IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 WP(C).No. 8162 of 2009(M) ------------------------------- PETITIONER: -------------- NAUSHAD M.N., S/O.SAIDALAVI, MAMPILLY NHJALIL HOUSE, THRITHALA P.O., PIN - 679534, PALAKKAD DISTRICT. BY MR.P.CHANDRASEKHAR, ADVOCATE. RESPONDENTS: ------------------ 1. THE ASSISTANT EDUCATIONAL OFFICER, PATTAMBI P.O., PIN - 679 303, PALAKKAD DISTRICT. 2. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 3. THE MANAGER, C.E.U.P. SCHOOL, PARUDUR P.O., PIN - 679 303, PALAKKAD DISTRICT. 4. T.P.MARIYAKUTTY, ARABIC TEACHER, C.E.U.P.SCHOOL, PARUDUR P.O., PIN - 679 303, PALAKKAD DISTRICT. BY MR.V.A.MUHAMMED, ADVOCATE, FOR R4. MR.K.E.HAMZA, ADVOCATE, FOR R4. MR. K. RAMESH, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.8162/2009 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF STAFF FIXATION ORDER No.C/7500/07 DTD. 14.11.07 ISSUED BY R1. EXT. P2 : COPY OF PETITION DTD. 28.11.07 OF PETITIONER TO R1. EXT. P3 : COPY OF PETITION DTD. 17.1.08 OF PETITIONER TO R1. EXT. P4 : COPY OF LETTER DTD. 11.1.08 OF HEADMASTER TO PETITIONER. EXT. P5 : COPY OF STAFF FIXATION ORDER No.D.DIS C/7761/07 DTD. 3.5.08 OF R1. EXT. P6 : COPY OF JUDGMENT DTD. 11.11.08 IN W.P.(C) No.5805/2008 N OF THIS HON'BLE COURT. EXT. P7 : COPY OF ARGUMENT NOTE DTD. 11.2.09 OF PETITIONER BEFORE R1. EXT. P8 : COPY OF ORDER No.D.DIS.C/1704/08 DTD. 18.2.2009. 4TH RESPONDENT'S EXHIBITS: EXT. R4(a) : COPY OF G.O.(P) No.226/2003/G.EDN. DATED 14.6.03. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.8162 OF 2009 --------------------------------------- Dated this the 6th day of July, 2009. J U D G M E N T The petitioner herein is an Arabic Teacher working in the C.E.U.P. School, Paradur managed by the 3rd respondent. The challenge in this writ petition is against Exhibits P5 and P8 by which staff fixation for the year 2007-2008 was modified which resulted in the petitioner being retrenched. Exhibit P1 is the staff fixation order dated 14.11.2007 passed by the Assistant Educational Officer by which the petitioner was retained applying 1:40 teacher-student ratio as per the prevalent government orders also. But, thereafter, the petitioner was denied payment of salary and therefore, he had been submitting representations in the matter. The petitioner was informed by Exhibit P4 that there was a subsequent visit by the super check cell and therefore, unless there is a special order passed by the Assistant Educational Officer, the salary cannot be disbursed. W.P.(C) No.8162/2009 2 2. The petitioner filed W.P.(C) No.5805/2008 seeking for a direction to pay salary and allowances. During the pendency of the writ petition, another staff fixation order was passed as per Exhibit P5 modifying Exhibit P1. Accordingly, the petitioner was ordered to be retrenched. By Exhibit P6 judgment, this Court directed to conduct a re-hearing of the matter. Accordingly, revised orders have been passed as per Exhibit P8. This Court directed in Exhibit P6 to issue notice to the parties also. 3. Exhibits P5 and P8 are challenged on various grounds. Mainly it is contended that Exhibit P5 cannot be sustained in the light of the plain terms of Rule 15 of Chapter XXIII Kerala Education Rules whereby the power is conferred on the Assistant Educational Officer to refix the staff strength at any time during the course of the year, and as the said period was over, nothing could be done. Reliance is placed on the decisions of this Court in Ravindranatha Pillai vs. Director of Public Instruction (1996 (2) KLT 864) and Sali George vs. State of Kerala (2004(2) KLT 1051). W.P.(C) No.8162/2009 3 4. It is further submitted that the method by which staff strength was refixed is also not correct. After sanctioning of one U.P. Arabic post for 25 periods, the left over periods for Arabic in L.P and U.P combined was 21 and going by Rule 6(2) II(a) of Chapter XXIII of K.E.R, one more Arabic post had to be sanctioned in U.P. section. 5. Heard the learned counsel for the petitioner, learned counsel appearing for the 4th respondent and the learned Government Pleader. 6. The first question is whether there is violation of Rule 15 of Chapter XXIII K.E.R. Rule 15 of Chapter XXIII K.E.R is extracted below: “Notwithstanding anything contained in these rules, if Educational Officers are satisfied for valid and sufficient reasons to be recorded in writing that the fixation of staff strength was obtained by bogus admission or attendance or by fraud or misrepresentation, and the like the Educational Officers shall be competent to refix the staff strength at any time during the course of the year: Provided that no order under this rule shall be issued without notice to the parties who are likely to be affected thereby”. W.P.(C) No.8162/2009 4 The interpretation of such Rule came for consideration in Sali George vs. State of Kerala (2004(2) KLT 1051). After referring to the various aspects also, it was held that refixation order can be passed at any time during the course of the year. This Court was of the view that the only rider is that the officers shall be satisfied, for valid and sufficient reasons to be recorded in writing, about such act of fraud, misrepresentation or bogus admission of students. 7. Going by the order Exhibit P5, the same is dated 03.05.2008 clearly after the academic year was over. The petitioner was retained as per Exhibit P1 by invoking 1:40 ratio. Therefore, it is evident that the revised order has been passed beyond the academic year namely, 2007-2008. If that be so, the said order could not have been said to be validly passed in the light of the restrictions contained in Rule 15 of Chapter XXIII K.E.R. The dictum laid down in Sali George's case (2004 (2) KLT 1051) therefore squarely applies. 8. Apart from that, the learned counsel for the petitioner submitted that, on the merits also, Exhibit P8 cannot be W.P.(C) No.8162/2009 5 sustained. In Exhibit P8, it is recorded that after the staff fixation order for 2007-2008 was revised, the Headmaster has reported that 98 pupils were removed from rolls (from various classes) after sixth working day of the academic year 2007-2008 out of which 92 students were removed due to “long absence”. The conclusion therefore is that the removed students were admitted for creating bogus posts. The list of pupils are also given. 9. It is pointed out by the learned counsel for the petitioner that many of the students whose details are shown in Exhibit P8 were admitted in the year 2004 and left the school in the year 2007. Therefore, it cannot be said that admission of those students is bogus as far as the year in question is concerned. In Ravindranatha Pillai vs. Director of Public Instruction (1996 (2) KLT 864) it was held that the action can be upheld only if it is found that the grounds mentioned in that Section exists and that too for valid and sufficient reasons to be recorded in writing. Therein, reliance was placed on an earlier decision of this Court in Nalini Kumari vs. State of Kerala (ILR 1975(1) Kerala 496), wherein it was held that “the educational officer W.P.(C) No.8162/2009 6 should go into the details and examine individual cases of pupils who are removed for long absence and for other reasons. Without making such an enquiry, it cannot be said that the pupils removed from the roll were really bogus admissions”. A reading of Exhibit P8 order does not show that such an exercise was made in this case. True, that the report of the Headmaster showed that 98 pupils were removed from the rolls from various classes, due to long absence etc. The said aspect was not examined in detail with notice to the pupils admitted also, when Exhibit P8 order was passed. Therefore, the dictum laid down in Ravindranatha Pillai's case (1996(2) KLT 864) also will squarely apply to the facts of this case. 10. The question is whether the fixation of staff strength was obtained by bogus admission or attendance or by fraud or by misrepresentation. As per Exhibit P1 order, the petitioner was retained by applying 1:40 ratio. The said benefit is taken over by Exhibit P5. Be that as it may, since the order itself is passed not during the academic year, I am of the view that Exhibits P5 and P8 cannot be sustained. The dictum laid down in Sali George W.P.(C) No.8162/2009 7 vs. State of Kerala (2004(2) KLT 1051) will apply to the facts of this case. Therefore, the petitioner is entitled to succeed in the writ petition. The orders Exhibits P5 and P8 are quashed. The petitioner will be entitled for payment of salary for the year 2007-2008. Steps will be taken by the respondents 1 to 3 to see that admissible salary to the petitioner is disbursed within a period of three months. This writ petition is allowed as above. T.R. RAMACHANDRAN NAIR JUDGE smp