoked. The 1[st] respondent had declined the approval of appointment of the petitioner; vide Ext.P6 proceedings. An appeal submitted by the Manager before the 3[rd] respondent was rejected as per Ext.P7 order, stating the reason that the fixation of the staff strength was finalised based on the revisit; and no excess post can be admissible as per GO(P)164/91 G.E; dt. WP(C).35286/2007 3 11.10.1991. Even though the petitioner took up the matter before the Government in Ext.P8 revision petition, the same was rejected through a cryptic order (Ext.P10) observing that the request for the new post is against the spirit of GO(P)164/91 G.E. dt. 11.10.1991. It is aggrieved by Ext.P11 the above writ petition is filed. 2. GO(P)164/91 G.E; dt. 11.10.1991 is an amendment brought into Rule 12 of Chapter XXIII KER, facilitating revisit to the schools to ascertain strength of students, based on requests of Managers. The said amendment inter alia provides that, when a revisit is made following the direction of the Government, the effective strength shall be worked out on the basis of the strength verified on revisit and orders shall be passed by the Educational Officer or Director of Public Instructions respectively, but not granting a new division that was not in the staff fixation in the previous year. (emphasis supplied) 3. In the case at hand, the original visit was WP(C).35286/2007 4 conducted on the 6[th] working day of the academic year and the 1[st] respondent had issued Ext.P4 fixation of staff strength. There is no dispute that a new post of Lower Grade Sanskrit teacher was sanctioned in Ext.P4. There is no case for the respondents that during the revisit there was short fall in the number of students requiring cancellation of the new post of Lower Grade Sanskrit Teacher sanctioned. But the post was not allowed merely on the ground that the amendment to Rule 12 brought in through GO(P)164/91 G.E. dt. 11.10.1991 insisted that no new division which was not in the staff fixation of the previous year can be sanctioned based on the revisit. But the question remains as to whether the new post which was found eligible during the original visit need to be cancelled or declined. In this regard this court had occasion to consider the question of interpretation of the amended Rule 12 of Chapter XXIII KER. In the decision in **Shuja Baby vs. State of Kerala (2008(1) KLT 230)** a learned Judge of this court WP(C).35286/2007 5 ## observed as follows. _“ I am of the opinion that the Rule should be read down to mean that if in a second higher level verification the effective student strength was found to be more than what has been fixed in the first visit, such additional class divisions sanctionable more than as per the first visit alone can be denied to the school. In other words, if the student strength fixed on the sixth working day warranted more than the existing class divisions for the previous year and in the second higher level verification student strength is more than that in the first visit, then only the student strength as per the first visit (on the 6[th] working day) can be taken into account, and only the additional divisions sanctionable as per the second higher level verification alone can be denied as per Rule `12. According to me, otherwise, it would lead to a totally illogical results.”_ Further this court observed that , the very scheme WP(C).35286/2007 6 of the KER is for having the staff strength commensurate with the student strength as per the teacher student ratio fixed. If, as a matter of fact, the student strength justifies a particular staff strength, there is no logic in denying such staff strength to the school. The very object of the Kerala Educational Act and the Rules is to provide for the better organisation and development of the educational institutions in the State, providing a valid and comprehensive service throughout the State. The very object of the Act and Rules is to better the standards of education in the State. That being so, an interpretation commensurate with the said object is to be adopted in case of ambiguities. This court observed that there is a clear ambiguity in Rule 12, as it stands now; and opined that, what the Rule wanted to convey is that if in a revisit the student strength was more than what was originally fixed on the 6[th] working day of the academic year, then the staff strength as eligible as per the student strength on the sixth working day alone would be WP(C).35286/2007 7 sanctioned. The last sentence of Rule 12 can only refer to a situation whereby during the inspection on the 6[th] working day, the student strength warranted class divisions only as in the previous year and on higher level verification student strength was more warranting additional divisions. The purpose of higher level verification is to verify the correctness of the verification on the 6[th] working day and if on such higher level verification the student strength is more such additional student strength cannot be taken into account since the student strength as on the 6[th] working day is the real student strength applicable for staff fixation. The Rule is therefore, liable to be read down accordingly, is the declaration made in the decision cited above. 4. Rule 12 of Chapter XXIII KER, as interpreted by this court, cannot be made use to deny any new division or any new post which was found eligible based on the strength of students ascertained during the first visit made on the 6[th] working day of the academic year. Therefore this WP(C).35286/2007 8 court is of the considered opinion that the matter requires reconsideration at the hands of the 4[th] respondent. This is especially because the revision petition filed in this regard was not considered properly and the same was rejected only through a non-speaking order. 5. In the result, the writ petition is allowed. Ext.P11 is hereby set aside. The 4[th] respondent is directed to consider Ext.P9 revision petition afresh, after affording an opportunity of personal hearing to the petitioner and the 5[th] respondent, taking note of the interpretation given by this court to Rule 12 of Chapter XXIII KER, and also taking note of the observations contained hereinabove. Fresh orders in this regard shall be issued at the earliest possible, at any rate, within a period of 2 months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE Pmn/ WP(C).35286/2007 9 WP(C).35286/2007 10