Manager And Others vs State Of Kerala And Others
2021 Latest Caselaw 3039 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                 THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

           THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                           WP(C).No.14984 OF 2011(W)


PETITIONERS:

       1         MANAGER AND OTHERS
                 NEW U.P.SCHOOL, EASWARAMANGALAM,, PONNANI-679 573.

       2         MINI VARGHESE HEADMISTRESS
                 NEW U.P.SCHOOL, EASWARAMANGALAM,, PONNANI-679 573.

       3         MINI NELLICAKATHARAYIL
                 KUTTYIL HOUSE, PONNANI-679 577.

                 BY ADVS.
                 SRI.M.R.ANISON
                 SMT.K.P.GEETHA MANI
                 SRI.JAMSHEED HAFIZ

RESPONDENTS:

       1         STATE OF KERALA AND OTHERS
                 SECRETARY TO GOVT., GENERAL EDUCATIONAL, DEPARTMENT, GOVT.
                 SECRETARIAT, TRIVANDRUM.

       2         THE DIRECTOR OF PUBLIC INSRUCTION
                 THIRUVANANTHAPURAM.

       3         THE ASSISTANT EDUCATIONAL OFFICER
                 PONNANI.

       *ADDL     DHARMAPALAN.M.V.
       R4        S/O.VELAYUDHAN, MELE VETTASSERY HOUSE, EASHWARAMANGALAM (PO),
                 THAVANOOR, PONNANI TALUK, MALAPPURAM DISTRICT.


                 *(ADDL R4 IMPLEADED AS PER ORDER DATED 18.09.2012 IN
                 IA.NO.11942/2012.)


OTHER PRESENT:

                 SRI. P.M.MANOJ - SR.GP

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.14984 OF 2011(W)

                                      2


                             JUDGMENT

The Manager and Headmistress of New U.P.School,

Easwaramangalam, Ponnani - as petitioners 1 and 2

respectively - and a teacher detrimentally affected by the

orders impugned in this writ petition as the 3 rd petitioner, have

filed this writ petition, impugning Exts.P5 and P9 orders,

whereunder, it has been concluded that fifty eight students of

the School were not genuine and that their admissions are

'bogus'; thus consequentially reducing certain divisions of the

School, leading to ouster of the 3rd petitioner - teacher.

2. The petitioners assert that all the students, whose

names are mentioned in Ext.P5 order of the Director of Public

Instructions, were studying in the School but that on the two

days when the Super check Cell visited the School, these

students were absent. The petitioners say that, however, this by

itself could not have been a reason why the Director of Public

Instructions could have concluded that these are 'bogus'

admissions and therefore, contends that Ext.P5 is improper,

while Ext.P9 which follows it, is equally in error. The

petitioners, therefore, pray that both these orders be set aside.

3. In addition to the above, the learned counsel for the WP(C).No.14984 OF 2011(W)

petitioners - Sri.M.R.Anison, submitted that Ext.P3 statement

has been produced before this Court, which shows that the

students, whose names are mentioned in Ext.P5, continued on

the rolls of the School validly thereafter and were either

removed on account of their continuous absence or that they

had obtained Transfer Certificates to join other Schools.

Sri.M.R.Anison, submitted that every document to show this

and to establish that all the fifty eight students were, in fact, on

the rolls of the Schools validly and physically, were produced

before the competent Educational Authorities but that none of

these aspects had been considered by them while issuing

Exts.P5 and P9 orders. He submitted that, therefore, the

conclusions in the impugned orders - that fifty eight students

were not genuinely admitted to the School - is not correct and

consequently, that said orders are liable to be set aside by this

Court.

4. In response, the learned Senior Government Pleader,

Sri.P.M.Manoj, submitted that, as is clear from Ext.P5, the

Super check Cell visited the School on 14.09.2009 and

18.12.2009, on which days, fifty eight students in question were

found absent. He submitted that in spite of this, the Teachers WP(C).No.14984 OF 2011(W)

are marking their attendance in the book without any roll call

and that obviously, therefore, this was intended to create an

impression that those students were studying in the said

School.

5. Sri.P.M.Manoj, then explained that, on 14.09.2009,

when the Headmistress was enquired by the Super check Cell

as to why these students were not available, she had said that it

was on account of 'Ramzan' but that when the said Team visited

the School, nearly three months later, the very same set of

students were found missing. He contended that, therefore, it

can be safely assumed, without any doubt, that these students

were not genuine and that they were all 'bogus' admissions. He

thus prayed that this writ petition be dismissed.

6. I have examined the impugned orders and notice

therefrom that the reason why the Super check Cell and the

Director of Public Instructions found the admissions of fifty

eight students mentioned in Ext.P5 to be 'bogus', is because

they were not present either of the two days when the Team

visited the School. There is no doubt that a prima facie

impression can always be drawn in such circumstances that

these students are not genuine, but I am of the certain view WP(C).No.14984 OF 2011(W)

that this cannot be concluded affirmatively without the School

Authorities being given a proper opportunity of establishing

otherwise.

7. I say so because, it is possible, on account of some

coincidence, that both on 14.09.2009 and 18.12.2009 certain

students were absent and this by itself cannot lead to an

irrefutable assumption that these students are all 'bogus' and

not genuine. What is relevant is whether the School Authorities

can establish, by cogent and reliable evidence, that these

students were actually and physically admitted to the School;

and for such purpose, they can always rely upon various

documents, including the Admission Registers, UID documents,

Attendance Registers and such other, in substantiation.

8. My observations as afore become relevant in this

case because, Sri.M.R.Anison, learned counsel for the

petitioners, vehemently submits that all documents to prove

that the students in question were actually admitted to the

School and physically available, were produced before the

Educational Authorities but that none of them have been

referred to either in Ext.P5 or in Ext.P9 order.

9. Pertinently, the petitioners have produced certain WP(C).No.14984 OF 2011(W)

documents before this Court to show that these students were

physically available in the School, but I am of the view that it

will not be justified or prudent for this Court to look into the

same at the first instance and take a decision as to whether

they are genuine or otherwise.

10. I am, therefore, of the firm opinion that petitioners

must be given an opportunity of establishing that the fifty eight

students, mentioned in Ext.P5, were available physically in the

School on the relevant days and that they were absent for the

reasons to be explained.

11. I am persuaded to this view also because, the

petitioners must certainly be given an opportunity of producing

all documents in strength of their afore assertion - including

those which have already been mentioned above and others - so

that the competent Authorities can then take a final decision as

to whether the admissions are indeed 'bogus' and whether the

petitioners are to be mulcted with liability, as has been directed

in the impugned orders.

In the afore circumstances and so as to pave way for a

fresh consideration of the petitioners' claim, I set aside Ext.P9;

with a consequential direction to the competent Secretary of WP(C).No.14984 OF 2011(W)

the Government to hear the petitioners again - either physically

or through video conferencing - after affording them an

opportunity of producing all documents in substantiation, thus

culminating in a fresh order in the revision filed by the 1 st

petitioner - Manager, dated 10.08.2010, as expeditiously as is

possible but not later than six months from the date of receipt

of a copy of this judgment.

After I dictated this part of the judgment, the learned

Senior Government Pleader, Sri.P.M.Manoj, submitted that

since the revision is of the year 2010, the petitioners may be

directed to produce a fresh copy of the same, since the original

papers may not be available at this distance of time. Though I

do not propose to make a direction of this kind, leave liberty to

the competent Secretary of the Government to seek that a copy

of the Revision be produced before him by the petitioners, if it

becomes so necessary.

This writ petition is thus disposed of.

SD/-

                                         DEVAN RAMACHANDRAN

rp                                                  JUDGE
 WP(C).No.14984 OF 2011(W)




                                   APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1                 TRUE COPY OF THE STAFF FIXATION ORDER OF THE

SCHOOL FOR THE ACADEMIC YEAR 2009-2010

EXHIBIT P2 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 25.01.2010 ISSUED BY THE 2ND RESPONDENT

EXHIBIT P3 TRUE COPY OF THE STATEMENT SHOWING THE DETAILS OF ALLEGED BOGUS STUDENTS, ON THE DATES OF VISIT OF THE SUPER CHECK CELL

EXHIBIT P4 TRUE COPY OF THE FIVE CERTIFICATES ISSUED BY THE HEADMASTERS OF THE SCHOOL

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 02.06.2010 ISSUED BY THE 2ND RESPONDENT

EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 25.06.2009 IN W.A NO.1288/2007

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 22.07.2010 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P8 TRUE COPY OF ARGUMENT NOTES SUBMITTED BY THE 1ST PETITIONER DATED 24.03.2011

EXHIBIT P9 TRUE COPY OF THE ORDER DATED 28.04.2011 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P10 TRUE COPY OF THE LETTER DATED 18.05.2011 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P11 TRUE COPY OF THE CHAT SHOWING THE DETAILS OF ALLEGED BOGUS STUDENTS

EXHIBIT P12 TRUE COPY OF THE BIRTH CERTIFICATE OF ANAGA.V.P.

ISSUED BY THE REGISTRAR OF BIRTH AND DEATH, PONNAI MUNICIPALITY DATED 17.01.2006

EXHIBIT P13 TRUE COPY OF THE BIRTH CERTIFICATE OF ARAVIND.R.ISSUED BY THE REGISTRAR OF BIRTH AND DEATH, PONNANI MUNICIPALITY DATED 04.06.2004

EXHIBIT P14 TRUE COPY OF THE OF THE BIRTH CERTIFICATE OF ARSHITA BAHNU ISSUED BY THE REGISTRAR OF BIRTH AND DEATH, PONNANI MUNICIPALITY 29.12.2004

EXHIBIT P15 TRUE COPY OF THE OF THE BIRTH CERTIFICATE OF JISHNI SHARIN ISSUED BY THE REGISTRAR OF BIRTH WP(C).No.14984 OF 2011(W)

AND DEATH, KADVALLUR GRAMA PANCHAYATH DATED 02.08.2007

EXHIBIT P16 TRUE COPY OF THE OF THE BIRTH CERTIFICATE OF JEZA NOORIN ISSUED BY THE REGISTRAR OF BIRTH AND DEATH, VATTAKULAM GRAMA PANCHAYATH DATED 26.11.2004

EXHIBIT P17 TRUE COPY OF THE BIRTH CERTIFICATE OF MUHAMMED AJMAL.C.K. ISSUED BY THE REGISTRAR OF BIRTH AND DEATH, PONNANI MUNICIPALITY DATED 18.05.2005

EXHIBIT P18 TRUE COPY OF THE OF THE BIRTH CERTIFICATE OF SREEJISHA ISSUED BY THE REGISTRAR OF BIRTH AND DEATH,VATTAKULAM GRAMA PANCHAYATH DATED 11.10.2004

EXHIBIT P19 TRUE COPY OF THE OF THE BIRTH CERTIFICATE OF AKSHAY K.P.ISSUED BY THE REGISTRAR OF BIRTH AND DEATH, KUNNAMKULAM MUNICIPALITY DATED 18.09.2003

EXHIBIT P20 TRUE COPY OF THE OF THE BIRTH CERTIFICATE OF ADITHYA.N.VENU ISSUED BY THE REGISTRAR OF BIRTH AND DEATH, KUNNAMKULAM MUNICIPALITY DATED 13.06.2007

EXHIBIT P21 TRUE COPY OF THE OF THE BIRTH CERTIFICATE OF ANNA BERLI.V.ISSUED BY THE REGISTRAR OF BIRTH AND DEATH, ADAT GRAMA PANCHAYATH DATED 26.10.2004

EXHIBIT P22 TRUE COPY OF THE OF THE BIRTH CERTIFICATE OF JABIDHA ISSUED BY THE REGISTRAR OF BIRTH AND DEATH, PONNANI MUNICIPALITY DATED 19.07.2007

EXHIBIT P23 RUE COPY OF THE OF THE BIRTH CERTIFICATE OF SIYANA SHERIN ISSUED BY THE REGISTRAR OF BIRTH AND DEATH, PONNANI MUNICIPALITY DATED 19.01.2005

EXHIBIT P24 TRUE COPY OF THE ORDER DATED 04.12.2013 IN CMP 895/2010

EXHIBIT P25 TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM

EXHIBIT P26 TRUE COPY OFF CHARGE MEMO IN CC 311/2011 DATED 23.04.2013

EXHIBIT P27 TRUE COPY OF THE ORDER DATED 06.06.2009 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P28 TRUE COPY OF ORDERS DATED 09.06.2009 ISSUED BY THE 3RD RESPONDENT WP(C).No.14984 OF 2011(W)

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1                 NIL

EXHIBIT R2                 NIL

EXHIBIT R3                 NIL

EXHIBIT R4                 NIL

EXHIBIT R4A                TRUE COPY OF THE APPLICATION FILED BY THE

PETITIONER HEREIN UNDER THE R.T.I. ACT DATED 08.04.2011

EXHIBIT R4B TRUE COPY OF THE REPLY GIVEN TOT HE PETITIONER DATED 12.05.2011

EXHIBIT R4C TRUE COPY OF THE ORDER OF THE STATE INFORMATION COMMISSION DATED 18.10.2011

EXHIBIT R4D TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER IN AS 608/12 BEFORE THE LOK AYUKTHA DATED 15.02.2012