P. P. Salahudeen v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 18TH DAY OF JUNE 2014/28TH JYAISHTA, 1936 ## WP(C).No. 26611 of 2004 (R) ---------------------------- PETITIONER: ------------------ P.P.SALAHUDEEN, AGED 55 YEARS, S/O.IBRAHIM, HEADMASTER, B.T.M.O. U.P.SCHOOL ELAMARAM, P.O. VAZHAKKAD 673 640. BY ADV. SRI.P.V.MOHANAN RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA, REP. BY SECRETARY, GENERAL EDUCATION DEPARTMENT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, KONDOTTY. R1 TO R3 BY GOVERNMENT PLEADER ABHIJETT LESSLI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN WPC.26611/04** ## **PETITIONER'S EXTS:** EXT.P1: ABSTRACT OF PROMOTION LIST FOR THE YEAR 2003-04. EXT.P2: COPY OF SUBMISSION DT.17.5.04. EXT.P3: COPY OF SUBMISSION DT.23.6.04. EXT.P4: COPY OF PROCEEDINGS NO.E/3501/04 DT.6.7.04. EXT.P5: COPYOF REPRESENTATION DT.22.7.04. EXT.P6: COPY OF ORDER NO.C/4452/2004 DT.14.7.04. EXT.P7: COPY OF VERIFICATION OF ATTENDENCE IN STANDARD V DT.23.6.04. ## **RESPONDENTS' EXTS: NIL** TRUE COPY P.S.TO JUDGE dsn ## **ANIL K.NARENDRAN, J** **--------------------------------------------------** **W.P.(C.).No. 26611 of 2004 -------------------------------------------------DATED THIS THE 18[th] DAY OF JUNE, 2014** ## **JUDGMENT** The petitioner is the Headmaster of B.T.M.O.U.P.School, Elamaram, an aided U.P.School governed by the provisions of the Kerala Education Act and the Kerala Education Rules(KER). The petitioner has approached this Court seeking a writ of certiorari to quash Exhibit P6 order issued by the Assistant Educational Officer, Kondotty, the 3[rd] respondent, insofar as it fixed only one division in Standard V for the academic year 2004-05 as against two divisions in Standard V. The petitioner has also sought for a declaration that the effective strength of pupils in Standard V for the academic year 2004-05 is 52 warranting sanctioning of two divisions in Standard V and the detention of 5 pupils in Standard V is correct and legal. 2. As per the staff fixation order for the year 2003-04 issued on 14.7.2003, the total divisions sanctioned in the petitioner's school, for the academic year 2004-05, are six (two divisions each in Std.V, VI and VII). The effective pupils strength of Standard V was 58. Two pupils obtained transfer certificate W.P.(C).No.26611/04 -2- during the academic year. The roll strength as on 30.3.2004 in Std.V was 56 and only 49 pupils appeared for final terminal examination. Out of the 49 pupils appeared for examination, only 45 pupils were promoted to Standard VI, which takes in 91.8% of promotion. Exhibit P1 produced along with the Writ Petition is the relevant extract of the promotion list. 3. The 3[rd] respondent by endorsement No.2551 directed the petitioner to explain the variation in roll strength and the number of persons appeared for examination. The petitioner submitted Exhibit P2 reply explaining that 7 pupils did not appear for examination and they did not obtain minimum attendance as well. Therefore, they had been detained in Std.V. The 3[rd] respondent by proceedings dated 1.6.2004 which was communicated to the petitioner on 1.6.2004, directed him to produce the attendance register of Std.V., mark list of half yearly examination and also school admission register. The petitioner forwarded the details sought for, along with Exhibit P3 explanation. In spite of the explanation given in Exhibit P3, the 3[rd] respondent by Exhibit P4 order, ordered that the roll strength W.P.(C).No.26611/04 -3- of Std.V in the petitioner's school appears to be 56 and only 45 pupils were promoted. This should be only 80% of promotion. The minimum percentage of promotion required for Std.V is 90% and thus the petitioner is directed to effect promotion of 90% in Std.V and to send the same to the 3[rd] respondent for approval. 4. Since the direction issued by the 3[rd] respondent is contrary to the Rules, the petitioner has submitted Exhibit P5 representation before the 3[rd] respondent seeking review of Exhibit P4 order. In the said representation, the petitioner has also pointed out various judgments of this Court governing the field. Later, in exercise of the powers conferred under Rule 12 of Chapter XXIII KER, the 3[rd] respondent issued Exhibit P6 staff fixation order for the year 2004-05. In the said order, the effective strength for Std.V is is marked as 52, which warrant two divisions in Std.V. But the number of division sanctioned in Std.V is only one and the reason stated for not sanctioning two divisions is as follows: “Second division standard V for want of strength of pupils: The strength of pupils shown in Standard V is 52. The eligible pupils to study in W.P.(C).No.26611/04 -4- Standard V is 47. The Headmaster of the School has been directed to promote the 5 pupils in Standard V to VI Standard, who were detained without specific reasons, as per letter dated 6.7.2004 of the AEO, Kondotty. 5. According to the petitioner, if Exhibit P6 is implemented, there will be reduction of one division in Std.V and the juniormost teacher will have to be retrenched. As directed by the 3[rd] respondent, the salary of the juniormost teacher, namely K.T.Sudha has already been withheld for one month. In Exhibit P7 verification report submitted by the Officer appointed by the Government, the roll strength and attendance in Std.V is reported as 52. In such circumstances, aggrieved by Exhibits P4 and P6, the petitioner has approached this Court seeking various reliefs. 6. A counter affidavit has been filed on behalf of the 1[st] respondent, contending, inter alia, that as per records, the strength of pupils in Std.V as on 1.3.2004 was 58. As per the existing rules in force, the Headmasters of the school should promote 90% of the pupils to the next standard. As such, 50 pupils should have been promoted from Std.V. But the W.P.(C).No.26611/04 -5- Headmaster promoted only 45 pupils. Thus pupils were detained in Std.V. So, the 3[rd] respondent has returned the promotion list to the Headmaster directing to explain the reason for not promoting the pupils upto the required percentage. According to the 1[st] respondent, promotion and detention of the pupils in the classes are decided by the Headmaster under Rules 11, 12 and 13 of Chapter VII KER along with the Departmental directions and Government orders from time to time. Going by Clauses (i) and (iv) of Rule 11 of Chapter IX KER, the Headmaster is bound to obey the directions issued as per H2/70525/79 dated 18.3.1980 of the Director of Public Instruction, Thiruvananthapuram, while promotion list is prepared. Therefore, the main contention raised in the counter affidavit is that the Headmaster of the school is bound to keep up the promotion percentage as directed by the Director of Public Instruction from time to time. Therefore, according to the 1[st] respondent, the petitioner is not entitled for any of the reliefs prayed for. 7. I have considered the contentions raised by the W.P.(C).No.26611/04 -6- petitioner in the Writ Petition and also heard the arguments of the learned Government Pleader appearing for respondents 1 to 3. 8. The only issue to be considered in this Writ Petition is whether the Headmaster of the school is bound to keep up promotion percentage as directed by the educational authorities, if such directions run contrary to the statutory requirements under the KER. 9. Chapter VIII of KER deals with organisation of instruction and progress of pupils. Rule 13 under the said Chapter deals with promotion and detentions. Going by sub-rule (1) of Rule 13, promotion shall be made to the next higher standards on the basis of the pupils performance as assessed by the periodical tests and on the basis of the final examination. Sub-rule (2) provides that the Headmaster in the case of all types of schools shall intimate the basis of promotion for each standard to the Educational Officer sufficiently early and get his approval therefor and shall enter the approved basis in the mark register over his signature. Going by sub-rule (3), every pupil W.P.(C).No.26611/04 -7- who is eligible for promotion under sub-rules (1) and (2) and who has secured the minimum attendance prescribed in the Rules shall be promoted to the next higher Standard. Therefore, going by the statutory requirements under Rule 13, the promotion and detention of pupils should be in terms of the said rules and no Headmaster can be directed to promote or detain a student in violation of the said Rule. 10. Chapter IX of the KER deals with discipline. Rule 11 deals with the duties of Headmaster. As per clause (i) and (iv) of Rule 11, the Headmaster's duty shall include among other things, to see that the rules and orders issued by the Government are complied with, and to effect promotions of pupils from standard to standard in accordance with the prescribed Rules. Therefore, going by Rule 11 of Chapter IX of the KER, the Headmaster has got a duty to see that rules and orders issued by the Department and Government are complied with. At the same time going by clause (4) of Rule 11, he has to effect promotion of pupils from standard to standard in accordance with the prescribed rules. The 'prescribed rules' referred to in clause (iv) of Rule 11 of W.P.(C).No.26611/04 -8- Chapter IX is Rule 13 of Chapter VIII of the KER. Therefore, any Government orders/circulars issued by the Government in the matter of promotion or detention of pupils cannot override Rule 13 of Chapter VII of the KER. 11. In **Mary** v. **State of Kerala** , [1994(2) KLT 853] this Court had occasion to consider a similar issue arising out of G.O. (MS)No.81/88 dated 11.4.88, which directs promotion of 80% of pupils to higher class. In the said judgment, this Court has categorically held that, such a circular fixing promotion of 80% of pupils to higher class cannot override Rule 13 of Chapter VIII KER. Para.4 of the said judgment reads as follows: “4. Rule 13 of Chapter VIII of the Kerala Education Rules which is statutory in its character lays down that “promotions shall be made to the next higher standard on the basis of the pupils’ performance as assessed by periodical tests and on the basis of final examination”. This is a statutory provision. It follows that a pupil cannot be promoted to a higher class unless his performance justifies it. The Government’s order dated 11-4-’88 (Ext.R2(a)) merely lays down a policy that a minimum of 80% of the pupils should be promoted to the higher standards. The order dated 11-4-1988 contains administrative instructions and cannot override the statutory provision of R. 13 of Chapt.VIII of the Kerala Education Rules. Any administrative order in regard to the promotion of pupils to higher classes is subordinate to this rule. W.P.(C).No.26611/04 -9- Therefore, having regard to the force of R. 13 and the judgment of this court in Manager, M.J. High School, Erettil v. Jt. Director of Public Instructions and others (ILR 1986 (1) Kerala Series 546), I hold that the Order No.MS.81/88/G.Edn. dated 11-41988 (Ext.R2(a)) which directs the promotion of 80% of pupils to higher classes is subordinate to R. 13 of Chapt.VIII of the Kerala Education Rules. Where a competing claim based on the Government’s instructions in regard to the percentage of promotion is made, R. 13 must prevail over these instructions. Since promotion or detention of pupils has to be based on evaluation of the performance, promotion of students in excess of 80% cannot be made the basis of liability, either of the teacher or Headmistress. If it were ‘ otherwise, it would mean that the teacher and the Headmistress are held liable for the loss resulting from obedience of R. 13. Such interpretation is opposed to the intention of R. 3 of S. 1 of Chapt. I of Part III of the Kerala Service Rules.” 12. Going by Rule 23 of Chapter VI of KER, the maximum strength of a class division shall be 45, but excess admission upto 50 will be allowed. When there are more than 50 students , a second division may be opened and when the strength exceeds 95, a third division, and so on. When the students are detained in a standard in accordance with the provisions of Rule 13 of Chapter VIII KER, the educational authorities cannot ignore those detentions while passing staff fixation orders under Rule 23 of W.P.(C).No.26611/04 -10- Chapter VI KER. Rule 13 of Chapter VIII KER do not prescribe any minimum percentage in the matter of pass and detention of pupils. Going by Rule 13, the pass and detention of pupils should be on the basis of the evaluation of their performance, which has to be carried out by the Headmaster strictly within the frame work of the said rule. For the above reasons, I find that Exhibit P6 order insofar as it fixes only one division in Std.V in the petitioner's school for the academic year 2004-05, instead of two divisions in Std.V is illegal and unsustainable. 13. In the result, Exhibit P6 order passed by the 3[rd] respondent is set aside insofar as it fixes only one division in Std.V in B.T.M.O.U.P.School for the academic year 2004-05 and it is declared that effective strength in Std.V for the academic year 2004-05 warrant sanctioning of two divisions. The Writ Petition is disposed of as above. No order as to costs. Sd/- **ANIL K.NARENDRAN, JUDGE** dsn