Hani Das v. State of Kerala & others (WA No. 1935 of 2014 against WPC 4552/2009, High Court of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 09TH DAY OF AUGUST 2019 / 18TH SRAVANA, 1941** ## **WA.No.1935 OF 2014** ## **AGAINST THE ORDER/JUDGMENT IN WPC 4552/2009 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** **HANI DAS AGED 37 YEARS W/O. T. RAJAN, UPPER PRIMARY SCHOOL ASSISTANT, K.R.K. P.M. BOYS HIGH SCHOOL KADAMBANAD, PATHANAMTHITTA-691552.** **BY ADV. SRI.M.SAJJAD** ## **RESPONDENT/S:** - **1 SMT.P.G.SUSAMMA HEADMISTRESS(RETIRED FROM K.R.K. P.M. BOYS HIGH SCHOOL) KADAMPANADU, PATHANAMTHITTA DISTRICT(RESIDING AT MELROSE, KANNAMCODU, ADOOR.P.O., PATHANAMTHITTA DISTRICT.)** - **2 THE DISTRICT EDUCATIONAL OFFICER KOTTARAKKARA KOLLAM DISTRICT-691508.** - **3 THE DEPUTY DIRECTOREDUCATION KOLLAM-691001.** - **4 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695014.** - **5 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **6 SMT. C. KALA H.S.A.(MALAYALAM), K.R.K.P.M. BOYS HIGH SCHOOL KADAMBANAD, PATHANAMTHITTA-691552.** _**WA.1935/14**_ 2 **7 THE MANAGER KRKPM BOYS HIGH SCHOOL, KADAMPANADU, PATHANAMTHITTA.** ## **R1 BY ADV. SRI.M.V.THAMBAN** ## **OTHER PRESENT:** **SR.GP SRI.A.J.VARGHESE** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** --------------------------------------------------- W.A.No. 1935 of 2014 --------------------------------------------------Dated this the 9[th] day of August, 2019 ## **JUDGMENT** ## _**Arun, J**_ The appellant was the 6[th] respondent in the writ petition. The writ petition was filed by the Headmistress of the K.R.K.M Boys High School, Kadambanad (for short, 'the School'), who had retired from service on 31.5.2007. The grievance highlighted in the writ petition was with regard to the non-disbursal of DeathCum-Retirement Gratuity (DCRG) amounting to Rs.3,30,000/due to the petitioner. The alleged reason for such non disbursal was that the Headmistress is responsible for the salary paid to certain teachers of the School, who were subsequently found to be in excess of the student strength, in an inspection conducted by the Super Check Cell attached to the Office of the Director of Public Instructions (DPI). 2. As per Ext.P1 staff fixation order for the year 20052006, there were 18 teachers in the High School Section and 13 in the Upper Primary sections of the School. In addition, there was one Lower Grade Hindi Teacher and one Lower Grade Sanskrit Teacher. In the surprise inspection conducted on 25.11.2005 by the Super Check Cell, bogus admissions were _**WA.1935/14**_ 4 found out and consequently, Exhibit P2 revised staff fixation order dated 9.5.2006 was issued. Under the revised staff fixation order, the 18 divisions in the High School section was reduced to 15 and the number of UPSAs was reduced to 10 from the existing 13. Thus, five teachers were found to be in excess and retrenched. The appellant is one among the retrenched UPSAs. The DPI held the then Headmistress/the writ petitioner to be responsible for the bogus admissions and directed recovery of the salary paid to the five retrenched teachers from the writ petitioner. The writ petitioner submitted Exhibit R3(a) letter informing the District Educational Officer that the retrenched teachers were willing to repay the salary received by them and that the writ petitioner need be issued with non-liability certificate or liability certificate only on such repayment being effected. The prayer in the writ petition was for a declaration that the petitioner cannot be mulcted with the liability for the salary paid to the teachers on the basis of the staff fixation orders upto the date of revised staff fixation and if at all any excess payment is found, the same should be recovered from the teachers who had worked in the excess posts till their retrenchment. The further prayer was for issue of non-liability certificate to the petitioner and to disburse the DCRG due to her. 3. The educational authorities contended that the Headmistress is the person authorised to maintain the school records including _**WA.1935/14**_ 5 admission register of pupils, based on which division and posts are sanctioned by the Departmental authorities. Hence, the Headmistress is responsible for the irregular divisions and posts obtained through bogus admissions and therefore, the person liable to refund the excess salary received by the retrenched teachers. 4. By the time the writ petition was filed, three among the five teachers retrenched pursuant to the inspection by the Super Check Cell and revision of the staff pattern, had repaid the excess salary. Only the appellant and another teacher, Smt.C.Kala, refused to repay the amount. The learned Single Judge, after an elaborate consideration of the duties and functions of the educational authorities and the Headmasters of Schools, with respect to the staff fixation for each year, found that the responsible officer in the office of the District Educational Officer had failed to give effect to the revised staff fixation order dated 9.5.2006. Consequently, it was directed to issue nonliability certificate to effectuate disbursal of gratuity to the writ petitioner at the earliest. Taking note of the fact that three teachers had repaid the salary received by them and that the appellant and the other teacher were re-appointed in the same School, the learned Single Judge directed the Drawing and Disbursing Officer to give notice to the appellant and the other teacher and after hearing, to refund the amount. The appellant is aggrieved by the above finding in the judgment. _**WA.1935/14**_ 6 5. Learned counsel for the appellant contended that the appellant had worked as UPSA in the school on the strength of Exhibit P1 staff fixation order and that by the time Exhibit P2, the revised staff fixation order was issued on 25.11.2006, one academic year was over and the appellant had continued in the post and had received salary. It is submitted that the appellant was not responsible for the bogus admissions, if any, and that there is no provision under the Kerala Education Act and Rules empowering recovery of salary from retrenched teacher. 6. The absence of provision regarding recovery of salary from the teachers under the Kerala Education Act and Rules, otherwise than by way of disciplinary proceedings, was considered by this Court in _**Vasudevan Namboothiri v. State of Kerala**_ [1997 (2) KLT 529]. No one has a case that the appellant was in any manner responsible for the bogus admissions. The appellant had worked as UPSA on the strength of a valid staff fixation order. Merely for the reason that the staff fixation order was revised at a later date, finding certain admissions to be bogus, the teachers, who are retrenched consequent to the revision of staff fixation, cannot be mulcted with monetary liability. They have received salary for the work they had done, which cannot be termed as excess salary. 7. The staff fixation orders are to be issued by the Educational Authorities but on the staff strength requirement of a school. The _**WA.1935/14**_ 7 responsibility to communicate the staff strength required on the basis of the student strength is that of the Headmaster as provided in Rule 12 (1) (ii) (1) of Chapter XXIII of the KER. Hence the responsibility for initiating the process of generation of staff fixation orders is primarily on the Headmaster. A recovery of the salary paid to teachers thrown out, as such, without anything more, on reduction of staff strength, by reason of a higher verification or surprise check, is not possible. But it is judicially recognised that a disciplinary enquiry can be proceeded with against the Headmaster and on responsibility for furnishing false information being proved, recovery can also be effected. But this was not done in the present case and the State was a mere spectator in the writ proceedings; albeit a silent one at that. The HM in this case also retired and there is no possibility of taking any disciplinary proceedings against her. 8. The Government Pleader has a further contention that the recovery against the teacher is as per Rule1A of Chapter XXVI of the KER. Chapter XXVI has the heading 'Scales of Pay of Aided School Teachers'. Rule 1A confers the power to order refund, on the Educational Authorities, in appropriate cases, of salary paid to teachers in excess of what is legally due or irregularly paid. It is the argument that the salary paid herein is irregular and illegal. We cannot agree, since the said recovery is only if there is a irregular or illegal fixation of salary to any teacher. It also goes without saying that the _**WA.1935/14**_ 8 refund in such appropriate cases has to be by a reasoned order after notice and affording a reasonable opportunity of being heard. Nothing of that sort transpired here. 9. The fact that some of the retrenched teachers repaid the salary or that the appellant got reappointed in the same school would not empower the educational authorities to direct recovery from the teachers salary. Therefore, the direction in the impugned judgment to the Drawing and Disbursing officer to effect refund of the salary received by the petitioner during the period which she was found to have worked in an excess post is unsustainable. In the result, the writ appeal is allowed setting aside the impugned judgment, to the extent it directs recovery of the salary received by the appellant during the currency of Exhibit P1 staff fixation order. No order as to costs. Sd/- **K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** _vgs_ _**WA.1935/14**_ 9