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2007 DIGILAW 760 (KER)

Shuja Baby v. State of Kerala

2007-11-07

S.SIRI JAGAN

body2007
JUDGMENT S. Siri Jagan, J. 1. These two Original Petitions relate to sanction of additional divisions in St.John's High School, Mattom, Mavelikkara, on staff fixation for the year 1999-2000. O.P.No.18706/2000 is filed by the manager of the school challenging Ext.P5 order of the Government whereby the Government had refused sanction of additional divisions to which the petitioner was found eligible for the year 1999-2000. O.P.No. 18651/2000 is filed by the teachers appointed by the manager in the additional posts to which the school was eligible for the additional divisions in accordance with the staff fixation. Since the two Original Petitions relate to the same subject matter, they are disposed of by this common judgment. 2. The issue involved arises in the peculiar circumstances which are detailed as follows:- For the year 1998-99 there were 49 class divisions in the St. John's High School. During the year 1999-2000, the District Educational Officer (D.E.O.) visited the school on 7.6.1999 for verification of the student strength. On such verification, the D.E.O. found that the school was eligible for sanction of 52 class divisions. A higher level verification was conducted on 2.8.1999, in which it was found that the student strength permitted sanction of only 49 class divisions. On the ground that the fall in the student strength on day of higher level verification was on account of an epidemic prevailing in the area at the relevant time, the manager filled an application before the Government for a re-higher level verification. That was sanctioned by the Government and a re-verification of student strength was conducted on 1.9.1999 in which it was found that the student strength warranted 52 class divisions. 3. In 1991, R.12 of Chap. XXIII of the KER was amended. The amended Rule is as follows: "12. Strength of teaching staff:- Subject to the availability of accommodation the strength of teaching staff in each school shall be fixed by the Educational Officer in accordance with the above general provisions, once a year after finalising the number of divisions based on the effective strength of the class as on the 6th working clay from the re-opening date in June. The strength shall be verified by the Educational Officer by paying surprise visits to the schools. The strength shall be verified by the Educational Officer by paying surprise visits to the schools. A further verification of strength by the District Educational Officer, in the case of fixation of staff strength in Lower Primary and Upper Primary Schools, and by the Deputy Director (Edn.) in the case of High Schools, shall be done wherever additional divisions or additional staff are found necessary, after the verification by the Educational Officer concerned. In such cases, the final orders of fixation of staff shall be issued only on the basis of such re-verification of strength. The actual attendance on the date of visit of the Educational Officer plus 5 per cent roll strength for absentees not exceeding the roll strength of the each class alone shall be reckoned as the effective strength of the school for fixing the number of divisions and the strength of staff. The staff sanctioned by the competent authority during the previous year shall continue till the 14th of July of the succeeding year. The fixation of staff shall be finalised by the Educational Officer not later than the 15th July every year or such other date as may be fixed by the Director from time to time for the purpose. The strength of standard one as on the 6th working day after Vijayadasami Day shall be reviewed having regard to the provisions under sub-r.(2) of R.4 of Chap.VI and the strength of the staff shall be refixed accordingly, If found necessary, Government may direct the Educational Officer to re-visit and refix the strength of teaching staff in schools where there has been undue shortage in attendance of pupils on the date of visit of the Educational Officer or the Higher Verification Officer or the Super Check Officer due to natural calamities like flood, outbreak of epidemic, or other special reasons like agitations, strikes, accidents, death of prominent persons in the locality, etc. Requests for re-visit should be accompanied by a certificate issued by the Headmaster explaining the reasons far the fall in attendance and the veracity of the reasons adduced should. ordinarily he supported by a report of the Tahsildar within whose jurisdiction the school is situated, or the Medical Officer in charge of the nearest - Government medical institution, as the case may be. ordinarily he supported by a report of the Tahsildar within whose jurisdiction the school is situated, or the Medical Officer in charge of the nearest - Government medical institution, as the case may be. When such a re-visit is made by the Educational Officer or the Higher Verification Officer or the Super Check Officer following the directions of the Government, the effective strength shall be worked out on the basis of the strength verified on re-visit made by the Educational Officer or the Super Check Officer, as the case may be, and orders shall be passed by the Educational Officer or the Director of Public Instruction respectively, but not granting a new division that not in the Staff Fixation in the previous year.'' (Underlining supplied) Relying on the last sentence in R.12, the respondents refused to sanction the three additional divisions to which the school was entitled to, as per the student strength so re-verified. Petitioner's representation before the Government in this regard was rejected by Ext.P5 Government order produced in O.P.No.18706/7000. Since the rejection of the claim for three additional divisions was based on the amended R.12, the petitioner has challenged the validity of the amended R.12 also. 4. The petitioners contention is that in the verification of student strength on the 6th working day of the academic year it was found that the student strength justified sanction of 52 divisions, three more available for the previous year, viz. 49. In the first higher level verification on 2.8.1999 student strength justified only 49 class divisions. because of which only a higher level verification was requested for and granted. In that re-higher level verification, the original student strength fixed on 7.6.1999 was found to be correct. If the rule stipulates that in spite of the fact that the student strength justified 52 class divisions, only class divisions which were available for the previous academic year alone would be sanctioned, then that rule would be arbitrary and unconstitutional, is the contention raised by the petitioners in these Original Petitions. 5. Learned Government Pleader on the basis of the averments in the counter affidavit filed in these cases, supports the rule as well as the action taken by the educational authorities in sanctioning only 49 class divisions for the year 1999-2000. 5. Learned Government Pleader on the basis of the averments in the counter affidavit filed in these cases, supports the rule as well as the action taken by the educational authorities in sanctioning only 49 class divisions for the year 1999-2000. According the Government Pleader, Rule admits of no ambiguity Whatsoever and once in the second higher level verification even if the effective student strength was found to be the same as in the first visit, a new division that was not in the staff fixation in the previous year cannot be granted. 6. In view of the decision I am inclined to take in these Original Petitions, I do not think it necessary to decide the question of the validity of the Rule. I am of opinion that the Rule should be read down to mean that if in a second higher level verification the effective student strength was found to be more than what has been fixed in the first visit, such additional class divisions sanctionable more than as per the first visit alone can be denied to the school. In other words, if the student strength fixed on the sixth working day warranted more than the existing class divisions for the previous year and in the second higher level verification student strength is more than that in the first visit, then only the student strength as per the first visit (on the 6th working day) can be taken into account, and only the additional divisions sanctionable as per the second higher level verification alone can be denied as per R.12. According to me, otherwise, it would lead to a totally illogical results. 7. In this case there were already 49 class divisions during the year 1998-99. In the first visit on 7.6.1999 the student strength justified 52 class divisions. In the first higher level verification the student strength was reduced corresponding only to 49 divisions, which was the same as for the previous year. In the second higher level verification on 1.9.1999 the original student strength on 7.6.1999 was restored. Now the anomalous situation arises thus. If in the first higher level verification on 2.8.99 the student strength was found to be equivalent to 52 class divisions, then 52 class divisions could have been allowed. In the second higher level verification on 1.9.1999 the original student strength on 7.6.1999 was restored. Now the anomalous situation arises thus. If in the first higher level verification on 2.8.99 the student strength was found to be equivalent to 52 class divisions, then 52 class divisions could have been allowed. If that be so, it defies logic as to how if the second higher level verification justifies 52 divisions, only those divisions as per the previous years staff fixation alone can be sanctioned. Further, since for the previous year there were 49 class divisions and as per the first re-visit on 2.8.1999 also class divisions were 49, if the Rule permitted only 49 divisions, even if in the second higher level verification three more could have been granted, then the whole exercise of conducting a second higher level verification itself, which has been permitted by the Government, would he a totally futile exercise. The very purpose of second higher level verification is to ascertain the verification conducted on the 6th working day is correct. If after being found the same to be correct after second higher level verification, additional class division cannot be sanctioned, then the very object of permitting second higher level verification would become totally meaningless which cannot be the object of the Rule. 8. Further, the very scheme of the KER for having staff strength commensurate with the student strength as per the teacher-student ratio fixed. If, as a matter of fact, student strength justified a particular staff strength, there is no logic in denying such staff strength to the school. The very object of the Kerala Educational Act and Rules is to provide for the better organization and development of educational institutions in the State, providing a valid and comprehensive service throughout the State. The very object of the Act and Rules is to better the standards of education in the State. That being so, an interpretation commensurate with the said object is to be adopted in case of ambiguities. I am satisfied that there is a clear ambiguity in R.12 as it stands now. The very object of the Act and Rules is to better the standards of education in the State. That being so, an interpretation commensurate with the said object is to be adopted in case of ambiguities. I am satisfied that there is a clear ambiguity in R.12 as it stands now. I am of opinion that what the rule wanted to convey is that if in a revisit the student strength was more than what was originally fixed on the 6th working day of the academic year, then the staff strength as eligible as per the student strength on the sixth working day alone would be sanctioned. The last sentence of R.12 can only refer to a situation whereby during the inspection on the 6th working day, the student strength warranted class divisions only as in the previous year and on higher level verification student strength was more warranting additional divisions. The purpose of higher level verification is to verify the correctness of the verification on the 6th working day and if on such higher level verification the student strength is more such additional student strength cannot be taken into account since the student strength as on the 6th working day is the real student strength applicable for staff fixation. The Rule is, therefore, liable to be read down accordingly. I declare so. 9. In the result, I quash Ext.P5 in both Writ Petitions and direct the respondents in O.P.No.l8706/2000 to refix the class divisions of the school for the academic year 1999-2000 as 52 and approve the appointments made by the manager in accordance with such staff strength if such appointments are otherwise in order. Orders in this regard shall be passed within a period of one month from the date of receipt of a copy of this judgment. I further make it clear that the staff fixation for Sanskrit shall be made separately taking into account the student strength for Sanskrit. The Original Petitions are disposed of as above.