Allowed

Gokulan.K. v. State of Kerala

Kerala HC6 Mar 2013WP(C)/2208/2012

Case brief

AI extract

What is this about?

This writ petition challenged an order rejecting the petitioner's claim for staff fixation approval. The Court held that the Government failed to consider mandatory aspects highlighted in a prior judgment, necessitating a fresh reconsideration of the matter by the First Respondent.

What did the court decide?

Ext.P10 quashed; First Respondent directed to reconsider staff fixation matter afresh within six weeks; Headmaster relieved of liability.

Gokulan.K. Vs State of Kerala — Education and Admissions | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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WEDNESDAY, THE 6TH DAY OF MARCH 2013/15TH PHALGUNA 1934

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WP(C).No. 2208 of 2012 (A)

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PETITIONER:

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GOKULAN.K. AGED 55 YEARS S/O. CHANDUKUTTY, MANAGER, MANNUR NORTH A.U.P. SCHOOL MANNUR, ERANHIPALAM P.O, KOZHIKODE.

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BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.JIJI THOMAS SRI.MATHEW K. SIMON

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RESPONDENTS:

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STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM-695 001.

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THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695 001.

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THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE-673 328.

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THE ASSISTANT EDUCATIONAL OFFICER, FEROKE, KOZHIKODE DISTRICT-673 328.

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R1 BY ADV. SMT. LILLY K.T., GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-03-2013, ALONG WITH WPC. 6991/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1

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: TRUE COPY OF THE STAFF FIXATION ORDER DATED 29.08.2005 OF THE 4TH RESPONDENT.

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EXT.P2 : TRUE COPY OF THE SHOW CAUSE NOTICE DATED 15.05.2006 ISSUED BY THE 2ND RESPONDENT.

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EXT.P3

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: TRUE COPY OF THE EXPLANATION DATED 15.06.2006 SUBMITTED BY THE PETITIONER.

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EXT.P4 : TRUE COPY OF THE ORDER DATED 16.12.2006 ISSUED BY THE 2ND RESPONDENT.

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EXT.P5 : TRUE COPY OF THE ORDER DATED 04.09.2008 ISSUED BY THE GOVERNMENT.

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EXT.P6

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EXT.P7

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EXT.P8

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EXT.P9

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: TRUE COPY OF THE COMMUNICATION DATED 20.11.2008 BY THE GOVERNMENT.

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: TRUE COPY OF THE LETTER DATED 17.11.2008 ISSUED BY THE 4TH RESPONDENT.

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: TRUE COPY OF THE LETTER DATED 23.09.2008 OF -DO-

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: TRUE COPY OF THE JUDGMENT DATED 12.08.2011 IN W.P.(C) NO. 37692 OF 2009 OF THIS HON'BLE COURT.

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EXT.P10 : TRUE COPY OF THE ORDER DATED 19.11.2011 OF GENERAL EDUCATION (L) DEPARTMENT.

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RESPONDENTS' EXHIBITS: NIL

//TRUE COPY//

P.A. TO JUDGE

A.M.SHAFFIQUE, J.

---------------------------------------------------W.P.(C) Nos. 2208 of 2012 - A

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and 6991 of 2012 - Y

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--------------------------------------------------Dated this the 6^th March, 2013

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J U D G M E N T

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Petitioners challenge Ext.P10, an order issued by

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the Government rejecting the claim of the petitioners for approval as UPSA.

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The factual situation that arises for consideration is in regard to the staff fixation in the school managed by the petitioner in W.P.(C) No. 2208/2012 in respect of the academic year 2005-2006. Originally Ext.P5 order was passed by the Government which was set aside by this Court as per Ext.P9 judgment. The operative portion of the judgment of this Court at Ext.P9 reads as under:

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“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

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W.P.(C) Nos. 2208 of 2012 - A and

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6991 of 2012 - Y

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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 is in that context, Rule 15A was referred to by the learned Senior Counsel. The same reads as follows:-

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“ In cases where the fixation of staff strength in schools 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.”

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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.

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Learned Government Pleader submitted that actually, Rule 16 of Chapter XXIII of

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W.P.(C) Nos. 2208 of 2012 - A and

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6991 of 2012 - Y

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Kerala Education Rules is invoked and, therefore, Rule 15A of Chapter XXIII K.E.R. cannot be made applicable.

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I am not finally pronouncing on that issue since the same has not been considered by the Government. The said issue i 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”.

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In terms of the above judgment, the Government was bound to consider as to whether the contentions urged by the petitioners in relation to the staff fixation

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W.P.(C) Nos. 2208 of 2012 - A and 6991 of 2012 - Y

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was proper or not. In fact, the petitioners also claimed the benefit of Rule 15A of Ch.XXIII of K.E.R. in order to contend for the position that even according to the Department, if the number of student strength is considered, they are entitled to get 10% benefit. That apart, in Ext.P5 there is a clear finding that the students who were alleged to have been bogusly admitted had either written the examination, failed or had taken T.C. in the matter. Another contention urged is that the Government Secretary who had passed Ext. P10 was the D.P.I. during the relevant time when Ext.P4 was issued.

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Counter affidavit has been filed by the official

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respondents supporting the stand taken by the Government. But they also contend that the petitioner is not entitled to the benefit of Rule 15A of Ch. XXIII K.E.R.. That apart, according to them a Super Check Cell had conducted visit in terms with Rule 16 of Chapter XXIII of K.E.R. and therefore such finding of the fact of the Super Check Cell

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W.P.(C) Nos. 2208 of 2012 - A and 6991 of 2012 - Y

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cannot disturbed at all.

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Going by the judgment of this Court in Ext.P9 it is clear that in Ext.P10, the Government had not

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considered any of the aspects mentioned in the said judgment.

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The Government had only proceeded on the basis that with effect from 2012 onwards, another system of computing the student strength is being considered. But the fact remains that the petitioners are claiming that they are entitled for the staff strength as claimed by them. In fact, as per Ext.P4, four teachers have lost their employment and they are working without any salary. That being the situation, the Government was bound to consider the claim of the petitioners on the basis of the judgment of this Court. For that reason alone Ext.P10 is liable to be set aside.

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In the result these writ petitions are allowed. Ext.P10 in W.P.(C) No. 2208/2012 which is the same as

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W.P.(C) Nos. 2208 of 2012 - A and 6991 of 2012 - Y 6

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Ext.P6 in W.P.(C) No. 6991/2002 are quashed. The 1^st respondent shall reconsider the matter afresh, in the light of the judgment of this Court in Ext.P9 within a period of six weeks from the date of receipt of a copy of this judgment.

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However, it is made clear that the liability of the Headmaster which has been relieved stands good and and he will not be liable for any action as contemplated.

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Sd/-

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A.M.SHAFFIQUE, JUDGE.

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/true copy/

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rka

Gokulan.K. v. State of Kerala

Case brief

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Gokulan.K. v. State of Kerala

Case brief

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