IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 4.12.2009
CORAM:
THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA
AND
THE HONOURABLE MR. JUSTICE N.KIRUBAKARAN
W.A.No.226 of 2009
and
W.P.No.25348 of 2008
1) 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
Versus
K.Uma ... Respondent
Writ Petitioner.
Writ Appeal is filed under Clause 15 of the letters patent against the order of the learned Single Judge of this court dated 22.12.2008 made in M.P.No.1 of 2008 in W.P.No.25348 of 2008.
For Appellants/ : Mr.G.Sankaran
Petitioners Special Government Pleader
For Respondent/ : Mr.Rabumanohar
Writ Petitioner
JUDGEMENT
N.KIRUBAKARAN,J.
This writ appeal has been filed against the order passed in M.P.No.1 of 2008 in W.P.No.25348 of 2008 by which learned single judge granted interim stay of the transfer of the respondent and also and also directing the appellants to release the salary payable 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 is presently working in Government Girls Higher Secondary School, Salem,Minnampalli, Salem from 15.10.2008 onwards.
3. The respondent/teacher was transferred from Government Girls Higher Secondary School to Government Girls Higher Secondary School, Minnampalli, Salem District by an order dated 15.10.2008 based on teacher-pupils ratio is not as per norms. The norms as per the Government of Tamil Nadu for teacher pupil ratio with regard to Physical Education Teacher is 1:250. In the Government Higher Girls Secondary School, Salem there are about 4 sanctioned posts in Physical Education Teacher and out of four one post is vacant and three persons are working. The strength in the Government Girls Higher Secondary School, Salem is 3948 students and the number of Physical Education Teacher working in the school are one Physical Director and three teachers. The present position of the teacher-pupil ratio in Government Girls Higher Secondary School, Salem is 1.1000, which is more than the required norms prescribed by the Government.
4. Aggrieved by the transfer order, the respondent approached this court challenging the transfer order contending that the required teacher-pupil ratio is 1:1000. As far as Physical Education is concerned there is no necessity to transfer the respondent to any other school. Secondly the respondent teacher contended that as per Tamil Nadu Government G.O.Ms.No.10 P & AR ( Per-s), Department dated 7.1.1994, there cannot be any transfer during non-transfer period after the commencement of the academic year. The academic year of all the schools in Tamil Nadu, commenced in June, 2008 and, the transfer order was passed on 15.10.2008 that is in the middle of the academic year. It is the further contention of the respondent herein is that the respondent was serving in the fourth vacancy as Physical Education Teacher and one P.Rajeshwari was to retire after service on 31.5.2009 and thereafter the respondent’s post would be in third vacancy and the respondent could be retained in the same school. The respondent contended before the learned Single Judge that after the issue of G.O.Ms.No.525, School Education dated 29.12.1997 which prescribes teacher pupil ratio, the Director of School Education issued an order dated 4.2.2000 stating that if a school is having more than three Physical Education Teachers, the school is entitled to retain Physical Education Teacher and the excess need not be deputed to other schools and that in view of the government order also the transfer order is liable to be quashed.
5. The appellant herein filed counter affidavit stating that in accordance with G.O.Ms.No.525, School Education dated 29.12.1997 para 5(iii) C, if the strength in classes VI to X in High School exceeds 250, one post of Physical Education Teacher would be sanctioned for every additional strength of 300 one additional post of Physical Education Teacher subject to maximum of 3. In para 5 IV(f) of government order it is stated that for a Higher Secondary Schools with a strength of over 400 in Higher Secondary Section one post of Physical Director would be given by upgradation of existing post of Physical Education Teacher and as per para 5 III C and 5 IV (f), maximum three Physical Education Teacher (including one Physical Director) are eligible for a completed Higher Secondary School.
6. It was submitted before the learned Single Judge that the Government Higher Secondary School is eligible for two Physical Education Teachers and one Physical Director post, even though the school is having strength of 2459 students in secondary level and 1489 students in higher secondary level. It was also submitted in the counter affidavit that as per scale register position of the school, four Physical Education Teachers and one Physical Director were allotted to the school by the respondents. Since the appellants found that two Physical Education Teacher posts were surplus, the two posts had to be transferred to the other needy schools. Accordingly the vacant post was transferred to a needy school without person. Being station junior, the respondent has been transferred to vacant and needy post in Government High School, Minnampalli. In nutshell the appellants submitted that they acted as per G.O.Ms.No.525 School Education dated 29.12.1997, while transferring the respondent.
7. After hearing both parties, learned Single Judge taking note of the position that one Mrs. Rajeswari, Physical Education Teacher was to retire on 31.5.2009 and the circular dated 4.2.2000 issued by the Director of School Education, which states that if the school is having more than three Physical Education Teachers, still the school is entitled to retain the Physical Education Teachers and the excess need not be transferred to other school and granted interim relief. The said interim order is impugned before this court. Though the appeal is filed against the interim order, the writ petition itself is taken up for final disposal by consent, as any order passed herein would amount to order passed in the writ petition.
8. The learned Special Government Pleader submitted that the appellants acted as per G.O.Ms.No.525, School Education dated 29.12.1997. As per the said government order, the Government Girls Higher Secondary School, Salem is entitled to have only three posts of Physical Education Teacher. Since the respondent was found to be working as fourth teacher, being the station junior, she was transferred and the same cannot be found fault with.
9. Mr.B.Rabumanohar, learned counsel for the respondent/teacher submitted that in the middle of academic year, the respondent was transferred and Mrs. Rajeswari was to retire on 31.5.2009 and the said vacancy could be filled up by retaining the respondent in the same school. The transfer order has to be quashed as it was passed in the middle of the academic year with malafide motive.
10. This court is necessarily required to give interpretation of G.O.Ms.No.525 with regard to physical education teacher’s appointment. In G.O.Ms.No.525 dated 29.12.1997, Teacher- pupil ratio with regard to Physical Education Teachers in 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 High Schools exceeds 250 one post of Physical Education Teacher will be sanctioned and for every additional strength of 300, one additional post of Physical Education Teacher will be sanctioned subject to a maximum of 3.”
As far as Higher Secondary School is concerned, the aforesaid government order states as follows:
” 5) IV HIGHER SECONDARY SCHOOLS (11th and 12th standard)
a) …….
b) ……
c) ……
d) ……
e) …..
f) For schools with a strength of over 400, one post of Physical Director will be given by upgradation of existing post of Physical Education Teacher”
From the above, it is clear that High Schools are entitled to have three Physical Education Teachers, whereas for Higher Secondary School (XI and XII standard) with strength of over 400, one Physical Director would be appointed. The above G.O. has to be interpreted practically, pragmatically and reasonably. It can not be interpreted that Higher Secondary School can have only Physical Education Director apart from three Physical Education Teachers in the High School. The reasonable and possible interpretation is that the Higher Secondary School is entitled to have more physical education teachers and could be increased as per the strength of the student depending upon physical education classes as per the existing norms. Hence the inference is that the High School would have maximum number of three Physical Education Teachers and Higher Secondary School would be added one more teacher as Physical Education Director. If the strength of the students in the Higher Secondary School are more, according to the strength of the students, Physical Education Teachers are required to be increased. If 1000 or more students are studying in Higher Secondary level (XI to XII Stds.), it would be irrational and unfair to appoint only one physical education teacher and it would not serve the cause of the physical education.
11. When admittedly the strength of the students in the High School level is 2459 students and 1489 students in higher secondary level in the concerned school, the respondents cannot disturb the scale register post namely four Physical Education Teacher and one Physical Director, which were allotted by the respondents to the Girls Higher Secondary School, Salem by transferring the respondent.
12. G.O.Ms.No.525 School Education dated 29.12.1997 was challenged before this court and the same was up held by the learned Single Judge and on appeal, a Division Bench of this court in Correspondent, Sacred Heart Primary School, Kamaraj Nagar, Padanthalumoodu, Kanyakumari District-629 194 and another vs. The District Elementary Educational Officer, Kanyakumari District at Nagercoil, Kanyakumari District 629 001 and others reported in 2006 (4) CTC 34 held that:
“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 teachaers 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, even though, 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 implemented 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.”
The Division Bench directed the government to apply ratio prescribed under Clause I(a) to (c) of G.O.Ms.No.525 School Education Dated 29.12.1997 as stated in paragraphs 14 and 15 . In effect the Division Bench held that the question of teacher-pupil ratio depends upon the number of standards/classes in the school.
13. Subsequently interpretation with regard to G.O.Ms.No.525 was given by the Full Bench in Director of Elementary Education, Chennai-6 and others vs. S.Vigila and another reported in 2006 (5) CTC 385 as follows:
“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 strength of each individual standard and additional section, as the case may be, by keeping in view of teacher-students ratio 1:40 of the entire school if the etchers 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 education. 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.”
14. G.O.Ms.No.525, School Education dated 29.12.1997. does not prohibit the continuation of the existing teacher as per scale register posts, especially when the strength of the student require more physical education teachers. Paragraph 8 of the above G.O. reads as follows:
” So also wherever necessary, additional posts shall be sanctioned only after taking into account the number of staff deployed to such schools. The Director of School Education and Director of Elementary Education should report the additional posts to be sanctioned as per the new norms after which formal permission in the first year alone shall be granted by the government filling up the posts. Subsequent fixation of staff strength shall be done by the District Elementary Educational Officer in respect of Elementary and Middle Schools. Regarding High and Higher Secondary Schools, this shall be done by the Joint Directors in the Education at the rate 4 revenue districts per Joint Director and permission from government to fill up the posts is not necessary.”
15. In the Full Bench judgement, it has been observed that if the teacher’s strength is required to be increased keeping in view of the teacher-student ratio, the same has to be allowed. In view of that also considering the strength of the students the authorities can increase the Physical Education Teacher’s posts. However it cannot reduce the strength of the Physical Education Teachers student strength requires more. In view of that also, the impugned order is liable to be set aside.
16. The aforesaid government order is not prohibitive in nature and in fact, if necessity arises, more teachers can be appointed. The criteria applied in G.O.Ms.No.525, School Education dated 29.12.1997, is only the strength of the students and according to which the teachers have to be appointed. Admittedly as stated above the strength of students is 3948, which requires more number of Physical Education Teachers. G.O.Ms.No.525 School Education dated 29.12.1997 speaks about the maximum of three Physical Education Teachers for High School and separate Physical Education director for Higher Secondary School which got strength over 400. In view of that also the school is entitled to have four teachers. Hence the petitioner’s position need 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 academic year. In view of that also the impugned order is liable to be quashed. Accordingly the writ petition succeeds.
18. Stressing the importance of physical activities for the children, National poet Mahakavi Subramania Bharathi wrote ” Xo tpisahL ghg;gh eP Xa;e;jpUf;fyhfhJ ghg;gh@. Children are not having proper physical exercise nowadays and they are tied up with Television and books leading to obesity. There is no occasion for the children to play in the urban areas and they are required to compulsorily go for physical education in the school where they can have good exercise by playing. How the physical education is neglected is proved by recent survey. It is published as “STUDENTS TURNING COUCH POTATOES” (Down loaded from internet).
“This is what a week-long survey carried out among 2,500 kids in 75 CBSE schools across the country has shown. Around 70% of the kids surveyed had not exercised or played games for even an hour during the seven days on which the survey was carried out. Not that the remaining 30% are sports crazy. For them, outdoor activities had been limited to just an hour every day.
The Board’s Global Health Survey was carried out among students of 25 private schools, 25 Kendriya Vidyalayas and 25 Jawahar Navodhay Vidyalaya (JNV) across the country. The 2500 students surveyed were aged between between 13 and 15 years.
School principals say that the trend is dangerous and is having a disastrous effect on kids in the form of obesity, juvenile diabetes and hypertension. ” The shows that there is a serious lack of physical activity among children,” says a senior CBSE board official. The board has decided to make it mandatory for affiliated schools to set aside 30 minutes for games every day for students from classes I to VIII. Besides, these kids will have to attend physical training (PT) classes. The board has recommended two 15 minute PT classes a week for students from classes IX to XII.
….. Lack of outdoor activities in school is taking a toll on kids’ health, feel city school principals. “We often find children suffering from obesity, juvenile diabetes and hypertension. Some also suffer because their bones didn’t develop adequately as they were growing. It is important that CBSE ensures its recommendations on physical activity is properly implemented by schools, ” said principal of Mahadevi Birla Girls Higher Secondary School, Malini Bhagat.
…… Children require at least two hours of swimming or outdoor playing time every day, especially during growing years. Playing should be made a part of education.
If a child remains inactive, then his mental and physical growth will be hindered. He might also end up being a victim of hypertension or juvenile diabetes,” explained general physician Dipak Banerjee.”
19. The report “Active Education” prepared by Department of Nutrition and Excise Sciences Oregon State University, USA with support from Active Living Research, a national programme of the Robert Wood Johnson Foundation (Downloaded from internet) reads as follows:
” Schools serve as an excellent venue to provide students with opportunity for daily physical activity to teach the importance of regular physical activity for health, and to build skills that support active life styles. Unfortunately, most children get little to no regular physical activity while in school”
The findings of the survey are given as follows:
1) Sacrificing physical education for class room time does not improve academic performance.
2) Kids who are more physically active tend to perform better academically.
3) Kids who are physically active and fit are likely to have stronger academic performance and
4) Activity breaks can improve cognitive performance and classroom behaviour.
20. The above findings of the research prove the importance of physical education for the students. When such is the position, the government is required to give much importance to physical education. Hence the physical education is a must for students and the service of the teachers is very much required for the students. When India is competiting to get medals in Olympic, Asiad and Common Wealth games, more physical education teachers are required to be appointed to motivate and give proper training to the students and then only our county would excel in sports and games. When teachers give proper training in Physical Education, our country would be in a position to achieve excellence in the international games and sports. If proper physical education is not given to the students, we would continue to watch performance of other country sportsmen with awe. Our country cannot go near the achievements of the other countries in sports and games as most of the countries have very good curriculum of physical education.
21. “Physical education” as the nomenclature denotes is a separate education distinct from academic education and it is required to be given special attention. According to OXFORD ENGLISH DICTIONARY, “PHYSICAL EDUCATION” means:
“Instruction in physical exercise and games especially in schools”.
As per the American Heritage Dictionary of the English Language, Fourth Edition “Physical Education ” means:
“Education in the care and development of the human body, stressing athletics and including hygiene”
Physical education gives good health, builds self esteem, develops co-operation, team work and sportsmanship skill and physically active lifestyle, apart from preventing diseases. Future of the country depends upon our children. If our children are not properly groomed up mentally and physically in an appropriate proper manner, it will badly reflect on the future of our nation. Every one is concentrating on academic excellence neglecting physical education, whereas both are like human eyes.
22. If physical education is appropriate, good sportsmen and excellent athletes would be made. In mythology, Rama and Arjuna were able to marry Sita and Drowpadi respectively and win in battles as they were good in “ARCHERY”. It was possible because of the excellent physical education and training they underwent in their “GURUKULAM”. Nowadays gurukulams are “Schools” and therefore physical education needs to be given more attention in schools. Achievements of Chachin Tendulkar, P.T. Usha, Abhinav Bindra are basically because of good physical education and training. In schools alone, young talents could be identified and they could be groomed in the specific sports and games in appropriate way for future excellence.
23. As stated above, the normal understanding of the above government order with regard to Physical Education Teachers is that the High Schools would have maximum number of three Physical Education Teachers and Higher Secondary School would be added one more Physical Education Director in the name of Physical Education Director. However there cannot be any ceiling with regard to the strength of teachers as the same is bound to vary/increase as per the strength of the student’s. When the student strength is increased, the ceiling has to be removed and required more Physical Education Teachers are to be appointed, otherwise the students would suffer irreparably and the government order would go against the very scheme of education.
24. Hence G.O.Ms.No. 525 needs to be given a liberal interpretation and the government is at liberty to reconsider the matter and issue reasonable viable and appropriate norms with regard to appointment of physical education teachers in the schools as per the strength of students, considering the observations made by this court expeditiously.
25. With the above observations, the writ petition is allowed and the Writ Appeal filed by the government is dismissed. No costs.
vk
To
1) 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