Kerala High Court
A.Younus Kunju vs State Of Kerala
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939
WP(C).No. 12029 of 2009 (W)
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PETITIONERS:
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1. A.YOUNUS KUNJU, MANAGER,
AKMHSS, MYLAPORE, KOLLAM.
2. HEADMISTRESS, AKMHSS,
MYLAPORE, KOLLAM.
BY ADVS.SMT.S.KARTHIKA
SRI.M.R.ANISON
SMT.K.P.GEETHA MANI
RESPONDENTS:
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1. STATE OF KERALA,
REP.BY ITS SECRETARY TO GOVT.,
GENERAL EDUCATION DEPARTMENT,
SECRETARIAT, TRIVANDRUM.
2. THE DIRECTOR OF PUBLIC INSTRUCTION,
TRIVANDRUM.
3. THE SUPER CHECK CELL OF DPI,
OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION,
TRIVANDRUM.
4. THE DISTRICT EDUCATIONAL OFFICER,
KOLLAM.
BY GOVERNMENT PLEADER SMT.PRINCY XAVIER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 04-10-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
mbr/
WP(C).No. 12029 of 2009 (W)
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 : TRUE COPY OF THE ONE DAY VERIFICATION REPORT
DATED 10.7.07.
EXHIBIT P2 : TRUE COPY OF THE STAFF FIXATION ORDER
DATED 30.7.07 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P3 : TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE
2ND RESPONDENT DATED 31.5.08.
EXHIBIT P4 : TRUE COPY OF THE WRITTEN EXPLANATION SUBMITTED
BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT
DATED 1.7.2008.
EXHIBIT P5 : TRUE COPY OF THE WRITTEN EXPLANATION SUBMITTED
BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT
DATED 13.6.2008.
EXT.P6 SERIES : TRUE COPY OF THE LETTERS SUBMITTED BY THE
PARENTS OF THE STUDENTS BEFORE THE
2ND RESPONDENT.
EXHIBIT P7 : TRUE COPY OF THE ORDER ISSUED 2ND RESPONDENT
DATED 10.9.08.
EXHIBIT P8 : TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE
PETITIONERS 1ST RESPONDENT DATED 21.11.08.
EXHIBIT P9 : TRUE COPY OF THE ORDER DATED 20.12.08 ISSUED BY
THE GOVT. TO THE PETITIONERS.
EXHIBIT P10 : TRUE COPY OF THE ORDER DATED 3.5.2000 ISSUED BY
THE GOVT. TO THE PETITIONERS.
EXHIBIT P11 : TRUE COPY OF THE ORDER DATED 16.11.2000 ISSUED
BY THE GOVT. TO THE PETITIONERS.
EXHIBIT P12 : TRUE COPY OF THE REVISED STAFF FIXATION ORDER
DATED 10.9.08 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P13 : TRUE COPY OF THE PROCEEDINGS DATED 5.11.08
ISSUED BY THE 2ND RESPONDENT.
RESPONDENTS' EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
mbr/
A.MUHAMED MUSTAQUE, J.
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W.P.(C) No.12029 of 2009
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Dated this the 4th day of October, 2017
JUDGMENT
The first petitioner is the manager of an aided school. He challenges an order passed to revise staff fixation consequent upon a report submitted by the Super Check Cell of the Director of Public Instruction(DPI). This writ petition is pending since 2009. It is seen from the report of the Super Check Cell that on two occasions, certain number of students were found absent. Treating it as a bogus admission and there exists no such students, the proceedings were initiated to revise staff fixation. The initial staff fixation order was based on the strength of the students. Consequent upon reduction of the students strength, revised staff fixation order was passed, which is produced as Ext.P7 in the said writ petition. This was carried in revision before the Government. The Government also affirmed the order of the DPI. It is challenging these orders, the petitioners approached this Court.
2. It is to be noted that consequent upon the revised staff fixation order, recovery is also ordered from the second petitioner W.P.(C) No.12029 of 2009 2 on the ground that bogus admission resulted in drain to the exchequer.
3. Assailing the order of the Super Check Cell as well as the other consequent order, the learned counsel for the petitioners submits that there were ample materials produced before the authorities to substantiate that the students exist and therefore, without conducting enquiry as to the existence of such students, the authority could not have persuaded to rely upon the Super Check Cell report.
4. The learned counsel for the petitioners also rely upon the judgment of this Court in Nalini Kumari v. State of Kerala [ILR 1975(1) 496], wherein this Court held as follows:
No doubt, the provisions of rule 15 are "notwithstanding anything contained in these rules". But for attracting rule 15, the Educational Officer must be satisfied for valid and sufficient reasons that the fixation of staff strength was obtained by bogus admission or attendance or by fraud or misrepresentation. It goes without saying that bogus admission can be there only if pupils who were not really in existence were admitted. When there is bogus admission, the attendance created by that will also be bogus at attendance. Fraud or misrepresentation will W.P.(C) No.12029 of 2009 3 be there if without actually admitting a pupil records are created as if that pupil was admitted and attendance marked in respect of that pupil even though that pupil never attended the school. Large scale removals of pupils from the rolls under rule 15, chapter VI of the Rules by themselves cannot attract rule 15, chapter XXIII. Large-scale removals may be a reason to create a doubt in the mind of the Educational Officer or at the most to suspect bogus admission. To probe bogus admission the Educational Officer should go deep into the details of the matter and examine individual cases of pupils who are removed for long absence and for other reasons mentioned in rule 15, chapter VI. In this case, not a single case of removal is taken and examined to ascertain whether, as a matter of fact, such a pupil was ever in existence and whether he was actually admitted in the school before his name was entered in the rolls. Exhibit-P8 order does not even indicate that the second respondent made any such attempt. Without making such an enquiry into the individual cases of removal from the rolls, it cannot be said that the pupils removed from the rolls were really bogus admissions and they were shown on the rolls purposely to create attendance for getting strength which is more than the actual effective strength of the standard concerned. The reasoning that pupils who did not really want to continue their studies till the close of the year were made to attend classes for some days at the beginning of the year by itself cannot justify action W.P.(C) No.12029 of 2009 4 under the rules.
5. It is appropriate to refer the above judgment in this context. The "bogus admission" literarily means the admissions made in the register without there being actual students attending in this school. Perhaps, passage of time may give best answers to this issue if the petitioners could substantiate their claim of actual number of the students with reference to the Secondary School Leaving Certificates. This writ petition is pending more than eight years. Certainly, the students were found as absent might have passed SSLC examination. There would be sufficient evidence to prove so. Therefore, the petitioners are able to produce Secondary School Leaving Certificates, who were found absent in the reports of the Super Check Cell. Certainly, the order now passed shall be revised by the DPI. Accordingly, the matter is remitted back to the DPI to give an opportunity to the petitioners to produce the Secondary School Leaving Certificates. Appropriate orders in this regard shall be passed after considering the Secondary School Leaving Certificates by the DPI. Thus, the impugned order is interfered to the above extent. It is made clear that the question of recovery from the second W.P.(C) No.12029 of 2009 5 petitioner is left open. No further proceedings shall be initiated against the second petitioner without passing any further orders in this matter.
The writ petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ln