IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933 WP(C).No. 12845 of 2010(S) -------------------------- PETITIONER(S): ----------------------- 1. C.N.SUKUMARAN, AGED 52 YEARS, S/O.PARAMESWARAN.K.S., ILANJIKKAL HOUSE, KOOVAKKANDAM.P.O., METHOTTI. 2. JOSEPH.C.J., AGED 50 YEARS, S/O. DEVASSIA JOSEPH, CHERAVALLOTH HOUSE, KARIPPILANGAD.P.O., NADUKANI. 3. AJEESH RAJ.C.R., S/O. RAJAPPAN NAIR, CHIAITHANYA BHAVAN, KARIPPILANGADU, NADUKANI. BY ADV. SRI.A.X.VARGHESE SRI.A.V.JOJO RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR, EDUCATION DEPARTMENT, THODUPUZHA. 4. THE DISTRICT EDUCATION OFFICER, DISTRICT EDUCATION OFFICE, THODUPUZHA. SR. GOVERNMENT PLEADER SRI.BENNY GERVASIS FOR R1,2,3&4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/03/2011, THE COURT ON 11/4/2011 DELIVERED THE FOLLOWING: WPC NO.12845/10 APPENDIX PETITIONERS' EXHIBITS EXT.P1: TRUE COPY OF THE APPENDIX TO G.O(MS) NO.11/2002/G.EDN. DT 7.1.2002. EXT.P2: TRUE COPY OF THE REPRESENTATION DT 9.1.2010. EXT.P2(a): TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P2. EXT.P3: TRUE COPY OF THE INTIMATION. EXT.P3(a): TRUE COPY OF THE ENGLISH TRANSLATIONOF EXT.P3. EXT.P4: TRUE COPY OF the INFORMATION PROVIDED BY THE HEADMASTER, GOVT.HIGH SCHOOL, KUTTIPLANGAD DT 31.3.2010. EXT.P4(a): TRUE COPY OF THE ENGLISH TRNASLATION OF EXT.P4 EXT.P5: TRUE COPY OF THE INFORMATION PROVIDED by the HEADMASTER, GOVT.TRIBAL HIGH SCHOOL, CHAKKAPALLAM DT 31.3.2010. EXT.P5(a): TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P5. EXT.P6: TRUE COPY OF THE INFORMATION PROVIDED by the HEADMASTER, IHEP GOVT.HIGH SCHOOL, KULAMAVU DT 31.3.2010. EXT.P6(a): TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P6. EXT.P7: TRUE COPY OF THE INFORMATION PROVIDED BY THE HEADMASTER, GOVT.HIGHER SECONDARY SCHOOL, CHANDUVARAI DT 31.3.2010. EXT.P7(a): TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P7. EXT.P8: TRUE COPY OF THE INFORMATION PROVIDED BY THE HEADMASTER, GOVT.HIGH SCHOOL, KANJIKUZHI DT 31.3.2010. EXT.P8(a): TRUE COPY OF THE ENGLISH TRNASLATION OF EXT.P8. EXT.P9: TRUE COPY OF THE INFORMATION PROVIDED by the HEADMASTER, GOVT.HIGHER SECONDARY SCHOOL, DEVIKULAM DT 31.3.2010. EXT.P9(a): TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P9. //TRUE COPY// P.A. TO JUDGE Rp J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.P.(C). NO. 12845 OF 2010 =================== Dated this the 11th day of April, 2011 J U D G M E N T Antony Dominic, J. This writ petition is filed describing itself as a public interest litigation. First petitioner claims to be social activist and the second petitioner is stated to be the father of a student of a school with only three divisions and the 3rd petitioner is an aspirant for appointment as HSA Natural Science. The grievance highlighted in the writ petition is that students in schools having only three divisions i.e, one division each for 8th, 9th and 10th standards are not getting proper education in Natural Science i.e, Biology. According to the petitioners, most of the schools in Idukki District are having only one division in each of the classes and in such schools, there is no HSA appointed to teach Natural Science, as a result of which, the students are not getting proper education in Biology. It is stated that, in such schools, Physical Science teachers, who are graduates in Physics and Chemistry, are made to teach Natural science also. Petitioners have also produced Exts.P4 to P9 information obtained under the Right to Information WP(C) No.12845/10 : 2 : Act in support of their aforesaid contention. On the above basis, they are seeking a direction from this Court requiring the respondents to appoint Natural Science Graduate teachers in schools having one division each in the Higher Secondary section. 2. A statement and a counter affidavit has been filed by the 2nd respondent. According to the 2nd respondent, strength of students, subject ratio and appointment of teachers are matters which are governed by the provisions of the Kerala Education Act, the Kerala Education Rules and the Government Orders issued from time to time. It is stated that consistent with the statutory provisions, appointments have been made and therefore there is no merit in the contentions raised by the petitioners. Petitioners have also filed reply affidavits reiterating their contentions in the writ petition. 3. We have heard the learned counsel for the petitioners and also the learned Government Pleader appearing for the respondents and have considered the matter. 4. For the better organisation and development of educational institutions and for providing a varied and comprehensive educational service throughout the State, the WP(C) No.12845/10 : 3 : State of Kerala have enacted Kerala Education Act, 1958 (hereinafter referred to as 'Act' for short). Section 3 of the Act provides that the Government may regulate the primary and other stages of education and courses of instructions in Government and Private Schools. Sub Section (2) provides that the Government shall, from time to time, take such steps as they may consider necessary or expedient, for the purpose of providing facilities for general education, special education and for the training of teachers. Sub Section 3 provides that for the purpose of providing the facilities as laid down in Section 3(2), the Government may establish and maintain schools or permit any person or body of persons to establish and maintain aided schools or recognise any school established and maintained by any person or body of persons. 5. Section 4 of the Act provides for the establishment of a State Education Advisory Board for the purpose of advising the Government on matters pertaining to educational policy and administration of the Department of Education, the constitution of the Board, its tenure and such other matters. Section 10 provides that the Government shall prescribe the qualifications to be WP(C) No.12845/10 : 4 : possessed by persons for appointment as teachers in Government and Private Schools. Section 11 provides that subject to the rules and conditions laid down by the Government, teachers of aided schools shall be appointed by Managers of such schools from among those who possess the qualifications prescribed under Section 10. Section 36 of the Act confers power on the Government to make rules for the purpose of carrying into effect the provisions of the Act, the details of which may not be necessary at this stage. 6. In exercise of its powers under Section 36 of the Kerala Education Act, 1958, Government have made Kerala Education Rules, 1959 (hereinafter referred to as KER for short). Chapter II of the KER deals with the classification of schools and schools have been generally classified as schools for general education, schools for special education, schools for the education of particular categories of students and other institutions connected with educational system of the State. Schools for general education have been again categorised into two grades, viz., primary and secondary. Primary grade is again sub divided into lower primary and upper primary. In terms of Rule 2(3) WP(C) No.12845/10 : 5 : standards, VIII, IX and X shall be collectively known as Secondary Grade and standards VIII, IX, X and XI shall be collectively known as Higher Secondary Grade. Chapter IV deals with the establishment and maintenance of schools and Chapter V deals with opening and recognition of schools. Chapter VI deals with admission, transfer and removal of pupils. It may be relevant to note here that Rule 23 of Chapter VI provides that the maximum strength of a class division shall be 45, but excess admission upto 50 will be allowed. This Rule also provides that when there are more than 50 students, a second division may be opened and that when the strength exceeds 95, a third division and so on. 7. Chapter XXIII of the KER deals with fixation of strength of teachers in departmental and aided schools. Rule 3 provides that the strength of teaching staff in upper primary and secondary schools shall be fixed on the basis of number of recognized class divisions and periods of work. The manner in which various posts of teachers shall be referred to by the designations has been indicated in this Rule. Rule 4 provides that in every High School, there will be one post of Headmaster and as many posts of High School Assistants as there are divisions and periods of work in WP(C) No.12845/10 : 6 : High School classes. This rule, being relevant in the context of this case, is extracted below for reference:- 4. In every High School there may be - (i) One post of Headmaster; (ii)As many posts of High School Assistants as there are divisions (and period of work) in High School classes. (iii) (x x x x) and (iv) As many posts of Lower and Upper Primary school Assistants as there are div ions in the Lower and upper Primary school classes; ( x x x) Note: If the Lower Primary Section of the school is working on the shift system the number of Lower Primary School Assistants shall be fixed in accordance with Rule 1. 8. Rule 6D provides that in High Schools having all or any of the standards VIII to X only, posts of language teachers may be sanctioned as shown in this Rule and subject to the restrictions specified in Rule 6E. Rule 6.I. provides for the sanctioning of posts of HSA(English), which states that notwithstanding anything contained in any other Rule in Chapter XXIII, the post of High School Assistant (English) shall be sanctioned on the basis of WP(C) No.12845/10 : 7 : periods allocated to English, observing minimum subject requirement. Rule 12 provides the manner in which the strength of teaching staff is to be fixed. 9. Now that the relevant provisions of Chapter XXIII KER have been seen, the next Chapter which is of relevance in this case is Chapter XXXI, which prescribes the qualifications of private school teachers. It should immediately be noticed that by GO(P) No.76/80/G.Edn dated 6th of June, 1980, the Government have ordered in consultation with the PSC that the qualifications prescribed in Chapter XXXI for the various teaching posts indicated in the last column of the statement appended to this Government Order will be applicable to the teaching posts in Government schools for future appointments. The appendix to the Government order includes High School Assistants as well. It is also to be stated in this context that Government have issued orders fixing the subject requirement by Circular No.H2-42115/84 dated 13/5/85. It was ordered that from the school year 1985-86 onwards, distribution of post of HSAs in core subjects viz., Social Studies, Mathematics and Science will be in the proportion of 1:1:1 in Government and Aided schools and that the break up for WP(C) No.12845/10 : 8 : Physical and Natural Science will be in the ratio of 3:2. Subsequently the Director of Public Instructions have issued Circular No.H2-54419/94 dated 10/2/95 regulating the subject requirements which were modified by GO(MS) No.11/02/G.Edn dated 07/01/2002, the appendix of which being relevant reads as under:- APPENDIX TO GO(MS) 11/2002/G.EDN. DATED 7.1.02. No. of Divisions PS NS Maths SS Eng Total 1 1 .... ..... ..... ..... 1 2 1 .... 1 ..... ... 2 3 1 .... 1 1 ... 3 4 1 1 1 1 ... 4 5 1 1 1 1 1 5 6 1 1 2 1 1 6 7 2 1 2 1 1 7 8 2 1 2 2 1 8 9 2 1 2 2 2 9 10 2 2 2 2 2 10 11 2 2 3 2 2 11 12 3 2 3 2 2 12 13 3 2 3 3 2 13 14 3 2 3 3 3 14 15 3 2 4 3 3 15 16 3 2 4 4 3 16 17 3 2 4 4 4 17 WP(C) No.12845/10 : 9 : No. of Divisions PS NS Maths SS Eng Total 18 3 3 4 4 4 18 19 3 3 5 4 4 19 20 4 3 5 4 4 20 21 4 3 5 5 4 21 22 4 3 5 5 5 22 23 5 3 5 5 5 23 24 5 3 6 5 5 24 25 5 3 6 5 6 25 26 5 3 6 6 6 26 27 5 4 6 6 6 27 28 5 4 7 6 6 28 29 5 4 7 6 7 29 30 5 4 7 7 7 30 31 6 4 7 7 7 31 32 6 4 8 7 7 32 33 6 4 8 7 8 33 34 6 4 8 8 8 34 35 7 4 8 8 8 35 36 7 4 9 8 8 36 37 7 4 9 8 9 37 38 7 4 9 9 9 38 39 7 5 9 9 9 39 40 7 5 10 9 9 40 41 7 5 10 9 10 41 42 7 5 10 10 10 42 43 8 5 10 10 10 43 44 8 5 11 10 10 44 45 8 5 11 10 11 45 WP(C) No.12845/10 : 10 : No. of Divisions PS NS Maths SS Eng Total 46 8 5 11 11 11 46 47 8 6 11 11 11 47 48 8 6 12 11 11 48 49 8 6 12 11 12 49 50 8 6 12 12 12 50 51 9 6 12 12 12 51 52 9 6 13 12 12 52 53 9 6 13 12 13 53 54 9 6 13 13 13 54 55 9 7 13 13 13 55 ............... .................. ................. ................. ................. ................. .................. 10. What is relevant in the appendix to GO(MS) No.11/02 is that in a school with one division, there is only a teacher in Physical Science whereas when the number of divisions are two there are two teachers, one in Physical Science and one in Maths. When the number of divisions become three, there are one teacher each for Physical Science, Maths and Social Science. Only when the number of divisions becomes four, then only there will be one teacher for Natural Science. Therefore, in a school with only three divisions, there will not be any teacher for Natural Science in terms of the scheme framed by the Government. The WP(C) No.12845/10 : 11 : Curriculum Committee appointed by the Government have also revised the curriculum and we are told that the distribution of period based on the decision of the Curriculum Committee was last revised by order dated 27/11/02. The Government Pleader further reported to the Court that in schools such as the one in relation to which the petitioners have complained, Natural Science is being taught by teachers of Physical Science and that such teachers are given training under a scheme by name Sarva Siksha Abhiyan. 11. We have made detailed reference to the relevant provisions of the Act and the KER to indicate that it is not as though the Government have not applied their mind when they decided about the strength of teachers or subject ratio in the Higher Secondary Schools. These are matters of policy and unless the policy decision taken by the Government is shown to be illegal, perverse or vitiated for reasons of arbitrariness, this Court will not be justified in interfering with such policy decisions. Petitioners have not produced any material, for this Court to conclude in their favour on this issue. Therefore, this Court should accept the policy decision of the Government which has been WP(C) No.12845/10 : 12 : taken with due application of mind and in consultation with experts in the field. Further, an order to appoint more teachers in the schools as sought for by the petitioners will also be against Rule 4 of Chapter XXIII, which provides that apart from the Headmaster, there will be as many High School Assistants as the Divisions. 12. Be that as it may, it is always open to the Government to revise its policy decisions, provided petitioners or anybody else are able to satisfy the Government that for relevant considerations, such a review is warranted. Therefore we leave it open to the petitioners to place their grievances before the Government, in which event, it is for the Government to consider such grievances and take appropriate decisions in the matter. Writ petition is dismissed. No costs. J.CHELAMESWAR CHIEF JUSTICE. ANTONY DOMINIC JUDGE. Rp