IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 WP(C).No. 3298 of 2009(P) ------------------------- PETITIONER(S): --------------- P.B.SINDHU, ASSISTANT TEACHER, ASSISSI SCHOOL FOR THE DEAF, EAST VAZHAPPILLY, MUVATTUPUZHA. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.TONY GEORGE KANNANTHANAM RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTEDBY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA. 4. THE MANAGER,ST.JOSEPH'S PROVINCIALATE, VADUTHALA, KOCHI-23. ADV. SRI.V.M.KURIAN FOR R4 SRI.MATHEW B. KURIAN FOR R4 SRI.K.T.THOMAS FOR R4 GOVERNMENT PLEADER SMT.N.SUDHA DEVI FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2010, THE COURT ON DELIVERED THE FOLLOWING: WP(C).No. 3298 of 2009(P) A P P E N D I X PETITIONER'S EXTS: EXT.P1 COPY OF APPOINTMENT ORDER DATED 12/1/2005 TO THE PETITIONER EXT.P2 TRUE COPY OF ORDER DATED 22/1/2008 OF THE 2ND RESPONDENT EXT.P3 TRUE COPY OF REPORT FORWARDED TO THE SCHOOL BY DPI EXT.P4 TRUE COPY OF THE COMMUNICATION DATED 26/04/2008 OF 3RD RESPONDENT. EXT.P5 TRUE COPY OF COMMUNICATION ORDER DATED 16/1/2009 OF THE GENERAL EDN.(R) DEPARTMENT. EXT.P6 TRUE COPY OF ORDER DATED 3/11/1969 OF EDN.(M) DEPT. EXT.P7 TRUE COPY OF GOVERNMENT ORDER DATED 22/11/1979 OF GENERAL EDN.(K) DEPT. EXT.P8 TRUE COPY OF LETTER DATED 3/3/1999 OF THE 2ND RESPONDENT. EXT.P9 TRUE COPY OF THE CHART SHOWING THE CORRESPONDING SCALES OF PAY OF ASST.TEACHERS FROM 1974 TO 2006 SHOWING THE REVISION OF PAY. EXT.P10 TRUE COPY OF THE LETTER WRITTEN BY THE D.E.O. TO THE D.P.I. RESPONDENTS' EXTS: EXT.R4(a) TRUE COPY OF REPORT OF AUDIT \\TRUE COPY// P.A TO JUDGE T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.3298/2009-P ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 24th day of November, 2010 J U D G M E N T The grievance raised by the petitioner herein relates to the withdrawal of approval of her appointment during the academic years 2005-06 and 2006-07. 2. The petitioner was appointed as Assistant Teacher on 12/01/2005. The said appointment was approved on 25/04/2005. This is evident from the endorsement in Ext.P1 appointment order itself. In the next year, the District Educational Officer sanctioned two divisions in Class IV. But there was an audit which resulted in submission of Ext.P3 report. Therein, after noticing that the District Educational Officer has sanctioned two divisions based on the verified strength of 12, it was observed that the action of the District Educational Officer is against the Rules. Reliance was placed on Rule 1(iv) of the G.O.(P). No.412/69/Gl.Edn., dated 03/11/1969 which governs Rules for Recognition of the Schools for the Defectives. Based on the same, the District Educational Officer passed orders denying one division and the Manager thereafter filed an appeal before the Director of Public Instructions which resulted in Ext.P2 order. The matter was taken up before the Government and the Government passed Ext.P5 order. In W.P.(C). No.3298/2009 -:2:- Ext.P5 with regard to the approval of petitioner's appointment, it is also mentioned that the petitioner had not acquired the prescribed qualification for appointment as Assistant Teacher in a Special School. 3. Heard the learned Senior Counsel for the petitioner Shri Kurian George Kannanthanam, Shri V.M.Kurian learned counsel appearing for the Manager and the learned Government Pleader. 4. Ext.P6 is the Government Order of the year 1969 which governs the method of fixing the staff strength and the division. The qualification of teachers is provided in G.O.(MS) No.198/79/G.Edn. dated 22/11/1979, a copy of which is produced as Ext.P7. 5. First, I will consider the issue regarding qualification. The learned Senior Counsel for the petitioner submitted that going by the qualifications fixed in Ext.P7, Clause 'B' concerns Assistant Teachers on Rs.285-540 (Pre-revision) for which the qualification required is:- (i) pass in S.S.L.C or its equivalent, (ii) T.T.C and, (iii) Lower Certificate/Junior Diploma in teaching the blind and deaf and; Clause 'D' concerns Assistant Teachers on Rs.235-395 plus special pay of Rs.15/- (Pre revision) where the qualification is Pass in S.S.L.C or its equivalent and T.T.C. It is pointed out W.P.(C). No.3298/2009 -:3:- that herein Clause 'B' will not apply as the petitioner was in the lower scale and, therefore, the Special Training, namely, Lower Certificate/Junior Diploma in teaching the blind and deaf was not expected to be acquired by the petitioner. The petitioner was having B.Ed. Ext.P8 is the letter from the Director of Public Instructions to the District Educational Officer, Kozhikode wherein it is mentioned that those candidates who are holding S.S.L.C, T.T.C/Graduate teachers with B.Ed degree can be appointed as Assistant Teachers in lower scale. It is therefore contended that since the petitioner was appointed only in the lower scale, her qualifications are sufficient. 6. Going by Ext.P7, it can be seen that only if the Assistant Teacher (Higher Scale) is appointed then apart from the academic qualification and T.T.C the candidates will have to be a person having qualification of the Special Training etc. But in the lower scale it is not required. The learned Government Pleader submitted that the petitioner is not having T.T.C and, therefore, she was not entitled to be appointed. Such an averment has been made in paragraph (6) of the counter affidavit also. But, as rightly pointed out by the learned Senior Counsel for the petitioner, this aspect has not been considered by the W.P.(C). No.3298/2009 -:4:- Government and, therefore, the matter will have to be relegated to the Government to consider that aspect. 7. The second objection is with regard to the strength of a class, namely under Clause (iv) of Appendix-I (Ext.P6). The interpretation of relevant Clauses of Ext.P6 is, therefore, required to be considered. Herein, the learned counsel for the Manager submitted that Clause (2) of Appendix-II cannot override the specific Clauses with regard to the fixing of number in Class provided in Clause (iv) of Appendix-I. It is pointed out that the discretion that is vested with the District Educational Officer to grant permission to retain excess strength to each division cannot be taken as a rule, and therefore, if the Manager provides an additional division based on the strength, namely, exceeding 10, it cannot be found as irregular. 8. Appendix-I therein provides the Rules for Recognition of the Schools for the Defectives and, Clause (iv) under the heading 'Number in Class' states that “Maximum that can be admitted in a class shall be 10. The minimum strength of a class for recognition shall be five”. Appendix-II Clause (2) provides as follows:- “2. The strength of each division will be fixed in accordance with Rule I(iv) of the Rules for recognition of the schools for the W.P.(C). No.3298/2009 -:5:- defectives. Accordingly, the minimum strength for a division will be 5 and the maximum 10. The District Educational Officer will be competent to grant permission to retain excess strength to each division. Bifurcation will be allowed when strength exceeds 14, 24 and so on.” The opening sentence therein indicates that the strength of each division will be fixed in accordance with Rule I(iv) of the Rules for recognition of the schools for the defectives. It is reiterated therein that the minimum strength for a division will be 5 and the maximum 10. Controversy is with respect to the discretion given to the District Educational Officer to grant permission to retain excess strength to each division. Evidently, bifurcation will have to be allowed while the strength exceeds 14, 24 and so on. 9. The question is whether the Management has committed any violation of the Rules when they have sought for a second division going by the total strength of the students as 12. The Director of Public Instructions and the Government have considered the question as one which have to be mandatorily done by the District Educational Officer, which is disputed by the learned Senior Counsel appearing for the petitioner and the Manager. It is W.P.(C). No.3298/2009 -:6:- submitted that a power to grant permission does not mean that District Educational Officer shall compulsorily fix the strength accordingly. The strength is fixed as maximum 10, since it is a special school. 12 students could be easily distributed in two divisions keeping the minimum at 5, contended the learned Senior Counsel. Therefore, it requires a proper consideration at the hands of the Government afresh. In that view of the matter, as both points will have to be considered by the Government, I set aside Ext.P5. There will be a direction to the Government to reconsider the matter in the light of the observations made above after hearing the petitioner and the Manager within a period of three 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