NALINI KUMARI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE question that arises for consideration in this Original Petition relates to the interpretation of rule 15 of chapter XXIII of the Kerala Education Rules,1959 which gives power to the Educational Officer to re -fix the staff strength of a school if,in the opinion of the Educational Officer,the fixation of staff strength already made was obtained by bogus admission,or attendance or by fraud or misrepresentation and the like.

(2.) THE petitioners in this Original Petition are two High School Assistants appointed in the Poovachal Panchayat High School,Poovachal.Their grievance is against Ext.P -8 order of the 2nd respondent -District Educational Officer,Neyyattinkara by which in exercise of the powers under rule 15,chapter XXIII of the Kerala Education Rules,1959 the 2nd respondent re -fixed the staff strength of the Panchayat High School,Poovachal by reducing two posts of High School Assistants and one post of High School Assistant(malayalam ).The 1st petitioner was appointed as H.S.A.from 30th July 1971 and the 2nd petitioner from 1st June 1971 and their appointments were duly approved by the 2nd respondent as per the endorsements in Exts.P -1 and P -2.For the year 1971 -72,there were 15 class divisions and 15 posts of H.S.As.and this is borne out by Ext.P -3 staff fixation order for that year.As per Ext.P -4 order for the year 1972 -73 also,15 class divisions and 15 posts of H.S.As.are sanctioned to the school by the 2nd respondent.

(3.) THE petitioners have raised a number of contentions in the Original Petition.One of the contentions raised is that the relevant provisions in the Kerala Educa­tion Rules,1959 make it clear that the fixation of staff strength after finalizing the number of divisions based on the effective strength of the class cannot be varied during that school year and rule 15,chapter XXIII of the Rules has nothing to do with the sanctioning of class divisions.Hence Ext.P -8 re -fixing the number of staff purporting to be under the above rule is illegal.The further contention is that there is finding in Ext.P -8 that the fixing of staff strength is by obtaining bogus admission,or attendance or by fraud or misrepresentation nor are there reasons recorded in writing for reaching such a conclusion,it is also said that the removal of pupils from the rolls is in accordance with rule 15,chapter VI of the Kerala Education Rules and that cannot affect the sanction of the division on the basis of the effective strength arrived at at the time of the visit for strength verification by the 2nd respondent.It is also contended that rule 15 is arbitrary and violative of the rights granted under section 9 of the Kerala Education Act,1958 and the conferment of power in such wide terms as contained in rule 15 adversely affect the petitioners 'rights.The contention in the counter -affidavit filed on behalf of the 1st respondent -State is that large scale removals of pupils from the rolls of the school have lead to the reasonable inference that there was a mala fide attempt to show inflated attendance on 28th June 1972,the date of verification of attendance for the purpose of staff fixation for the year 1972 -73.It is further stated that such large scale removals were quite unusual.In paragraph 5 of the counter -affidavit,it is pointed out that the provisions contained in rule 15,chapter XXIII of the Rules is notwithstanding anything contained in these rules "and so there is no substance in Ground No.A.of the Original Petition.The contention that rule 15,chapter XXIII is beyond the rule -making powers under section 36 is also denied.Section 36(m)of the Act empowers the Govern­ment to make rules for all matters expressly required or allowed by the Act to be prescribed.There is no substance in the contention that no re -fixation can be made after August because rule 15 permits a re -fixation at any time during the year notwithstanding anything contained in the Kerala Education Rules.The only thing is a notice should be issued and there should be valid and sufficient reasons to be recorded in writing.