W.P.(C.) Nos. 20057 of 2010 & 14043 of 2014

``` WP(C) Nos.20057/10 & 14043/14 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944 WP(C) NO. 20057 OF 2010 ``` ## **`PETITIONERS:`** ``` 1MANAGER, NSS HIGH SCHOOL PULLIKKANAKKU.P.O, KAYAMKULAM, ALAPPUZHA. 2SUBADRA.T RETIRED HEADMISTRESS PARVATHIMANDIRAM, PATHIYOORSALA,KEERIKKAD.P.O,690508. NAME OF 2ND PETITIONER IS CORRECTED AS “SUBADRA KUTTY.S” AS PER ORDER DTD.28.7.2010 IN I.A.NO.10211/2010 BY ADV SRI.P.N.MOHANAN 1SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM. 3DEPUTY DIRECTOR (EDUCATION) ALAPPUZHA-688 001 4DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA, ALAPPUZHA,PIN-690 101 SRI.JIBU.T.S, GP ``` ## **`RESPONDENTS:`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2022, ALONG WITH WP(C).14043/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) Nos.20057/10 & 14043/14 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944 WP(C) NO. 14043 OF 2014 ``` ## **`PETITIONER:`** ``` JAYALEKSHMI. R(L.G.HINDI, NSS HIGH SCHOOL, PULLIKKANAKKU P.O., KAYAMKULAM, ALAPPUZHA. BY ADV SRI.P.N.MOHANAN ``` ## **`RESPONDENTS:`** ``` 1DISTRICT EDUCATIONAL OFFICER MAVELIKKARA, ALAPPUZHA- 690 101. 2DEPUTY DIRECTOR EDUCATION ALAPPUZHA - 688 001. 3MANAGER, NSS HIGH SCHOOL PULLIKKANAKKU P.O., KAYAMKULAM, ALAPPUZHA -690 537. 4DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM - 695 001. 5THE HEADMISTRESS NSS HIGH SCHOOL, PULLIKKANAKKU P.O., KAYAMKULAM, ALAPPUZHA - 690 537. BY ADVS. GOVERNMENT PLEADER SRI.JIBU T.S R5 BY SRI.P.SREEKUMAR ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2022, ALONG WITH WP(C).20057/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) Nos.20057/10 & 14043/14 ``` ``` 3 ``` ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C) Nos. 20057 of 2010 & 14043 of 2014 ------------------------------------------------Dated this the 1[st] day of November, 2022** ## **JUDGMENT** These two writ petitions are connected and therefore, I am disposing of these two writ petitions by a common judgment. 2. First, I will consider the facts in W.P.(C.) No. 20057/2010. The 1[st] petitioner is the Manager for NSS High School, Pullikkanakku and the 2[nd] petitioner is the Headmistress of the school who retired from the service on 31.3.2010. The dispute in this case is regarding the staff fixation of the school of the academic year 2008-09. Ext.P1 is the staff fixation order of year 2008-09. Subsequently, the 2[nd] respondent received a complaint alleging bogus admission in the school and accordingly, the Super Check Cell came to the school on 29.8.2008. The headmistress explained to the Super Check Cell that, on that day the father of one student namely ``` WP(C) Nos.20057/10 & 14043/144 ``` Sreelakshmi of VI[th] standard expired and students went to participate in the funeral. Ext.P2 is the statement given by the Headmistress to the Super Check Cell. Thereafter, on 22.1.2009, the Super Check Cell conducted the 2[nd] visit and on that day also, certain students were absent. The headmistress gave an explanation for the absence of the students in the light of Ext.P3, which is a letter from the Samridhi Swayam Sahaya Sangam. The headmistress furnished the name of 36 students who left the school and who attended the function in the reply submitted by her as evident by Ext.P4. 3. On the basis of the report of the Super Check Cell, the DPI issued notice on 20.8.2009 to show cause the reason not to remove the students admitted which according to the department is bogus. Exhibit P5 is the notice. The petitioners submitted their reply. It is the case of the petitioners that, without considering the same, the DPI issued Ext.P6 order repelling the contentions and reduced the staff strength to 13 instead of 15 sanctioned in Ext. P1. Consequently, 2 posts of HSA (core subjects) abolished w.e.f 15.7.2008 and sanctioned ``` WP(C) Nos.20057/10 & 14043/14 ``` ``` 5 ``` one LG Hindi post and one HSA (Hindi) post and also abolished one post of HSA (Hindi). The DEO was directed to take steps to recover the loss sustained to the Government by way of salary paid to the teachers. Consequent to Ext.P6, the revised staff fixation order was issued by the DEO as evident by Ext.P7. In Ext.P7, it is further directed to recall and to deploy a protected LG Hindi Teacher Smt. G. Thankamani Amma and to appoint her in the UP Section in the LG Hindi post sanctioned in the revised order. In Ext. P1 staff fixation order two posts of HSA Hindi were sanctioned. Out of two post of HSA (Hindi) one post was abolished in Ext. P7 revised staff fixation and sanctioned one LG Hindi. Accordingly Smt. Jayalakshmi, who was HSA Hindi was deployed in that post. In Ext.P7 staff fixation order, the DEO directed to deploy one Smt. Thankamani Amma in that place. Smt. Thankamani Amma while working in the school during the academic year 2002-03 became a protected Teacher and she was deployed in Government UP school Pennukkara, Mavelikkara. So the direction contained in Ext.P7 staff fixation order to recall Smt. Thankamani Amma was not possible, is the ``` WP(C) Nos.20057/10 & 14043/146 ``` case of the petitioners. It is also the case of the petitioners that, Ext.P8 Government Order dated 28.1.1989 clarified that in order to have a finality in the case of staff fixation, the last Super Check should be over by the end of 30[th] November of every academic year. According to the petitioners, the last Super Check Cell visit was on 22.1.2009, in violation of the Government order. Chapter XXIII KER deals with staff fixation and Rule 15 deals with revision of Staff fixation in the case of bogus admission. According to the said rule the staff fixation should be finalized during the course of the academic year itself. Hence Ext. P6 and P7 are unsustainable is the case. As directed in Ext. P6 order of the DPI, the Deputy Director quantified the liability of the Headmistress as Rs.2,11,129/towards the excess salary drawn by the retrenched Teachers. Ext.P9 is the order dated 9.6.2010 of the Deputy Director. It is the case of the petitioners that, there is no provision to recover the alleged loss from the Headmistress. In the mean while the first petitioner filed a revision under Rule 92 of Chapter XIV A KER before the first respondent against Ext. P6 order of the ``` WP(C) Nos.20057/10 & 14043/14 ``` ``` 7 ``` DPI. The 1[st] petitioner submitted a detailed argument note also before the Government as evident by Ext.P10. But as per Ext.P11, without considering the contentions in Ext.P10, the revision is dismissed. The petitioners also relied on Ext.P12 judgment passed in a similar situation. Hence W.P. (C)No.20057 of 2010 is filed challenging Exts.P6, P7, P9 and P11. 4. W.P.(C)No.14043 of 2014 was filed by Smt.Jayalekshmi R., High School Assistant, Hindi. She was appointed as per Ext.P1 order on 10.07.2002 and it was approved by the DEO. The third respondent school have standard V to X and in U.P. Section there was one L.G.Hindi Teacher namely Smt.Thankamani Amma and in the High School there were two posts HSA (Hindi). In one HSA (Hindi) post Smt. Lathika was appointed and in the next post petitioner was appointed on 10.7.2002. By Ext.P2, due to fall in division L.G.Hindi post holding by Smt.Thankamani Amma was abolished and she was given protection in Government UP School, Pennorkara and later absorbed in St.Kuriakose U.P. ``` WP(C) Nos.20057/10 & 14043/14 ``` ``` 8 ``` School as per Ext.P4 order. In the Ext.P3 revised staff fixation order of 2008-2009, one post of HSA Hindi was abolished and sanctioned one L.G.Hindi post. The DEO directed the Manager to recall Smt.Thankamani Amma. It is the case of the petitioner that, the said order was challenged in W.P.(C).No.20057/2010 before this Court and it was stayed by Ext.P5. So petitioner was appointed as L.G.Hindi in clubbing arrangement with High School. By Ext.P6 and P8, it was directed to give salary to the petitioner. Subsequently, petitioner submitted Ext.P9 to regularise her service from 15.7.2008 to October, 2012. While so, on receipt of Ext.P9, the DPI issued Ext.P10 letter dated 12.5.2014 to take steps to vacate Ext.P5 interim order. But according to the petitioner, misinterpreting Ext.P10 letter, the DEO issued Ext.P11 order dated 26.5.2014 directing the 5[th] respondent, Headmistress of the School not to pay salary to the petitioner. According to the petitioner, Ext.P11 order is passed without giving an opportunity of hearing to the petitioner. Aggrieved by the same, this writ petition is filed. 5. Heard counsel appearing for the petitioners and the ``` WP(C) Nos.20057/10 & 14043/14 ``` ``` 9 ``` learned Government Pleader. 6. The main grievance in W.P.(C)No.20057 of 2010 is against Ext.P11 order of the Government. This Court perused Ext.P11. The petitioners submitted a detailed argument note before the Government as evident by Ext.P10. A perusal of Ext.P11 will not show that the contention raised by the petitioners in Ext.P10 argument note is adverted by the Government. Moreover, a perusal of Ext.P8 Government Order will show that, in order to have a finality in the case of staff fixation, the last super check should be over by the end of 30[th] November of every year. Admittedly, the last super check visit in this case was on 22.01.2009. Moreover, Chapter XXIII Rule 15 of KER also says that staff fixation should be finalised during the course of the academic year itself. A similar point was considered by this Court in Ext.P12 judgment. It will be beneficial to extract the relevant portion of Ext.P12 judgment. “5. Heard the learned counsel for the petitioner, learned counsel appearing for the 4th respondent and the learned Government Pleader. 6. The first question is whether there is violation of Rule ``` WP(C) Nos.20057/10 & 14043/14 ``` ``` 10 ``` 15 of Chapter XXIII K.E.R. Rule 15 of Chapter XXIII K.E.R is extracted below: “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”. The interpretation of such Rule came for consideration in **Sali George** vs. **State of Kerala (2004(2) KLT 1051)** . After referring to the various aspects also, it was held that refixation order can be passed at any time during the course of the year. This Court was of the view that the only rider is that the officers shall be satisfied, for valid and sufficient reasons to be recorded in writing, about such act of fraud, misrepresentation or bogus admission of students. 7. Going by the order Exhibit P5, the same is dated 03.05.2008 clearly after the academic year was over. The petitioner was retained as per Exhibit P1 by invoking 1:40 ratio. Therefore, it is evident that the revised order has been passed beyond the academic year namely, 2007-2008. If that be so, the said order could not have been said to be validly passed in the light of the restrictions contained in Rule 15 of Chapter XXIII K.E.R. The dictum laid down in **Sali George's** case **(2004 (2)** ``` WP(C) Nos.20057/10 & 14043/14 ``` ``` 11 ``` ## **KLT 1051)** therefore squarely applies.” 7. The point raised in the above judgment is also not considered by the Government while passing the impugned order. Therefore, according to me, the Government has to reconsider the matter. 8. As far as W.P.(C)No.14043 of 2014 is concerned, the impugned order is passed without giving an opportunity of hearing to the petitioner. That order can be set aside and the Government can be directed to reconsider the matter along with the issue in W.P.(C)No.20057 of 2010. Therefore, these writ petitions are disposed of in the following manner: i) Ext.P11 in W.P.(C)No.20057 of 2010 is quashed. The 1[st] respondent is directed to reconsider the matter in the light of the contention raised by the petitioner in Ext.P10 argument note and also in the light of Ext.P12 judgment. ii) Ext.P11 in W.P.(C)No.14043 of 2014 is set aside. The Government is directed to reconsider the case of the petitioner in this case while deciding the issue as directed by this Court in ``` WP(C) Nos.20057/10 & 14043/1412 ``` W.P.(C)No.20057 of 2010. iii) The petitioners will produce a copy of these writ petitions along with the certified copy of this judgement before the Government for compliance. **Sd/P.V.KUNHIKRISHNAN JUDGE** SKS ``` WP(C) Nos.20057/10 & 14043/14 ``` ``` 13 ``` ## **`APPENDIX OF WP(C) 14043/2014`** ``` PETITIONER EXHIBITS ``` ``` EXT.P1: A TRUE COPY OF THE APPOINTMENT ORDER DATED 10/7/2002 OF THE FIRST RESPONDENT ALONG WITH THE APPROVAL OF THE DEO. ``` ``` EXT.P2: A TRUE COPY OF THE STAFF FIXATION ORDER OF 2005-2006 DATED 13/7/2005. ``` ``` EXT.P3: A TRUE COPY OF THE STAFF FIXATION, (REVISED) ORDER DATED 31/12/2009. ``` ``` EXT.P4: A TRUE COPY OF THE ORDER DATED 24/6/2009 OF THE DEPUTY DIRECTOR. ``` ``` EXT.P5: A TRUE COPY OF THE ORDER DATED 12/11/2010 IN WPC NO.20057/2010. ``` ``` EXT.P6: A TRUE COPY OF THE ORDER NO.B2/53/2012 DATED 27/10/12 OF THE FIRST RESPONDENT. ``` ``` EXT.P7: A TRUE COPY OF THE LIST. ``` ``` EXT.P8: A TRUE COPY OF THE ORDER DATED 29/9/2012 OF THE DPI. ``` ``` EXT.P9: A TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE DPI. ``` ``` EXT.P10: A TRUE COPY OF THE LETTER DATED 12/5/2014 OF THE GOVERNMENT. ``` ``` EXT.P11: A TRUE COPY OF THE COMMUNICATION DATED 26/5/2014 OF THE DEO. ``` ``` WP(C) Nos.20057/10 & 14043/14 ``` ``` 14 ``` ## **`APPENDIX OF WP(C) 20057/2010`** ``` PETITIONER EXHIBITS ``` ``` EXT.P1: A TRUE COPY OF THE STAFF FIXATION ORDER 2008-09 ``` ``` EXT.P2: A TRUE COPY OF THE STATEMENT SUBMITTED BY THE HEADMISTRESS BEFORE THE SUPER CHECK CELL. ``` ``` EXT.P3: A TRUE COPY OF THE LETTER OF SAMRIDHI SWAYAM SAHAYA SANGAM. ``` ``` EXT.P4: A TRUE COPY OF THE LIST OF STUDENTS ABSENT IN THE SCHOOL DURING 2ND VISIT. ``` ``` EXT.P5: A TRUE COPY OF THE NOTICE DTD 20.8.2009 OF THE DPI. ``` ``` EXT.P6: A TRUE COPY OF THE ORDER DATED 2/11/2009 OF THE DPI. ``` ``` EXT.P7: A TRUE COPY OF THE REVISED STAFF FIXATION ORDER OF THE DEO. ``` ``` EXT.P8: A TRUE COPY OF THE LETTER DATED 28/1/1989 OF THE GOVERNMENT. ``` ``` EXT.P9: A TRUE COPY OF THE LETTER DATED 9.6.2010 OF THE DEPUTY DIRECTOR. ``` ``` EXT.P10: A TRUE COPY OF THE NOTE SUBMITTED TO THE GOVERNMENT AT THE TIME OF HEARING THE REVISION. ``` ``` EXT.P11: A TRUE COPY OF THE ORDER DTD 29.5.2010 OF THE GOVERNMENT. EXT P12: A TRUE COPY OF THE JUDGMENT DATED 6.7.2009 ``` ``` WP(C) Nos.20057/10 & 14043/1415 ```