IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 WP(C).No. 37837 of 2008(D) ---------------------------------- PETITIONER(S): -------------------- GOKULAN.K, S/O. CHANDUKUTTY, MANAGER, MANNUR NORTH A.U.P SCHOOL, MANNUR, ERANHIPALAM.P.O, KOZHIKODE. BY SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE ADV.SRI.JIJI THOMAS RESPONDENT(S): --------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION,THIRUVNANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 4. THE ASSISTANT EDUCATIONAL OFFICER, FEROKE, KOZHIKODE DISTRICT. 5. THE HEADMASTER, MANNUR NORTH.A.U.P. SCHOOL, MANNUR, ERANHIPALAM.P.O, KOZHIKODE. * ADDL. R6 TO R11 IMPLEADED 6. SMT.PRAJITHA C., U.P.S.A., A.U.P. SCHOOL, MANNUR, KOZHIKODE DISTRICT. 7. SANDHYA KRISHNADAS,U.P.S.A., A.U.P.SCHOOL, MANNUR, KOZHIKODE DISTRICT. 8. SMT. AMBILI A.K., U.P.S.A., A.U.P.SCHOOL, MANNUR, KOZHIKODE DISTRICT. svs .............2/-..... ...2... WPC.NO.37837/2008 9. SMT. SREEJA S., U.P.S.A., A.U.P. SCHOOL, MANNUR, KOZHIKODE DISTRICT. 10. SMT. NUJAIHA KALLADA, U.P.S.A., A.U.P.SCHOOL, MANNUR, KOZHIKODE. 11. SMT. ASHA K., U.P.S.A., A.U.P.SCHOOL, MANNUR, KOZHIKODE DISTRICT. * ADDL. R6 TO R11 ARE IMPLEADED AS PER ORDER DATED 12/08/2011 IN I.A. NO.10060/2009. R1 TO 4 BY GOVT.PLEADER SMT.NISHA BOSE R5 BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN R6 TO R11 BY ADV. SRI.THOMAS GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2011, ALONG WITH WPC NO. 37692 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 37837/2009 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF STAFF FIXATION ORDER DATED 29/08/2005 OF THE 4TH RESPONDENT. P2: COPY OF SHOW CAUSE NOTICE DATED 15/05/2006 ISSUED BY THE 2ND RESPONDENT. P3: COPY OF REPLY DATED 15/06/2006. P4: COPY OF THE ORDER DATED 16/12/2006 ISSUED BY THE 2ND RESPONDENT. P5: COPY OF THE REVISION APPEAL DATED 27/01/2007 FILED BEFORE THE 1ST RESPONDENT. P6: COPY OF GOVERNMENT ORDER DATED 04/09/2008 ISSUED BY THE 1ST RESPONDENT. P7: COPY OF GOVERNMENT ORDER DATED 20/11/2008 OF -DO- P8: COPY OF RECOVERY LETTER DATED 23/09/2008 ISSUED BY 4TH RESPONDENT. P9: COPY OF DISCIPLINARY PROCEEDINGS DATED 17/11/2008 ISSUED BY THE 4TH RESPONDENT. P9(a):COPY OF -DO- RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.37837/2008-D & 37692/2009-F ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 12th day of August, 2011 J U D G M E N T Both these writ petitions concern the challenge against the very same order issued by the Departmental authorities, which stands confirmed by the Government in revision. 2. W.P.(C). No.37837/2008 is filed by the Manager and W.P.(C).No.37692/2009 is filed by six teachers. They are aggrieved since the orders have resulted in denial of approval of salary to them. 3. The academic year concerned is 2005-06. The schoo1 in question is an Upper Primary Schoo1. After the effective students' strength was assessed in terms of Rule 12 of Chapter XXIII of Kerala Education Rules, a higher level verification was also done and, thereafter, Ext.P1 staff fixation order was issued. Based on the staff fixation, vacancies were filled up also. 4. Exhibits mentioned herein are as those which are produced in W.P.(C).No.37837/2008. In the next W.P.(C).Nos.37837/2008 & 37692/2009 -:2:- academic year, Ext.P2 notice was issued by the Director of Public Instruction alleging bogus admissions during 2005-06. The said notice is dated 15/05/2006. The written explanation submitted is produced as Ext.P3 and the final order passed by the Director of Public Instruction is produced as Ext.P4 wherein the finding is that there are bogus admissions to the tune of 38. The Government also rejected the revision petition as per Ext.P6. 5. Even though a review petition was filed, as per Ext.P7 same was not entertained. Thereafter, the Assistant Educational Officer issued Exts.P8, P9 and P9 (a) letters directing disciplinary action against the Headmaster and ordering recovery of amounts from him. These orders are under challenge herein. 6. Heard the learned Senior Counsel for the petitioner-Manager in W.P.(C).No.37837/2008, the learned counsel appearing for the petitioners in W.P. (C).No.37692/2009 and the learned Government Pleader. 7. The learned Senior Counsel for the petitioner in W.P.(C).No.37837/2008 submitted that none of the W.P.(C).Nos.37837/2008 & 37692/2009 -:3:- admissions can be termed as bogus in view of the voluminous evidence produced by the petitioner before the Government. 8. My attention was invited to Ext.P3 explanation itself wherein it was explained that all the students whose admissions have been alleged as bogus have continued in the schoo1, attended annual examination and passed out or failed. In some cases, transfer certificates have been issued to join other schoo1s. Photocopies of the answer scripts of certain pupils were also forwarded along Ext.P3. A specific request was also made in Ext.P3 to verify all these which according to the Manager and Headmaster, will show that the allegations are baseless. 9. Documents as above, were produced by the petitioner which is evident from a reading of Ext.P6 itself. All those aspects have been mentioned in the last but one paragraph of the order itself. 10. The question whether the admissions are bogus or not could have been easily verified by referring to the documents produced by the petitioner also. Since W.P.(C).Nos.37837/2008 & 37692/2009 -:4:- the petitioner relied upon the attendance register, transfer certificates as well as the other details to show that the 38 pupils were studying there and also the answer papers of the annual examinations, these facts could have been easily verified. The Government only accepted the reasoning of the Director of Public Instruction even though the conclusions were challenged by the petitioner in the revision petition and during the hearing. 11. The crucial question is whether the pupils who were alleged as bogus admissions have continued in the schoo1, attended annual examination and have passed in the examination or failed etc.. As rightly pointed out by the learned Senior Counsel for the petitioner, the transfer register will show that the names of pupils who have obtained transfer to join other schoo1s. If verification is made in the schoo1s which they have joined, the same could be confirmed also. Further, it is pointed out that the photocopies of the answer scripts have also been produced. W.P.(C).Nos.37837/2008 & 37692/2009 -:5:- 12. Evidently, after adverting to the contentions raised by the petitioner, the finding in Ext.P6 is only that the students were absent on both days. Lastly, it is mentioned that the schoo1 authorities failed to produce any valid evidence before the Government at the time of hearing. Evidently, the same is not correct. What was expected was to consider the evidence, evaluate the same and enter on findings The same is absent from the reading of Ext.P6. Hence, it cannot be justified. 13. One of the other issues raised is regarding the applicability of Rule 15A of Chapter XXIII of Kerala Education Rules. 14. Learned Senior Counsel for the petitioner submitted that in the writ petition, the petitioner has challenged the jurisdiction of the Director of Public Instruction, but the stand taken in the counter affidavit shows that the Director has invoked the power under Rule 12E(3) and Rule 16 of Chapter XXIII of Kerala Education Rules. It in that context, Rule 15A W.P.(C).Nos.37837/2008 & 37692/2009 -:6:- was referred to by the learned Senior Counsel. The same reads as follows:- “In cases where the fixation of staff strength in schoo1s is revised the Director of Public Instruction or by the Educational Officers concerned under Rule 12E or Rule 15 as the case may be after September, an allowance for a fall of 10% in the effective strength only to support the first verification of staff strength shall be allowed.” It is then submitted that if allowance for a fall of 10% in the effective strength is given, that will support the first verification and the consequent staff fixation, and this aspect has not been examined by the Government. 15. Learned Government Pleader submitted that actually, Rule 16 of Chapter XXIII of Kerala Education Rules is invoked and, therefore, Rule 15A of Chapter XXIII K.E.R cannot be made applicable. W.P.(C).Nos.37837/2008 & 37692/2009 -:7:- 16. I am not finally pronouncing on that issue since the same has not been considered by the Government. The said issue will also be considered by the Government. For all these reasons, the impugned orders Exts.P6, P8, P9 and P9(a) produced in W.P.(C). No.37837/2008 are quashed. W.P.(C).No.37837/2008 is disposed of with a direction to the Government to reconsider the whole matter in the light of the findings rendered above, after hearing the petitioner as well as the headmaster, and appropriate decision will be taken within two months from the date of receipt of a copy of this Judgment. 17. W.P.(C).No.37692/2009 is also disposed of in the light of the above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms