Director Of Elementary Education vs Tmt.S. Vigila on 4 November, 2006

Madras High Court
Director Of Elementary Education vs Tmt.S. Vigila on 4 November, 2006
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT


DATED : 04/11/2006


CORAM
THE HON'BLE MR.JUSTICE P.K. MISRA
THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR
AND
THE HON'BLE MR.JUSTICE G.RAJASURIA


WRIT APPEAL (MD) NO.313 OF 2006
and
M.P.No.1 OF 2006


1. Director of Elementary Education,
   Chennai 6.

2. District Elementary Educational
   Officer, Thoothukkudi,
   Thoothukkudi District.

3. Assistant Elementary Educational
   Officer,
   Alkwarthirunagari 628 623.
   Thoothukkudi District.		...  	Appellants


Vs.


1. Tmt.S. Vigila
   3/127, Church Street,
   Meignanapuram,
   Thiruchendur Taluk,
   Thoothukudi District.

2. Manager,
   Meerania Middle School,
   Alagiamanavalapuram,
   Alwarthirunagari,
   Thoothukudi District.		...  	Respondents



		Appeal filed under Clause 15 of the Letters Patent against the order
passed by the learned single dated 13.4.2006 made in W.P.(MD) No.1641 of 2004.


!For Appellants		...	Mr.R. Viduthalai
				Advocate General
				Assisted by
				Mr.R. Janakiramulu
				Special Govt. Pleader


^For Respondents	...	Mr.K. Chellapandian for
				Mr.V. Panneerselvam.

				Mr.Issac Mohanlal,
				Amicus Curiae.

:JUDGMENT

P.K. MISRA, J

The question relates to Teacher- Pupil ratio to be fixed in respect of
Elementary school.

2. The norm relating to teacher-pupil ratio has been laid down in
G.O.Ms.No.525 (School Education) dated 29.12.1997, which has been made effective
from 1.6.1998. The norms relating to Elementary School as per the said G.O.,
are extracted hereunder :-

“I. ELEMENTARY SCHOOLS (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.”

3. The validity of such G.O., and the difficulty in enforcing such
G.O., were the subject matter of litigation and ultimately the Division Bench in
W.A.No.1768 of 1998 dated 9.11.2000, while approving the stand of the Government
as reflected in the counter, had upheld the validity of the G.O.

4. Subsequently, however, a clarification was sought for by the
Government by filing W.A.M.P.No.5667 of 2003 and at that stage, the Division
Bench observed :-

“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’ strength
is at 80, second teacher’s post will be sanctioned and likewise 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.”

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 teaching 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.”

5. Following the aforesaid clarificatory observation, it has been
generally understood by the respondents that teacher-pupil ratio is fixed by
taking into account the strength of the entire school.

6. Subsequently, a Division Bench of the Madurai Bench of Madras High
Court in the decision reported in 2006(4) CTC 34 (THE CORRESPONDENT, SACRED
HEART PRIMARY SCHOOL AND ANOTHER v. THE DISTRICT ELEMENTARY EDUCATIONAL OFFICER,
KANYAKUMARI AND OTHERS),
observed :-

“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 public 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 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.”

7. The ratio of the subsequent Division Bench decision is to the
effect that the question of teacher-pupil ratio would depend upon the number of
Standards and Sections in the school.

8. Since such observation made by the Division Bench apparently runs
counter to some of the observations made in W.A.No.1768 of 1998, etc., disposed
of on 9.11.2000, the matter has been referred to Full Bench to resolve the
dispute.

9. To say the least, the G.O.Ms.No.525 dated 29.12.1997,
particularly relating to the Elementary School, is not happily worded. It is not
very clear from the aforesaid instruction as to whether teacher-pupil ratio of
1:40 should be fixed on the basis of students’ strength in a particular standard
or students’ strength of the entire school in question irrespective of the
number of Standards in a school. If such Government Order is to be understood
in the manner in which it has been projected hitherto based on some observations
here and there in W.A.No.1768 of 1998, certain startling consequences will
follow. As is well known, elementary school consists of 5 standards i.e., from
Standard I to V. If the minimum average strength of each standard is taken to
be 20 (which was assumed to be the economic strength as apparent from the case
made out before the Division Bench in W.A.No.1768 of 1998), total strength of
the school would be 100 and as per the arithmetic formula projected, the school
will have 3 teachers. If the average strength of each standard is less than 20
and the total students’ strength is between 80 and 99, the school would have two
teachers. Therefore, we have to imagine a situation where tender children
studying in different standards, i.e., from standards I to V, will have to be
managed by o two teachers if the strength is between 80 and 99 and with three
teachers if the strength is between 100 and 139. It is indeed very difficult to
imagine as to how 2 or even 3 teachers would “manage” as well as “educate”
students of standards I to V simultaneously. It cannot be contemplated that any
one teacher would be simultaneously teaching students of two separate standards
or may be even 3 standards. It also cannot be imagined that some periods will
be off for some of the Standards, in which event such children won’t be under
the control of any teacher, resulting in total chaos and the students becoming
inevitable victims of unforeseen incidents. It is very difficult for us to
visualise that while issuing such Government Order, the Government had
contemplated in the aforesaid manner.

10. G.O.Ms.No.525 dated 29.12.1997 was issued superceding the
earlier norms fixing Teacher-Pupil ratio issued in G.O.Ms.No.250 Education
Department dated 29.2.1964 and Rule 17 and 18 of Madras Education Rules.
G.O.Ms.No.525 is held applicable to both the Government and Aided Recognised
Private Schools as per the judgment reported in (1999) 1 MLJ 625.

11. Insofar as the Madras Education Rules, Rule 17 was applicable to
the Government Schools prior to the introduction of the present Government
Order, which states that there should be one teacher for every standard and for
every section of standards, in addition to the Headmaster, excluding Pandits and
special teachers. Under Rule 18, no section of a class should have more than 40
pupils upon the roll. Even though the said Madras Education Rules are in the
nature of administrative instructions (as held by the Apex Court in the decision
reported in (1972) 1 SCC 492 (STATE OF TAMIL NADU & OTHERS V.
S.K.KRISHNAMURTHI,
etc. etc.), the said instructions were holding the field till
1.6.1998, when G.O.Ms.No.525 dated 29.12.1997 was ordered to be implemented.

12. Similarly, so far as the private schools are concerned,
G.O.Ms.No.250 states that minimum strength of any primary school shall be 20.
The second teacher will be allowed where the overall average attendance is 30
and above; two teachers if the average attendance of the combined standards is
30 and above; three teachers if it exceeds 55; 4 teachers if it exceeds 75 and 5
teachers if it exceeds 95. One section in a standard, if the student strength
is upto 35; two sections, if the strength is between 35 and 70; three sections
if the strength is between 71 and 105; four sections if the strength is between
106 and 140; 5 sections if it is between 141 and 175 and so on with the staff
slab of 35. It is further stated in clause (5) that grant shall not be
calculated for more teachers than there are standards or sections in the school
or than actually employed in the school, whichever is less. (Emphasis added).
Thus it is manifest that prior to the issue of G.O.Ms.No.525, each standard was
sanctioned with a post and division of standards are made in private schools if
it is more than 35 and Government Schools if it was more than 40. The strength
in one section is now increased upto 60 from 35 or 40 as the case may be. Even
in the earlier Division Bench decision in paragraph 32, same conclusion was
reached.

13. A complete primary/elementary school must have standards 1 to 5.
Each standard has got different syllabus to be taught. Each standard has
separate time table during the school hours and therefore for all the five
standards, there must be minimum of one teacher for each standard, particularly
when right to education upto the age of 14 years has been declared as
fundamental right under Article 21 of the Constitution of India, by the Supreme
Court in the decisions reported in (1992) 1 SCC 666 (Mohini Jain case); (1993) 1
SCC 645 (Unnikrishnan case); and 2005 (4) CTC 81 (Inamdar’s case) and more
particularly after introduction of Article 21-A of the Constitution.

14. It was submitted by the learned Advocate General that validity
of the G.O., having been upheld, the procedure, which is being followed
on the basis of the observations made by the earlier Division Bench, need not be
disturbed, particularly keeping in view the huge financial implications
involved. The question as to whether the Government is bound to grant aid to
any particular school is not before us. Even assuming that the Government would
sanction grant to all such schools, we do not think the question of financial
involvement can at all be an issue in such matters relating to primary
education, particularly when right to such education is now recognised as a part
of the fundamental right in the shape of Article 21-A of the Constitution. The
obvious intention is to impart quality education wherever possible and not
merely to pay lip service to such sentiments expressed.

15. The learned Advocate General argued that because of the limited
resources available to the Government, the Teacher-Pupil ratio is modified from
the original ratio and the Teacher posts are sanctioned based on the ratio 1:40
after the strength exceeds 60. The contention that the limited resources or
want of finance cannot be a ground to sanction less number of teaching post to
the schools both in Government and aided schools.

16. The submission that want of finance is the reason for revising
the Teacher-Pupil ratio cannot be countenanced in view of the settled position
of law.

In AIR 2000 SC 634 (CHANDIGARH ADMINISTRATION v. RAJNI VALI), in paragraph
6, the Supreme Court held as follows :-

” 6. … imparting primary and secondary education to the students is the
bounden duty of the state administration. It is a constitutional mandate that
the State shall ensure proper education to the students on whom the future of
the Society depends. In line with this principle, the State has enacted Statute
and framed Rules and Regulations to control/regulate establishment and running
of private schools at different levels. The State Government provides grant-in-
aid to private schools with a view to ensure that the standard of teaching does
not suffer on account of paucity of funds. It needs no emphasis that
appointment of qualified and efficient teachers is a sine qua non for
maintaining high standard of teaching in any educational institution. Keeping
in mind these and other relevant factors this Court in number of cases has
intervened for setting right any discriminatory treatment meted out to teaching
and non-teaching staff of a particular institution or a class of institutions.”

In paragraph 10, the Supreme Court considered the contention of want of fund in
the following manner :-

“10. Coming to the contention of the appellants that the Chandigarh
Administration will find it difficult to bear the additional financial burden if
the claim of the respondents 1 to 12 is accepted, we need only say that such a
contention raised in different cases of similar nature has been rejected by this
Court. The State Administration cannot shirk its responsibility of ensuring
proper education in schools and colleges ion the plea of lack of resources. It
is for the authorities running the Administration to find out the ways and means
of securing funds for the purpose. We do not deem it necessary to consider this
question in further detail. The contention raised by the appellants in this
regard is rejected. …”

17. It has been submitted by the learned Advocate General that while
interpreting the Government Order, the subsequent Division Bench should not have
imported the principles relating to interpretation of statutes and particularly
the ratio of the Heydons case (1584) 3 Co.Rep.7 :76 ER 637) need not have been
applied. In the present case, G.O.Ms.No.525 dated 29.12.1997 cannot be
construed purely or merely as an administrative order, but such order purports
to lay down general principle affecting the system of primary education. The
question raised before the Division Bench was relating to proper interpretation
of the Government Order. Since the meaning ascribed to such Government Order is
likely to raise ambiguity and uncertainty, obviously the court is required to
step in to find out the real intention of the Government Order so that the
general principle can be made effective and applicable consistent with the
provisions in the Constitution.

18. The further contention of the learned Advocate General is to the
effect that if the real meaning of the Government Order was not ascertainable,
such Order could have been quashed on the ground of indefiniteness or
uncertainty and there was no scope for interpreting and applying the Government
Order in a particular manner. We do not think such a contention can be
countenanced at the behest of the State. When the State Government issues
certain G.O intending to lay down a policy in certain matter and when there is
ambiguity in the said Government Order, the same should be interpreted in a
reasonable manner to effectuate the intention and there is no embargo on the
Court to apply the known principles of law applicable to interpretation of
statutes.

19. Learned Advocate General has further submitted that when a
Division Bench decision was holding the field, the subsequent Division Bench
should not have taken a view contrary to the earlier Division Bench without
referring the matter to a larger Bench.

20. In the present case, on a careful scrutiny, it is found that as
a matter of fact the learned single Judge, who had initially decided the matter
in the decision reported in 1999(1) MLJ 635 (NORTH ARCOT AMBEDKAR & SAMBUVARAYAR
DISTRICT RECOGNISED PRIVATE AIDED PRIMARY AND MIIDLE SCHOOLS MANAGERS AND
TEACHER MANAGERS ASSOCIATION, VELLORE v. THE STATE OF TAMIL NADU, REP. BY ITS
COMMISSIONER AND SECRETARY OF GOVERNMENT, EDUCATION DEPARTMENT, CHENNAI AND
OTHERS), had not decided anywhere that while considering the question of
student-teacher ratio, the strength of the students in the school as such is to
be taken into account and the number of standards and strength of the students
in any individual standard was immaterial.

21. The main question raised before the learned single Judge was
regarding validity of the Government Order and the learned single Judge upheld
the validity of the said G.O. In the appeal against such decision, the Division
Bench had affirmed the decision of the learned single Judge. As a matter of
fact, a careful perusal of the earlier Division Bench decision makes it clear
that the submissions had been made even by the Government that the ratio
prescribed was in relation to a particular standard and not of the entire school
as a whole and at some places submissions have been made as if the students
strength referred to in the Government Order related to the strength of the
entire school. However, the Division Bench had nowhere categorically laid down
that while considering the applicability of the Government Order, the students’
strength of the entire school de hors the number of standards and students
strength of the individual standard was to be considered. Even the subsequent
clarificatory order had not categorically laid down as to whether the ratio has
to be fixed only on the basis of the students strength of the school as a whole
without reference to the students of each individual standard. It may be that
such decision has been understood in many cases, as if the ratio is to be fixed
on the students strength of the entire school, but, it cannot be concluded that
the Division Bench had categorically laid down as a matter of law that the ratio
is to be fixed on the basis of the students strength of the entire school
completely ignoring the students strength of each individual standard. As a
matter of fact, the subsequent Division Bench decision has only purported to
interpret the G.O. In such a sense it cannot be said that the latter Division
Bench has differed from the earlier Division Bench decision. At any rate, since
the matter is now before a larger Bench, the real issue is relating to proper
interpretation to be given to G.O.Ms.No.525 dated 29.12.1997.

22. As rightly observed by the latter Division Bench, the
G.O.Ms.No.525 has to be interpreted in a meaningful manner keeping in view the
background in which such G.O. came to be issued. As per the existing
instructions applicable, the ratio of teacher was dependant upon students’
strength in each individual standard, but it had been laid down that maximum
strength in a particular section or a class should be 35 or 40. In other words,
either no admission was required to be made in excess of 35 or 40 or if such
admission was made taking relevant permission, an additional section was
required to be created. In the context of the aforesaid background, the present
G.O.Ms.No.525 indicates that an additional section is required to be created
only when the students’ strength in a standard becomes 60 or more. It is evident
that G.O.Ms.No.525 has intended to change this aspect and that is the reason why
it has been indicated that when the students strength becomes 100, a third
teacher can be appointed. If it has to be understood that the ratio of 1:40 is
to be maintained in respect of the entire school, it is not understood as to why
it would be laid down in the G.O. that a third teacher would be available when
the students strength reaches 100. In normal course, the third teacher would be
provided only when the students strength reaches 120 and not 100. This is
rather indicative of the fact that the G.O. was concerned about the creation of
additional section. If the students’ strength in a particular standard remains
60 and below, there is no necessity to create an additional section and the
necessity to create additional section arises only when the student strength in
a particular standard exceeds 60 and that is why it has been stated that if
students’ strength is further increased by 40 more, another teacher would be
sanctioned or would be required. The G.O. cannot be interpreted to do away with
requirement of having at least one teacher for each standard or section
(wherever creation of additional section is justified).

23. Keeping in view the various relevant aspects, we feel that
G.O.Ms.No.525 dated 29.12.1997 should be interpreted in the following manner:-

(1) The ratio of students-teacher strength as indicated in the G.O.
should be primarily considered by taking each individual standard/section as a
unit.

(2) The minimum strength of teachers required obviously should not
fall below the number of Standards/Section in a school. In other words, if
there are five standards, obviously the minimum number of teachers should be
five, out of which one would be the Headmaster.

(3) If the students’ strength in a particular Standard exceeds 60,
at that stage, an additional section is required to be created requiring the
sanction of a second teacher and the strength reaches 100, the post of a third
teacher is required.

(4) Even after maintaining the aforesaid ratio by taking into
account the students strength of each individual standard and additional
section, as the case may be, by keeping in view the teacher-students ratio 1:40
of the entire school if the teachers strength is required to be increased, the
same has to be allowed, but in no case, the teachers strength should be less
than the number of standards including the additional sections. If more
teachers are thus sanctioned keeping in view the over all strength of the
school, the authorities of the school should create additional section in
respect of any particular Standard according to the need and convenience keeping
in view the standard of eduction. This requirement is not only in respect of
aided schools or Government schools, but also in respect of any private
recognised school. In other words, this ratio is to be maintained for any
school which requires recognition.

(5)It would be obviously open to the Government to formulate
appropriate norms in consonance with the above observation and provisions of the
constitution.

24.We place on record our appreciation for the fair manner in which
submissions were made by all the counsel.

25.the writ appeal shall be listed before the Division Bench for
disposal.

gb.

To:

1. Director of Elementary Education,
Chennai 6.

2. District Elementary Educational
Officer, Thoothukkudi,
Thoothukkudi District.

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