Kerala High Court
Gireesh K P vs State Of Kerala on 16 March, 2022
W.P.(C) No.15913 of 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
WP(C) NO. 15913 OF 2021
PETITIONER:
GIREESH K P
AGED 38 YEARS
S/O. PANKAJAKSHAN, KIZHAKK KUNNIL (H), KUTHIATHODE P.O.,
CHERTHALA-688 533
BY ADVS.
RAJU JOSEPH (SR)
J.JULIAN XAVIER
C.JOSEPH ANTONY
ASHA TREESA JOSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT,
GOVT.PRESS P.O., THIRUVANANTHAPURAM-695 001
2 THE SECRETARY,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT, GOVT.PRESS
P.O., THIRUVANANTHAPURAM-695 001
3 DIRECTOR OF GENERAL EDUCATION,
JAGATHY, THIRUVANANTHAPURAM-695 014
BY ADV ANTONY MUKKATH, SENIOR GOVERNMENT PLEADER FOR
RESPONDENTS.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.15913 of 2021 2
JUDGMENT
SHAJI P.CHALY,J.
This Public Interest writ petition is filed by the petitioner seeking the following
reliefs:
"i) To issue a writ of mandamus or any other appropriate writ or
order commanding the respondents to re-fix the staff strength of
all the schools under the Government in accordance with the
mandate of Right of Children to Free and Compulsory Education
Act and also KER without taking into consideration Rule 12(1)(i)
of Chapter XXIII thereof.
ii) To issue a writ of certiorari or any other appropriate writ or
order quashing Rule 12(1)(i) of Chapter XXIII of KER as the same
is ultra vires the provisions of Right of Children to Free and
Compulsory Eduction Act as well as other provisions of KER.
iii) To issue a writ of certiorari or any other appropriate writ or
order quashing Ext. P2 Government Order, the same being ultra
vires the provisions of Right of Children to Free and Compulsory
Education Act as well as other provisions of KER."
2. Short facts leading to filing of the writ petition are as hereunder:
According to the petitioner, he was the coordinator of a registered Charitable
Club known as Drisya Arts and Sports Club, Cherthala in Alappuzha District. Thus, as
part of the activities of the club, he had occasion to take up several problems faced by
children in various schools in Alappuzha District. The problem highlighted in this writ
petition is lack of adequate number of teachers in the schools of Government of
Kerala, detrimentally affecting the education of children. According to the petitioner
as per the Right of Children to Free and Compulsory Education Act 2009, in standards
1 to 5, a pupil-teacher ratio of 30:1 shall be maintained; and for standards 6 to 8,
ratio to be maintained is 35:1. Kerala Education Rules was also amended consequent
to the directions issued by this Court to make provisions in consonance with the
provisions of Right of Children to Free and Compulsory Education Act, 2009.
Nevertheless, the State Government has issued Exhibit P2 G.O. dated 6.07.2021, by
which staff fixation is kept in abeyance. The staff strength was re-fixed during 2019-
20 and thereafter, no re-fixation was made. There are more than 1,22,963 students
studying, compared to the academic year 2019-20. No specific reason is stated for
issuing such an order in flagrant violation of the Right or Children to Free and
Compulsory Education Act, 2009 and KER, is the contention .
3. It is also submitted by the petitioner that for all the categories of teachers,
live ranked lists are available, and the fixation of staff strength is on the basis of
number of students as on the 6th working day, as uploaded by the school. As per the
Rules, no site visit is required. Therefore, there is no justification for not doing any re-
fixation. Petitioner has also contended that it is accepted by all concerned that a lesser
pupil-teacher ratio is absolutely necessary for imparting education in an effective
manner. It is further contended that the attitude of the Government is in total
disregard to the future of the students, and thereby, the future of the Nation is
reprehensible. Writ Petition is therefore filed seeking the afore specified reliefs.
4. A counter affidavit is filed by the Secretary, General Education Department,
Thiruvananthapuram - 2nd respondent refuting the allegations and claims and
demands raised by the petitioner. Among other contentions it is submitted that as per
GO (P)199/2016/G.Edn. dated 3.12.2016 (SRO.752/16) and as per GO(P)3/2019.G.Edn.
dated 11.6.2019 (SRO.166/19) Rule 14, Chapter XXIII of KER was amended and included
Rule 14A with a note as follows:-
14 A- Notwithstanding anything contained in rule 12 of this Chapter and
in rule 3A of the Chapter XXIV B, Government may by order, extend the
strength of teaching and non teaching staff already sanctioned in the
schools for the last year to subsequent year or years.
Note: While extending the strength of teaching and non- teaching staff
under rule 14 A, the educational officer concerned shall verify the UID
based on sixth working day strength of pupils from Standard I to VIll of
every school and if a school is found requiring more teachers for the
current year than the last year, so as to maintain the Pupil-Teacher ratio
in terms of section 25 of TheRight of Children to Free and Compulsory
Education Act, 2009 (Central Act 35 of 2009), he/she shall report the
requirement of such additional teachers to the manager and the Deputy
Director (Education) Concerned. There upon the manager shall appoint
the required number of teachers from among the list of protected
teachers under Teachers Bank, with the permission of the Deputy
Director (Education) concerned. When the staff fixation is done further,
all protected teachers appointed so, except those who are continuing
against the vacancies earmarked for appointing protected teachers as per
sub rules (1) to (4) of Rule 7 of Chapter XXI shall be recalled to the
teachers bank.
5. It is Submitted that Chapter XXIII Rule 12 of KER relates to strength of
teaching staff, wherein it is specified that strength of teaching staff in each school be
fixed by the Educational officer in accordance with the general provisions, once a year,
after finalising the number of divisions based on the effective strength of the class as
on the 6th working day from the re-opening date in June
6. It is also submitted that the Government has continued with the staff fixation
for 2019-2020 for the academic year 2020-2021 also; that the Schools remained
closed for the academic year 2020-2021 due to the spread of COVID-19 pandemic .
Due to the pandemic situation, and the schools remaining closed, details of students
as on 6th working day could not be ascertained. So fixation of staff could not be
carried out as per the Rule 12 of Chapter XX111 of KER. Moreover, classes were run
online with the help of experienced teachers through victor's channel, managed by
Kerala Infrastructure and Technology for Education (KITE). Hence, the Government
decided to continue with the staff fixation for 2019-2020 and orders issued not to
make appointments to the post of teachers other than Headmaster and non teaching
staff as per G.O. (MS)No.28/2021/G.Edn. dated 21.2.2021.
7. According to the 2nd respondent, surge in COVID-19 cases again forced the
Government not to open the schools for the academic year 2021-2022. In these
circumstances, the Government decided to continue with the staff fixation order of
2019-2021 in this academic year also. However, Government made a decision to
appoint Teachers, Lab Assistants who, have already received appointment orders in
the concerned posts from 15.7.2021, and in aided schools vacancies arising out of
regular posts for the year 2021- 2022 like retirement, resignation, death, promotion,
etc., is to be filled up with effect from 15.7.2021 as per GO(RT)3287/2021/G.Edn. dtd
06.07.2021. A copy of the above G.O. dated 06.07.2021 is produced herewith as
Exhibit R2(a).
8. It is further submitted that as per Rule 14A Chapter XXIll KER, Government is
empowered to extend staff fixation of previous year to subsequent years without
resorting to statutory annual staff fixation as is provided under Rule12 Chapter XXIII
KER. AS per Chapter IV, section 25 of the RTE Act, appropriate Government and the
local authority shall ensure that the Pupil- Teacher Ratio as specified in the Schedule,
is maintained in each school. In the Schedule of the Act, it is specified that for the
classes I to V, two teachers for 60 students (1:30 ratio) and for the classes 6 th to 8th,
at least one teacher for every 35 children (1:35). It is further submitted that the Right
of Children to Free and Compulsory Education Act, 2009 does not envisage staff
fixation every year as is provided under Rule12 Chapter XXIII KER.
9. It is also submitted that the new teacher- pupil ratio in the State was as fixed
by G.O.(P)29/2016/G.Edn. dated 29-1-2016, based on the observations made in the
Judgment dated 17.12.2015 issued by this Hon'ble Court in W.P.(C)19008 of 2013. As
per this Government Order, from 2012-13 onwards, for the classes I to V, the teacher-
pupil ratio is 1:30 (similar to that of Act, 2009) and for the classes VI to VIll, the
teacher-pupil ratio is 1:35 (similar to that of Act, 2009) and for the classes IX to X,the
teacher-pupil ratio is 1:45. However, KER was not amended in accordance with the
latest teacher-pupil ratio.
10. Matters being so, in order to ascertain as to whether Education Department
has requested the Kerala Public Service Commission to notify various posts in the
districts as per Exhibit P1 - category-wise list, apparently downloaded by the petitioner
from the website of the Kerala Public Service Commission, we directed the Secretary,
General Education Department, Thiruvananthapuram and the Director of General
Education, Thiruvananthapuram - respondents 2 & 3 respectively, to furnish the
details of the posts in various districts directed to be filled up through Kerala Public
Service Commission, and also to furnish the details of advice given by the
Commission, so as to enable the General Education Department, Government of
Kerala, Thiruvananthapuram to fill up the posts.
11. On the basis of the said directions, an affidavit dated 17 th February, 2022 is
filed by the Additional Director of Public Instructions, wherein it is submitted that due
to COVID-19 pandemic situation, schools in Kerala were not opened regularly during
the academic year 2020-2021 and 2021-2022; that though schools were partially
opened from 1.11.2021, it was again obstructed due to the 3 rd wave of COVID-19
pandemic; since the schools were not opened and only online classes could be
started, the Government ordered that the staff fixation of 2019-2020 to be continued
in 2020-2021 as per G.O.(MS) No.28/21 dated 21.2.2021. It is further submitted that
same staff fixation was allowed to be continued during the academic year 2021-2022
as per G.O.(P) No.3287/21 dated 6.7.2021. It was also ordered therein that all
vacancies which were existing as on 15.7.2021 to be filled up immediately. That apart
it is submitted that during the academic year 2021-2022, the schools were opened
with offline classes only on 1.11.2021 keeping in view of the existing COVID protocol;
that in order to observe social distancing norms in classrooms, only two students
were permitted in a bench and maximum 20 students in a classroom. In order to
facilitate the said arrangement, classes were allowed to function in batches so that a
particular batch of students attend the classes for two or three days in a week. As per
the existing norms, the pupil-teacher ratio of 1:30 for lower primary, 1:35 for upper
primary and 1:45 for High Schools classes are maintained. However, after the re-
opening, the classes are functioning in a batch system and therefore, the teacher-
pupil ratio has no significance. Presently, the classes are conducted with a much lower
ratio. Whatever that be, the following submission made in the affidavit are relevant to
dispose of the writ petition and therefore, it is extracted hereunder:
"4. It-is-submitted that during the academic year 2020-21 there was an
increase of 28593 students in Government Schools compared to the
academic year 2019-2020. During the academic year 2021-2022 it was
further increased to 70191. Since the classes are functioning either in batch
mode or on Online mode, there is no requirement of additional teachers at
present. A statement showing the number of students enrolled to the
schools from 2019-2020 onwards is produced herewith and marked as
Exhibit R2(b). From Ext. R2(b) it is evident that the number of students are
increased from 2020-2021 academic year onwards, but the staff fixation can
be done only by counting the actual number of students attending the
classes on the sixth working day of the academic year as per the norms
contained in the Kerala Education Rules. It is not practically possible to
count the actual number of students attending the class on the sixth
working day of the academic year due to the situation prevailing in the
State.
5. It is submitted that staff fixation is conducted after verifying the
UID/EID of students. In those schools, were additional divisions are allotted
the District Educational Officer/Deputy Director of Education/Super Check
cell has to conduct physical verification and verify the strength of students.
Since the Schools have not opened regularly, the above process of physical
verification is not practically impossible.
6. It is submitted that all the vacancies in Government Schools were filled up
during the academic years 2019-2020, 2020-2021 and 2021-2022 as shown
below;
Year LP UP Total
2019-20 5128 2819 7947
2020-21 837 595 1432
2021-22 848 1688 2536
Total 6813 5102 11915
7. It is submitted that from the above table it is evident that total 11915 teachers
were appointed in Lower Primary and Upper Primary division during the academic
year 2019-2020, 2020-2021 and 2021-2022. A statement showing the details of
LP/UP teachers appointed during the academic year 2019-2020 is produced
herewith and marked as Exhibit R2(c). A statement showing the details of LP/UP
teachers during the academic year 2020- 2021 is produced herewith and marked
Exhibit R2(d). A statement shown in the details LP/UP School teachers appointed
during the academic year 2019-2020 to 2021-2022 were filled up. It is submitted
that various Original Applications were filed before the Hon'ble Kerala
Administrative Tribunal by the candidates included the ranked list and based on
the Orders passed in the Original Applications, the entire vacancies were reported
to the Kerala Public Service Commission and no further vacancies are remaining
unfilled.
8. It is submitted that as per Section 26 of the Right of Children to Free and
Compulsory Education Act, 2009 the appointing authority in relation to a School
established, owned, controlled or substantially financed by funds provided directly
or indirectly by the appropriate Government or local authority shall ensure that
vacancy of teacher in a school under its control shall not exceed 10% of the total
sanctioned strength. Above provisions make it clear that even though the
sanctioned strength is fixed by the Government, the Government/appointing
authority is free to take a decision not to fill up q10% of the total sanctioned
strength. In the case of the State of Kerala, the Government filled up all the posts
which were vacant within the cadre strength. There is no vacancy existing in the
post of teachers within the cadre strength fixed by the Government. Even if the
students strength increased and that is taken into account for fixation of the
cadre strength as sought by the petitioner, the shortfall is less than 10% and that
means that the Government is free to take a decision not to fill up this 10% of
posts within the total sanctioned strength. Even going by the figures taken by the
petitioner and considering the Exhibit R2(b) statement it is evident that the
increase of students is below 10% and that 10% vacancies need not be
compulsorily filled up by the Government. In the circumstances, the above writ
petition lacks merit and the same is liable to be dismissed with costs."
12. We have heard, learned Senior Counsel Sri.Raju Joseph for the writ
petitioner assisted by Adv.Firoz Robin, learned Senior Government Pleader
Sri.Antony Mukkath for the State and its officials and perused the pleadings and
materials on record.
13. In view of the submission made by the State Government as extracted
above, we are convinced that adequate steps are taken by the State Government to
fill up the vacancies in accordance with the teacher-pupil ratio prescribed under the
Act, 2009 and consequently, necessary provisions are included in the Kerala
Education Rules, 1959. Chapter XXIII of the Kerala Education Rules, 1959 deals with
fixation of strength of teachers in departmental and aided schools. Rule 12(1)
substituted by G.O.(P) No.154/14/G.Edn. dated 11.8.2014 is relevant to the context,
which reads thus:
"12.(1) The strength of teaching staff in each school shall be fixed by the
Educational Officer (Assistant Educational Officer in LP/UP and District
Educational Officer in HSA) as per the effective strength of pupils reckoned
for the year 2010-11 and shall remain permanent unless and until the
Government deems fit to revise them based on Unique identification Number
(UID) of students. Additional posts over and above the strength of teaching
staff fixed shall be created only:-
(i) subject to the availability of accommodation.
(ii) by determining the actual number of pupils in each school using Unique
identification Number (UID) as per the following procedure:
1. The existing staff strength shall be given by the Head of schools to the
DEOs/AEOs concerned on 31st March or the last working day every year.
2.The details of UID based students strength as on 6th working day shall
be updated using school code and it should be locked by 5 p.m. of the 6 th
working day.
3. The DEOs/AEOs concerned shall verify the data from 7th to 15th June
and confirm it.
4.By 15th June the DEOs/AEOs concerned shall certify and forward the
details to the Deputy Directors of Education concerned.
5. Hard Copy of the data verified shall be kept in the offices concerned
for verification of the Director Public Instruction.
6.The fixation of staff of each school shall be finalised by the educational
officer not later than 15th July every year. The orders of staff fixation
shall take effect on the 15th of July every year.
(iii) against the vacancies notified by the Government.
(2) for the purpose of fixing the number of divisions rule 23 of
Chapter VI shall be applied."
14. Therefore, it can be seen that there is a clear cut procedure prescribed in
order to fix the staff strength and apparently the said provision is introduced on and
w.e.f. 11.8.2014 in order to satisfy the requirement of the Right of Children to Free
and Compulsory Education Act, 2009. Sections 25 and 26 of Chapter IV of Right of
Children to Free and Compulsory Education Act, 2009 are relevant and they read thus:
"25. Pupil-Teacher Ratio.- (1) Within three years from the date of
commencement of this Act, the appropriate Government and the local
authority shall ensure that the Pupil-Teacher Ratio, as specified in the
Schedule, is maintained in each school.
(2) For the purpose of maintaining the Pupil-Teacher Ratio under sub-
section (1) no teacher posted in a school shall be made to serve in any
other school or office or deployed for any non-educational purpose, other
than those specified in Section 27."
26. Filling up vacancies of teachers.- The appointing authority, in
relation to a school established, owned, controlled or substantially financed
by funds provided directly or indirectly by the appropriate Government or
by a local authority, shall ensure that vacancy of teacher in a school under
its control shall not exceed ten per cent of the total sanctioned strength. "
15. Therefore, on a combined reading of the provisions contained under Act,
2009, the Kerala Education Rules, 1959 and the affidavit filed by the Additional
Director of Public Instructions, as per the directions issued by this Court on 1 st
November, 2021, it would be clear that adequate steps are taken by the State
Government in order to make the staff fixation in contemplation of the provisions
discussed above.
16. Learned Senior Government Pleader Sri.Antony Mukkath also submitted
that from June 2022 onwards, necessary steps shall be taken by the State
Government in order to satisfy the requirements of rule 12 of Chapter XXIII of Kerala
Education Rules, 1959.
17. We record the said submission made by the learned Senior Government
Pleader and also the submission made in the affidavit dated 17 th February, 2022,
which are extracted above. However, learned Senior Counsel for the writ petitioner
Sri.Raju Joseph has invited our attention to rule 12(1)(i) of Chapter XXIII of the
Kerala Education Rules, 1959. The said provision reads thus:
"12(1)(i): subject to the availability of accommodation"
18. It is further submitted by the learned Senior Counsel that the said rider
contained under rule 12(1) of Chapter XXIII of the Rules, 1959 is contrary to sections
25 & 26 of the Right of Children to Free and Compulsory Education Act, 2009.
learned Senior Government Pleader on that aspect submitted that by virtue of the
provisions of the Act, 2009, the rider contained under rule 12(1) of Chapter XXIII of
Kerala Education Rules, 1959 has become redundant and inconsequential and the
Government is prepared to do the necessary in order to satisfy the requirements of
staff fixation without adhering to the said objectionable rider.
19. On a consideration of the provisions of the Right of Children to Free and
Compulsory Education Act, 2009, we are of the opinion that the State Government
cannot fall upon the objectionable rider extracted above in order to make the staff
fixation. Therefore, we hold that clause (i) of rule 12(1) of Chapter XXIII of the Kerala
Education Rules, 1959 is arbitrary and illegal and accordingly, the said clause is
herewith set aside.
20. Having found so, there will be a direction to the State Government and the
respondents to ensure that the provisions of rule 12 of Chapter XXIII of Kerala
Education Rules is implemented in letter and spirit starting the enumeration from
June, 2022 and make appointments so as to satisfy the requirements of the provisions
of Rules, 1959 as well as the Right of Children to Free and Compulsory Education
Act, 2009, without fail.
The writ petition is disposed of as above.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P.CHALY
smv JUDGE
APPENDIX OF WP(C) 15913/2021
PETITIONER'S EXHIBITS
Exhibit P1 A CHART SHOWING THE RANK LIST OF TEACHERS TO
VARIOUS CADRES AND THE DATE OF EXPIRY OF THOSE
LISTS PREPARED BY THE PETITIONER
Exhibit P2 A TRUE COPY OF THE GO (P) NO.3287/2021/GEDN
DATED 06.07.2021
Exhibit P2A ENGLISH TRANSLATION OF EXT P2
Exhibit P3 TRUE COPY OF THE RELEVANT PAGES OF NATIONAL
EDUCATIONAL POLICY 2020 ANNOUNCED ON
29.07.2020
Exhibit P4 TRUE COPY OF THE CHART PREPARED BY THE
PETITIONER RECEIVED FROM DPI WEBSITE FOR THE
YEAR 2019-2020 REGARDING THE STUDENT STRENGTH
IN THE GOVERNMENT SCHOOLS
Exhibit P4A TRUE COPY OF THE CHART PREPARED BY THE
PETITIONER RECEIVED FROM DPI WEBSITE FOR THE
YEAR 2020-2021 REGARDING THE STUDENT STRENGTH
IN THE GOVERNMENT SCHOOLS
Exhibit P4B TRUE COPY OF THE CHART PREPARED BY THE
PETITIONER RECEIVED FROM DPI WEBSITE FOR THE
YEAR 2021-2022 REGARDING THE STUDENT STRENGTH
IN THE GOVERNMENT SCHOOLS
EXT.R2(a) TRUE COPY OF THE GOVERNMENT ORDER
DATED 6.7.2021
Exhibit R2(a) TRUE COPY OF THE GOVERNMENT ORDER DATED
06.07.2021
