Mrs.A.Lilly Pushpam v. District Elementary Educational Officer, Nagercoil

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:1-12-2009CORAMTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANW.P.No.31821 of 2003Mrs.A.Lilly Pushpam ... PetitionerVersus1.District Elementary Educational Officer, Nagercoil.2.The Correspondent, St.Antony Middle School, Chenpabagaraman Puthan Thurai, Kil-Manakkudy, Manakkudy Post-629 602 Kanyakumari District.3.Superintendent of R.C.Schools, Diocese of Kottar, Assist Complex, Nagercoil-629 001.4.Assistant Elementary Educational Officer, Rajakkamangalam Range at Nagercoil-629 001. .... Respondents Writ Petition filed under Article 226 of Constitution of Indiapraying for the issuance of Writ of Certiorari to call for therecords pertaining to the proceedings of the first respondent in hisproceedings No.Na.Ka.No.4291/A3/03 dated 8.10.2003 and consequentialorder of the 2nd respondent dated 8.10.2003 and quash the same. For Petitioner :Mr.R.SaseedharanFor Respondents :Mr.P.Godson Swaminath for RR 2 and 3 Mrs.Dakshiyani Reddy Govt. Advocate for RR1 & 4 https://hcservices.ecourts.gov.in/hcservices/ ORDERWrit petitioner has approached this court challenging the orderpassed by the first respondent transferring the petitioner fromsecond respondent school to St.Joseph Ramanduras, KanyakumariDistrict. 2.The case of the petitioner is that she was appointed asSecondary Grade Teacher on 4.6.1985 and the first respondent schoolwas upgraded as Middle School with effect from 14.12.1985. At thetime of filing of the writ petition, the sanctioned strength of theteacher was one headmaster, four Secondary Grade teacher and oneCraft Teacher. When things stand so, on 28.9.2003, the fourthrespondent school was inspected and found that the student strengthwas 184.3.By an order dated 6.10.2003, the petitioner was transferredSt.Joseph Primary School on the ground that the petitioner was foundto be surplus for the year 2003-2004 as per G.O.Ms.No.525, SchoolEducation Department dated 29.12.1997 and thereafter the firstrespondent passed an order dated 8.10.2003 and the same is challengedbefore this court.4.The respondents 1 and 4 filed counter affidavit statingthat there were complaints stating that the student strength of theschool declined and the teachers were appointed against the rule andtherefore the first respondent appointed flying squad to inspect thesaid school. On inspection by the flying squad, it was found that thepupils attendance on 23.9.2003, 24.9.2003 and 26.9.2003143 were143,124,133 respectively. As per the counter affidavit filed by thefirst respondents 1 and 4, only two secondary grade teachers areeligible as per the above average attendance and the remaining twosecondary grade teachers were found to be surplus and for the saidreason only, the two surplus teachers were sought to be transferredto the needy school under the same management school. The petitioneris one of the surplus teachers. 5.Respondents 2 and 3 filed counter affidavit and contendedthat the student strength noted as per the final inspection made bythe AEEO was 180 and the average student strength given in thecounter affidavit is not correct. In fact the respondents 2 and 3contended that the strength of the school is 180 and it does notwarrant any transfer on the ground of surplus as per G.O.Ms.No.525,School Education dated 29.12.2007.6.Mr.Saseedaran, learned counsel appearing for the petitionersubmitted that the petitioner is working in the school as SecondaryGrade Teacher even before the school was upgraded as middle schooland only five teachers were working there and this petitioner is only https://hcservices.ecourts.gov.in/hcservices/ a craft teacher, who cannot take regular class to the students. Healso relying upon G.O.Ms.No.1820,(B1) Education Department dated21.11.1984, petitioner's counsel submitted that the teacher strengthshould be fixed on the basis of average attendance during the monthof August. Whereas as as stated in page 3 of the counter affidavitfiled by the first respondent, inspection to ascertain the strengthof the student was done during September 2003 and the same iscontrary to G.O.Ms.No.1820 dated 21.11.1984. He relied upon aDivision Bench judgement of this court in Director of TamilnaduElementary Education, College Road, Chennai-6 and three others vs.Lakshmi Narasimha Vidyalaya rep. by its Correspondent K.Periyasamy,Ragavendrapuram Seshanchavadi, Salem District reported in in 2004WLR 530, wherein in para 3 it was held as follows:"This action was because there were inspectionstaken during which some defects were found, whichdefects we have already referred to above and whichdefects surfaced in the impugned order dated 24.10.l997.The learned single judge has allowed the writ petitionon the singular ground that the inspections were takenand the average attendance was estimated on the basisthereof, in the month of July 1997. According to thelearned single judge, as provided in G.O.Ms.No.250(Education) dated 29.12.1964, modified by G.O.Ms.No.1820(Education) dated 21.11.1984, the inspections have to becarried out and the estimate of the avearage attendanceof the students has to be made on the basis of theattendance only in the month of August and it ils onlyon that basis that the staff strength is to be decidedby the authorities. We were taken through the saidGovernment orders, wherein it is very clearly suggestedin paragraph 3 thereof that the teacher strength has tobe fixed on the basis of the average attendance duringthe month of August, meaning thereby that theauthorities would have to hold the inspections only inthe month of August and on that basis, come to theconclusion as to how many teachers were in realityrequired for that school. That not having been done, andthe inspection having been fixed only on 20.7.1997, thelearned single judge held that the action was per se badand that the department could not proceed with theproposals in the order dated 24.10.1997." 7.Relying upon the said judgement, learned counsel for thepetitioner submitted that the details given relating to studentstrength based on the inspection made in September, should not beemployed to disturb the petitioner from the school. 8.On the other hand Mrs.Dakshayani Reddy, learned GovernmentAdvocate, submitted that based on the strength of the student, the https://hcservices.ecourts.gov.in/hcservices/ petitioner is sought to be transferred; Moreover, to the very samemanagement school only, the petitioner is sought to be transferredand in fact the management accepted the strength of the student; Whenthe management accepted the position, it is not open to thepetitioner-teacher to challenge the transfer order as she has got noloco-standi; Even as per pupil teacher ratio, the class is supposedto have 40 students whereas in the said class, no such requirementwas satisfied; In those circumstances only the petitioner is soughtto be transferred.9.Mr.Godson Swaminath, learned counsel for respondents 2and 3, acknowledging the arguments advanced by the learned counselfor the petitioner submitted that the school has total strength of180 students and in fact it was also as stated in paragraph 5 of thecounter affidavit that the student strength has been noted as on28.10.2003 as 180 and when that is the position, there is nonecessity to transfer the petitioner from the school. He also reliedupon the Full Court Judgement of this court in Director of ElementaryEducation, Chennai-6 and six others versus S.Vigila and anotherreported in 2006 (5) CTC 385, wherein it has been declared eachindividual standard/section as a unit and each standard should have ateachaer. Relying upon the said judgement learned counsel submittedthat even as per the judgement the school is entitled to 18 teachers.10.A perusal of G.O.Ms.No.525 dated 29.12.1997 only speaksabout 1:40 teacher pupil ratio. As far as middle school is concernedthere is no mention about the minimum strength of students in eachclass. If the contention of the learned Government Advocate has to beaccepted, if the strength of student is less than 40 then it willonly lead to a situation to close the particular class. Ascategorically stated in the full court judgement, G.O.Ms.No.525 doesnot prescribe the minimum strength for a class and it only shows that1:40 will be the teacher pupil ratio. The aforesaid facts were takennote of by the Hon'ble Full Bench and held that the teachers strengthshould no be lower than the number of classes and the school shouldnot be a single unit and each standard/section is to be taken assingle unit. In view of that the school, in which the petitioner isworking being a middle unit, is entitled to have eight teachers. Ifeight teachers are to be retained, then the petitioner would not betreated as surplus teacher and in that event the impugned order hasto be quashed. 11.AS rightly pointed out by the learned counsel for thepetitioner as per G.O.Ms.No.1820 dated 21.11.1994, the strength ofthe teacher should be based on the average attendance during themonth of August and it has to taken into account for deciding thestrength of the teacher. In any event after the pronouncement of theFull Bench judgement every school is entitled to have teachers notless than the number of classes/standards it has got. https://hcservices.ecourts.gov.in/hcservices/

12.Learned Government Advocate submitted that the secondrespondent school admitted the transfer order and in fact gaverelieving order to the petitioner and in that event the petitioner isnot an aggrieved person and she has no locustandi. The contention isliable to be negatived as the person who sought to be transferred isthe petitioner and she is the aggrieved person by transfer order andshe has every right to challenge the transfer order. 13.Even as per chart approved by the first respondent school,in which the petitioner is working, shows, the strength of thestudent as 180 and the sanctioned strength of the teachers as 4. Thesaid tabular column is prepared as per G.O.Ms.No.525 School Educationand the school is entitled to 4 + 1 Secondary Grade Teacher andtherefore the impugned order is liable to be quashed.14.For the reasons stated above the writ petition is allowedand the impugned order is set aside. No costs. Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarvkTo:1.District Elementary Educational Officer, Nagercoil.2.The Correspondent, St.Antony Middle School, Chenpabagaraman Puthan Thurai, Kil-Manakkudy, Manakkudy Post-629 602 Kanyakumari District.3.Superintendent of R.C.Schools, Diocese of Kottar, Assist Complex, Nagercoil-629 001. https://hcservices.ecourts.gov.in/hcservices/

4.Assistant Elementary Educational Officer, Rajakkamangalam Range at Nagercoil-629 001.1 cc to Mr.R.Saseetharan, Advocate, Sr.No.651921 cc to M/s.Isaac Mohanlal, Advocate, Sr.No.650811 cc to Government Pleader, Sr.No.65568W.P.No.31821 of 2003AR {CO}TP/28.1.2010.