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1991 DIGILAW 349 (KER)

Mony v. Government of Kerala

1991-08-13

JAGANNADHA RAO, PARIPOORNAN

body1991
Judgment :- Paripoornan, J. The petitioner in O.P.No.3806 of 1991-C is the appellant in this writ appeal. The respondents in the Original Petition are the respondents herein. The appellant/ petitioner, High School Assistant in the school run by the third respondent, sought the quashing of Ext.P2 dated 3-4-1989, the staff fixation order passed by the District Educational Officer, Kollam which was affirmed in appeal by the Additional Director of Public Instruction by Ext.P4 dated 7-3-1990 and in revision by the Government, by Ext.P8 dated 25-2-1991. In passing the staff fixation order (Ext.P2) for the year 1988-89, the District Educational Officer found that there are 55 students in Std. X with an excess strength of 5 pupils, but he sanctioned only one division for Std. X. The management was permitted to retain the excess strength of 5 students in Std. X and it was observed that one additional post of High School Assistant was not sanctioned for want of accommodation. In appeal by the Manager of the school, one of the contentions pressed, which is in controversy herein, was that two divisions should have been sanctioned for Std. X. The Additional Director of Public Instruction, Trivandrum (the appellate authority) found that the effective strength in Std. X during the year 1988-89 was 55 and the admissible divisions are two. But, only one division was allowed. It was so done, since no sufficient accommodation for sanctioning the 2nd division in Std. X was available. The plea in that regard was rejected. In revision, the Government, by Ext.P8 order dated 25-2-1991, affirmed the said orders. It was held that reckoning the availability of accommodation as per Circular No.H2-33422/68/D.Dis. dated 30-6-68, it could be seen that the accommodation pointed out by the Manager for sanctioning the additional division will not satisfy the specifications in that regard and in the light of the total rooms available, the request for sanction of additional division in Std. X did not merit consideration. The appellant/ petitioner challenged the aforesaid staff fixation order (Ext.P2), the appellate order (Ext.P4) and the revisional order (Ext.P7) in the Original Petition. 2. A learned single judge of this Court, after adverting to the plea of the appellant/ petitioner, held thus: "It is true that the Kerala Educational Rules is silent regarding the size of the extra rooms required for a school. 2. A learned single judge of this Court, after adverting to the plea of the appellant/ petitioner, held thus: "It is true that the Kerala Educational Rules is silent regarding the size of the extra rooms required for a school. In the absence of statutory provisions, executive orders can be issued regulating the size of extra rooms. The Director of Public Instruction has, by Circular dated 30-6-1968, prescribed the size of the extra rooms required for a complete High School for Headmaster's room, Teachers' room, Laboratory and Library. It is common case that there is no sufficient accommodation for these extra rooms. Altogether, there are 29 rooms in the school run by the third respondent. Of them two are undersized. Out of the remaining 27 rooms, four rooms are required for Headmaster's room, Teachers 'room, Laboratory and Library. Thereafter, there remains only 23 rooms. 23 classes have been sanctioned by the second respondent, as per Ext.P2 staff fixation order, for the academic year 1988-89. Since 23 divisions have been sanctioned and the school has got 23 rooms only to accommodate those classes, petitioner's claim for one more additional class cannot be sanctioned for want of accommodation. In view of what has been stated above, petitioner is not entitled to any of the relief asked for." The appeal is filed from the aforesaid judgment of the learned single judge dated 3-4-1991. 3. We heard counsel for the appellant Mr. S.A. Razzak. Strong reliance was placed on Chapter VII Rule 23 and Chapter XXIII Rule 4(ii) of the Kerala Education Rules to contend that the strength in Standard X being admittedly 55, a second division could be opened and two High School Assistants for that standard should have been sanctioned, as against the one sanctioned as per Ext.P2. We shall extract Chapter VII R.23 and Chapter XXIII Rule 4(ii) of the Kerala Education Rules. "Chapter VII Rule 23: Maximum strength of a class division:- The maximum strength of a class division shall be 45, but excess admission up to 50 will be allowed. When there are more than 50 students a second division may be opened when the strength exceeds 95 a third division, and so on. Provided that the Educational Officer, may, for sufficient reasons allow retention of excess strength over 50 in a class division." "Chapter XXIII. When there are more than 50 students a second division may be opened when the strength exceeds 95 a third division, and so on. Provided that the Educational Officer, may, for sufficient reasons allow retention of excess strength over 50 in a class division." "Chapter XXIII. Rule 4(ii): In every High School there may be - (ii) As many posts of High School Assistants as there are divisions in High School Classes;" 4. It is true that the Circular, which has stipulated the size of the rooms for a High School, Headmaster's room, Teachers' room, Laboratory and Library room etc., was promulgated only on 30-6-1968. Counsel for the appellant stated that the school was started long before the Education Act and so the said Circular is not applicable. On the petitioner's own showing, she joined the service in the school only on 1-6-1987, long after the aforesaid Circular was promulgated. The Education Act and the Rules are silent regarding the size of the extra rooms required for a school, but in the absence of statutory provisions, executive orders can be issued regulating the size of extra rooms. It was so done in this case. We are of the view that there is no question of retrospective operation of the said Circular in the instant case, since the petitioner/ appellant joined the service long after the Circular came into operation. We repel the plea to the contrary. 5. All the statutory authorities, as also the learned single judge have found that there are 29 rooms in the school and two of them are under-seized. Out of the remaining 27 rooms, four rooms are required for Headmaster's room Teachers' room, Laboratory and Library. On this reckoning, only 23 rooms are available. The authorities have sanctioned only 23 classes, as per Ext. P2, which was affirmed by Exts. P4 and P7 orders, for the year 1988-89.23 divisions were sanctioned, since the school has got only 23 rooms to accommodate those classes. It was in such circumstances, the claim for one additional class in Standard X was declined. The appellant's counsel argued that as per Chapter VII Rule 23, when there are more than 50 students, opening of a second division is compulsive. It was in such circumstances, the claim for one additional class in Standard X was declined. The appellant's counsel argued that as per Chapter VII Rule 23, when there are more than 50 students, opening of a second division is compulsive. In this case, there are 55 students in Standard X. So, a second division should be sanctioned and in this perspective one more post of High School Assistant should have been sanctioned. And the sanction of only one post of High School Assistant for Std. X was violative of the provisions of Chapter VII Rule 23 of the K.E.R.,read with Chapter XXII, Rule 4(ii). 6. We are of the view, that on a plain reading of the aforesaid statutory provisions, the authorities have not committed any illegality or irregularity. It is true that the maximum strength of a class division shall be 45, but excess admission up to 50 will be allowed. When there are more than 50 students a second division may be opened. It is only permissive and not compulsive. The proviso to Chapter VII Rule 23 states that the Educational Officer, may, for sufficient reasons, allow retention of excess strength over 50 in a class division. Chapter VII R.23 read along with the proviso visualises that even if there are more than 50 students it is open to the Educational Officer, for sufficient reasons, to allow retention of excess strength over 50 in a class division. It may be that when there are more than 50 students, a second division may be opened, but that need not be done in all cases, if there are sufficient reasons which show that it is inexpedient or impossible or difficult of compliance, in accordance with the requirements of law. In the Ext. P2 staff fixation order, the District Educational Officer has adverted to the fact that the effective strength in Standard X is 55, but has sanctioned only one division and so only one post. This was so done since the additional division could not be sanctioned for want of accommodation, and the excess strength of 5 in Standard X was, in the result, permitted to be retained, in exercise of the powers vested in the authority as per the proviso to R.23 of Chapter VII K.E.R. 7. This was so done since the additional division could not be sanctioned for want of accommodation, and the excess strength of 5 in Standard X was, in the result, permitted to be retained, in exercise of the powers vested in the authority as per the proviso to R.23 of Chapter VII K.E.R. 7. We hold that in view of Circular dated 30-6-1968, which prescribed the size of the extra rooms required for a complete High School, the total available rooms for the classes is only 23. The second respondent sanctioned 23 classes. Though it was permissible to open one more division in Standard X, it could not be done for want of accommodation as per the specifications contained in the Circular dated 30-6-1968. It is for that reason the District Educational Officer permitted the retention of the excess strength of five pupils in Std. X. The District Educational officer was authorised and competent to do so in view of the proviso to Chapter VII Rule 23 of K.E.R. The fact that if more than 50 students are available, a second division may be opened, does not necessarily mean, that even in the absence of sufficient accommodation, the additional division should be sanctioned. The sanction for opening a second division can be granted, only if it could be done in accordance with the existing rules or regulations applicable to the case. On facts, it is evident that in the instant case, due to want of accommodation as per the Circular, it was not possible to open a second division and sanction was accordingly not given therefor. In this view, we find no illegality or impropriety in Exts. P2, P4 and P7 orders. The learned single judge was justified in holding that the petitioner's claim for one more additional class in Standard X cannot be sanctioned for want of accommodation and that the petitioner/ appellant is not entitled to any relief. 8. The writ appeal is without merit. It is dismissed in limine. Dated this the 13th day of August, 1991.