IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:1-12-2009 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.31821 of 2003 Mrs.A.Lilly Pushpam ... Petitioner Versus 1.District Elementary Educational Officer, Nagercoil. 2.The Correspondent, St.Antony Middle School, Chenpabagaraman Puthan Thurai, Kil-Manakkudy, Manakkudy Post-629 602 Kanyakumari District. 3.Superintendent of R.C.Schools, Diocese of Kottar, Assist Complex, Nagercoil-629 001. 4.Assistant Elementary Educational Officer, Rajakkamangalam Range at Nagercoil-629 001. .... Respondents Writ Petition filed under Article 226 of Constitution of India praying for the issuance of Writ of Certiorari to call for the records pertaining to the proceedings of the first respondent in his proceedings No.Na.Ka.No.4291/A3/03 dated 8.10.2003 and consequential order of the 2nd respondent dated 8.10.2003 and quash the same. For Petitioner :Mr.R.Saseedharan For Respondents :Mr.P.Godson Swaminath for RR 2 and 3 Mrs.Dakshiyani Reddy Govt. Advocate for RR1 & 4 https://hcservices.ecourts.gov.in/hcservices/ ORDER Writ petitioner has approached this court challenging the order passed by the first respondent transferring the petitioner from second respondent school to St.Joseph Ramanduras, Kanyakumari District. 2. The case of the petitioner is that she was appointed as Secondary Grade Teacher on 4.6.1985 and the first respondent school was upgraded as Middle School with effect from 14.12.1985. At the time of filing of the writ petition, the sanctioned strength of the teacher was one headmaster, four Secondary Grade teacher and one Craft Teacher. When things stand so, on 28.9.2003, the fourth respondent school was inspected and found that the student strength was 184. 3. By an order dated 6.10.2003, the petitioner was transferred St.Joseph Primary School on the ground that the petitioner was found to be surplus for the year 2003-2004 as per G.O.Ms.No.525, School Education Department dated 29.12.1997 and thereafter the first respondent passed an order dated 8.10.2003 and the same is challenged before this court. 4. The respondents 1 and 4 filed counter affidavit stating that there were complaints stating that the student strength of the school declined and the teachers were appointed against the rule and therefore the first respondent appointed flying squad to inspect the said school. On inspection by the flying squad, it was found that the pupils attendance on 23.9.2003, 24.9.2003 and 26.9.2003143 were 143,124,133 respectively. As per the counter affidavit filed by the first respondents 1 and 4, only two secondary grade teachers are eligible as per the above average attendance and the remaining two secondary grade teachers were found to be surplus and for the said reason only, the two surplus teachers were sought to be transferred to the needy school under the same management school. The petitioner is one of the surplus teachers. 5. Respondents 2 and 3 filed counter affidavit and contended that the student strength noted as per the final inspection made by the AEEO was 180 and the average student strength given in the counter affidavit is not correct. In fact the respondents 2 and 3 contended that the strength of the school is 180 and it does not warrant any transfer on the ground of surplus as per G.O.Ms.No.525, School Education dated 29.12.2007. 6. Mr.Saseedaran, learned counsel appearing for the petitioner submitted that the petitioner is working in the school as Secondary Grade Teacher even before the school was upgraded as middle school and only five teachers were working there and this petitioner is only https://hcservices.ecourts.gov.in/hcservices/ a craft teacher, who cannot take regular class to the students. He also relying upon G.O.Ms.No.1820,(B1) Education Department dated 21.11.1984, petitioner's counsel submitted that the teacher strength should be fixed on the basis of average attendance during the month of August. Whereas as as stated in page 3 of the counter affidavit filed by the first respondent, inspection to ascertain the strength of the student was done during September 2003 and the same is contrary to G.O.Ms.No.1820 dated 21.11.1984. He relied upon a Division Bench judgement of this court in Director of Tamilnadu Elementary Education, College Road, Chennai-6 and three others vs. Lakshmi Narasimha Vidyalaya rep. by its Correspondent K.Periyasamy, Ragavendrapuram Seshanchavadi, Salem District reported in in 2004 WLR 530, wherein in para 3 it was held as follows: "This action was because there were inspections taken during which some defects were found, which defects we have already referred to above and which defects surfaced in the impugned order dated 24.10.l997. The learned single judge has allowed the writ petition on the singular ground that the inspections were taken and the average attendance was estimated on the basis thereof, in the month of July 1997. According to the learned single judge, as provided in G.O.Ms.No.250 (Education) dated 29.12.1964, modified by G.O.Ms.No.1820 (Education) dated 21.11.1984, the inspections have to be carried out and the estimate of the avearage attendance of the students has to be made on the basis of the attendance only in the month of August and it ils only on that basis that the staff strength is to be decided by the authorities. We were taken through the said Government orders, wherein it is very clearly suggested in paragraph 3 thereof that the teacher strength has to be fixed on the basis of the average attendance during the month of August, meaning thereby that the authorities would have to hold the inspections only in the month of August and on that basis, come to the conclusion as to how many teachers were in reality required for that school. That not having been done, and the inspection having been fixed only on 20.7.1997, the learned single judge held that the action was per se bad and that the department could not proceed with the proposals in the order dated 24.10.1997." 7. Relying upon the said judgement, learned counsel for the petitioner submitted that the details given relating to student strength based on the inspection made in September, should not be employed to disturb the petitioner from the school. 8. On the other hand Mrs.Dakshayani Reddy, learned Government Advocate, submitted that based on the strength of the student, the https://hcservices.ecourts.gov.in/hcservices/ petitioner is sought to be transferred; Moreover, to the very same management school only, the petitioner is sought to be transferred and in fact the management accepted the strength of the student; When the management accepted the position, it is not open to the petitioner-teacher to challenge the transfer order as she has got no loco-standi; Even as per pupil teacher ratio, the class is supposed to have 40 students whereas in the said class, no such requirement was satisfied; In those circumstances only the petitioner is sought to be transferred. 9. Mr.Godson Swaminath, learned counsel for respondents 2 and 3, acknowledging the arguments advanced by the learned counsel for the petitioner submitted that the school has total strength of 180 students and in fact it was also as stated in paragraph 5 of the counter affidavit that the student strength has been noted as on 28.10.2003 as 180 and when that is the position, there is no necessity to transfer the petitioner from the school. He also relied upon the Full Court Judgement of this court in Director of Elementary Education, Chennai-6 and six others versus S.Vigila and another reported in 2006 (5) CTC 385, wherein it has been declared each individual standard/section as a unit and each standard should have a teachaer. Relying upon the said judgement learned counsel submitted that even as per the judgement the school is entitled to 18 teachers. 10. A perusal of G.O.Ms.No.525 dated 29.12.1997 only speaks about 1:40 teacher pupil ratio. As far as middle school is concerned there is no mention about the minimum strength of students in each class. If the contention of the learned Government Advocate has to be accepted, if the strength of student is less than 40 then it will only lead to a situation to close the particular class. As categorically stated in the full court judgement, G.O.Ms.No.525 does not prescribe the minimum strength for a class and it only shows that 1:40 will be the teacher pupil ratio. The aforesaid facts were taken note of by the Hon'ble Full Bench and held that the teachers strength should no be lower than the number of classes and the school should not be a single unit and each standard/section is to be taken as single unit. In view of that the school, in which the petitioner is working being a middle unit, is entitled to have eight teachers. If eight teachers are to be retained, then the petitioner would not be treated as surplus teacher and in that event the impugned order has to be quashed. 11. AS rightly pointed out by the learned counsel for the petitioner as per G.O.Ms.No.1820 dated 21.11.1994, the strength of the teacher should be based on the average attendance during the month of August and it has to taken into account for deciding the strength of the teacher. In any event after the pronouncement of the Full Bench judgement every school is entitled to have teachers not less than the number of classes/standards it has got. https://hcservices.ecourts.gov.in/hcservices/ 12. Learned Government Advocate submitted that the second respondent school admitted the transfer order and in fact gave relieving order to the petitioner and in that event the petitioner is not an aggrieved person and she has no locustandi. The contention is liable to be negatived as the person who sought to be transferred is the petitioner and she is the aggrieved person by transfer order and she has every right to challenge the transfer order. 13. Even as per chart approved by the first respondent school, in which the petitioner is working, shows, the strength of the student as 180 and the sanctioned strength of the teachers as 4. The said tabular column is prepared as per G.O.Ms.No.525 School Education and the school is entitled to 4 + 1 Secondary Grade Teacher and therefore the impugned order is liable to be quashed. 14. For the reasons stated above the writ petition is allowed and the impugned order is set aside. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vk To: 1.District Elementary Educational Officer, Nagercoil. 2.The Correspondent, St.Antony Middle School, Chenpabagaraman Puthan Thurai, Kil-Manakkudy, Manakkudy Post-629 602 Kanyakumari District. 3.Superintendent of R.C.Schools, Diocese of Kottar, Assist Complex, Nagercoil-629 001. https://hcservices.ecourts.gov.in/hcservices/ 4.Assistant Elementary Educational Officer, Rajakkamangalam Range at Nagercoil-629 001. 1 cc to Mr.R.Saseetharan, Advocate, Sr.No.65192 1 cc to M/s.Isaac Mohanlal, Advocate, Sr.No.65081 1 cc to Government Pleader, Sr.No.65568 W.P.No.31821 of 2003 AR {CO} TP/28.1.2010. https://hcservices.ecourts.gov.in/hcservices/