High Court of KeralaSingle Judge2021-12-21The writ petition is allowed; Exts. P9 and P14 ...

A.R. Sudha and Others v. State of Kerala and Others

Case / Petition Number:WP(C) NO. 6894 OF 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Murali Purushothaman
Judgment Date: 2021-12-21
Court Decision / Holding: Writ petition allowed. Exts.P9 and P14 are quashed to the extent they relate to the petitioners. The court directs that the petitioners be paid salary from January 2011 onward, subject to the outcome of the petition, effectively making the interim direction absolute. There will be no order as to costs.
Final Disposition: The writ petition is allowed; Exts. P9 and P14 are quashed to the extent they affect the petitioners. Interim order to pay salary from January 2011 onwards is made absolute. There is no order as to costs.

Parties to the Case

Appellants / Petitioners

A.R.SUDHA
R.SINDHUKUMARI
R.GOPALAKRISHNA KURUKKAL
S.RADHAKRISHNA PILLAI

Respondents

THE STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION, DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM – 695 001
THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM – 695 001
THE DEPUTY DIRECTOR (EDUCATION) KOLLAM 691 514
THE DISTRICT EDUCATIONAL OFFICER KOTTARAKARA – 691 506
THE HEADMISTRESS, D.V.V.H.S.S, THALAVOOR .P.O, PIN-691514.

Legal Representation & Advocates

Counsels for Petitioners

• Sri.M.V.BOSE
• Sri.VINOD MADHAVAN

Counsels for Respondents

• Sri.MANOJ RAMASWAMY
• K.M.FAISAL GP

Case Synopsis & Summary

This writ petition concerns four teachers (H.S.A./U.P.S.A.) at the D.V.V.H.S.S., Thavaloor, an aided school, who faced salary withholdings from January 2011 following an audit by the Director of Public Instruction (DPI) highlighting irregularities in the verification of student strength. Their appointments, approved by the relevant Educational authorities, have continued for years, but Exts. P9 and P14 directed salary withholding and later alleged recovery of excess pay in light of the DPI audit report. The petition challenges these notices on the ground that the petitioners, as teachers, cannot be held responsible for bogus admissions or irregularities in admission records, especially in the absence of specific evidence tying them to such irregularities. The petition cites Kishore V.G. v. State of Kerala and Others (2019 KHC 740) to assert that no provision in the Kerala Education Act or Rules ascribes to teachers a role in admissions; Usuvathunnisa v. Asst. Educational Officer, and Vasudevan Namboodiri v. State of Kerala are invoked to contend that audit objections do not invalidate staff fixation orders or appointment approvals, and do not justify salary recovery in the absence of proceedings under Rule 8A. The High Court ultimately finds in favor of the petitioners, quashes Exts. P9 and P14 to the extent they affect the petitioners, and directs salary payment from January 2011 onward pending the petition’s outcome, with no costs.

Provisions of Law Cited

Kerala Education Rules (KER), Chapter XIV A, Rule 8AKerala Education Rules (KER), Chapter XXIII, Rule 12E(3)Kerala Education Act

Legal Doctrines & Maxims

In the absence of specific evidence, a teacher cannot be attributed with any role in bogus admissions.
Audit objections cannot render staff fixation orders invalid or illegal, nor justify recovery of salary without proper proceedings.
Power to revise staff strength under Rule 12E(3) does not include authority to recover salary.
There is no provision under Kerala Education Rules that makes teachers responsible for admissions; absence of evidence implies no attributing of fault to teachers.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners’ counsel contends that teachers cannot be held responsible for bogus admissions or irregularities in admissions. Relying on Kishore V.G. v. State of Kerala and Others (2019 KHC 740), it is argued that there is no Kerala Education Rules provision imposing responsibility on teachers for admissions, and thus no basis to withhold or recover salaries. Usuvathunnisa v. Asst. Educational Officer supports the view that audit objections cannot invalidate prior appointments or staff fixation orders. Since no DPI proceeding under Rule 8A is shown, the petitioners’ salaries should not be recovered merely on audit. The salary cannot be denied absent specific evidence of fault by the petitioners in the irregularities noted in the audit.

Contentions of Respondents

The respondents, represented by government pleaders, argue that the DPI audit found irregularities in the verification of student strength and directed cancellation of posts and establishment sanction; Ext.P14 informed of salary recovery. The State submits that the audit reveals misstatements that require rectification and that withholding and recovery of salary reflect the consequence of those audit objections.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Kishore V.G. v. State of Kerala and Others	[2019 KHC 740]	Positive	Cited to support the proposition that teachers’ role in admissions is not defined in Kerala Education Rules and that without specific evidence, teachers cannot be held responsible for irregular admissions.
Usuvathunnisa v. Asst. Educational Officer	[1990 (2) KLT 530; 1990 KHC 423; 1990 (2) KLJ 525]	Positive	Cited to argue that audit objections cannot invalidate staff fixation orders or the appointment approvals.
Vasudevan Namboodiri v. State of Kerala	[1997 (2) KLT 529; ILR 1998 (1) Ker. 422; 1997 KHC 409]	Positive	Supports the view that DPI’s power to revise staff strength does not include power to recover salary; salary cannot be denied solely on audit objections.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943** **WP(C) NO. 6894 OF 2011** ## **PETITIONER/S:** - **1 A.R.SUDHA, H.S.A(MALAYALAM) D.V.V.H.S.S, THALAVOOR.P.O.** - **2 R.SINDHUKUMARI, U.P.S.A, D.V.V.H.S.S THALAVOOR.P.O, KOLLAM DISTRICT-691514.** - **3 R.GOPALAKRISHNA KURUKKAL, U.P.S.A, D.V.V.H.S.S.,THALAVOOR.P.O, KOLLAM DISTRICT,, PIN-691514.** - **4 S.RADHAKRISHNA PILLAI, H.S.A.(HINDI)** - **D.V.V.H.S.S,T HALAVOOR.P.O.** **BY ADVS. SRI.M.V.BOSE SRI.VINOD MADHAVAN** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION, DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM – 695 001** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM – 695 001** - **3 THE DEPUTY DIRECTOR (EDUCATION) KOLLAM 691 514** - **4 THE DISTRICT EDUCATIONAL OFFICER KOTTARAKARA – 691 506** - **5 THE HEADMISTRESS, D.V.V.H.S.S, THALAVOOR .P.O, PIN-691514.** **WP(C) NO. 6894 OF 2011 ..2..** **BY ADV SRI.MANOJ RAMASWAMY BY ADV K.M.FAISAL GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 6894 OF 2011 ..3..** ## **JUDGMENT** The petitioners are H.S.A and U.P.S.As working in the D.V.V.H.S.S., Thavaloor, which is an aided school. The first petitioner was appointed as H.S.A.(Malayalam) on 01.07.2005, the second petitioner was appointed as U.P.S.A on 01.07.2005, the third petitioner was appointed as U.P.S.A. on 06.06.2001 and the fourth petitioner was appointed as H.S.A.(Hindi) on 05.06.2001. Their appointments were duly approved by the Educational authorities and they are continuing in service ever since. 2. While so, the petitioners were issued with Ext.P9 notice by the District Educational Officer, Kottarakara (DEO), informing that the approval of their appointments is objected to in an audit by the Director of Public Instruction (DPI) (presently, the Director of **WP(C) NO. 6894 OF 2011 ..4..** General Education) and they were asked to show cause as to why their salary shall not be withheld from January, 2011. The petitioners submitted their reply to Ext.P9 notice. Later, the Headmistress of the school issued Ext.P14 notice informing the petitioners that, since certain anomalies are noted in the verification of student strength in the school done by the Deputy Director of Education for the academic year 2004-2005, the DEO has instructed to withhold their salary from January, 2011 and therefore, they will not be entitled for salary from January, 2011. Challenging Exts.P9 and P14 notices, the petitioners have approached this Court. 3. The learned Government Pleader has filed a Statement on behalf of the DEO, wherein it is stated that the DPI had conducted an audit at the office of the Deputy Director of Education, Kollam for the period from 01.10.2005 to 30.06.2006 and noticed certain **WP(C) NO. 6894 OF 2011 ..5..** irregularities in the High Level Verification file of the said office and the DPI in the audit report has directed to cancel the posts and establishment sanction to the school for the period 2005-2006 and pursuant thereto, Ext.P14 notice was issued to realise the excess pay and allowances drawn by the petitioners. 4. Heard Sri.Vinod Madhavan, the learned counsel for the petitioners and Sri. K.M. Faisal, the learned Government Pleader for the respondents. 5. Sri.Vinod Madhavan contends that the petitioners who are teachers cannot be held responsible for any bogus or irregular admissions in the school and the salary drawn by them cannot be denied or recovered. The counsel also relied on a Division Bench decision of this Court in **Kishore V.G.** _**v**_ . **State of Kerala and Others [2019 KHC 740]** wherein this Court held that, there is no provision under the Kerala **WP(C) NO. 6894 OF 2011 ..6..** Education Act or the Rules which ascribe any role to a teacher in the administration of the school or even in the process of admission of students to the school and therefore, in the absence of specific evidence, a teacher cannot be attributed with any role in the bogus admissions recorded in the admission register of the school. Therefore, the counsel contends that the petitioners cannot be attributed with any role in the alleged irregular admissions in the school and they cannot be denied salary on the basis of the audit objection. Relying on the decision in **Kishore V.G.** (supra), Sri.Vinod Madhavan contends that there is no provision under the Kerala Education Rules that provide for recovery of salary of a teacher who had worked in a sanctioned post but subsequently revised in staff fixation. **WP(C) NO. 6894 OF 2011 ..7..** 6. Sri.Vinod Madhavan also relied on the decision in **Usuvathunnisa** _**v**_ **. Asst. Educational Officer [1990 (2) KLT 530; 1990 KHC 423: 1990 (2) KLJ 525]** to contend that the audit objections cannot render the staff fixation order invalid or illegal, or render ineffective the approval of appointment of a teacher made pursuant thereto. 7. The petitioners are denied salary on the basis of an audit report alleging irregularities in the verification of student strength in the school. It is not disputed that the appointments of the petitioners were approved by the DEO and they were receiving salary in the said posts and are continuing in service in the school ever since the date of appointments. No proceedings have been initiated by the DPI under Rule 8A of Chapter XIV A of KER for revising the appointments of the petitioners. As held in **Kishore V.G.** (supra), in the **WP(C) NO. 6894 OF 2011 ..8..** absence of specific evidence, a teacher cannot be attributed with any role in the irregularities in the admission records in the school. Relying on the decision in **Vasudevan Namboodiri** _**v**_ **. State of Kerala [1997** **(2) KLT 529: ILR 1998 (1) Ker.422: 1997 KHC 409]** , the Division Bench in **Kishore V.G.** (supra) held that the power conferred on the DPI to revise the order of staff strength under Rule 12E (3) of Chapter XXIII of KER does not include power to recover loss from the salary paid to teachers. The salary of the petitioners cannot be denied or recovered merely on the basis of objection raised in the audit. Since no proceedings have been initiated by the DPI under Rule 8A of Chapter XIV A of KER for cancelling the appointments of the petitioners and since there is nothing on record to show that these teachers are in any way responsible for the irregular appointments in the school, their salary **WP(C) NO. 6894 OF 2011 ..9..** cannot be recovered on the basis of objection raised in the audit. Accordingly, Exts.P9 and P14 are set aside so far as it relates to the petitioners. This Court, by order dated 04.03.2011, has passed an interim direction to pay salary to the petitioners from January, 2011 onwards subject to the outcome of the writ petition. Since Exts.P9 and P14 orders are quashed, the said direction is made absolute. The writ petition is allowed as above. There will be no order as to costs. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB/21/12/2021 **WP(C) NO. 6894 OF 2011 ..10..** ## **APPENDIX** ## **PETITIONERS EXTS.** - **EXT.P1 TRUE COPY OF THE ORDER OF THE DPI DATED 14.7.05** - **EXT.P2 TRUE COPY OF THE ORDER DATED 13.09.05** - **EXT.P3 TRUE COPY OF THE ORDER DATED 15.12.2005** - **EXT.P4 TRUE COPY OF THE STAFF FIXATION ORDER DATED 2.7.06** - **EXT.P5 TRUE COPY FO THE STAFF FIXATION ORDER DATED 30.11.2007** - **EXT.P6 TRUE COPY OF THE STAFF FIXATION ORDER DATED 13.02.09** - **EXT.P7 TRUE COPY OF THE STAFF FIXATION ORDER DATED 31.07.09** - **EXT.P8 TRUE COPY OF THE ORDER DATED 30.11.2009** - **EXT.P9 TRUE COPY OF THE NOTICE DATED 20.01.2011 FROM THE OFFICE OF DEO** - **EXT.P10 TRUE COPY OF THE OBJECTION OF THE 1ST PETITIONER DATED 29.01.2011** - **EXT.P11 TRUE COPY OF THE OBJECTION DATED 29.01.2011 EXT.P12 TRUE COPY OF THE OBJECTION DATED 29.01.2011 EXT.P13 TRUE COPY OF THE OBJECTION DATED 29.01.2011 EXT.P14 TRUE COPY OF THE OBJECTION DATED 25.02.2011**