C.P.Pocker vs State Of Kerala
2021 Latest Caselaw 7361 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

       THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                     &

                 THE HONOURABLE MR. JUSTICE GOPINATH P.

   WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

                           WA.No.243 OF 2021

  AGAINST THE JUDGMENT DATED 11.11.2019 IN WP(C) 4407/2013(A) OF
                       HIGH COURT OF KERALA

APPELLANT/PETITIONER/REVIEW PETITIONER:

                 C.P.POCKER
                 AGED 66 YEARS
                 MANAGER, C.P.P.H.M.H.S.S, OZHUR, VELLACHAL
                 P.O.MALAPPURAM DISTRICT.

                 BY ADVS.
                 SRI.M.R.ANISON
                 SMT.P.A.RINUSA

RESPONDENTS/RESPONDENTS/RESPONDENTS:

       1         STATE OF KERALA
                 REP BY ITS SECRETARY TO GOVERNMENT, GENERAL
                 EDUCATION DEPARTMENT, SECRETARIAT,
                 THIRUVANANTHAPURAM-695 001.

       2         TE DIRECTOR OF GENERAL EDUCATION,
                 THIRUVANANTHAPURAM-695 001.

       3         THE DEPUTY DIRECTOR OF EDUCATION,
                 MALAPPURAM-676 505.

       4         THE DISTRICT EDUCATIONAL OFFICER,
                 TIRUR-676 505.

OTHER PRESENT:

              SR GP AJ VARGHESE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2021, THE
COURT ON 03-03-2021 DELIVERED THE FOLLOWING:
 W.A.No.243/2021                           2




                               JUDGMENT

A.K.Jayasankaran Nambiar, J

The petitioner in W.P.(C)No.4407/2013 is the appellant herein

aggrieved by the judgment dated 11.11.2019 of the learned Single Judge.

The brief facts necessary for a disposal of the Writ Appeal are as follows:-

2. In the staff fixation order for the Academic Year 2007-2008 at

the C.P.P.H.M. Higher Secondary School, Ozhur, Malappuram District, the

Deputy Director had sanctioned 55 divisions in the school based on the

effective strength noticed of students in Standard VIII, IX and X. The

effective strength was subjected to higher level verification by the Deputy

Director on 25.10.2007 and, thereafter, there were two visits by the Super

Check Cell on 28.11.2007 and 6.2.2008 respectively, when it was noticed

that there was a shortage of 311 students in the various classes, as against

the effective strength noticed by the Deputy Director at the first instance.

The Director of Public Instruction, therefore, issued Ext.P2 notice dated

19.6.2008 proposing the abolition of three divisions in the school, and

consequently, three posts of HSA that had been sanctioned through the

staff fixation order. Although the Manager preferred a reply dated

15.7.2008 to the said notice issued by the Director of Public Instruction

and, thereafter, appeared for hearing on 13.10.2008, the Director of Public

Instruction, by Ext.P3 order dated 17.11.2008, found that two divisions in

the school , and consequently, two posts of HSA in Standard VIII and IX in

the school, needed to be abolished. While passing the said order, the

Director of Public Instruction found force in the contention of the Manager

as regards the shortfall of students in Standard X based on the AB list that

was produced by the Manager to suggest that 90 students, whose absence

had been noticed by the authorities during the visit of the Super Check

Cell, had, in fact, appeared from the school for the SSLC Examination

during the said year. It was accordingly that one division, out of the

proposed three for abolishment, was retained in the school.

3. Based on Ext.P3 order of the Director of Public Instruction,

the revised staff fixation order for 2007-08 (Ext.P4) was passed on

4.8.2009. The Manager preferred a revision against the revised staff

fixation order, and the order of the Director of Public Instruction, before

the Government on 27.8.2007 and, thereafter, appeared for a hearing on

28.5.2010. The Government, by Ext.P11 order dated 8.11.2012, rejected

the revision petition preferred by the Manager and sustained the order

passed by the Director of Public Instruction reducing the two posts of

HSAs in the school. It is aggrieved by the order of the Director of Public

Instruction, the revised staff fixation order passed, and the order of the

Government in the revision petition that the petitioner approached this

Court through the Writ Petition.

4. The learned Single Judge, who considered the matter, found

that the decision of the Director of Public Instruction as affirmed by the

decision of the Government in the revision petition preferred by the

Manager was based on material that had been made available consequent

to the visit by the Super Check Cell to the school. The learned Single

Judge found that there was no material produced by the writ petitioner to

dislodge the said findings of fact by the Director of Public Instruction, as

well as the Government and hence, the impugned orders did not require

any interference. Dealing with the contention of the learned counsel for

the petitioner that the order of the Government in the revision petition was

passed by an officer other than the one who had heard the petitioner, and

further relying on a report obtained from the Deputy Director, which was

not shown to the petitioner, the learned Single Judge found that the mere

non-compliance with the rules of natural justice in that regard was not

prejudicial to the interest of the petitioner since the petitioner had not

produced any material to establish that the students, who were absent

during the visit of the Super Check Cell, were, in fact, students of the

school during the Academic Year in question. The judgment of the

Supreme Court in Dharampal Satyapal Ltd. v. Deputy Commissioner

of Central Excise, Gauhati & Others [(2015) 8 SCC 519] was relied

upon to find that, where no useful purpose would be served through a

compliance with the rules of natural justice, the absence of such

compliance could not be seen as improving the cause of the litigant.

Although the petitioner preferred a review petition before the learned

Single Judge, the same also came to be dismissed by the order dated

12.8.2020.

5. Before us, it is the contention of the learned counsel, Sri.

M.R.Anison that the material produced by the petitioner before the

educational authorities and the Government included the AB list for the

Academic Years 2008-2009 and 2009-2010 also in addition to the AB list

for the Academic Year 2007-2008. It is pointed out that the AB list for the

Academic year 2007-2008 had been relied on by the educational

authorities to find in favour of the petitioner on the issue of existence of

students in Standard X during the said Academic year. He would contend

that the AB list for the Academic Years 2008-2009 and 2009-2010, which

showed that the candidates whose names were included in the list of

alleged bogus admissions in the Academic Year 2007-2008, find a place in

the AB list for the Academic Years 2008-2009 and 2009-2010 when the

students appeared for the SSLC Examination from the petitioner's school.

It is argued that going by the reasoning that was adopted in the case of

Academic year 2007-2008, the AB list produced for the Academic Years

2008-2009 and 2009-2010 should have been relied upon to hold that the

students, whose names were mentioned there, had to be excluded from the

list of alleged bogus admissions made during the Academic year 2007-

2008. He also relies on the revised staff fixation orders for the Academic

Years 2006-2007, 2008-2009 and 2009-2010 (Exts.P7 and P8) collectively

to contend that the said material also would point to the existence of the

students, who were alleged to be bogus admissions during the Academic

Year 2007-2008.

6. Persuasive though the arguments of the learned counsel may

appear at first blush, we are afraid we cannot accept the same. Through

the detection of absence of students by the educational authorities,

consequent to the higher level verification and later the verification done

by the Super Check Cell, there arose a presumption as regards bogus

admissions against the petitioner Manager. For the petitioner, to dislodge

the said rebuttable presumption against him, he ought to have produced

credible material that would have clearly suggested that the students

whose names were included in the list of alleged bogus admissions, did

attend the school during the academic year. Such material could probably

have included the attendance register maintained class-wise in the school,

affidavit from the class teacher speaking to the correctness of the said

register, affidavits from the parents of the students etc. We note that no

such material was made available before the educational authorities at

first instance or the Government in the revision proceedings. In the

absence of such material, we are constrained to hold that the petitioner

was not successful in dislodging the adverse presumption against him in

the proceedings before the educational authorities and the Government.

We accordingly see no reason to interfere with the judgment of the learned

Single Judge that finds so. The Writ Appeal fails and is accordingly,

dismissed.

Sd/-

A.K.JAYASANKARAN NAMBIAR JUDGE

Sd/-

GOPINATH P.

JUDGE Acd