Mala.K.R. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 20TH DAY OF MAY 2019 / 30TH VAISAKHA, 1941** ## **WP(C).No. 23356 of 2013** ## **PETITIONER/S:** ## **MALA.K.R.** **CHELLAMBITTASSERY HOUSE, PANANGAD P.O., THRISSUR DT., NOW RESIDING AT KOLLAMPARAMBIL HOUSE, P.O.OLLIVATTAM, THRISSUR DT., PIN 680123.** **BY ADVS. SRI.P.K.IBRAHIM SMT.A.A.SHIBI SMT.K.P.AMBIKA** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA GENERAL EDUCATION (E) DEPARTMENT, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN 695001.** - **2 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR-680001.** - **3 THE DISTRICT EDUCATIONAL OFFICER CHAVAKKAD-680506.** - **4 RAMAN MEMORIAL VOCATIONAL HIGHER SECONDARY SCHOOL PERINJANAM, REPRESENTED BY ITS MANAGER-680686.** ## **OTHER PRESENT:** **SRI.JESTIN MATHEW, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 23356 of 2013** 2 ## **J U D G M E N T** Petitioner, who was working as HSA (Hindi) in the 4[th] respondent School on regular appointment from 2003 onwards, was retrenched from service due to division fall occurred in the staff fixation for the year 2007-08. She is aggrieved by Exts.P4 and P5 orders by which the salary drawn by her for the period from 15.07.2007 to 14.07.2008 was directed to be refunded. 2. In the revised staff fixation for the year 2007-08 made consequent to the inspection by the Super Check Cell, there was a reduction of one post of HSA (Hindi), when Ext.P2 order was issued by the Director of Public Instructions on 24.10.2008 under Rule 12E(3) r/w Rule 16 of Chapter XXIII of KER. By Ext.P2 order, the Deputy Director of Education, Thrissur and the D.E.O., Chavakkad were directed to examine the eligibility of the teachers, if any, for protection, including application of 1:40 ratio, **WP(C).No. 23356 of 2013** 3 available to the affected teachers. 1 post of UPSA and 1 post of HSA were abolished with effect from 15.07.2007 consequent to fall in division. On the basis of Ext.P2, the DEO issued Ext.P3 order applying 1:40 ratio and retaining the excess UPSA as well as the petitioner, who was the 4[th] HSA in Hindi in the School for the year 2007-08. While retaining the petitioner in the 4[th] post of HSA (Hindi), the DEO retrenched the junior Hindi teacher Smt. M.C.Raji. 3. It is seen that Ext.P3 order issued on 27.02.2009 was challenged by the Junior Hindi teacher Smt.M.C.Raji and on the basis of direction from this Court in W.P.(C).No.21498 of 2011, the Government considered her revision petition and passed Ext.P6 order wherein it was found that retrenchment of Junior Hindi teacher was not justifiable in order to retain the 4[th] HSA in Hindi. It was stated that the ratio of 1:40 was to be applied only for avoiding retrenchment of a regular teacher and it was found **WP(C).No. 23356 of 2013** 4 unnecessary to retrench the Jr. Hindi teacher to accommodate the petitioner. In Ext.P6 the Government stated as follows: As per the order No.B6-4084/08. DD, dtd 22.02.2009 of District Educational Officer, Chavakkad, Smt.Mala K, working against 4[th] post of HSA was accommodated under 1:40 ratio and the petitioner was retrenched. 1:40 ratio is applied only for avoiding retrenchment of existing teachers. As such the accommodation of Smt.Mala under 1:40 ratio is justifiable. 4. Thereafter the Government directed review of staff fixation for Hindi during the year 2007-08 and to revise it without applying 1:40 ratio. On the basis of Ext.P6 order, the DEO issued Ext.P4 order revising the staff fixation without applying 1:40 ratio. As a result of this, only 3 posts were sanctioned for HSA (Hindi) in addition to the post of junior Hindi teacher. It was directed that the salary drawn by the petitioner for the period during which she worked on the basis of the orders passed by the DEO, on application of 1:40 ratio shall be refunded. Subsequent to Ext.P4 order, Ext.P5 letter **WP(C).No. 23356 of 2013** 5 was issued by the Headmaster on 04.09.2013 directing the petitioner to refund the amount drawn by the petitioner. 5. The 3[rd] respondent has filed a counter affidavit, stating the circumstances under which the orders for recovery were issued. In the counter affidavit it is stated that the petitioner has approved service as HSA (Hindi) with effect from 02.06.2003 onwards and that she was allowed to continue even after refixation of the staff fixation for 2007-08 applying 1:40 ratio by abolishing the post of junior Hindi and retaining 1 post of HSA (Hindi) applying 1:40 ratio. 6. It is also stated that that refixation was revised on the basis of the direction of Government in its order dated 10.01.2012 in which it was directed that 1:40 ratio shall not be applied. 7. Petitioner seeks a declaration that the recovery from salary drawn by her cannot be **WP(C).No. 23356 of 2013** 6 recovered, despite Exts.P4 to P6 orders and for a direction to the respondents not to recover the same, on the ground that she has actually worked. 8. Learned counsel for the petitioner relied on the judgment of this Court in **Kasaragod District - Co operative Bank Ltd. And Another v. Radha K.A and Another** [2016 (1) KHC 260 as well as the judgment of the Apex Court in **Syed Abdul Qadir and Others v. State of Bihar and Other** [2009 (3) SCC 475] in support of the contention that no recovery can be made once the employee has worked and salary was disbursed to him not on the basis of any misrepresentation or fraud on his part. It is pointed out that the respondents themselves had applied 1:40 ratio on the basis of which petitioner happened to work and the students were benefited. From Ext.P6, it is seen that Government had found that retention of the petitioner applying 1:40 was justifiable, but the Government directed to review **WP(C).No. 23356 of 2013** 7 staff fixation without applying 1:40 ratio. 9. Heard the learned Counsel for the petitioner and the learned Government Pleader, who argued that the claim of the petitioner is unsustainable. 10. Even though, the petitioner has not challenged the order Ext.P6, directing the respondents not to apply 1:40 ratio, it is seen that the Govt has rendered a finding that retention of petitioner applying 1:40 ratio was justifiable. 11. On consideration of the rival contentions, I find that petitioner happened to work after the revised staff fixation only on the basis of the orders issued by the DEO, that too, based on Ext.P2 order issued by DPI. She did not work based on any misrepresentation or on any act at her instance. Therefore, it would be inequitable to recover the salary drawn by her. Moreover no direction is seen in Ext.P6 to disburse salary to the other teacher. **WP(C).No. 23356 of 2013** 8 In the circumstances of the case, as it is seen that the petitioner was allowed to continue on the basis of the order issued consequent to Ext.P2, there shall be a direction to the respondents not to proceed with any action against the petitioner to recover the salary drawn by her for the academic year 2007-08. The writ petition is allowed. Sd/- **P.V.ASHA, JUDGE.** AS **WP(C).No. 23356 of 2013** 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** - **TRUE COPY OF THE PROCEEDINGS DATED 13.06.2012 OF THE 2ND RESPONDENT APPOINTING HER AS CLUSTER COORDINATOR AT GLPS, VEMBALLOOR.** - **EXHIBIT P2** - **TRUE COPY OF THE ORDER DATED 24.10.2008 OF THE DIRECTOR OF PUBLIC INSTRUCTION, KERALA RE-FIXING THE STAFF STRENGTH OF THE 4TH RESPONDENT SCHOOL.** - **EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 27.02.2009 REFIXING THE STAFF STRENGTH OF THE ACADEMIC YEAR 2007-2008 OF THE 4TH RESPONDENT'S SCHOOL.** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 16.04.2012 WHICH WAS SERVED ON THE PETITIONER ON 06.06.2012.** - **EXHIBIT P5** - **TRUE COPY OF THE COMMUNICATION FROM THE HEAD MASTER OF THE 4TH RESPONDENT SCHOOL DATED 04.09.2013.** - **EXHIBIT P6** **TRUE COPY OF THE ORDER DATED 10.01.2012 OF THE 1ST RESPONDENT.**