E.C. Indira v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933** **WP(C).No. 33823 of 2007(B)** **--------------------------** ## **PETITIONER(S):** **---------------** **E.C.INDIRA, MUSIC TEACHER,(RETIRED), A.U.P.SCHOOL, PANDEERAMKAVU, KOZHIKODE DISTRICT. RESIDING AT INDIRA BHAVAN, VALLIKUNNUPARAMBIL, P.O.PANDEERAMKAVU, KOZHIKODE-19.** **BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.T.S.SHYAM PRASANTH** ## **RESPONDENT(S):** - **---------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT. GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM.** **3. THE ASSISTANT EDUCATIONAL OFFICER, KOZHIKODE.** **4. THE MANAGER, A.U.P.SCHOOL, PANDEERAMKAVU, KOZHIKODE-19.** **R1 TO R3 BY GOVT. PLEADER SRI.NOBLE MATHEW** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON 30/11/2011 DELIVERED THE FOLLOWING:** ## **WP(C).No. 33823 of 2007** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** - **P1: COPY OF ORDER NO.SC-176/94/KKD DATED 15.7.1996 ISSUED BY THE 2 ND RESPONDENT.** - **P2: COPY OF ORDER NO.K/670/98/F DATED 4.3..1998 ISSUED BY THE 3RD RESPONDENT.** - **P3: COPY OF REVISION PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 5.9.01.** - **P4: COPY OF RELEVANT EXTRACT OF THE SERVICE BOOK OF THE PETITIONER** - **P5: COPY OF REPLY DATED 14.9.1999 VIDE NO.44391/K2/99/G.EDN. ISSUED BY THE 1 ST RESPONDENT TO PETITIONER'S HUSBAND** - **P6: COPY OF G.O(RT)NO.3503/2007/G.EDN. DATED 28.07.2007 ISSUED BY THE 1 ST RESPONDENT.** - **P7: COPY OF ORDER NO.P-04/PENA/342/GG/07-08 DATED 17.08.07 ISSUED BY THE ACCOUNTANT GENERAL** ## **RESPONDENTS EXHIBITS: NIL** ## **\\ TRUE COPY\\** ## **PA TO JUDGE** ## **JM** ## **S. SIRI JAGAN, J.** ------------------------------------------- ## W.P.(C) No.33823 of 2007 ---------------------------------------------Dated this the 3o[th] day of November, 2011 ## **JUDGMENT** The petitioner was an approved Part Time Music Teacher of the 4[th] respondent's aided U.P. School with effect from 2.6.1980. By order dated 30.10.1992, the post was converted as Full Time post with effect from 15.7.1992. Pursuant thereto, the petitioner was appointed as Full Time Music Teacher and she continued from 23.12.1992 till 30.6.1996. By Ext.P1 order dated 15.7.1996, the Director of Public Instruction directed reconversion of the Full Time post as Part Time post with effect from 15.7.1992. Pursuant to Ext.P1, the Assistant Educational Officer directed the Headmaster of the School to recover the excess amount paid to the petitioner from the petitioner. The petitioner challenged the same before this Court in O.P.No.18065/1995, in which the petitioner was relegated to the alternate remedy by way of revision before the Government. The petitioner filed Ext.P3 revision. While so, the petitioner retired W.P.(C)No.33823/07 2 from service on 31.3.2007. Subsequently the revision petition was disposed of by the 1[st] respondent by Ext.P6 order confirming Exts.P1 and P2. Now, the alleged excess amount paid to the petitioner has been withheld from the petitioner's gratuity by Ext.P7 order. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) issue a writ of certiorari or other appropriate writ, order or direction, calling for the records leading to Exts.P1, P2 and P6 and quash the same so far as the petitioner is concerned; ii) issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents to disburse the pensionary benefits sanctioned as per Ext.P7 to the petitioner with interest in case of delay.” 2. The petitioner does not dispute the fact that there was no Full time post with effect from 15.7.1992. But, the petitioner would take a contention that, that mistake should have been rectified during the very same academic year itself and the respondents having not done so, they cannot correct the mistake later. But, in view of the decision of this Court in _**Rajiv**_ v. _**State of Kerala**_ [2009(4) KLT 802], wherein this Court has held that, that limitation is not applicable in cases W.P.(C)No.33823/07 3 where the Director of Public Instruction exercises powers under Rule 12E (3) of Chapter XXIII of Kerala Education Rules, the petitioner now confines her relief for release of the amount withheld from the DCRG, since, according to the petitioner, the excess amount drawn by the petitioner cannot be recovered from the petitioner, but it has to be recovered from the Assistant Educational Officer as directed in Ext.P1 order. 3. A counter affidavit has been filed by the 3[rd] respondent supporting the impugned orders. 4. I have considered the rival contentions in detail. In Ext.P1 order, the Director of Public Instruction ultimately directs as follows in paragraph 11: “11. The conversion of the PT post into FT was ordered by the Asst.Ednl. Officer suomoto. Neither the Manager nor the Headmaster had requested for the conversion of PT post in F.T. The staff fixation file was not produced for 100% checking during 92-93. This irregularity was pointed out by the Super Check Officer on 27.7.94, before issuing fixation of staff 94-95. But the Asst. Ednl. Officer without considering this, allowed to continue the irregularity. The Manager has expressly disowned the responsibility of irregular conversion of the post and to the consequent financial lose sustained by the Exchequer. Therefore, the Asst. Ednl. Officer, Sri. N. Sasidharan, who fixed the staff strength is responsible for the irregularity and the additional financial commitment on the conversion of the P.T. - post into FT from 92 93 onwards is to be recovered W.P.(C)No.33823/07 4 ## from him. The Dy. Director (Education) Kozhikode will proceed further for effecting recovery.” ## (underlining supplied) But, in Ext.P2, the Assistant Educational Officer has directed the Headmaster to recover the excess amount paid to the petitioner from the petitioner. That is clearly against Ext.P1 order. In Ext.P1 order, there is no direction to recover the excess amount from the petitioner. On the other hand, the Director of Public Instructions has specifically directed that the excess amount has to be recovered from the Assistant Educational Officer, who alone was found guilty for the irregularity of converting the Part Time post to Full Time post. Therefore, the Assistant Educational Officer could not have directed the Manager to recover the excess amount paid to the petitioner from the petitioner contrary to Ext.P1 order. To that extent, the impugned orders are unsustainable. 5. Accordingly, Exts.P2 and P6 orders, whereby excess amounts have been directed to be recovered from the petitioner are quashed to that extent. Consequently, there would be a direction to respondents 1 and 2 to release the 5 W.P.(C)No.33823/07 amount withheld from the DCRG of the petitioner, if the amount is so withheld solely pursuant to Ext.P6. The amount so refundable shall be paid to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. ## **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.33823/07 6 W.P.(C)No.33823/07 7