W.P.(C) No. 29032 of 2018

WP(C) NO. 29032 OF 2018 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944 WP(C) NO. 29032 OF 2018** ## **PETITIONER/S:** 1 VIJOY THOMAS K.F. AGED 44 YEARS UPPER PRIMARY SCHOOL ASSISTANT, A.M.U.P.SCHOOL, AKALAD, THRISSUR DISTRICT 2 M.V.SHAINI AGED 1 YEARS UPPER PRIMARY SCHOOL ASSISTANT, A.M.U.P. SCHOOL, AKALAD, THRISSUR. 3 MEERA T AGED 1 YEARS UPPER PRIMARY SCHOOL ASSISTANT, A.M.U.P. SCHOOL, AKALAD. BY ADVS. ELVIN PETER P.J. K.R.GANESH N.R.REESHA ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. 2 THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-695001. 3 THE DISTRICT EDUCATIONAL OFFICER CHAVAKKAD, THRISSUR-680506. WP(C) NO. 29032 OF 2018 2 4 THE ASSISTANT EDUCATIONAL OFFICER CHAVAKKAD, THRISSUR-680506. 5 THE MANAGER A.M.U.P.SCHOOL, AKALAD, THRISSUR-680518. BY ADV GOVERNMENT PLEADER ## **OTHER PRESENT:** SRI.K.M.FAISAL, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 29032 OF 2018 3 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C) No.29032 of 2018** **-------------------------------------Dated this the 13[th] day of February, 2023** ## **JUDGMENT** ## The above writ petition is filed with following prayers : _i) “to issue a Writ of Certiorari calling for the records leading to Ext P17 order dtd 24.5.2018 issued by the 1[st] respondent and quash the same;_ _(ii) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 4 to disburse the salary of petitioners 1 and 2 for the period from December, 2005 onwards and to disburse the salary of the 3[rd] petitioner for the period from 15.7.2005 onwards;_ _(iii) To declare that Ext P17 order is illegal, arbitrary, discriminatory and is one issued without following any of the procedures known to law;_ _(iv) To declare that the petitioners 1 and 2 are entitled to get salary for the period from December, 2005 onwards and the 3[rd] petitioner is entitled to get salary from 15.7.2005 onwards respectively;_ _v) To grant such other and further reliefs as are just, proper and necessary in the facts and circumstances of the case.” [SIC]_ WP(C) NO. 29032 OF 2018 4 2. The writ petition is filed challenging Ext.P17 order issued by the 1[st] respondent. As per Ext.P16 judgment, this Court directed the 1[st] respondent Government to ascertain whether the petitioners are eligible to get salary for the academic year 2005-06 and 2006-07 in the light of subsequent staff fixation orders issued by the AEO. But the grievance of the petitioner is that the Government issued Ext.P7 order rejecting the claim of the petitioners to get the salary for the period from 2005 onwards on the ground that the orders have been reviewed as per order dated 15.09.2011. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. Ext.P17 order is passed based on Ext.P16 judgment. It will be better to extract relevant portion of Ext.P16 judgment. 2. “The petitioners point out that for the years 2005-06 and 2006-07, staff fixation orders were issued providing sufficient number of posts to accommodate even the posts that were abolished as per Exhibit P10. It is, therefore, their case that the WP(C) NO. 29032 OF 2018 5 claim of the Super Check Cell as approved by the Government in Exhibit P14 that the admissions are bogus is completely untenable and without sufficient basis. They, Therefore, submit that the order of the Super Check Cell Exhibit P10 and the order of the Government Exhibit P14 are illegal and unlawful. 3. I have considered the rival contentions of the parties. I have also heard Sri.Ganesh, the learned counsel appearing on behalf of the petitioners and the learned Senior Government Pleader appearing on behalf of the respondents. 4. On an evaluation of the submissions made and the pleadings, sufficient cause has been made out by the petitioners to suspect that the presumption of the Government that there were bogus admissions during the year 2004-05 are not completely justified or established by facts. 1, therefore, direct the Government to re- consider the issue, taking into account the specific contentions of the petitioners, and to specifically consider whether the admissions that were detected for the year 2004-05 as being bogus were, however, accepted by the authorities for fixation for the years 2005-06 and 2006-07.\ 5. The petitioners have also made a prayer to disburse the salary with effect from 14.07.2005. As has been noticed above, since the staff fixation orders for the years 2005-06 and 2006-07 provided sufficient number of vacancies to accommodate the petitioners, I am of the that Government shall also consider whether salary for these months can be paid to the petitioners on the basis of the consideration that has to be given with respect to the issues that have been raised in this writ petition. The petitioners are at liberty to move for release of their salary in the manner aforesaid, which the Government shall consider. As regards the first petitioner, it is submitted by the learned WP(C) NO. 29032 OF 2018 6 counsel that he has resigned from service with effect from 26.02.2007 and therefore, his claim for salary would obviously be only until such time. The petitioners have also a specific case that they are continuing in service from 2000 onwards without break and notwithstanding the abolition of posts they are still in service on account of the staff fixation orders for the years 2005-06 and 2006-07 which provide for sufficient number of posts to accommodate them. This is also a factor that the Government will take note of. 6. For the purpose of facilitating a fresh enquiry, Exhibit P14 order is set aside. Government is directed to issue notice to the petitioners and afford them an opportunity of being heard and take a decision in the matter as aforementioned, within a period of three months from the date of receipt of a copy of this judgment. The petitioners are at liberty to place before the Government any document that they are desirous of placing or any evidence that they may want to present for the purpose of substantiating their case and the Government, after consideration of all these, would pass appropriate orders in adherence to the provisions of the Kerala Education Rules within the period as has been fixed in the writ petition. With these, the writ petition is disposed of. In the circumstances of the case, I make no order as to costs and the parties are to suffer their respective costs.” 5. Thereafter, Ext.P17 order is passed. This Court in **Nalini Kumari v. State of Kerala** ILR 1975 (1) 496 considered the duty of the officers in bogus admission matters. WP(C) NO. 29032 OF 2018 7 ## It will be better to extract paragraph 6 of the above judgment. “6. Rule 15, chapter XXIII of the Kerala Education Rules reads: "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 re-fix the staff strength at any time during the course of the year. Provided that no order under this rule shall be issued without notices to the parties who are likely to be affected thereby No doubt, the provisions of rule 15 are "notwithstanding anything contained in these rules". But for attracting rule 15, the Educational Officer must be satisfied for valid and sufficient reasons: that the fixation of staff strength was obtained by bogus admission or attendance or by fraud or misrepresentation. It goes without saying that bogus admission can be there only if pupils who were not really in existence were admitted. When there is bogus admission, the attendance created by that will also be bogus attendance. Fraud or misrepresentation will be there if without actually admitting a pupil records are created as if that pupil was admitted and attendance marked in respect of that pupil even though that pupil never attended the school. Large scale removals of pupils from the rolls under rule 15, chapter VI of the Rules by themselves cannot attract rule 15, chapter XXIII. Large scale removals may be a reason to create a doubt in the mind of the Educational Officer or at the most to suspect bogus admission. WP(C) NO. 29032 OF 2018 8 To prove bogus admission the Educational Officer should go deep into the details of the matter and examine individual cases of pupils who are removed for long absence and for other reasons mentioned in rule 15, chapter VI. In this case, not a single case of removal is taken and examined to ascertain whether, as a matter of fact, such a pupil was ever in existence and whether he was actually admitted in the school before his name was entered in the rolls. Ext. P8 order does not even indicate that the 2[nd] respondent made any such attempt. Without making such an enquiry into the individual cases of removal from the rolls, it cannot be said that the pupils removed from the rolls were really bogus admissions and they were shown on the rolls purposely to create attendance for getting strength which is more than the actual effective strength of the standard concerned. The reasoning that pupils who did not really want to continue their studies till the close of the year were made to attend classes for some days at the beginning of the year by itself cannot justify action under the rule.” 6. I think, the Government has not considered the matter properly in the light of Ext.P16 judgment and also in the light of **Nalini Kumari's** case (supra). Hence, reconsideration is necessary in this matter. Therefore, without expressing any opinion on merit, Ext.P17 can be set aside and the Government can be directed to reconsider the matter in the light of Ext.P16 judgment and **Nalini Kumari's** case (supra). WP(C) NO. 29032 OF 2018 9 Therefore, this writ petition is disposed of with the following directions : 1) Ext.P17 is set aside. 2) The 1[st] respondent is directed to reconsider the matter in the light of Ext.P16 judgment and also in the light of **Nalini Kumari's** case (supra) as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment after giving a notice of hearing to the petitioners and the 5[th] respondent. 3) The petitioners will produce a certified copy of this judgment along with a copy of this writ petition before the 1[st] respondent for compliance. **Sd/P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 29032 OF 2018 10 ## **APPENDIX OF WP(C) 29032/2018** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE COPY OF THE APPOINTMENT ORDER DATED| ||21.1.2002 OF THE IST PETITIONER.| |EXHIBIT P2|TRUE COPY OF THE APPOINTMENT ORDER DATED| ||5.6.2002 OF THE IST PETITIONER.| |EXHIBIT P3|TRUE COPY OF THE APPOINTMENT ORDER DATED| ||23.6.94 ISSUED TO THE 2ND PETITIONER.| |EXHIBIT P4|TRUE COPY OF APPOINTMENT ORDER DATED| ||10.6.95 ISSUED TO THE 2ND PETITIONER.| |EXHIBIT P5|TTUE COPY OF APPOINTMENT ORDER DATED| ||12.2.97 ISSUED TO THE 2ND PETITIONER.| |EXHIBIT P6|TRUE COPY OF THE RELEVANT EXTRACT OF THE| ||SERVICE BOOK OF THE 2ND PETITIONER.| |EXHIBIT P7|TRUE COPY OF APPOINTMENT ORDER DATED| ||2.6.03 OF THE 3RD PETITIONER.| |EXHIBIT P8|TRUE COPY OF COMMUNICATION DATED 6.1.06OF| ||R4.| |EXHIBIT P9|TRUE COPY OF PROCEEDINGS DATED 9.7.2004 OF| ||THE 4TH RESPONDENT.| |EXHIBIT P10|TRUE COPY OF ORDER DATED 15.7.2005 ISSUED| ||BY THE 4TH RESPONDENT.| |EXHIBIT P11|TRUE COPY OF THE ORDER NO.969/B2/06/GE| ||DATED 5.1.2006 ISSUED BY THE IST| ||RESPONDENT.| |EXHIBIT P12|TRUE COPY OF THE ORDER G.O.(RT)| ||NO.4580/07/GE DATED 4.10.2007 OF THE IST| ||RESPONDENT.| WP(C) NO. 29032 OF 2018 11 EXHIBIT P13 TRUE COPY OF STAFF FIXATION ORDER DATED 9.11.2006 FOR THE ACADEMIC YEAR 2006-07. EXHIBIT P14 TRUE COPY OF STAFF FIXATION ORDER DATED 31.7.2007 ISSUED FOR THE YEAR 2007-08. EXHIBIT P15 TRUE COPY OF ORDER NO.C/3031/05/K.DIS DATED 1.12.07 ISSUSED BY THE 4TH RESPONDENT. EXHIBIT P16 TRUE COPY OF JUDGMENT DATED 7.11.2006 IN WP(C)NO.33686/2007. EXHIBIT P17 TRUE COPY OF G.O.(RT) NO.1902/2018/GE DATED 24.5.2018 ISSUED BY THE IST RESPONDENT.