IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 26TH OCTOBER 2009 / 4TH KARTHIKA 1931 WP(C).No. 21710 of 2009(G) ----------------------------------- PETITIONER(S): ------------------------- 1. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF PALAI, BISHOP'S HOUSE, PALAI P.O., KOTTAYAM DISTRICT, REP. BY HIS POWER OF ATTORNEY HOLDER, FR.JOSEPH ENTHANAL, SHALOM PASTORAL CENTRE, PALAI P.O., KOTTAYAM DISTRICT. 2. P.T.THOMAS, MUSIC TEACHER, L.F.H.S., VADAKARA, KOOTHATTUKULAM, ERNAKULAM DISTRICT. 3. SR.CICILIAMMA ZACHARIA, H.S.A.(S.S.), L.F.H.S., VADAKARA, KOOTHATTUKULAM, ERNAKULAM DISTRICT. 4. ASHA EMMANUAL, H.S.A.(ENGLISH), L.F.H.S., VADAKARA, KOOTHATTUKULAM, ERNAKULAM DISTRICT. 5. MARYKUTTY K.P., PHYSICAL EDUCATION TEACHER, L.F.H.S., VADAKARA, KOOTHATTUKULAM, ERNAKULAM DISTRICT. 6. M.V.SEBASTIAN, FULL TIME MANIEL, L.F.H.S., VADAKARA, KOOTHATTUKULAM, ERNAKULAM DISTRICT. BY ADV.MR.GEORGEKUTTY MATHEW RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REP. BY ITS SECRETARY TO DEPARTMENT OF SCHOOL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. W.P.(C) NO.21710/2009 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, COLLECTORATE, ERNAKULAM. 4. DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA. R1 TO R4 BY GOVERNMENT PLEADER SMT.T.B.RAMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21710/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE GOVERNMENT DTD. 28.5.04. P2:- COPY OF THE STAFF- FIXATION ORDER PASSED BY THE TH RESPONDENT FOR 2004-05. P3:- COPY OF THE ORDER DT. 8.12.06 PASSED BY THE 3RD RESPONDENT. P4:- COPY OF THE STAFF- FIXATION ORDER FOR THE YEAR 2007-08 PASSEC BY THE 4TH RESPONDENT. P5:- COPY OF THE PROPOSALS FOR STAFF FIXATION SUBMITTED BY THE IST PETITIONER BEFORE THE 4TH RESPONDENT YEAR 2008-09 P6:- COPY OF THE STAFF FIXATION ORDERS FOR THE YEAR 2008-09 PASSED BY THE 4TH RESPONDENT. P7:- COPY OF THE ORDER DTD. 5.12.08 PASSED BY THE 3RD RESPONDENT. P8:- COPY OF THE REVISION SUBMITTED BY THE IST PETITIONER BEFORE THE 2ND RESPONDENT DTD. 21.1.09. P9:- COPY OF THE JUDGMENT DTD. 29.9.08 IN WPC. 1229/08. P10:- COPY OF THE JUDGMENT DTD. 2.2.09 IN WPC. 1705/09. P11:- COPY OF THE ORDER DTD. 8.5.09 PASSED BY THE 2ND RESPONDENT. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.21710/2009-G ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 26th day of October, 2009 J U D G M E N T When the matter came up for hearing, it was submitted that in the light of the judgment in W.P.(C).No.17927/2009, the issue raised by the petitioners is covered in their favour. 2. The first petitioner herein is the Corporate Manager of various schools. Petitioners 2 to 6 are the teachers working in Little Flower High School, Vadakara. Formerly, it was known as Little Flower Girls High School, Vadakara. 3. By Ext.P1, the Government sanctioned admission of boys in the school in relaxation of Rule 12(ii) of Chapter VI of Kerala Education Rules. Consequently, the name of the school was changed to Little Flower High School, Vadakara. There is a condition therein that no additional financial commitment will be caused to the Government by sanctioning of new divisions and appointment of staff on account of admission of boys in the school. The staff fixation proposal for the year 2006-07, when submitted, the strength of the boy students was not reckoned by the fourth respondent for the purpose of finalising it. The order was challenged in an appeal by W.P.(C). No.21710/2009 -:2:- the first petitioner. The appeal was allowed as per Ext.P3. Ext.P4 is the staff fixation order for the year 2007-08 and Ext.P6 relates to the year 2008- 09. In Ext.P6, the strength of boy students was not reckoned for the fixation of the staff. Ext.P7 is the order passed in appeal wherein the same was concluded against the first petitioner. A revision petition was filed as per Ext.P8. Ext.P11 is the order passed by the Government dismissing the revision. 4. The petitioner is further relying upon a judgment of this Court in W.P.(C).No.1229/2008, rendered as per Ext.P9, wherein this Court considered an identical question. It was held thus in paragraph 7:- “Even if it is assumed that there is substance in the contention of the learned Government Pleader that because the boy students were admitted without obtaining orders their strength is liable to be excluded for the year 2007-08, I see no justification for excluding the boys strength for the succeeding years. In order to justify such exclusion nothing is forthcoming. There is absolutely no justification to exclude permanently the number of boys, who are admitted in the school pursuant to Exts.P3 and P4. If that be so, the Department is liable to reckon the strength of boys admitted in the school, except in the year 2007-08”. 5. Even though the learned counsel for the petitioners relied upon the decision of the Apex Court in RT.Rev.Mark Netto vs. Govt. of Kerala (1978 W.P.(C). No.21710/2009 -:3:- KLT 798) to contend for the position that in the light of Article 30(1) of the Constitution of India, the condition prescribed in Exhibit P1 also cannot be sustained. Learned Government Pleader pointed out that the said issue was not raised before the statutory authorities and hence it does not arise for consideration here. 6. In the light of the view taken in Exhibit P9 judgment to which I respectfully agree, the petitioners are entitled to succeed in the writ petition. As held by this Court therein, there is no justification for excluding the strength of boys for the succeeding years. 7. In that view of the matter, Exhibits P6, P7 and P11 are quashed. There will be a direction to the respondents to reckon the strength of boy students admitted on the strength of Exhibit P1 for the years 2006-2007, 2008-2009 and in 2009-2010, while fixing the staff strength. The staff fixation orders will be revised accordingly and the eligible benefits due to petitioners 2 to 6 including arrears of salary will be disbursed within a period of two months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms