B. Remadevi Kunjamma v. The District Educational Officer, Office of the District Educational Officer Mavelikkara and The Corporate Manager Travancore Devaswom Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR FRIDAY, THE 4TH DAY OF JULY 2014/13TH ASHADHA, 1936 WP(C).No. 34508 of 2010 (K) ---------------------------- PETITIONER(S): -------------- B.REMADEVI KUNJAMMA, W/O.P.K.RAJASEKHARAN PILLAI, MADATHIL HOUSE MEZHUVELI.P.O., KOZHENCHERRY, PATHANAMTHITTA (HIGH SCHOOL ASSISTANT (NS) IN DEVASWOM BOARD HIGHER SECONDARY SCHOOL, CHERIYANADU). BY ADVS.SRI.S.SUBHASH CHAND SRI.T.NIKLAVU RESPONDENT(S): ----------------- ## 1. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER MAVELIKARA 690 101. ## 2. THE CORPORATE MANAGER, TRAVANCORE DEVASWOM BOARD SCHOOLS/SECRETARY TRAVANCORE DEVASWOM BOARD, DEVASWOM BUILDING NANTHANCODE, THIRUVANANTHAPURAM - 695 001. R,R2 BY SRI.K.N.VENUGOPALA PANICKER, SC, TDB R,R1 BY GOVERNMENT PLEADER SMT.M.J.RAJASREE. R,R2 BY ADV. SRI.G.BIJU RR2 BY SRI.M.V.S.NAMBOOTHIRI, SC, TRAVANCORE DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.6.2014, THE COURT ON 04-07-2014 DELIVERED THE FOLLOWING: A P P E N D I X W.P.(C) No.34508 OF 2010 ## PETITIONER'S EXHIBITS : EXT.P1 : TRUE COPY OF TH EPROCEEDINGS dated. 29.9.2010 ISSUED BY RESPONDENT NO.2. EXT.P2 : TRUE COPY OF THE GOVERNMENT ORDER dated. 8.6.1992. EXT.P3 : TRUE COPY OF THE GOVERNMENT ORDER DT. 19.10.1982. EXT.P4 : TRUE COPY OF THE GOVERNMENT ORDER DT. 25.9.1982. EXT.P5 : TRUE COPY OF THE GOVERNMENT ORDER DT. 15.7.1983. EXT.P6 : TRUE COPY OF THE GOVERNMENT ORDER DT. 13.6.1985. EXT.P7 : TRUE COPY OF THE GOVERNMENT ORDER DT. 14.7.1993. EXT.P8 : TRUE COPY OF THE GOVERNMENT ORDER DT. 7.7.1994. TGS (TRUE COPY) ## **P.B.SURESH KUMAR, J. ---------------------------------------------W.P.(C) No.34508 OF 2010 ---------------------------------------------Dated 4[th] July, 2014.** ## **J U D G M E N T** Petitioner entered the service of Travancore Devaswom Board, a Corporate Educational Agency, as Upper Primary School Assistant (UPSA). Later, she was promoted as High School Assistant (HSA) and was working as HSA (Natural Science) in D.B.H.S.S., Parumala. During 1993-94, there was a division fall in D.B.H.S.S., Thakazhi, another school under the same management and consequently, one S.Ajayakumar, who was working as HSA (Natural Science) in that school was found surplus. As the said person was senior to the petitioner, the management should have shifted his lien to D.B.H.S.S., Parumala, by reverting the petitioner to her original post. That was not done. Instead, the management challenged the staff fixation order of D.B.H.S.S, Thakazhi before the authorities concerned. However, the challenge was not successful. Consequently, on 29/5/2004, the Management shifted the lien of S. Ajayakumar to D.B.H.S.S., Parumala, reverting the petitioner as Lower Primary W.P(C) No. No.34508/10 2 School Assistant (LPSA). The petitioner was, thereafter, accommodated by the management as LPSA in D.B.U.P.S., Mampazhathara. It appears, after sometime, the Headmaster of D.B.H.S.S., Parumala, informed the management that the petitioner had drawn a sum of `25,241/- towards the salary as HSA during the period 1993-94. Ext.P1 communication was issued, in the circumstances, by the Manager, directing the petitioner to refund the said amount. This communication of the Manager of the school, is impugned in this Writ Petition. 2. The first respondent, the District Educational Officer, has filed a counter affidavit, stating that in view of the lien adjustment made in favour of Sri.S.Ajayakumar, his office has directed the Headmaster to refund the excess salary drawn by the petitioner. 3. The learned counsel for the petitioner submitted that Ext.P1 order is issued without authority of law. He has relied on Rule 1A of Chapter XXVI of the Kerala Education Rules, and contended that only the Educational Officer concerned, shall have the power to order refund of the salary paid to teachers in excess of the amount legally due. He has also contended that, in view of W.P(C) No. No.34508/10 3 the various earlier orders issued by the Government, the staff fixation order issued by the authorities for D.B.H.S.S., Thakazhi, for the year 2003-04, is illegal. 4. The petitioner has not challenged till date, the staff fixation order issued in respect of D.B.H.S.S., Thakazhi, for the year 2003-04. She has also not challenged the order issued by the Manager shifting the lien of Sri.Ajayakumar from D.B.H.S.S., Thakazhi to D.B.H.S.S., Parumala. She has, further, not challenged the order reverting her to the post of LPSA. Instead, she was working as LPSA in D.B.U.P.S., Mampazhathara, from 29/5/2004., without any objection. As such, the petitioner cannot be heard to contend that the staff fixation order passed for D.B.H.S.S., Thakazhi for the year 1993-94, is illegal, in this proceeding instituted in the year 2010. 5. The contention of the petitioner that the Manager of the school has no authority to initiate proceedings for refund of the salary paid to teachers in excess of the amount legally due and that only the Educational Officer concerned shall have the power to order refund of the salary paid to teachers, is only academic now, as it is stated by the District Educational Officer in W.P(C) No. No.34508/10 4 the counter affidavit filed by him that he has already initiated proceedings for refund of the excess salary paid to the petitioner. 6. Be that as it may, in view of the staff fixation order of D.B.H.S.S, Thakazhi for the year 1993-94, the Manager was, though bound to shift the lien of the thrown out teacher of that school to D.B.H.S.S., Parumala, that was not done. Ext.P1 communication issued by the Manager indicates that the lien of Sri.Ajayakumar has been shifted to D.B.H.S.S., Parumala, only on 25.9.2004, about ten years after the staff fixation order. The petitioner is not responsible for the inaction on the part of the Manager. There is nothing on record to indicate that the petitioner had any communication or knowledge about the requirement of the lien adjustment. On the other hand, it is discernible from the records that the petitioner was permitted to work as HSA in Natural Science in that school during the year 1993-94 and she had worked also. 7. An identical issue arose for consideration before this Court in **Usuvathunnisa v. Asst.Educational Officer** (1990(2) KLT 530). In that case, the issue was as to whether the salary drawn by a few Arabic teachers, whose appointments had been W.P(C) No. No.34508/10 5 approved by the department, can be permitted to be recovered, when it was realised that their appointments were not liable to be approved at all. The relevant portion of the judgment reads as follows : “9. In any view of the case, the petitioner cannot be called upon at this stage to refund amounts which they have received as remuneration for service rendered in the schools. Consequent on the posts being sanctioned and on approval being granted for the appointments, the petitioners had functioned as full-time Arabic Teachers in the respective schools from the respective dates of their appointment. Having obtained the benefit of their service, based on orders for which the petitioners were not responsible, and which they had no reason to suspect were, in any manner, illegal, it is not open to the respondents subsequently to turn round and claim refund of the salary paid, branding the entire proceedings as null and void, or as illegal. The petitioners have every reason to presume that the statutory authority, namely the Assistant Educational Officer has acted legally and within the bounds of his powers and jurisdiction in sanctioning the full-time posts and in approving their appointment. As stated by Kochu Thommen, J. (as he then was) in Aleyamma v. Deputy Director, Education, l.L.R. 1982 (2) Kerala 509, every person has a right to place his trust in orders made by a competent authority in the normal course of his jurisdiction unless of course, the order is vitiated by fraud or interests of third parties are adversely affected. It is unjust and W.P(C) No. No.34508/10 6 unfair to call upon persons like the petitioners to refund amounts drawn by them, for service rendered by them, years after the event after they had acted on the faith and strength of the orders of the statutory functionary, and adjusted their affairs accordingly. When the petitioners have worked in a particular grade, (as full time teachers) and the benefit of that work has gone to the schools, it cannot be said that they did so at their own peril, with liability to refund the salary in case it was found in any subsequent collateral proceedings that the sanctioning of their posts was not legal or proper.” The petitioner in this case is similarly placed. As such, in the light of the said decision of this Court, I do not find any justification for Ext.P1 notice. The Writ Petition, in the circumstances, is allowed and Ext.P1 proceedings is quashed. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)