IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 WP(C).No. 30242 of 2006(A) ----------------------------------- PETITIONER(S): --------------------- SHABEER ALI. A., D/O.AHAMED, U.P.S.A., AGED 29 YEARS, AMARIYIL HOUSE, INDIANOOR P.O., MALAPPURAM DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): ------------------------ 1. THE MANAGER, A.K.M. HIGH SCHOOL, KOTTUR, INDIANOOR P.O., KOTTAKKAL, MALAPPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM. 3. THE STATE OF KERALA, REP. BY SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, TRIVANDRUM. GOVERNMENT PLEADER GOVT. PLEADER SRI. T.B. REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 30242/2006 A APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE REPRESENTATION DT. 1/11/01. EXT.P2. COPY OF THE ORDER BY THE R3 DT. 19/11/01. EXT.P3. COPY OF THE GO (P) NO. 20787/B1/03/G.EDN DT. 19/3/04. EXT.P4. COPY OF THE REVIEW PETITION DT. 24/04/04. EXT.P5. COPY OF THE ACKNOWLEDGEMENT CARD DT. 23/2/05. EXT.P6. COPY OF THE APPOINTMENT ORDER BY THE R1 APPOINTING THE PETITIONER FOR THE ACADEMIC YEAR 2001-02. EXT.P7. COPY OF THE GOVT. ORDER LIFTING APPOINTMENT BAN AND SANCTIONING ADDITIONAL DIVISION AND POSTS W.E.F 15/7/2001. RESPONDENTS' EXHIBITS : NIL. / TRUE COPY / tga P.N.RAVINDRAN, J. --------------------------------- W.P(C) No.30242 of 2006-A ---------------------------------- Dated this the 2nd day of March, 2009. J U D G M E N T The petitioner, a teacher appointed by the first respondent has filed this writ petition challenging Exhibits P3 and P7 orders and praying for a writ in the nature of mandamus commanding respondents 2 and 3 to sanction an additional division in Standard V in the first respondent’s school for the academic year 2001-02. The petitioner also seeks a declaration that his appointment as UPSA is liable to be approved with effect from 16.7.2001. The brief facts of the case are as follows: 2. The petitioner was appointed as UPSA by the first respondent by order dated 16.7.2001 against a newly created post. After the petitioner was appointed, the Assistant Educational Officer, Malappuram visited the school for the purpose of determining the staff strength for the academic year 2001-2002. Since the student strength warranted the sanction of an additional division in Standard V, a higher level verification was conducted by W.P(C) No.30242 of 2006-A 2 the District Educational Officer, Malappuram. According to the petitioner at the time of the higher level verification, there was shortage of three students due to eye disease that was prevalent in the locality during that time. Since on higher level verification the number of students did not warrant the grant of an additional division that was not sanctioned by the District Educational Officer. 3. The Manager of the school thereupon submitted Exhibit P1 representation dated 1.11.2001 before the Secretary to Government, General Education Department, requesting for a direction to the District Educational Officer to make a revisit under Rule 12 of Chapter XXIII of the KER. The Government accepted the said request and directed the District Educational Officer by Exhibit P2 letter dated 19.11.2001 to make a revisit. In the revisit, the District Educational Officer found that the student strength warranted an additional division in Standard V. However, in view of the stipulation in Rule 12 of Chapter XXIII of the KER, the Assistant Educational Officer did not sanction the additional division when Exhibit P6 revised staff fixation order was passed on 16.7.2002 for the academic year 2001-02. 4. The Manager thereupon again moved the Government by W.P(C) No.30242 of 2006-A 3 submitting a representation dated 20.3.2003, requesting that an additional division may be sanctioned in Standard V since on revisit by District Educational Officer, the student strength was as reported by the Assistant Educational Officer during his first visit. By Exhibit P3 letter dated 19.3.2004 the Government rejected the Manager’s request. The Manager thereafter filed Exhibit P4 review petition before the Government. According to the petitioner, the said review petition is still pending. 5. In view of the stand taken by the Government in Exhibits P2 and P3, the Assistant Educational Officer did not sanction an additional division in standard V. This writ petition was thereupon filed seeking the aforesaid reliefs. The second respondent has filed a counter affidavit resisting the writ petition. Relying on the stipulation in Rule 12 of Chapter XXIII of the KER, the official respondents contend that a new division that was not granted in the staff fixation order for the previous year, cannot be granted on the basis of the student strength verified on revisit by the District Educational Officer or on higher level verification. 6. I heard Dr.George Abraham, the learned counsel appearing for the petitioner and Smt.T.B.Remani, the learned W.P(C) No.30242 of 2006-A 4 Government Pleader appearing for respondents 2 and 3. It is not in dispute that when the Assistant Educational Officer verified the student strength, the student strength warranted an additional division in Standard V. However on high level verification by the District Educational officer, the student strength was found to short by three and therefore the additional division was not granted. The Manager requested for a revisit and the Government granted the same. On revisit, the District Educational Officer found that the student strength was same as the strength when the Assistant Educational Officer made his visit. However, relying on the last limb of Rule 12 of Chapter XXIII of the KER, the Government declined to grant an additional division. The relevant part of Rule 12 is extracted below. “When such a re-visit is made by the Educational Officer or the Higher Verification Officer following the directions of the Government, the effective strength shall be worked out on the basis of the strength verified on re- visit made by the Educational Officer or the Higher Verification Officer, as the case may be, and orders shall be passed by such officer, but not granting a new division that was not in the staff fixation in the previous year.” 7. This provision in Rule 12 was interpreted by a learned Single Judge of this Court in Shuja Baby V. State of Kerala (2008(1) W.P(C) No.30242 of 2006-A 5 KLT 230). The learned Judge held as follows: “5. Learned Government Pleader on the basis of the averments in the counter affidavit filed in these cases, supports the rule as well as the action taken by the educational authorities in sanctioning only 49 class divisions for the year 1999-2000. According the Government Pleader, Rule admits of no ambiguity whatsoever and once in the second higher level verification even if the effective students strength was found to be the same as in the first visit, a new division that was not in the staff fixation in the previous year, cannot be granted. 6. In view of the decision I am inclined to take in these Original Petitions, I do not think it necessary to decide the question of the validity of the Rule. I am of opinion that the Rule should be read down to mean that if in a second higher level verification the effective student strength was found to be more than what has been fixed in the first visit, such additional class divisions santionable more than as per the first visit alone can be denied to the school. In other words, if the student strength fixed on the sixth working day warranted more that the existing class division for the previous year and in the second higher level verification student strength is more than that in the first visit, then only the student strength as per the first visit (on the 6th working day) can be taken into account, and only the additional division sanctionable as per the second higher level verification alone can be denied as per R.12. According to me, otherwise, it would lead to a totally illogical results. 7. In this case there were already 49 class divisions during the year 1998-99. In the first visit on 7.6.1999 the student strength justified 52 class divisions. In the first higher level verification the student strength was reduced corresponding only to 49 division, which was the same as for the previous year. In the second higher level verification on 1.9.1999 the original student strength on 7.6.1999 was restored. Now the anomalous situation arises thus. If in the W.P(C) No.30242 of 2006-A 6 first higher level verification 2.8.99 the student strength was found to be equivalent to 52 class divisions, then 52 class divisions could have been allowed. If that be so, it defies logic as to how if the second higher level verification justifies 52 divisions, only those divisions as per the previous years staff fixation alone can be sanctioned. Further since for the previous years 49 class divisions and as per the first re-visit on 2.8.1999 also class divisions were 49, if the Rule permitted only 49 divisions, even if in the second higher level verification three more could have been granted, then the whole exercise of conducting a second higher level verification itself, which has been permitted by the Government, would be a totally futile exercise. The very purpose of second higher level verification is to ascertain the verification conducted on the 6th working day is correct. If after being found the same to be correct after second higher level verification, additional class division cannot be sanctioned, then the very object of permiting second higher level verification would become totally meaningless which cannot be the object of the Rule. 8. Further, the very scheme of the KER for having staff strength commensurate with the student strength as per the teacher-student ratio fixed. If, as a matter of fact, student strength justified a particular staff strength, there is no logic in denying such staff strength to the school. The very object of the Kerala Educational Act and Rules is to provide for the better organization and development of educational institutions in the State, providing a valid and comprehensive service throughout the State. The very object of the Act and Rules is to better the standards of education in the State. That being so, an interpretation commensurate with the said object is to be adopted in case of ambiguities. I am satisfied that there is a clear ambiguity in R.12 as it stands now. I am of opinion that what the rule wanted to convey is that if in a revisit the student strength was more than what was originally fixed on the 6th working day of the academic year, then the staff strength as eligible as per the student strength on the sixty working day alone would be W.P(C) No.30242 of 2006-A 7 sanctioned. The last sentence of R.12 can only refer to a situation whereby during the inspection on the 6th working day, the student strength warranted class divisions only as in the previous year and on higher level verification student strength was more warranting additional divisions. The purpose of higher level verification is to verify the correctness of the verification on the 6th working day and if on such higher level verification the student strength is more such additional student strength cannot be taken into account since the student strength as on the 6th working day is the real student applicable for staff fixation. The Rule is, therefore, liable to be read down accordingly. I declare so.” 8. The learned Single Judge in Shuja Baby V. State of Kerala (supra) held that the last limb of Rule 12 of Chapter XXIII of the KER can only mean that if on a revisit the student strength was more than what was originally fixed on sixth working day of an academic year, then the staff strength eligible as per the student strength on the sixth working day alone would be sanctioned and that the purpose of higher level verification is to verify the correctness of the verification on the sixth working day. The issue raised in the case on hand is on all fours covered by the decision of the learned Single Judge. The learned Government Pleader however contended that as the Manager has not challenged Exhibit P6 staff fixation order in appeal, this writ petition is not maintainable. On the facts and circumstances of the case I am of the opinion that there is no merit W.P(C) No.30242 of 2006-A 8 in the said contention. First of all, no purpose would be served by filing an appeal in view of the stand taken by the Government in Exhibits P2 and P3. It was only on 7.11.2007 that this Court interpreted and explained the true scope of the last limb of Rule 12 of Chapter XXIII of the KER. The request made by the Manager for sanctioning an additional division was rejected by the Government on 19.3.2004. The Manager thereafter filed Exhibit P4 review petition before the Government on 25.4.2004. The Government have no case that orders have been passed on Exhibit P4 rejecting the request therein. The respondents also have no case that the petitioner's appointment was rejected. Though the petitioner claims that she is working in the school since 16.7.2001, the learned Government Pleader disputes the same. However that issue can be sorted out by the Assistant Educational Officer after verification. In that view I have taken, I hold that the stand taken in Exhibit P2 is not sustainable. Accordingly, the Assistant Educational Officer is directed to consider whether based on the student strength verified by him at the time of his visit on the sixth working day of the academic year 2001-02, an additional division can be sanctioned in Standard V. The Assistant Educational Officer shall also verify W.P(C) No.30242 of 2006-A 9 whether the petitioner was appointed by the Manager and had worked in the school. If the petitioner had worked in the first respondent's school during the academic year 2001-02 as claimed by him, the Assistant Educational Officer shall sanction an additional division in Standard V. Needless to say, if on such enquiry the Assistant Educational Officer finds that the petitioner has not been appointed and has not discharged duty as UPSA in the first respondent's school, he need not sanction an additional division in Standard V for the academic year 2001-02. The writ petition is allowed as above. No costs. P.N.RAVINDRAN JUDGE ab