IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 36136 of 2007(B) ---------------------------------------- PETITIONER(S): ------------------------ THE MANAGER, V.S.V.H.S.S. EZHUKONE, KOLLAM. BY ADV. MR.ELVIN PETER P.J. RESPONDENT(S): -------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA, KOLLAM DIST. GOVERNMENT PLEADER SMT.SMITHA SUKUMARAN FOR R.1,2,3, THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.36136/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE STAFF FIXATION ORDER DT. 22.7.99 ISSUED BY 3RD RESPONDENT. P2:- COPY OF THE ORDER G.O DT. 11.1.2000 ISUED BY THE GOVT. P3:- COPY OF THE ORDER G.O. DT. 14.7.86 ISSEUD BY THE GOVERNMENT. P4:- COPY OF THE ORDER, G.O DT. 4.10.06 ISSEUD BY THE GOVERNMENT G.O(RT) 3446/06/01 EDN. P5:- COPY OF THE ORDER G.O DT. 12.9.84 ISSEUD BY THE GOVERNMENT G.O(RT) 3380/84 G.EDN. P6:- COPY OF THE STAFF FIXATION ORDER DT. 16.10.2000 ISSUED BY THE 3RD RESPONDENT. P7:- COPY OF THE ORDER, G.O DT. 1.3.05 ISSUED BY THE GOVERNMENT G.O(RT 878/05.EDN. P8:- COPY OF THE REVIEW PETITION DT. 31.3.05 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. P9:- COPY OF THE ORDER DT. 21.6.07 ISSUED BY THE GOVERNMENT NO.62/301/E3/05 EDN. P10:- COPY OF THE INTERIM ORDER DT. 6.7.04 IN WPC. 16305/04 OF THIS HONOURABLE COURT. P11:- COPY OF THE JUDGMENT DT. 15.7.05 IN WPC. NO.16305/04 OF THIS HONOURABLE COURT. TRUE COPY P.S. TO JUDGE TSS S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 36136 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 2nd July, 2009. J U D G M E N T The petitioner is the manager of V.S.V.H.S.S, Ezhukone. Originally, the school started as an oriental school, where Sanskrit was being taught as first language for papers I and II. Progressively, the number of students studying Sanskrit decreased and for the year 1999-2000 only one division was sanctioned for the Vth standard for want of sufficient student strength. Therefore, to avoid the school being declared as an uneconomic school, the petitioner applied to the Government for sanction to start two Malayalam medium parallel division in standards V and VIII. By Ext. P2 order dated 11-2-2000, the Government sanctioned one Malayalam medium parallel division each for standards V and VIII for the academic year 2000-2001. But, in Ext. P2 order, a condition was added to the effect that such sanction to additional division is without any financial commitment from the Government. Against that condition, the petitioner filed a representation before the Government. The petitioner obtained an order from this Court in W.P(C) No. 21491/2004 for disposal of that representation. The Government by Ext. P7 order, rejected the same on the ground that the additional divisions were sanctioned subject to the specific condition that there would not be any financial commitment from the Government. A review petition was filed by the petitioner, which was also rejected by Ext. P9. The petitioner is challenging Exts. P2, P7 and P9 orders to the extent a condition is imposed for sanctioning additional division to the effect that the same would be without additional financial commitment from the Government. 2. The contention of the petitioner is that the Government could not have imposed such a condition for sanctioning additional division. Having sanctioned the additional division, such sanctioning shall also W.P.C. No. 36136/07 -: 2 :- be governed by the Kerala Education Rules, in which case sufficient staff should also be sanctioned in accordance with the student strength in the school. When the student strength warrants additional staff, the Government cannot take the stand that such additional staff would not be paid salary since the division was sanctioned without any financial commitment, is the contention raised by the petitioner. The petitioner also contends that in respect of another similar school, although by Ext. P3 order additional parallel Malayalam medium divisions were sanctioned subject to the condition that there will not be any additional financial commitment to the Government, later on that condition was deleted by Ext. P4. The petitioner also contends that by Ext. P5, additional parallel Malayalam divisions were sanctioned for another school without any condition. Therefore, the petitioner has been singled out for hostile discrimination, is the contention raised by the petitioner. 3. The 1st respondent has filed a counter affidavit, in which it is reiterated that since in Ext. P2 divisions were sanctioned without any financial commitment from the Government, they are not liable to pay salary for the additional staff required for those divisions. They would submit that Exts.P3 to P5 are cases relating to the years 1984 and 1986, which cannot be a precedent for an action taken in the years 2000 and 2006. 4. I have considered the rival contentions in detail. 5. The sanctioning of school divisions, fixation of students strength and fixation of staff strength in aided schools are governed by Kerala Education Act and Rules. The Act and Rules do not contain any provision for sanctioning additional divisions without any financial commitment. The KER also does not contemplate sanctioning of self- financing schools. The fees to be collected from the students of an W.P.C. No. 36136/07 -: 3 :- aided school is fixed by the Government. The manager cannot collect fees in excess of the fees fixed by the Government. The capital investment for the property in which the school is situated and the buildings are borne by the manager, which is not reimbursed by the Government. The only payment made by the Government to the manager is maintenance grant which is a meager amount, which is not even sufficient to whitewash the walls of the schools. That being so, an honest manager of an aided school cannot find funds for payment to staff, if the salary is not borne by the Government. 6. As I have already stated, each year, the D.E.O or the A.E.O concerned has to fix the student strength and staff strength as per staff fixation orders. The Government is bound to pay salary to teachers as per the staff strength fixed in the staff fixation order. There is no provision anywhere in the Kerala Education Rules to deny salary to teachers appointed by the manager in accordance with the staff strength fixed on the ground that a division has been sanctioned without financial commitment. In fact, there is no provision anywhere to sanction divisions without financial commitment. That being so, once additional divisions are sanctioned and staff strength is fixed on the basis of the student strength, the Government cannot under law deny salary to teachers appointed by the manager in accordance with the staff strength. The concept of self financing divisions is also alien to aided schools. So, the imposition of the condition by the Government in Ext. P2 to the effect that sanctioning of the additional two divisions is without any financial commitment to the Government, is clearly without jurisdiction. The Government cannot overlook the Kerala Education Rules in the matter of sanctioning of additional divisions, staff fixation and payment of salary to staff as per staff fixation orders. Aided school managers are W.P.C. No. 36136/07 -: 4 :- entitled to the benefit of the provisions of the KER including fixation of staff strength and payment of staff appointed by the manager in accordance with the staff strength so fixed. Therefore, the condition in Ext. P2 to the effect that sanctioning of the additional two Malayalam divisions is subject to the condition that there would not be any additional financial commitment to the Government in respect of he additional divisions is quashed as without jurisdiction. Consequently, Exts.P7 and P9 are also quashed. The D.E.O shall re-fix the staff strength in accordance with the students strength available for all the years from the year 2000-2001 onwards based on the student strength. However, I make it clear that the salary shall be paid in accordance with the staff strength so fixed only to those teachers, who had actually worked in the school for the period in question. The 3rd respondent shall pass orders in accordance with the above directions, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/