BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 04/07/2006 CORAM: THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA and THE HONOURABLE MR.JUSTICE P.MURGESEN W.P.(MD)Nos.2064 of 2004 W.P.(MD)Nos.2028 of 2004 and W.P.M.P.(MD)No.2090 of 2004 1.The Correspondent Sacred Heart Primary School Kamaraj Nagar, Padanthalumoodu Kanyakumari District-629 194. ... Petitioner in W.P.No.2028 of 2004 2.The Correspondent, Holy Family Primary School, Arukany & Post -629 101 Kanyakumari District. ... Petitioner in W.P.No.2064 of 2004 Vs. 1.The District Elementary Educational Officer, Kanyakumari District at Nagercoil, Kanyakumari District - 629 001. ... 1st Respondent in both the W.Ps. 2.The Additional Assistant Elementary Educational Officer, Munchirai, Kanyakumari District - 629 171. 3.The Secretary, Government of Tamil Nadu, Department of School Education, Fort Saint George, Chennai-9 4.The Director of Elementary Education, College Road, Chennai-6 (The respondents 3 & 4 added as per order of this Court dated 04.01.2006 made in W.P.No.2028 of 2004 by A.K.J-S.K.K.J) ... Respondents 2-4 in W.P.No.2028 of 2004 5.The Additional Assistant Elementary Educational Officer, Kuzhithurai, Kanyakumari District. ... 2nd Respondent in W.P.No.2064 of 2004 PRAYER in W.P.No.2028 of 2004: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, calling for the records relating to the proceedings of the 1st respondent District Elementary Educational Officer, Nagercoil in Na.Ka.No.3723/A3/2004 dated 31.08.2004 settling the Staff Fixation for the petitioner-school for the year 2004-2005, quash the same in so far as it renders one post of Secondary Grade Teacher as surplus. PRAYER in W.P.No.2064 of 2004: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, calling for the records relating to the proceedings of the 1st respondent District Elementary Educational Officer, Nagercoil in Na.Ka.No.3723/A3/2004 dated 31.08.2004 settling the Staff Fixation for the petitioner-school for the year 2004-2005 and the consequent proceedings of the second respondent AAEEO, Kuzhithurai in Na.Ka.No.2170/E04 dated 23.09.2004, quash the same in so far as it renders three posts of Secondary Grade Teachers as surplus. !For Petitioners ... Mr.Issac Mohanlal ^For Respondents ... Mr.R.Janakiramulu Government Pleader. :ORDER
(Order of the Court was delivered by
Justice.F.M.IBRAHIM KALIFULLA)
In W.P.No.2028 of 2004, the petitioner seeks for the issuance of
Writ of Certiorari, calling for the records relating to the proceedings of the
1st respondent District Elementary Educational Officer, Nagercoil in
Na.Ka.No.3723/A3/2004 dated 31.08.2004 settling the Staff Fixation for the
petitioner-school for the year 2004-2005, quash the same in so far as it renders
one post of Secondary Grade Teacher as surplus.
2. In W.P.No0.2064 of 2004, the petitioner seeks the issuance of a
Writ of Certiorari, calling for the records relating to the proceedings of the
1st respondent District Elementary Educational Officer, Nagercoil in
Na.Ka.No.3723/A3/2004 dated 31.08.2004 settling the Staff Fixation for the
petitioner-school for the year 2004-2005 and the consequential proceedings of
the second respondent AAEEO, Kuzhithurai in Na.Ka.No.2170/E04 dated 23.09.2004,
quash the same in so far as it renders three posts of Secondary Grade Teachers
as surplus.
3. W.P.No.2028 of 2004 was admitted by the learned single Judge on
06.10.2004 and in W.P.M.P.No.2090 of 2004 interim stay of the impugned order
was granted on 18.10.2004 while directing the writ petition itself to be posted
for final disposal on 08.07.2004. Subsequently, when the writ petition came
before the learned single Judge on 16.12.2005, the learned single Judge
considering the importance of the question involved, directed the Registry to
post the writ petition before the Division Bench for final disposal.
Thereafter, on 04.01.2006, the Division Bench thought it fit to implead
respondents 4 and 5 as parties to the Writ petition in W.P.No.2028 of 2004 by
passing suo motu orders. That is how the writ petitions came up for final
disposal before this Division Bench.
4. Briefly the facts which are required to be stated are, that both
the petitioners are primary schools run by recognised and aided minority
institutions. It is stated to be owned and administered by the Trust of the
Diocese of Thuckalay. The correspondent of the Syro-Malabar Catholic Schools is
the Correspondent of all the 9 schools under the Diocese of Thuckalay in
Kanyakumari District. The petitioner school in W.P.No.2028 of 2004 was stated
to have been established in the year 1978. The other school run by the
petitioner in W.P.No.2064 of 2004 was stated to have been established in the
year 1969 itself. Both the schools offered education from standards I to V and
it is claimed that mostly the children of farm workers, rubber tapers, and
coolies collecting forest produce are studying in the schools and thus catering
to the needs of rural mass. It is also claimed that both the schools provide
education free of cost except collecting a small sum specified by the State
Government and that admission is open to all irrespective of caste, creed or
religion.
5. The issue relating to staff fixation is governed by the revised
norms announced by the Government of Tamil Nadu based on the teacher-student
ratio under G.O.Ms.No.525(School Education) dated 29.12.1997 with effect from
01.06.1998. The norms relating to elementary schools as prescribed in the
Government order is as under:
I.Elementary School (Standards I to V)
a) The teacher-pupil ratio of 1:40 will be followed. Minimum of 2
Secondary Grade teachers up to a strength of 80 will be sanctioned. In respect
of new schools, first post will be created in the first year and second post in
the second year. One of the two posts will be in the grade of Headmaster.
b) For every additional strength of 40, one post of Secondary Grade
teacher will be sanctioned i.e., the third post at 100, the fourth post at 140,
the fifth post at 180 and so on.
c) Regarding the bifurcation of a standard, additional sections will be
created when the strength exceeds 60 and so on in slabs of 40.”
6. The above referred to Government Order was the subject matter of
challenge in a batch of writ petitions and writ appeals which was covered by a
common order of a Division Bench of this Court dated 09.11.2000 in Writ Appeals
Nos.1768 of 1998 etc. Paragraph 29 and 30 of the Division Bench order is to the
following effect:
“29.The contention that the prescription of 1:40 and the second teacher at
80 is, according to them, unworkable and impossible. The Government Order
states as follows:
“The teachers-pupil ratio of 1:40 will be followed. Minimum of 2
Secondary Grade teachers up to a strength of 80 will be sanctioned. For every
additional strength of 40, one post of Secondary Grade teacher will be
sanctioned, i.e., the third post at 100, the fourth post at 140, the firth post
at 180 and so on.”
In an additional Counter Affidavit dated 21.07.2000 filed on behalf of the
respondent’s, it is stated as follows:
“It is the policy of the Government that there shall not be a single
teacher school in the State. As far as elementary and middle schools are
concerned, the minimum strength of 20 pupils is considered as economic strength.
However, from the average attendance of 290 and above and up to 80, two teacher
posts are eligible.
It is further submitted that in the process of re-deployment of surplus
teachers to the needy schools along with the posts held by them, the respondents
will take steps to transfer surplus teachers from Non-Minority schools to needy
Non-Minority schools and as well as from Minority schools to Minority schools as
far as possible after getting consent from the concerned management to avoid
retrenchment of surplus teachers”.
30.It is further stated by the Special Government Pleader that there will
be a minimum of one teacher for 40 pupils and that there will be two teachers
exceeding 40 up to 80 and that there will be three teachers exceeding 80 up to
100 and thereafter in the slab of 40 pupils per teacher i.e., when the school
gets the 41st pupil, the school is eligible to get a second teacher post and not
at 79 as argued. Similarly, at 81 it is entitled for a third teacher up to 100
and thereafter for a slab of 40 pupils. Therefore, the grievance of the
appellants that there will be one teacher up to 79 students cannot be sustained.
The primary schools have got standards up to V i.e, minimum of five standards.
The average attendance of all the standards I to V are taken together for the
purpose of sanctioning the posts. That means, even if in some standards the
student strength is less than 40, an average will be taken and posts are
sanctioned accordingly. The projection made by some of the appellants is as
though they are dealing with single teacher schools which are very rare and as a
policy the Government has decided to have a minimum of two teachers for every
school.”
7.Subsequently, at the instance of the State Government a
clarification was sought for in W.A.M.P.No.5667 of 2003 in W.A.No.1768 of 1998
and the Division Bench by its order dated 12.05.2004 has held in Paragraph 11 as
under:
“11. On a fair consideration of the entire matter, we come to the
conclusion that as per G.O.Ms.No.525 School Education (D1) Department dated
29.12.1997, the teacher pupil ratio is 1:40 and only when the pupils’ is at 80,
second teacher’s post will be sanctioned and like wise when the strength is at
100, third teacher’s post will be sanctioned and the 4th teacher’s post at 140
and fifth teacher’s post at 180 and so on.”
8. Again in paragraph 13, the Division Bench stated as under:
“13. In the result, paragraph 30 of the judgment is clarified as referred
in para 11 above. If the appellants have got any difficulty in teacher their
pupils without having proper teachers strength, as contended by them it is for
them to approach the Government and on such approach, the Government is directed
to consider the requests that would be made by the appellants in order to
provide quality education.”
9. The petitioner, therefore, contended that according to the norms
prescribed in G.O.Ms.No.525, dated 29.12.1997, the school is eligible for 5
secondary grade teachers on the basis of standard wise strength as well as the
total strength and the act of the first respondent in fixing the eligibility as
four secondary grade teachers in W.P.No.2028 of 2004 and only 5 secondary grade
teachers in W.P.No.2064 of 2004 therein is not in consonance with the Government
Order itself and therefore, the same is liable to be set aside.
10. Mr.Issac Mohanlal, learned counsel appearing for the petitioner,
by making a detailed reference to the Government Order as extracted above
contended that even accepting the prescription of teacher-pupil ratio at 1:40 it
will have to be held that such ratio should be related to each standard for
which education is provided in the elementary school and it cannot be related to
the total student strength irrespective of the various standards for which
education is provided in the school. According to the learned counsel, the
application of the ratio of 1:40 by the respondents with reference to the total
number of students studying in all the standards put together and dividing the
same by 40 would make the fixation of norms as an illusory one and will not
serve the purpose for which the State Government came forward to provide the
required number of teachers in each school.
11. The Learned counsel would state that the prescription in clause
I(a) of the G.O. to the effect “in respect of new schools, first post will be
created in the first year and second post in the second year. One of the two
posts will be in the grade of Headmaster” would show that in a new school while
in the first year the school may start with the first standard while in the next
year there has to be necessarily the starting of the second standard by virtue
of the Ist standard student getting promoted to the IInd standard and thereby
the requirement of the second teacher arising in the second year.
12. The learned counsel would further state that the ratio of 1:40
should be maintained in consonance with the students strength in each standard
reaching the level of 40 and for every additional strength of 40 in each
standard the sanction of additional posts shall be made subject to the
stipulation contained in Clause I(a).
13. On the above submissions made on behalf of the petitioner, we
heard the learned Government Pleader Mr.Janaki Ramulu, who on the other hand
contended that the ratio prescribed in G.O.Ms.No.525, dated 29.12.1997 is
referable only to the total strength of the school and the contention to the
contrary made on behalf of the petitioner cannot be accepted.
14. Having heard the learned counsel for the petitioner as well as
the learned Government Pleader we find force in the submissions made by the
learned counsel for the petitioner. When we test the argument put forth on
behalf of the petitioner, we find that if the stand of the respondents is to be
accepted, in a school where standard I to V exist and the total student strength
remain at 143, sanction of two teachers for first 80, one other teacher for the
strength of 100 and another teacher for the next 40 namely 140 would result in
the total sanction of only four teachers, eventhough, the existence of 5
standards namely standards I to V would mandatorily require the sanction of a
fifth teacher to handle all the five standards in the school. Such a position
would be highly incongruous and if the prescription of ratio provided under
G.O.Ms.No.525 dated 29.12.1997 is to be construed and inplemented in the said
manner that would work against the interest of the pupil and the school and the
very object of promotion of education will be defeated.
15. In other words, if there are five standards namely standards I
to V in an elementary school with the economic strength of not less than 20 in
each standard, and each standard reaching 40 or 80 or 100 or 140 or 180 as the
case may be, the fixation of the teacher pupil ratio as prescribed in the said
Government Order will have to be made that would provide necessary teaching
faculty to man each standard/class. To put it differently or to sight an
analogy if in an elementary school there exists standard I to V and in each
standard the students strength is not less than 60, the bifurcation of standards
as prescribed under clause I(c) will have to be made and the required teacher-
pupil ratio at the rate of 1:40 with a minimum of two secondary grade teachers
upto a strength of 80 for each standard will have to be maintained. If the
ratio as prescribed in the G.O.Ms.No.525 dated 29.12.1997 is not applied in the
above said manner, that would result in total lack of required number of
teachers to man the minimum number of pupils in each standard, which would
ultimately result in great fall in the standard of education and such a position
can never be acknowledged or accepted as claimed by the respondents.
16. It is a well known canon of construction that while interpreting
a provision of a statute or for that matter even a statutory notification, the
purposive interpretation should be made and a interpretation which would defeat
the purpose should never be the rule. It is also the cardinal rule of
construction of statutes to read the statute and give effect to the words used
therein, the ordinary, the natural and grammatical meaning and if by any chance
of such a reading leads to an ambiguity and the words are susceptible of another
meaning, the meaning that would fulfil the purport of the legislation should be
made. We are of the view that the interpretation which we have placed on the
reading of clause I (a to c) of G.O.Ms.No.525 dated 29.12.1997 would alone serve
the purpose for which the norms came to be fixed and while giving such a reading
to the above referred to clauses., ambiguity if any gets ironed out and the
object and purport of the notification gets fulfilled.
17.In this context, it will be worthwhile to refer to the decisions
wherein the rule in Heydon’s case, which is also known as ‘purposive
construction’ or “mischief rule” has been succinctly set out. In the earliest
decision of the Hon’ble Supreme Court, reported in AIR 1955 SC 661 (Bengal
Immunity Co. v. State of Bihar and others), in paragraph 22 the Hon’ble Supreme
Court set out the principle in Heydon’s case which reads as under.
“(22) It is a sound rule of construction of a statute firmly established
in England as far back as 1584 when – ‘Heydon’s case’, (1584) 3 Co Rep 7a (V)
was decided that–
“….for the sure and true interpretation of all Statutes in general (be
they penal or beneficial, restrictive or enlarging of the common law) four
things are to be discerned and considered:
1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not
provide.
3rd. What remedy the Parliament hath resolved and appointed to cure the
disease of the Commonwealth, and
4th. The true reason of the remedy; and then the office of all the judges
is always to make such construction as shall suppress the mischief, and advance
the remedy, and to suppress subtle inventions and evasions for continuance of
the mischief, and ‘pro privato commodo’, and to add force and life to the cure
and remedy, according to the true intent of the makers of the Act, ‘pro bono
publico'”
In a subsequent decision of the Hon’ble Supreme Court, reported in
AIR 1957 SC 832 (Commissioner of Income Tax, Madhya Pradesh and Bhopal vs.
Sodra Devi), the Hon’ble Supreme Court has stated as under in paragraph 14.
“14. …. It is only when the words used are ambiguous that they would
stand to be examined and construed in the light of surrounding circumstances and
constitutional principle and practice (Per Lord Ashbourne in Nairn v.
University of St.Andrews, 1909 A.C.147 (B). in the latter event the following
observations of Lord Lindley M.R., in Thomson v. Lord Clanmorris, 1900-1 Ch 718
at p.725 , would be apposite:
“In construing any statutory enactment, regard must be had not only
to the words used but to the history of the Act and the reason, which led to its
being passed. You must look at the mischief which had to be cured as well as at
the cure provided” (See also the observations of Goddard C.J., in R. v.
Paddington and St.Maryleborne Rent Tribunal. (1949) 65 T L R 200 at p. 203(D).
….”
In an English decision reported in (1985) 2 All ER 355, the very
same rule has been succinctly set out by Lord Rokill in the following words:
“It is, therefore, important that the question of construction should be
approached by reference to well-known principles ignoring that which is
irrelevant however interesting, but remembering that statutes should be given
what has become known as a purposive construction, that is to say that the
courts should where possible identify ‘the mischief’ which existed before the
passing of the statute and then if more than one construction is possible,
favour that which will eliminate ‘the mischief’ so identified.”
In the recent decision of the Hon’ble Supreme Court reported in AIR
2003 SC 2502 (D.Saibaba vs. Bar Council of India and another), the Hon’ble
Supreme Court has held as under in paragraphs 9, 18 and 19.
“9. … Where the law provides a remedy to a person, the provision has to
be so construed in case of ambiguity as to make the availing of the remedy
practical and the exercise of power conferred on the authority meaningful and
effective. A construction which would render the provision nugatory ought to be
avoided. True, the process of interpretation cannot be utilized for implanting
a heart into a dead provision; however, the power to construe a provision of law
can always be so exercised as to give throb to a sinking heart. ………
(Emphasis added)
18.Reading word for word and assigning a literal meaning to Section 48AA
would lead to absurdity, futility and to such consequences as the Parliament
could have never intended. The provision has an ambiguity and is capable of
being read in more ways than one. We must, therefore, assign the provision a
meaning -and so read it– as would give life to an otherwise lifeless letter and
enable the power of review conferred thereby being meaningfully availed and
effectively exercised. (Emphasis added)
19.On the same principle the provision has to be interpreted from the
point of view of exercise of the power by the Bar Council. The interpretation
ought to be directed to wards giving the expression a meaning which will carry
out the purpose of the provision and make the remedy of review conferred by the
provision meaningful, practical and effective. ……”
In yet another decision of the Supreme Court reported in AIR 1976 SC
331 (Nasiruddin vs. S.T.A.Tribunal), the Hon’ble Supreme Court has held as
under in paragraph 26.
“26….. If there are two different interpretations of the words in an
Act, the court will adopt that which is just reasonable and sensible rather than
that which is none of those things. …”
18. In other words, a plain reading of the language of clause I(a to
c) would only result in an interpretation as has been placed by us in paras 14
and 15 and we are convinced that the manner in which it was sought to be
interpreted by the first respondent while passing the order impugned in these
writ petitions would result in an unworkable or to put it bluntly chaotic
situation in the Educational Institutions which cannot be permitted to be made.
We therefore hold that the norms applied by the respondents under the impugned
order passed on the total strength of the pupils in the school without
particular reference to the student strength in each of the standard I to V
would defeat and frustrate the very purpose of the fixation of the ratio and the
corresponding number of posts to be ascertained and consequently, the impugned
orders are liable to be set aside.
18. Therefore, while setting aside the orders impugned in the writ
petitions we direct the first and second respondents to apply the ratio
prescribed in Clause I(a to c) of G.O.Ms.No.525 dated 29.12.1997 in the manner
set out in paras 14 and 15 and fix the total number of posts for the school for
the academic year 2004-2005 and for the subsequent years and pass appropriate
orders. The writ petitions are allowed with the above directions. No costs.
Consequently, connected W.P.M.P., is closed.
sms/gb.
To
1.The District Elementary Educational Officer,
Kanyakumari District at Nagercoil,
Kanyakumari District – 629 001.
2.The Additional Assistant Elementary
Educational Officer,
Munchirai, Kanyakumari District – 629 171.
3.The Secretary,
Government of Tamil Nadu,
Department of School Education,
Fort Saint George,
Chennai-9
4.The Director of Elementary Education,
College Road,
Chennai-6
5.The Additional Assistant Elementary
Educational Officer,
Kuzhithurai,
Kanyakumari District.