IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WP(C).No. 24799 of 2007(B) --------------------------------------- PETITIONER(S): ------------------------- BIJU VARGHESE, AGED 34 YEARS, S/O.LATE VARGHESE, H.S.A(MATHEMATICS), M.T.D.M.H.S., THONDERNAD, WAYANAD. RESIDING AT: VELLIKKOOTTATHIL, OONNUKAL P.O., PATHANAMTHITTA DISTRICT. BY ADV. MR.V.PHILIP MATHEW RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM. 3. JOINT DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM. 4. DISTRICT EDUCATION OFFICER, WAYANAD. 5. MANAGER, CORPORATE MANAGEMENT OF SCHOOLS, SOCIETY OF THE ORDER OF SACRED TRANSFIGURATION MOUNT TABOR, PATHANAPURAM P.O. KOLLAM DISTRICT. 6. HEAD MASTER, MTDMHS, THONDERNAD, WAYANAD. R1 TO R4 BY GOVERNMENT PLEADER MR.V.T.K.MOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2009, THE COURT ON 18/11/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.24799/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER DTD. 1.8.97 ISSUED BY 5TH RESPONDENT TO PETITIONER (LEAVE VACANCY). P2:- COPY OF THE APPOINTMENT ORDER DTD. 27.8.98 ISSUED BY 5TH RESPONDENT TO PETITIONER IN A PERMANENT VACANCY(PERMANENT VACANCY). P3:- COPY OF THE ORDER DTD. 14.7.05 REGARDING FIXATION OF ESTABLISHMENT PASSED BY 4TH RESPONDENT. P4:- COPY OF THE ORDER DTD. 31.7.06 PASSED BY THE 4TH RESPONDENT. P5:- COPY OF THE G.O. DTD. 11.9.96 ISSUED BY IST RESPONDENT. P6:- COPY OF THE G.O. DTD. 26.7.99 ISSUED BY IST RESPONDENT. P7:- COPY OF THE G.O.(P) NO.224/2006/G.EDN. DTD. THIRUVANANTHAPURAM DTD. 16.9.06 ISSUED BY IST RESPONDENT. P8:- COPY OF THE ORDER NO. B2-7464/06/DD DTD. 11.10.2006 ISSUED BY 4TH RESPONDENT. P9:- COPY OF THE APPEAL FILED BY 5TH RESPONDENT BEFORE THE 2ND RESPONDENT AGAINST ORDER NO.B2-7464/06/DD DTD. 11.10.2006. P10:- COPY OF THE ORDER DTD. 9.9.98 ISSUED BY THE 3RD RESPONDENT. P11:- COPY OF THE G.O. DTD. 5.5.04 ISSUED BY IST RESPONDENT. P12:- COPY OF THE ORDER DTD. 4.6.07 PASSED BY 3RD RESPONDENT. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.24799 of 2007-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of November, 2009. JUDGMENT The petitioner herein is working as HSA Maths in the school managed by the fifth respondent. The challenge is against Ext.P12 order which concerns the staff fixation in the school for the year 2006-2007. 2. The petitioner was appointed as HSA initially on 1.8.1997 for the period from 1.8.1997 to 31.10.1998 in a leave vacancy and as per Ext.P1 the appointment order which was approved. In a later permanent vacancy which arose on 27.8.1998 he was appointed as per Ext.P2 which also stands approved. 3. In the year 2005-2006 there were 15 class divisions and 4 posts of H.S.A. (Mathematics). But in the year 2006-2007 as per Ext.P4 staff fixation order, the 4th respondent abolished one class division and one post of Mathematics teacher. It is the case of the petitioner that by Ext.P4 roll strength has been fixed excluding the readmitted students even though two such students were available in Standard IX as evident from Ext.P4 itself. The contention raised is that if these readmitted students were also taken into consideration by the 4th respondent, he could have allowed six class wpc 24799/2007 2 divisions in Standard IX following the ratio 1 : 40. Reliance is placed on Ext.P5 Govt. Order dated 11.9.1996. Ext.P6 is the Govt. Order relating to enforcement of 1 : 40 ratio for granting protection to existing aided school teachers. This benefit has been extended to later years (2006-2007) by Ext.P7 also. The Manager challenged these orders by filing Exts.P8 and P9. The petitioner relies upon Exts.P10 and P11 orders wherein, for the purpose of staff fixation the readmitted students were also reckoned. But the appeals filed by the Manager were rejected as per Ext.P12. 4. The respondents have filed a counter affidavit justifying the orders impugned. Learned counsel for the petitioner submitted that Ext.P5 has been ignored by the authorities including the Government while considering the plea raised by the petitioner. Therefore, the effect of the said order has to be considered. 5. In Ext.P5, the Government reiterates the position which was allowed as per various Govt. Orders during different academic years granting permission to reckon the readmitted students for the purpose of staff fixation. Ultimately, it was ordered thus: “Government are now pleased to order that the benefit of counting re-admitted students for the purpose of preventing existing teachers and non teaching staff from being thrown out will be extended to all aided schools including the schools under corporate managements from the academic year 1996-1997 onwards. wpc 24799/2007 3 6. Therefore, as far as the existing teachers and non teaching staff are concerned, to prevent them from being thrown out the benefit of counting the re-admitted pupils can be extended. Ext.P6 is the order by which the Government revised the teacher student ratio from 1 : 45 to 1 : 40 for the limited purpose of accommodating the teachers rendered surplus. By Ext.P7, it was extended to the academic year 2006-2007 also. 7. Learned counsel for the petitioner placed strong reliance upon Exts.P10 and P11. A reference has to be made under the circumstances in which the above orders were passed. Ext.P10 is the proceedings of the Joint Director of Public Instruction, Thiruvananthapuram. The matter concerned therein is regarding the request to restore one more division in Standard IX of JJHS, Ambalathinbhagom for the year 1997-1998 by counting the re- admitted pupils in terms of Ext.P5 Govt. Order. There were 26 re-admitted pupils in Standard IX of the said school. In tune with Ext.P5 Govt. Order, it was ordered that the number of re-admitted students should be reckoned which enabled the sanction of 7 divisions in Standard IX as against 6 divisions sanctioned by the District Educational Officer. 1: 40 teacher student ratio was also enforced, so as to avoid retrenchment of existing teachers. Ext.P11 is the order passed by the Government in relation to staff fixation for the year 2001-2002 in Gurudeva H.S. Piravanthur. There was a deduction of one division in Standard VIII. The Manager relied upon wpc 24799/2007 4 Ext.P5 Govt. Order and sought for its application as well as enforcement of 1 : 40 teacher pupil ratio. While disposing of the matter, the Government ordered that “since the intention of the order in GO(MS) No.284/96/G.Edn. dated 11.9.1996 was to reckon the readmitted pupils for staff fixation only to retain the existing teachers so as to avoid retrenchment, the benefit under the above Govt. Order will be applied in the case of Gurudeva H.S., Piravanthoor to retain the existing teacher under 1 : 40 ratio also. 8. In Ext.P12, the Joint Director of Public Instruction has taken the view that there is no provision for allowing readmitted pupils for the purpose of applying 1 : 40 ratio. Obviously, the same goes against the specific stipulations of Ext.P5 and the findings rendered in Exts.P10 and P11 in respect of other schools in similar circumstances. 9. In the counter affidavit filed on behalf of the second respondent, the fact that there were two re-admitted pupils in Standard IX is admitted. The stand taken is that there is no provision to reckon the readmission to fix the establishment under 1 : 40 ratio either in G.O.(MS) No.284/96/G.Edn. dated 11.9.1996 or in G.O.(MS) No.330/2000/G.Edn. dated 5.10.2000. Accordingly, it is submitted that the readmitted students in Standard IX were excluded while fixing the staff strength for 2006-2007. Ext.P5 is sought to be explained by stating that it was issued when there was wpc 24799/2007 5 no relaxation in the teacher pupils ratio 1 : 45 and that the extension of the benefit of the said Govt. Order is to be considered separately and ordered and no orders on such view is issued by the Government till date except in certain individual cases. 10. The question is whether Ext.P5 will have to be implemented, as contended by the learned counsel for the petitioner. It is clear from Ext.P5 that the benefit of counting the readmitted students was ordered by the Government to prevent retrenchment of existing teachers ad non teaching staff. That the same binds the educational authorities in fixing the staff fixation, cannot be in dispute. Going by Ext.P6, the Government ordered that teacher student ratio will be revised from 1 : 45 to 1 : 40, so as to avoid the specific problem of division fall “for the limited purpose of accommodating the teachers rendered surplus.” Therefore, the idea that is conveyed is to prevent the retrenchment of teachers. This was being extended for subsequent years which is clear from Ext.P7 also, whereby the benefit was extended for the year 2006-2007. 11. The stand taken by the respondents in the counter affidavit appears to be that there is no order passed by the Government to make applicable the conditions stipulated in Ext.P5 while fixing the staff strength and for applying 1 : 40 ratio. The question is whether when the Government itself has provided a method as per Ext.P5, can the wpc 24799/2007 6 educational officer refuses to follow the same. It appears that the stand taken, going by para 5 of the counter affidavit, that there should be a separate order passed by the Government extending the benefit of Ext.P5 for enforcing Ext.P6 Govt. Order. That is not required and further, it is evident from Exts.P10 and P11 orders. In Ext.P10, the Joint Director of Public Instruction, in respect of another school, after relying upon Ext.P5, stated that “by applying 1 : 40 ratio and reckoning re-admitted pupils the request of the Manager deserves consideration.” Therefore, the stand taken in the counter affidavit cannot be accepted on its face value. The Government itself was applied the order Ext.P5 while considering the applicability of 1 : 40 ratio in Ext.P11. That was specifically applied to retain the existing teacher under 1 : 40 ratio. Therefore, the stand taken in the counter affidavit cannot be accepted. The view taken in Ext.P12 that there is no provision for allowing re-admitted pupils for applying 1 : 40 ratio therefore cannot be accepted. 12. Learned counsel for the petitioner relied upon the decision of a learned Single Judge in Paveen v. State of Kerala (2004 (3) KLT 68) in this context. Therein, the applicability of the Govt. Order relating to retention of teachers based on 1 : 40 ratio was considered. After examining the question whether the Govt. Order is one providing for retention of existing teachers, it was held thus in para 4: wpc 24799/2007 7 “As already stated, Ext.P4 Government Order dated 26.7.1999 very clearly provided that in order to safeguard the interests of the teachers who face threat of retrenchment every year due to minor reduction in the student strength, the ratio of 1 : 40 will be applied. It is significant to note that there is a rider that the managements shall not make fresh appointments by applying the ratio of 1 : 40. In other words application of 1 : 40 ratio is only for the purpose of retaining the teachers in the scho0ols who are otherwise rendered surplus if 1 : 45 ratio is applied and for all other purposes, 1 : 45 ratio continued. Since that is an issue cropping up every year, naturally the Director of Public Instructions raised a query as to whether it is a direction applicable only to the teachers appointed prior to 14.7.1996, as is canvassed by the learned Senior Government Pleader. The Government in answer to the said query, made the position in unmistakable terms that it is a standing order. Therefore for the purpose of accommodating the teachers found surplus on applying the 1 : 45 ratio, every year the ratio 1 : 40 has to be applied.” It was also held in para 5 that “so long as the standing orders are in force, the invocation of 1 : 40 ratio every year for the purpose of accommodating the surplus teachers cannot be restricted to a particular group.” The contention that only those teachers who were retained by applying applying 1 : 40 ratio for the particular academic year alone will be entitled to have the retention by applying the ratio in the succeeding academic year, was also rejected by this Court in the above judgment, stating that such is an wpc 24799/2007 8 unreasonable consequence. The said contention was rejected in the following words: “In fact, a teacher rendered surplus in a particular year need not be the one found surplus next year. There are circumstances as can be seen from the counter affidavit where teachers retained applying 1 : 40 ratio during 1999-2000, continuing in the school during 2000- 2001 without the ratio due to increase in the number of children. However, in 2001-2002 the number reduced and unless 1 : 40 ratio is applied they have to be retrenched or reverted. But had they had the benefit of 1 : 40 during 2000-2001 they could continue in 2001-2002. This is patently unreasonable. Such an unreasonable consequence cannot be brought out by the Rules or Government Orders.” 13. Therefore, the petitioner is entitled to succeed in this writ petition. The provisions of Exts.P5 and P6 have to be applied in respect of the staff fixation. In para 6 of the counter affidavit, even though an objection has been taken that in the appeal filed by the Manager, the Director of Public Instruction has taken the view that there is no provision for allowing the re-admitted pupils for applying 1 : 40 ratio, obviously that also is wrong in the light of the findings rendered above. Therefore, the writ petition is allowed. Exts.P4, P8 and P12 are quashed. The staff fixation Ext.P4 will be revised in terms of the findings rendered above by applying Exts.P5 and P6 and due benefits will be sanctioned to the petitioner after counting the strength of two re-admitted wpc 24799/2007 9 pupils. Revised orders will be passed within a period of two months from the date of receipt of a copy of this judgment by the District Educational Officer. Depending upon the same, consequential benefits will be sanctioned to the petitioner without further delay. No costs. (T.R. Ramachandran Nair, Judge.) kav/