IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 WP(C).No. 17927 of 2009(I) --------------------------------------- PETITIONER(S): ---------------------- 1. THE CORPRATE MANAGER, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF PALAI, BISHOP'S HOUSE, PALA.P.O., KOTTAYAM DIST. REP. BY HIS POWER OF ATTORNEY HOLDER, FR. JOSEPH ENTHANAL, SHLOM PASTORAL CENTRE, PALAI.P.O., KOTTAYAM DIST. 2. JOLLY PHILIP, H.S.A.(MATHS) S.P.H.S. MUTHOLAPURAM, KOOTHATTUKULAM, ERNAKULAM DIST. BY ADV. MR.GEORGEKUTTY MATHEW RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA REP. BY ITS SECRETARY TO DEPARTMENT OF SCHOOL EDUCATION, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 3. DEPUTY DIRECTOR OF EDUCATION, COLLECTORATE, ERNAKULAM. 4. DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA. R1 TO R4 BY GOVERNMENT PLEADER SMT.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.17927/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE GOVERNMENT DTD. 7.6.04. P2:- COPY OF THE STAFF-FIXATION ORDER PASSED BY THE 4TH RESPONDENT FOR 2004-05. P3:- COPY OF THE ORDER DTD. 24.5.07 PASSED BY THE 3RD RESPONDENT. P4:- COPY OF THE STAFF- FIXATION ORDER FOR THE YEAR 2007-08 PASSED BY THE 4TH RESPONDENT. P5:- COPY OF THE PROPOSALS FOR STAFF FIXATION SUBMITTED BY THE IST PETITIONERBEFORE 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. 29.9.09 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. P12:- COPY OF THE LETTER BEARING NO.29/09-10 ISSUED BY THE HEAD MISTRESS GOVERNMENT HIGH SECONDARY SCHOOL PERUMBAVOOR. P13:- COPY OF THE CERTIFICATE DTD. 3.8.09 ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTION. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.17927 OF 2009 --------------------------------------- Dated this the 8th day of October, 2009. J U D G M E N T The petitioners are respectively the Corporate Manager of the Corporate Educational Agency, Diocese of Palai and a High School Assistant (Maths) working in the S.P.H.S, Mutholapuram. 2. The grievance raised by the petitioners is that the refusal to reckon the strength of boys student for fixation of staff in the St.Paul's High School, Mutholapuram cannot be justified. The bare facts necessary for the disposal of the writ petition are the following: 3. The school in question was a girls' high school initially. By Exhibit P1, the Government accorded sanction to admit boys students in the school in relaxation of Rule 12(ii) of Chapter VI of Kerala Education Rules. It was subject to the condition that there will be no additional financial commitment to Government by sanctioning of new divisions and appointment of staff on account W.P.(C) No.17927/2009 2 of admission of boys in the school. The name of the school was changed as St.Paul's High School, Mutholapuram. Exhibit P2 is the staff fixation order for the year 2004-2005. 4. During the academic year 2006-2007, the 4th respondent fixed the staff strength and aggrieved by the same, the 1st petitioner filed an appeal before the 3rd respondent and the appeal was allowed as per Exhibit P3. For the year 2007-2008, the staff strength was fixed after implementing Exhibit P3 and the said order is produced as Exhibit P4. Even though in the subsequent year 2008-2009, the 1st petitioner sought to include the boys students also, that was not accepted by the 4th respondent and the resultant order is produced as Exhibit P6. The 4th respondent reduced the boys students from the roll strength of standard VIII, IX and X. Exhibit P7 is the order passed in appeal, which was decided against the petitioners. Even though a statutory revision was filed as Exhibit P8, that was rejected by Exhibit P11. 5. The petitioners are relying upon Exhibit P9 judgment of this Court wherein a similar issue was considered. Even though W.P.(C) No.17927/2009 3 this was relied upon before the Government, that was not followed. The 3rd respondent has filed a counter affidavit. 6. Heard the learned counsel for the petitioners and the learned Government Pleader. 7. In Exhibit P9 judgment, a similar order like Exhibit P1 was considered by this Court. It is clear from paragraph 3 of the said judgment that a similar condition as contained in Exhibit P1 was there in Exhibits P3 and P4 orders considered therein also. After considering various aspects under the relevant rules, 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”. W.P.(C) No.17927/2009 4 8. Learned counsel for the petitioners also relied upon the decision of the Apex Court in RT.Rev.Mark Netto vs. Govt. of Kerala (1978 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. 9. 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. 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 boys students admitted on the strength of Exhibit P1 for the years 2008-2009 and 2009-2010, while fixing the staff strength. The staff fixation orders will be revised accordingly and the eligible benefits due to the 2nd petitioner W.P.(C) No.17927/2009 5 including arrears of salary will be disbursed within a period of two months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp