Lenisha K.M. and Raseena A. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** ## **WP(C).No.9502 OF 2011(K)** ## **PETITIONER/S:** |**1**|**LENISHA K.M.,**| |---|---| ||**ARAYAKKANDY HOUSE,, KALLIKKANDI P.O.,**| ||**KANNUR DISTRICT.**| |**2**|**RASEENA A.,**| ||**AMMARATH HOUSE, THIRUVALLOOR P.O.,**| ||**VATAKARA, KANNUR DISTRICT.**| ||**BY ADVS.**| ||**SRI.GEORGE POONTHOTTAM (SR.)**| ||**SMT.NISHA GEORGE**| ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REP. BY THE SECRETARY TO GOVERNMENT,**| ||**GENERAL EDUCATION (J) DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-01.**| |**2**|**THE DISTRICT EDUCATIONAL OFFICER,**| ||**THALASSERY, KANNUR DISTRICT.**| |**3**|**THE ASSISTANT EDUCATIONAL OFFICER,**| ||**CHOKLI, KANNUR DISTRICT.**| |**4**|**THE HEADMISTRESS,**| ||**MENAPRAM L.P.SCHOOL, CHOKLI P.O.,**| ||**KANNUR DISTRICT.**| ||**R1 TO R3 - SRI. JESTIN MATHEW, GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)No.9502 of 2011** **2** ## **JUDGMENT** This writ petition is filed by the petitioners who are working as teachers in Menapram L.P. School, Chokli, Kannur District, i.e., the 4[th] respondent herein, seeking to quash Ext.P14 communication of the the 3[rd] respondent, i.e., the Assistant Educational Officer, Chokli, whereby the Headmistress of the school was directed on the basis of Local Audit Report for the period 2008-2010 that, though the school was converted into an uneconomic school, by bogus admission, facilitated the appointment of two fresh teachers in the retirement vacancies in 2009-2010, and therefore, the pay and allowances drawn by the petitioners worked out to to be Rs.3.95 lakhs approximately, is recoverable from the petitioners, and steps may be taken for refund of the amount. It was further directed the Headmistress to stop claiming salary and other allowances to the petitioners. Petitioners also seek to quash the Audit Report specified above. 2. I have heard learned counsel for the petitioners and the learned Government Pleader, and perused the pleadings and the documents on record. **W.P.(C)No.9502 of 2011 3** 3. The paramount contention advanced by learned counsel for the petitioners is that, due to the fact that the school was treated as uneconomic during the academic year 2008, their appointments were not approved. However, when the school became economic in the next academic year, petitioners were given fresh appointment orders and they were duly approved by the educational authorities. However, the new incumbent to the temporary vacancy of Headmistress with a view to make it appear that the school was uneconomic, warranting the removal of newly appointed teachers, removed 40 students from the rolls and submitted report stating untrue facts. It is also pointed out that, even though several visits were held by the officers of the Department, none of them had a case that the school authorities resorted to any bogus admissions. Further, the Headmistress was suspended by the Manager, which was approved by the educational authorities and suspension beyond the period of 15 days was also allowed. The educational authorities have also permitted the school to re-induct the students who were removed from the rolls wrongly, and it is much thereafter that an audit report is filed based on the report of the Headmistress, which was found to be **W.P.(C)No.9502 of 2011** **4** incorrect by the educational authorities. 4. Therefore, according to the petitioners, the audit report is issued without reference to true facts and as such it is liable to be quashed. That apart, it is contended that, the approval of appointment granted in accordance with the provisions of the K.E.R. cannot be invalidated on the basis of the audit report, and there is no power vested with the Audit officials to sit over the orders of the educational authorities with respect to approval of appointment. Therefore, petitioners seek to quash Exts.P14 and P15. 5. It is also clear that, Ext.P14 was issued on the basis of Ext.P15 Audit Report. It is equally important to note, in the circular issued by the Government of Kerala dated 28.03.1996, produced as Ext.P17, it is stipulated that any objection or observation of the Accountant General (Audit) in a (Local) (Audit) Enquiry or report should not by itself be the cause of action for the Departmental Officers to resort to recovery of amounts or stoppage of salary, and objection or observation contained in the enquiry or report should be the basis for independent remedial action. If convinced after scrutiny, the Departmental Officers can take action on their own and not because **W.P.(C)No.9502 of 2011** **5** the point has been mooted by the Accountant General (Audit). It is further stipulated that, if, on the other hand, they are not fully satisfied of the correctness of the objection, they should report to the Accountant General stating the factual position, duly supported by the orders, rules, if any relevant, on the subject. 6. It is also interesting to note that, it is further stipulated that, the Departmental Officers on no account deny or withhold pay and allowances of staff solely because an irregularity in respect of an order or a direction of the Government has been noticed in audit, and in such a case, the Departmental Officers should reply to audit stating more facts, if any, or the relevant rules which would render the orders/directions of the Government valid. It is also stipulated that, if they are unable to do so the Departmental Officers may bring the facts of the case along with the audit observations to the notice of the Government for issuance of further appropriate orders or directions. In accordance with the stipulations, all Educational Officers are directed to follow the instructions scrupulously. **W.P.(C)No.9502 of 2011 6** 7. Therefore, taking into account the facts and circumstances of the case, it is clear that petitioners appointments were approved as per Exts.P8 and P9 orders. It is also equally clear from Rule 8 of Chapter 14-A K.E.R, the Manager of the school shall forward three copies of appointment order signed by the Manager and the teacher, to the Educational Officer for approval together with such details, particulars and documents as may be required by the Director, within fifteen days from the date of effect of the staff fixation order by which the additional posts are sanctioned or within fifteen days from the date of joining duty of the candidates, whichever is later, in the manner prescribed by the Director. If the said imperatives are not complied with by the Manager, other consequential action is provided as per Rule 8. 8. On a deeper analysis of the subject issues involved in this writ petition, I am of the considered opinion that, the Audit authorities have no role to play in the matter of appointment of staff in an Aided School. The discussion made above would make it clear that, the appointment of the petitioners were approved by the educational authorities and mere verification of the records by the Audit party cannot interfere with **W.P.(C)No.9502 of 2011** **7** the approval of the petitioners by the authorities in accordance with the provisions of K.E.R. Therefore, the action taken by the Assistant Educational Officer merely on the basis of Audit report, overlooking the provisions of the K.E.R and the circular issued by the Government referred to above, to tackle the situations in the General Education Department cannot be sustained under law. It is also equally important to note that the Assistant Educational Officer has not conducted any independent enquiry on the basis of the Audit Report. 9. In this regard, the judgment of this Court in ' _**Usuvathunnisa v. Asst. Educational Officer**_ ' [1990 KHC 423] assumes relevance and paragraph 6 read thus: “6. _I find it difficult to accept the contentions of the learned Government Pleader for more than one reason. Sanction for the post of full-time Arabic Teacher in the two schools had been granted in the year 1982-83 and that had continued upto the year 1985-86. The appointment of the petitioners to these posts had also been approved. Power to review an order has to be expressly conferred. The Assistant Educational Officer has not been vested with any power of review under the Education Act or the Rules. He has no power to set aside an order of staff fixation made by him, on the ground that it is not in accordance with the rules. That power rests elsewhere. The only authority who could act suo motu to set right the illegality by exercising a power of revision, is the Director of Public Instruction under R.12E(3) of Chapter XXIII of the Rules. He has not acted so far in this matter. The audit objections raised by the Accountant General cannot render the staff fixation order invalid or illegal, or render ineffective the approval of appointment of a_ **W.P.(C)No.9502 of 2011** **8** _teacher made pursuant thereto. The Accountant General can only point out the illegality in the proceedings. His objections cannot have the effect of nullifying orders of proceedings taken by the statutory authorities. Therefore, it was illegal on the part of the Assistant Educational Officer to have acted on the basis of the audit report of the Accountant General and treated his prior proceedings sanctioning the full-time Arabic teachers’ posts as null and void and directing recovery of the salary paid to the petitioners. On this short ground, the directions issued by the first respondent Assistant Educational Officer, namely Ext.P2 in O.P. No. 9273 of 1985, and Ext.P4 and the consequential order Ext.P3 in O.P. No. 9381 of 1985 have to be quashed._ Similar is the proposition laid down in ' _**Somanatha Panicker v. State of Kerala**_ ' [1997 KHC 54 : 1997 (1) KLT 305]. 10. Taking into account all these aspects, I am of the considered opinion that, petitioners are entitled to succeed in this writ petition. Therefore, the writ petition is allowed and the order of the Assistant Educational Officer, viz., Ext.P14 is herewith quashed, and hold that Ext.P15 audit report shall not have any adverse consequences so as to affect the approval of the petitioners and any of the service benefits as provided under the Kerala Education Rules and any Government Orders. Anyhow, when the writ petition was admitted to the files of this Court, an interim order was passed on 08.04.2011, staying the operation of the **W.P.(C)No.9502 of 2011 9** Audit Report as well as the order of the Assistant Educational Officer, and the salary of the petitioners were directed to be paid from time to time, which was extended until further orders on 02.06.2011. 11. I make it clear that, if in any manner petitioners are entitled to get any pay and other benefits on account of the order of the Assistant Educational Officer, as well as the Audit Report, the same shall also be paid to the petitioners without any further delay and within one month from the date of receipt of a copy of this judgment. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** **St/-14.11.2019** **W.P.(C)No.9502 of 2011** **10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 02/06/08 ISSUED TO THE 1ST PETITIONER BY THE 4TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 02/06/08 ISSUED TO THE 2ND PETITIONER BY THE 4TH RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 15/07/2008.** - **EXHIBIT P4 TRUE COPY OF THE ORDER NO.C-3013/2008 DATED 15/09/2008 REFUSING APPROVAL OF THE 1ST PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE ORDER NO.C-3014/2008 DATED 15/09/2008 REFUSING APPROVAL OF THE 2ND PETITIONER.** **EXHIBIT P6 TRUE COPY OF THE ORDER NO.B5-9571/08 DATED 21/04/2009. EXHIBIT P7 TRUE COPY OF THE ORDER NO.B5-9567/08 DATED 26/03/2009. EXHIBIT P8 TRUE COPY OF THE APPOINTMENT ORDER DATED 01/06/09 ISSUED TO THE 1ST PETITIONER. EXHIBIT P9 TRUE COPY OF THE APPOINTMENT ORDER DATED 01/06/09 ISSUED TO THE 2ND PETITIONER. EXHIBIT P10 TRUE COPY OF THE ORDER NO.DDI S. 2640/2009/C DATED 15/07/09. EXHIBIT P11 TRUE COPY OF THE ORDER NO.DDI S.2443/2010/C DATED 13/10/10. EXHIBIT P12 TRUE COPY OF THE ORDER NO.C-1942/2010 DATED 13/10/2010. EXHIBIT P13 TRUE COPY OF THE ORDER NO.C-1942/2010 DATED 01/12/2010. EXHIBIT P14 TRUE COPY OF THE LETTER NO. B-10/2011 DATED 20/01/2011.** **W.P.(C)No.9502 of 2011 11** - **EXHIBIT P15 TRUE COPY OF THE RELEVANT PORTIONS OF THE AUDIT REPORT, SENT ALONG WITH EXT.P14.** - **EXHIBIT P16 TRUE COPY OF THE LETTER DATED 24/01/2011. EXHIBIT P17 TRUE COPY OF THE CIRCULAR NO.2/96/G.EDN. DATED 28/03/1996.** - **EXHIBIT P18 TRUE COPY OF THE ORDER NO-DEE.THEE. (MAL).D/50155/2019 DATED 15.7.2019 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER.** - **EXHIBIT P19 TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 1.4.2019.** - **EXHIBIT P20 TRUE COPY OF THE ORDER NO.D/1214/2019 DATED 30.5.2019 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER.** - **EXHIBIT P21 TRUE COPY OF THE ATTENDANCE REGISTER FOR THE MONTH OF SEPTEMBER 2010 OF THE SCHOOL.** - **EXHIBIT P22 TRUE COPY OF THE SUSPENSION ORDER NO.MLPS1/10 DATED 30/09/2010 ISSUED BY THE MANAGER, MENAPRAM L.P. SCHOOL.** - **EXHIBIT P23 TRUE COPY OF THE ORDER NO.R.A.(3) 25750/11/D.P.I./D.DIS DATED 23/11/2011 PASSED BY THE JOINT DIRECTOR OF GENERAL EDUCATION.** - **EXHIBIT P24 TRUE COPY OF THE ORDER NO.D.DIS C-1103/2011 DATED 09/01/2012 PASSED BY THE ASSISTANT EDUCATIONAL OFFICER, CHOKLI.** ## **RESPONDENTS' EXHIBITS: NIL**