High Court of KeralaSingle Judge2012-01-04Writ petition allowed; no costs.

K.M. Johny v. State of Kerala and others

Case / Petition Number:WPC.No.23541/2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T. R. Ramachandran Nair
Judgment Date: 2012-01-04
Court Decision / Holding: Writ petition allowed; Ext.P2 and Ext.P12 to the extent they direct recovery against the petitioner are quashed. The Court held that recovery cannot be ordered solely on Ext.P2 and that any recovery must be through disciplinary action, with the petitioner free to resist in such proceedings. No costs.
Final Disposition: Writ petition allowed; no costs.

Parties to the Case

Appellants / Petitioners

K.M. Johny, Headmaster, A.R. Nagar High School, Chendapuraya, Malappuram District

Respondents

The State of Kerala, rep. by the Secretary to Government, General Education Department, Secretariat, Thiruvananthapuram
The Director of Public Instruction, Jagathy, Thiruvananthapuram-14
The District Educational Officer, Tirur Malappuram District
The Manager, A.R.Nagar High School, Chendapuraya, Post A.R. Nagar-676 305, Malappuram District

Legal Representation & Advocates

Counsels for Petitioners

• Sri.V.A. Muhammed
• Sri.K.E.Hamza

Counsels for Respondents

• Smt.Lowcy.A.R. (Government Pleader)
• Sri.K.Saneesh Kumar (Advocate for R4)

Case Synopsis & Summary

This writ petition, filed by K.M. Johny, the Headmaster of A.R. Nagar High School, challenges DPI Ext.P2 which directed reduction of class divisions and fixed liability against him with direction to recover the loss, and Ext.P12 where the Government concurred with the DPI. For the 2007-2008 academic year, the school had 97 divisions; a Special Cell visit led to reduction of one class division each in Standards V, VII, VIII, IX, resulting in the loss of two Primary Teacher posts and two High School Assistant posts. The core issue is whether Ext.P2 aligns with Rule 12E(3) of Chapter XXIII of the Kerala Education Rules and whether the Director of Public Instruction can fix liability against the petitioner with a recovery directive. The court cites Vasudevan Namboodiri v. State of Kerala (1997 (2) KLT 529) to emphasize that recovery from a Headmaster is permissible only after liability is fixed in disciplinary proceedings, a stance echoed in Ext.P16 (OP 1964/1994-H) and Ext.P17 (WA 1288/2007). The Government’s concurrence via Ext.P12 is discussed. Ultimately, Ext.P2 and P12 to the extent of recovery are quashed; the court holds that recovery cannot be ordered solely on Ext.P2. If disciplinary action is pursued, the petitioner may challenge it with all available legal grounds, and the petition is allowed without costs.

Provisions of Law Cited

Rule 12E(3) of Chapter XXIII of the Kerala Education Rules

Legal Doctrines & Maxims

Recovery from Headmaster only after liability is fixed in disciplinary proceedings (Vasudevan Namboodiri v. State of Kerala, 1997 (2) KLT 529)
No recovery shall be ordered solely on Ext.P2; any recovery must be ordered in disciplinary proceedings (as clarified in WA 1288/2007)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues Ext.P2 and Ext.P12 to the extent of directing recovery against him are unsustainable since recovery from a Headmaster can only be effected through disciplinary action after fixing liability, as laid down in Vasudevan Namboodiri v. State of Kerala. The petition relies on prior judgments (Exts.P16, P17) and contends that no recovery should be ordered solely on Ext.P2; any recovery must be in the context of disciplinary proceedings.

Contentions of Respondents

The respondents contend that Ext.P2 is a valid DPI order and Ext.P12, by Government concurrence, reflects compliance with Rule 12E(3). They argue that liability can be fixed and recovery directed in appropriate proceedings and that Ext.P12 supports the DPI’s action.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
Vasudevan Namboodiri v. State of Kerala	1997 (2) KLT 529	Positive	Court relied on this decision to hold that recovery from a Headmaster is permissible only after liability is fixed in disciplinary proceedings.
O.P. No. 1964/1994-H	OP No. 1964/1994-H	Positive	Ext.P16 follows Vasudevan Namboodiri, reinforcing the disciplinary-action requirement for recovery.
W.A. No.1288/2007	W.A. No.1288/2007	Positive	Division Bench held that no recovery shall be made from the appellant solely based on Ext.P2, aligning with the disciplinary-action approach.
Decision reported in 2004(2) KLT 1051	2004(2) KLT 1051	Mentioned Only	Listed as an exhibit; not discussed or analysed in the judgment.
O.P.No.11829 of 2003-G	OP No.11829/2003-G	Mentioned Only	Referenced via P16; not elaborated in the judgment.
WP(C) No.8162/2009-M	WP(C) No.8162/2009-M	Mentioned Only	Exhibit P10; cited as related but not analysed.

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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 T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 4TH DAY OF JANUARY 2012/14TH POUSHA 1933** **WPC.No. 23541 of 2009 (K)** **=========================** ## **PETITIONER(S)** - **=============** **1. K.M.JOHNY, AGED 44 YEARS, S/O.K.V.MANI, HEADMASTER,** - **A.R.NAGAR HIGH SCHOOL, CHENDAPURAYA,** - **P.O. A.R.NAGAR-676 305, MALAPPURAM DISTRICT.** **BY ADV.SRI.V.A.MUHAMMED** **SRI.K.E.HAMZA** ## **RESPONDENT(S)** - **=============** **1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-14.** **3. THE DISTRICT EDUCATIONAL OFFICER,TIRUR MALAPPURAM DISTRICT.** **4. THE MANAGER, A.R.NAGAR HIGH SCHOOL, CHENDAPURAYA, POST A.R. NAGAR-676 305, MALAPPURAM DISTRICT.** - **R1 TO R3 BY GOVERNMENT PLEADER SMT.LOWCY.A R4 BY ADV. SRI.K.SANEESH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.23541/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE ORDER OF THE DIST.EDUCATIONAL OFFICER, DATED 29/12/2007.** - **P1(A) COPY OF THE ORDER NO.D.DIS.BI/6014/07 OF -DO- DATED 05/03/2008.** - **P2 COPY OF THE ORDER NO.SC-134/07-08/KKD OF THE 2ND RESPONDENT, DATED 02/12/2008.** - **P3 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.NO.1964/1994-H, DATED 24/09/1996.** - **P4 COPY OF THE G.O.(RT)NO.4096/97/G.EDN OF THE GOVERNMENT, DATED 24/11/1997.** - **P5 COPY OF THE G.O.(RT)NO.1186/2000/G.EDN OF -DO- DATED 25/03/2000.** - **P6 COPY OF THE G.O.(RT)NO.1751/2000/GE OF -DO- DATED 03/05/2000.** - **P7 COPY OF THE G.O.(RT)NO.4571/2000/GE OF -DO- DATED 10/11/2000.** - **P8 COPY OF THE G.O.(RT)no.4620/2000/GE OF -DO- DATED 16/11/2000.** - **P9 COPY OF THE DECISION REPORTED IN 2004(2) K.L.T.1051, DATED 26/02/2004.** - **P10 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C)NO.8162/2009-M, DATED 06/07/2009.** - **P11 COPY OF THE ORDER NO.RA(1) 67927/90/L.DIS/DPI OF THE 2ND RESPONDENT, DATED 09/10/1990.** - **P12 COPY OF THE G.O.(RT)NO.2771/2009/G.EDN OF THE GOVERNMENT, DATED 07/07/2009.** - **P13 COPY OF THE ORDER IN WP(C)NO.23520/2006, DATED 05/06/2007.** - **P14 COPY OF THE ORDER IN WP(C)NO.27659/2006, DATED 05/06/2007.** - **P15 COPY OF THE ORDER IN WP(C)NO.17739/2006, DATED 05/06/2007.** - **P16 COPY OF THE JUDGMENT IN O.P.NO.11829 OF 2003-G DATED 20/10/2006.** - **P17 COPY OF THE JUDGMENT IN W.A.NO.1288/2007 DATED 25/6/2009.** **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** **sts** **P.A.TO.JUDGE** ## **T.R. RAMACHANDRAN NAIR, J.** **--------------------------------------W.P.(C) No.23541 OF 2009 --------------------------------------Dated this the 4[th] day of January, 2012.** ## **J U D G M E N T** This writ petition is filed by the petitioner who is working as Headmaster of A.R. Nagar High School, Chendapuraya in Malappuram District aggrieved by the proceedings Ext.P2 to the extent to which there is a direction to fix the liability against the petitioner and to recover the amount from him. 2. The facts of the case are not in dispute. The school was having 97 divisions from Standards I to X for the academic year 2007-2008 and 97 class divisions were sanctioned by the District Educational Officer as per Exts.P1 and P1(a) orders. On the basis of the visit of the Super Check Cell, the Director of Public Instruction passed Ext.P2 order modifying the staff fixation. It was found that one class division each in Standards V, VII, VIII and IX have to be reduced which results in reduction of two posts of Primary Teachers and two posts of High School Assistants. **W.P.(C) No.23541/2009** **2** 3. When the matter was taken up before the Government, the Government was also concurred with the view of the Director of Public Instruction by Ext.P12 order. Regarding the findings in the order passed by the Director of Public Instruction, it can be seen that various aspects have been considered in Ext.P12. The limited question that arises for consideration is whether the proceedings under Ext.P2 issued by the Director of Public Instruction is in tune with Rule 12E(3) of Chapter XXIII of Kerala Education Rules and whether Director of Public Instruction can fix liability against the petitioner with a further direction to recover the amount. 4. The legal position as above is clear from the decision of this Court in _**Vasudevan Namboodiri** vs._ _**State of Kerala**_ (1997 (2) KLT 529). Therein the view taken is that as far as the Headmaster is concerned, recovery can be made after fixing the liability, in a disciplinary action. 5. Learned counsel for the petitioner invited my attention to the judgments of this Court namely, Exts.P16 and P17 wherein also similar questions have been addressed. In Ext.P16 **W.P.(C) No.23541/2009** **3** judgment, following the judgment in _**Vasudevan Namboodiri** vs._ _**State of Kerala**_ (1997 (2) KLT 529), it was held that otherwise than by the disciplinary action no recovery can be made from the Headmaster. Ext.P17 is the judgment of a Division Bench of this Court in Writ Appeal No.1288/2007. Therein, in paragraph 2, it was held as follows: “No provision has been brought to our notice, which enables the DPI while passing an order in the nature of Ext.P2 to order recovery from the Headmistress, the loss suffered by sanction of additional class divisions, given based on bogus admissions of students. It may be permissible to recover loss from the Headmistress as part of the disciplinary proceedings. So, no recovery shall be made from the appellant solely based on Ext.P2. We clarify this legal position and dispose of the Writ Appeal. If, in the disciplinary action, any recovery is ordered, the appellant will be free to resist it raising all the contentions available to her under law”. In the light of the above, Exts.P2 and P12 to the extent to which it directs recovery as against the petitioner of the loss suffered due to sanction of additional divisions cannot survive. **W.P.(C) No.23541/2009** **4** Accordingly, they are quashed to that extent alone. If any disciplinary action is initiated, the petitioner will be free to resist the same by taking suitable grounds. This writ petition is allowed as above. No costs. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp