K.Uma v. The Director of School Education

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 4.12.2009CORAM:THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE N.KIRUBAKARAN W.A.No.226 of 2009 and W.P.No.25348 of 20081) The Director of School Education College Road, Chennai-600 006.2) Chief Educational Officer, Salem, Salem District.3) The Headmaster, Government Girls Higher Secondary School, Salem. ... Appellants/Respondents VersusK.Uma ... Respondent Writ Petitioner.Writ Appeal is filed under Clause 15 of the letters patentagainst the order of the learned Single Judge of this court dated22.12.2008 made in M.P.No.1 of 2008 in W.P.No.25348 of 2008. MP 1/2008 in WP 25348/2008 filed that this Hon'ble Court may bepleased to stay all further proceedings of the impugned orderpassed by the 2nd respondent in Na.Ka.No.5677/A-3/2008 dt.15.10.1998 as far as the petitioner is concerned.WP 25348/2008 filed under Article 226 of the constitution ofIndia to issue a writ of Certiorari, calling for the records fromthe 2nd respondent in Na.Ka.No.5677/A-3/2008 dt.15.10.2008 quashthe same as far as the petitioner is concerned. https://hcservices.ecourts.gov.in/hcservices/ For Appellants/ : Mr.G.Sankaran Petitioners Special Government PleaderFor Respondent/ : Mr.Rabumanohar Writ PetitionerJUDGEMENTN.KIRUBAKARAN,J.This writ appeal has been filed against the order passed inM.P.No.1 of 2008 in W.P.No.25348 of 2008 by which learned singlejudge granted interim stay of the transfer of the respondent andalso and also directing the appellants to release the salarypayable to the respondent herein with effect from 1.10.2008.2.The facts of the case are as follows:The respondent is a Physical Education Teacher and she ispresently working in Government Girls Higher Secondary School,Salem,Minnampalli, Salem from 15.10.2008 onwards.3.The respondent/teacher was transferred from GovernmentGirls Higher Secondary School to Government Girls HigherSecondary School, Minnampalli, Salem District by an order dated15.10.2008 based on teacher-pupils ratio is not as per norms. Thenorms as per the Government of Tamil Nadu for teacher pupil ratiowith regard to Physical Education Teacher is 1:250. In theGovernment Higher Girls Secondary School, Salem there are about 4sanctioned posts in Physical Education Teacher and out of fourone post is vacant and three persons are working. The strength inthe Government Girls Higher Secondary School, Salem is 3948students and the number of Physical Education Teacher working inthe school are one Physical Director and three teachers. Thepresent position of the teacher-pupil ratio in Government GirlsHigher Secondary School, Salem is 1.1000, which is more than therequired norms prescribed by the Government.4.Aggrieved by the transfer order, the respondentapproached this court challenging the transfer order contendingthat the required teacher-pupil ratio is 1:1000. As far asPhysical Education is concerned there is no necessity totransfer the respondent to any other school. Secondly therespondent teacher contended that as per Tamil Nadu GovernmentG.O.Ms.No.10 P & AR ( Per-s), Department dated 7.1.1994, therecannot be any transfer during non-transfer period after thecommencement of the academic year. The academic year of all theschools in Tamil Nadu, commenced in June, 2008 and, the transferorder was passed on 15.10.2008 that is in the middle of theacademic year. It is the further contention of the respondent https://hcservices.ecourts.gov.in/hcservices/ herein is that the respondent was serving in the fourth vacancyas Physical Education Teacher and one P.Rajeshwari was to retireafter service on 31.5.2009 and thereafter the respondent's postwould be in third vacancy and the respondent could be retained inthe same school. The respondent contended before the learnedSingle Judge that after the issue of G.O.Ms.No.525, SchoolEducation dated 29.12.1997 which prescribes teacher pupil ratio,the Director of School Education issued an order dated 4.2.2000stating that if a school is having more than three PhysicalEducation Teachers, the school is entitled to retain PhysicalEducation Teacher and the excess need not be deputed to otherschools and that in view of the government order also thetransfer order is liable to be quashed.5.The appellant herein filed counter affidavit statingthat in accordance with G.O.Ms.No.525, School Education dated29.12.1997 para 5(iii) C, if the strength in classes VI to X inHigh School exceeds 250, one post of Physical Education Teacherwould be sanctioned for every additional strength of 300 oneadditional post of Physical Education Teacher subject to maximumof 3. In para 5 IV(f) of government order it is stated that fora Higher Secondary Schools with a strength of over 400 in HigherSecondary Section one post of Physical Director would be givenby upgradation of existing post of Physical Education Teacher andas per para 5 III C and 5 IV (f), maximum three PhysicalEducation Teacher (including one Physical Director) are eligiblefor a completed Higher Secondary School.6.It was submitted before the learned Single Judge thatthe Government Higher Secondary School is eligible for twoPhysical Education Teachers and one Physical Director post, eventhough the school is having strength of 2459 students insecondary level and 1489 students in higher secondary level. Itwas also submitted in the counter affidavit that as per scaleregister position of the school, four Physical Education Teachersand one Physical Director were allotted to the school by therespondents. Since the appellants found that two PhysicalEducation Teacher posts were surplus, the two posts had to betransferred to the other needy schools. Accordingly the vacantpost was transferred to a needy school without person. Beingstation junior, the respondent has been transferred to vacantand needy post in Government High School, Minnampalli. Innutshell the appellants submitted that they acted as perG.O.Ms.No.525 School Education dated 29.12.1997, whiletransferring the respondent.7.After hearing both parties, learned Single Judge takingnote of the position that one Mrs. Rajeswari, Physical EducationTeacher was to retire on 31.5.2009 and the circular dated https://hcservices.ecourts.gov.in/hcservices/

4.2.2000 issued by the Director of School Education, which statesthat if the school is having more than three Physical EducationTeachers, still the school is entitled to retain the PhysicalEducation Teachers and the excess need not be transferred toother school and granted interim relief. The said interim orderis impugned before this court. Though the appeal is filedagainst the interim order, the writ petition itself is taken upfor final disposal by consent, as any order passed herein wouldamount to order passed in the writ petition. 8.The learned Special Government Pleader submitted thatthe appellants acted as per G.O.Ms.No.525, School Education dated29.12.1997. As per the said government order, the GovernmentGirls Higher Secondary School, Salem is entitled to have onlythree posts of Physical Education Teacher. Since the respondentwas found to be working as fourth teacher, being the stationjunior, she was transferred and the same cannot be found faultwith.9.Mr.B.Rabumanohar, learned counsel for therespondent/teacher submitted that in the middle of academic year,the respondent was transferred and Mrs. Rajeswari was to retireon 31.5.2009 and the said vacancy could be filled up by retainingthe respondent in the same school. The transfer order has to bequashed as it was passed in the middle of the academic year withmalafide motive.10.This court is necessarily required to giveinterpretation of G.O.Ms.No.525 with regard to physical educationteacher's appointment. In G.O.Ms.No.525 dated 29.12.1997,Teacher- pupil ratio with regard to Physical Education Teachersin the High Schools is given as follows:" 5) III. High Schools (Standards IX to X)a) .....b) .....c) When the strength in classes VI to X in HighSchools exceeds 250 one post of Physical EducationTeacher will be sanctioned and for every additionalstrength of 300, one additional post of PhysicalEducation Teacher will be sanctioned subject to amaximum of 3."As far as Higher Secondary School is concerned, the aforesaidgovernment order states as follows:" 5) IV HIGHER SECONDARY SCHOOLS (11th and 12thstandard)a) ....... https://hcservices.ecourts.gov.in/hcservices/ b) ......c) ......d) ......e) .....f) For schools with a strength of over 400, onepost of Physical Director will be given byupgradation of existing post of Physical EducationTeacher"From the above, it is clear that High Schools are entitled tohave three Physical Education Teachers, whereas for HigherSecondary School (XI and XII standard) with strength of over 400,one Physical Director would be appointed. The above G.O. has tobe interpreted practically, pragmatically and reasonably. It cannot be interpreted that Higher Secondary School can have onlyPhysical Education Director apart from three Physical EducationTeachers in the High School. The reasonable and possibleinterpretation is that the Higher Secondary School is entitledto have more physical education teachers and could be increasedas per the strength of the student depending upon physicaleducation classes as per the existing norms. Hence the inferenceis that the High School would have maximum number of threePhysical Education Teachers and Higher Secondary School would beadded one more teacher as Physical Education Director. If thestrength of the students in the Higher Secondary School are more,according to the strength of the students, Physical EducationTeachers are required to be increased. If 1000 or more studentsare studying in Higher Secondary level (XI to XII Stds.), itwould be irrational and unfair to appoint only one physicaleducation teacher and it would not serve the cause of thephysical education.11.When admittedly the strength of the students in theHigh School level is 2459 students and 1489 students in highersecondary level in the concerned school, the respondents cannotdisturb the scale register post namely four Physical EducationTeacher and one Physical Director, which were allotted by therespondents to the Girls Higher Secondary School, Salem bytransferring the respondent.12.G.O.Ms.No.525 School Education dated 29.12.1997 waschallenged before this court and the same was up held by thelearned Single Judge and on appeal, a Division Bench of thiscourt in Correspondent, Sacred Heart Primary School, KamarajNagar, Padanthalumoodu, Kanyakumari District-629 194 and anothervs. The District Elementary Educational Officer, KanyakumariDistrict at Nagercoil, Kanyakumari District 629 001 and othersreported in 2006 (4) CTC 34 held that: https://hcservices.ecourts.gov.in/hcservices/ "14. Having heard the learned counsel for thepetitioner as well as the learned Government Pleaderwe find force in the submissions made by the learnedcounsel for the petitioner. When we test theargument put forth on behalf of the petitioner, wefind that if the stand of the respondents is to beaccepted, in a school where standard I to V existand the total student strength remain at 143,sanction of two teachaers for first 80, one otherteacher for the strength of 100 and another teacherfor the next 40 namely 140 would result in the totalsanction of only four teachers, even though, theexistence of 5 standards namely standards I to Vwould mandatorily require the sanction of a fifthteacher to handle all the five standards in theschool. Such a position would be, highly incongruousand if the prescription of ratio provided underG.O.Ms.No.525 dated 29.12.1997 is to be construedand implemented in the said manner that would workagainst the interest of the pupil and the school andthe very object of promotion of education will bedefeated.15. In other words, if there are fivestandards namely standards I to V in an elementaryschool with the economic strength of not less than20 in each standard, and each standard reaching 40or 80 or 100 or 140 or 180 as the case may be, thefixation of the teacher pupil ratio as prescribed inthe said Government Order will have to be made thatwould provide necessary teaching faculty to man eachstandard/class. To put it differently or to sight ananalogy if in an elementary school there existsstandard I to V and in each standard the studentsstrength is not less than 60, the bifurcation ofstandards as prescribed under Clause I(c) will haveto be made and the required teacher-pupil ratio atthe rate of 1:40 with a minimum of two secondarygrade teachers upto a strength of 80 for eachstandard will have to be maintained. If the ratio asprescribed in the G.O. Ms.No.525 dated 29.12.1997 isnot applied in the above said manner, that wouldresult in total lack of required number of teachersto man the minimum number of pupils in eachstandard, which would ultimately result in greatfall in the standard of education and such aposition can never be acknowledged or accepted asclaimed by the respondents." https://hcservices.ecourts.gov.in/hcservices/ The Division Bench directed the government to apply ratioprescribed under Clause I(a) to (c) of G.O.Ms.No.525 SchoolEducation Dated 29.12.1997 as stated in paragraphs 14 and 15 . Ineffect the Division Bench held that the question of teacher-pupilratio depends upon the number of standards/classes in the school.13.Subsequently interpretation with regard toG.O.Ms.No.525 was given by the Full Bench in Director ofElementary Education, Chennai-6 and others vs. S.Vigila andanother reported in 2006 (5) CTC 385 as follows:"23.Keeping in view the various relevantaspects, we feel that G.O.Ms.No.525, dated29.12.1997 should be interpreted in the followingmanner:"(1) The ratio of students-teacher strength asindicated in the G.O. should be primarily consideredby taking each individual standard/section as aunit.(2) The minimum strength of teachers requiredobviously should not fall below the number ofStandards/Section in a school. In other words, ifthere are five standards, obviously the minimumnumber of teachers should be five, out of which onewould be the Headmaster.(3) If the students' strength in a particularStandard exceeds 60, at that stage, an additionalsection is required to be created requiring thesanction of a second teacher and the strengthreaches 100, the post of a third teacher isrequired.(4) Even after maintaining the aforesaid ratioby taking into account the students' strength ofeach individual strength of each individual standardand additional section, as the case may be, bykeeping in view of teacher-students ratio 1:40 ofthe entire school if the etchers strength isrequired to be increased, the same has to beallowed, but in no case, the teachers' strengthshould be less than the number of standardsincluding the additional sections. If more teachersare thus sanctioned keeping in view the over allstrength of the school, the authorities of theschool should create additional section in respectof any particular standard according to the need andconvenience keeping in view the standard ofeducation. This requirement is not only in respect https://hcservices.ecourts.gov.in/hcservices/ of Aided Schools or Government Schools, but also inrespect of any Private Recognised School. In otherwords, this ratio is to be maintained for any schoolwhich requires recognition.(5) It would be obviously open to theGovernment to formulate appropriate norms inconsonance with the above observation and provisionsof the Constitution." 14.G.O.Ms.No.525, School Education dated 29.12.1997. doesnot prohibit the continuation of the existing teacher as perscale register posts, especially when the strength of the studentrequire more physical education teachers. Paragraph 8 of theabove G.O. reads as follows:" So also wherever necessary, additional postsshall be sanctioned only after taking into accountthe number of staff deployed to such schools. TheDirector of School Education and Director ofElementary Education should report the additionalposts to be sanctioned as per the new norms afterwhich formal permission in the first year alone shallbe granted by the government filling up the posts.Subsequent fixation of staff strength shall be doneby the District Elementary Educational Officer inrespect of Elementary and Middle Schools. RegardingHigh and Higher Secondary Schools, this shall be doneby the Joint Directors in the Education at the rate 4revenue districts per Joint Director and permissionfrom government to fill up the posts is notnecessary." 15.In the Full Bench judgement, it has been observed thatif the teacher's strength is required to be increased keeping inview of the teacher-student ratio, the same has to be allowed. Inview of that also considering the strength of the students theauthorities can increase the Physical Education Teacher'sposts. However it cannot reduce the strength of the PhysicalEducation Teachers student strength requires more. In view ofthat also, the impugned order is liable to be set aside.16.The aforesaid government order is not prohibitive innature and in fact, if necessity arises, more teachers can beappointed. The criteria applied in G.O.Ms.No.525, SchoolEducation dated 29.12.1997, is only the strength of the studentsand according to which the teachers have to be appointed.Admittedly as stated above the strength of students is 3948, https://hcservices.ecourts.gov.in/hcservices/ which requires more number of Physical Education Teachers.G.O.Ms.No.525 School Education dated 29.12.1997 speaks about themaximum of three Physical Education Teachers for High School andseparate Physical Education director for Higher Secondary Schoolwhich got strength over 400. In view of that also the school isentitled to have four teachers. Hence the petitioner's positionneed not be disturbed. 17.Apart from that contrary to G.O.Ms.No.10 P & A (Per-s),Department dated 7.1.1994, in the middle of the academic year,transfer of teachers is prohibited after commencement of academicyear. In view of that also the impugned order is liable to bequashed. Accordingly the writ petition succeeds.18.Stressing the importance of physical activities for thechildren, National poet Mahakavi Subramania Bharathi wrote" Xo tpisahL ghg;gh eP Xa;e;jpUf;fyhfhJ ghg;gh@. Children are nothaving proper physical exercise nowadays and they are tied upwith Television and books leading to obesity. There is nooccasion for the children to play in the urban areas and they arerequired to compulsorily go for physical education in the schoolwhere they can have good exercise by playing. How the physicaleducation is neglected is proved by recent survey. It ispublished as "STUDENTS TURNING COUCH POTATOES" (Down loaded frominternet)."This is what a week-long survey carriedout among 2,500 kids in 75 CBSE schools across thecountry has shown. Around 70% of the kids surveyedhad not exercised or played games for even an hourduring the seven days on which the survey was carriedout. Not that the remaining 30% are sports crazy. Forthem, outdoor activities had been limited to just anhour every day. The Board's Global Health Survey was carried outamong students of 25 private schools, 25 KendriyaVidyalayas and 25 Jawahar Navodhay Vidyalaya (JNV)across the country. The 2500 students surveyed wereaged between between 13 and 15 years.School principals say that the trend is dangerousand is having a disastrous effect on kids in the formof obesity, juvenile diabetes and hypertension. " Theshows that there is a serious lack of physicalactivity among children," says a senior CBSE boardofficial. The board has decided to make it mandatoryfor affiliated schools to set aside 30 minutes forgames every day for students from classes I to VIII.Besides, these kids will have to attend physicaltraining (PT) classes. The board has recommended two https://hcservices.ecourts.gov.in/hcservices/ 15 minute PT classes a week for students from classesIX to XII...... Lack of outdoor activities in school istaking a toll on kids' health, feel city schoolprincipals. "We often find children suffering fromobesity, juvenile diabetes and hypertension. Somealso suffer because their bones didn't developadequately as they were growing. It is important thatCBSE ensures its recommendations on physical activityis properly implemented by schools, " said principalof Mahadevi Birla Girls Higher Secondary School,Malini Bhagat. ...... Children require at least two hours ofswimming or outdoor playing time every day,especially during growing years. Playing should bemade a part of education. If a child remains inactive, then his mental andphysical growth will be hindered. He might also endup being a victim of hypertension or juvenilediabetes," explained general physician DipakBanerjee."19.The report "Active Education" prepared by Department ofNutrition and Excise Sciences Oregon State University, USA withsupport from Active Living Research, a national programme of theRobert Wood Johnson Foundation (Downloaded from internet) readsas follows:" Schools serve as an excellent venue to providestudents with opportunity for daily physical activityto teach the importance of regular physical activityfor health, and to build skills that support activelife styles. Unfortunately, most children get little tono regular physical activity while in school"The findings of the survey are given as follows:1) Sacrificing physical education for class room time does notimprove academic performance.2) Kids who are more physically active tend to perform betteracademically.3) Kids who are physically active and fit are likely to havestronger academic performance and 4) Activity breaks can improve cognitive performance andclassroom behaviour.20.The above findings of the research prove the importance https://hcservices.ecourts.gov.in/hcservices/ of physical education for the students. When such is theposition, the government is required to give much importance tophysical education. Hence the physical education is a must forstudents and the service of the teachers is very much requiredfor the students. When India is competiting to get medals inOlympic, Asiad and Common Wealth games, more physical educationteachers are required to be appointed to motivate and give propertraining to the students and then only our county would excel insports and games. When teachers give proper training in PhysicalEducation, our country would be in a position to achieveexcellence in the international games and sports. If properphysical education is not given to the students, we wouldcontinue to watch performance of other country sportsmen withawe. Our country cannot go near the achievements of the othercountries in sports and games as most of the countries have verygood curriculum of physical education. 21."Physical education" as the nomenclature denotes is aseparate education distinct from academic education and it isrequired to be given special attention. According to OXFORDENGLISH DICTIONARY, "PHYSICAL EDUCATION" means:"Instruction in physical exercise and games especiallyin schools".As per the American Heritage Dictionary of the English Language,Fourth Edition "Physical Education " means:"Education in the care and development of thehuman body, stressing athletics and includinghygiene"Physical education gives good health, builds self esteem,develops co-operation, team work and sportsmanship skill andphysically active lifestyle, apart from preventing diseases.Future of the country depends upon our children. If our childrenare not properly groomed up mentally and physically in anappropriate proper manner, it will badly reflect on the future ofour nation. Every one is concentrating on academic excellenceneglecting physical education, whereas both are like human eyes.22.If physical education is appropriate, good sportsmenand excellent athletes would be made. In mythology, Rama andArjuna were able to marry Sita and Drowpadi respectively and winin battles as they were good in "ARCHERY". It was possiblebecause of the excellent physical education and training theyunderwent in their "GURUKULAM". Nowadays gurukulams are"Schools" and therefore physical education needs to be given moreattention in schools. Achievements of Chachin Tendulkar, P.T. https://hcservices.ecourts.gov.in/hcservices/ Usha, Abhinav Bindra are basically because of good physicaleducation and training. In schools alone, young talents could beidentified and they could be groomed in the specific sports andgames in appropriate way for future excellence. 23.As stated above, the normal understanding of the abovegovernment order with regard to Physical Education Teachers isthat the High Schools would have maximum number of three PhysicalEducation Teachers and Higher Secondary School would be added onemore Physical Education Director in the name of PhysicalEducation Director. However there cannot be any ceiling withregard to the strength of teachers as the same is bound tovary/increase as per the strength of the student's. When thestudent strength is increased, the ceiling has to be removed andrequired more Physical Education Teachers are to be appointed,otherwise the students would suffer irreparably and thegovernment order would go against the very scheme of education.24. Hence G.O.Ms.No. 525 needs to be given a liberalinterpretation and the government is at liberty to reconsider thematter and issue reasonable viable and appropriate norms withregard to appointment of physical education teachers in theschools as per the strength of students, considering theobservations made by this court expeditiously.25. With the above observations, the writ petition isallowed and the Writ Appeal filed by the government is dismissed.No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvkTo1) The Director of School Education College Road, Chennai-600 006.2) Chief Educational Officer, Salem,Salem District.3) The Headmaster, Government Girls Higher Secondary School, Salem.+1cc to Govt. Pleader Sr 66382+1cc to Mr.B.Rabu Manohar, Advocate Sr 66060RB(CO)km/19.12 W.A.No.226 of 2009 ANDW.P. No.25348 of 2008