IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 WP(C).No. 11315 of 2011(L) -------------------------- PETITIONER(S): --------------- C.UNNIKRISHNA PILLAI, THE MANAGER, DEVI VILASOM V.H.S.SCHOOL, THALAVOOR, KOLLAM DISTRICT. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN RESPONDENT(S): --------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM, PIN-695 001. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM, PIN-691 001. 3. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA, PIN-691 501. GOVERNMENT PLEADER SMT. M.T. SHEEBA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 3/12/2011, THE COURT ON 03/12/2011 DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF THE REPORT DT.3.6.2010 EXT.P2-TRUE COPY OF REPORT OF ONE DAY VERIFICATION DT.2.8.2010 EXT.P3-TRUE COPY OF REPORT OF VISIT OF DEO EXT.P4-TRUE COPY OF STAFF FIXATION ORDER DT.28.3.2010 EXT.P5-TRUE COPY OF ERRATUM DT.31.3.2011 ISSUED BY DEO EXT.P6-TRUE COPY OF ORDER DT.6.5.2011 EXT.P7-TRUE COPY OF ORDER PERTAINING TO P.G. JYOTHI HAS W.E.F. 1.6.2010 EXT.P8-TRUE COPY OF ORDER DT.6.5.2011 EXT.P9-TRUE COPY OF ORDER OF STAYed EXT.P10-TRUE COPY OF ONE DAY VERIFICATION DT.12.7.2011 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 11315 of 2011-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2011. JUDGMENT This writ petition is filed by the Manager of a school, aggrieved by Ext.P4 staff fixation order. The main contention raised is that the surprise visit conducted by the District Educational Officer long after the one day verification, is without jurisdiction. 2. The academic year concerned is 2010-2011. The report of the effective strength given by the Headmistress is produced as Ext.P1. The one day verification throughout the State was done on 2.8.2010 and Ext.P2 is the copy of the report of one day verification of the school, but staff fixation order was not issued. It is after some months elapsed, viz. on 6.1.2011 the District Educational Officer conducted a surprise visit. The noting made in his report Ext.P3, is the following: “Visited the school today for verification of pupils strength and attendance. Weather condition is good. Following are the details of verification.” The District Educational Officer has not referred to any proceedings of the higher officers which directed him to make the said visit. It appears that wpc 11315/2011 2 the said details were relied upon to fix the staff strength as per Ext.P4. It is the case of the petitioner that by Ext.P4, some posts were reduced. 3. The petitioner has raised various grounds to challenge the method adopted by the District Educational Officer. It is pointed out that after the one day verification on 2.8.2010, Rule 12 of Chapter XXIII only provides for a higher level verification. Herein, the staff strength was not fixed and the matter was delayed. The second visit was also done without any notice to the Manager. It is pointed out that on the basis of the one day verification, all the 17 divisions in High School section and 12 divisions in U.P. Section, would have been retained. It is also pointed out that nothing is mentioned in the staff fixation order about the one day verification on 2.8.2010 and the visit dated 6.1.2011 alone is mentioned. It is stated that the basic thing is the visit conducted on 2.8.2010. It was done throughout the State also. 4. In the counter affidavit filed by the third respondent, the averment regarding the one day verification on 2.8.2010 shows that the there was no scope for one Lower Grade (Hindi) additionally than that of the previous year and hence further verification was necessary to finalise the staff fixation. So, the name of the school was reported to the Deputy Director of Education to conduct Higher Level verification. The Deputy Director of Education, Kollam by letter No.B1/14333/10 dated 30.10.2010 exempted wpc 11315/2011 3 the school from higher level verification based on the request of the Manager and directed to finalise the fixation of staff based on the one day verification report dated 2.8.2010. Later, by communication dated 28.9.2010 the Deputy Director of Education directed the District Educational Officer to conduct a surprise inspection in the school and to finalise the staff fixation. The reason was that the Director of Public Instruction has informed the Deputy Director of Education regarding certain allegations about the school authorities. Accordingly, the District Educational Officer visited the school on 6.1.2011 to determine the pupils strength. The strength of the pupils in various classes are also given. 5. Reference is made to Rule 15 of Chapter XXIII K.E.R. in justification of the second visit. In para 11 of the counter affidavit, it is stated that in the previous years also two teachers were retained in the school under 1 : 40 ratio. During 2010-2011 also 1 : 40 ratio is necessary to accommodate all staff in the school and that no teachers were thrown out from service consequent on the visit of District Educational Officer on 6.1.2011, except one L.G.(Hindi). Again, it is repeated that the visit is conducted strictly under Rule 15 of Chapter XXIII K.E.R. 6. The procedure prescribed under Rule 12 of Chapter XXIII shows that the one day visit will have to be conducted by the Educational officer or the Authorised Officer concerned. The effective strength as on 6th working wpc 11315/2011 4 day is the pointer. Then, a further verification of strength at higher level by the Deputy Director of Education in the case of High Schools is also provided wherever additional divisions or additional staff are found necessary, after the one day verification conducted by the Educational Officers or Officers authorised by the Director in this regard. Sub-rule (4) of Rule 12 empowers the Government to direct the Educational Officer to conduct a revisit and refix the strength of teaching and non teaching staff in schools. But the said power has not invoked here, as the Government has not issued any direction. The procedure therein has also to be done after fixing the strength of teaching and non teaching staff. Rule 12-D provides for appeal against staff fixation and Rule 12-E provides for revision. Revision lies to the Director of Public Instruction against the orders of the Deputy Director of Education. These two provisions will not apply here. Rule 15 of Chapter XXIII reads as follows: “15. 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 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.” wpc 11315/2011 5 The above rule has two parts, the main part as well as the proviso. The main part of the rule shows that after the fixation of strength, 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 they shall be competent to refix the staff. Herein, the proviso shows that no order shall be issued without notice to the parties who are liable to be affected. Obviously, this is not the exercise that is done here. There is no finding about any bogus admission. 7. Evidently, after the one day visit was conducted, the staff strength was not fixed by issuing the order to be effective from 15th of July of that year. The higher level verification was dispensed with also. Therefore, only after fixing the staff strength the power under Rule 15 could have been invoked, as the rule clearly provides for “refixation”. When the proviso obliges issuance of notice to the affected parties, the affected teachers, etc. should be given notice in the matter. Evidently, that power is not invoked here. Therefore, recourse to Rule 15 as averred in the counter affidavit, has no real basis. As already noticed, the staff fixation order was not there when the revisit was conducted on 6.1.2010. Herein, what was done is to conduct a visit and verify the physical attendance as on that day and then adopt the details of those visit for the purpose of staff fixation. As rightly wpc 11315/2011 6 pointed out by the learned counsel for the petitioner, the result of the one day verification on 2.8.2010 should have culminated in the staff fixation and if any defect is pointed out later or other materials were there, the said proceedings could have been subjected to scrutiny. That is not the attempt made here. A fresh visit was conducted and physical attendance was taken. The same is not authorised by the main part of Rule 15 or any other provisions of the Chapter. What is envisaged under Rule 12 is to fix the staff strength based on the one day visit. If any additional division or additional staff are to be sanctioned, a higher level verification is also contemplated. In that view of the matter, the whole exercise done is without jurisdiction. Therefore, the writ petition is allowed. Ext.P4 is quashed. A revised order fixing the staff strength will be issued in terms of the result of the one day verification dated 2.8.2010 and appropriate orders will be passed within a period of three months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/