High Court of KeralaSingle Judge2020-02-06Writ petition disposed; Ext.P13 order set aside...

N.T. Filomina v. State of Kerala & Others

Case / Petition Number:WP(C).No.17325 OF 2017(M)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2020-02-06
Court Decision / Holding: Writ petition disposed; Ext.P13 order set aside to the extent it applies to the petitioner; it is declared that no recovery of salary can be effected from the petitioner on the basis of the 2015-16 staff fixation revision, without prejudice to the government’s right to recover losses caused to the Government from the Manager/Headmaster in accordance with law.
Final Disposition: Writ petition disposed; Ext.P13 order set aside to the extent it affects the petitioner; no recovery from the petitioner for 2015-16; right to recover losses from Manager/Headmaster reserved.”} } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } } }

Parties to the Case

Appellants / Petitioners

N.T. Filomina

Respondents

State of Kerala represented by the Secretary to Government, General Education Department, Secretariat, Thiruvananthapuram
Director of Public Instructions, Thiruvananthapuram
Deputy Director of Education, Palakkad
District Educational Officer, Palakkad
Manager, St. Francis Xavier's High School, Parisakkal, Palakkad

Legal Representation & Advocates

Counsels for Petitioners

• Adv. U. Balagangadaran

Counsels for Respondents

• Adv. Renil Anto Kandamkulyathy

Case Synopsis & Summary

Petitioner N.T. Filomina, a Lower Grade Hindi Teacher in an aided school managed by the fifth respondent, has served since 1992. Ext.P13 shows the District Educational Officer (DEO) finding lack of proper accommodation to conduct classes, leading to the closure of certain divisions and retrenchment of seven teachers, including the LG Hindi Teacher. Consequently, the DEO directed recovery of salary paid to the petitioner and others for the 2015-16 academic year. The petitioner challenged Ext.P13, arguing that she performed her duties during 2015-16 and should not be subjected to salary recovery, especially since she functioned under the staff fixation order (Ext.P8). The school had two buildings (pre-KER and post-KER); until 2014-15 both were considered for staff fixation. After inspections in 2016-17 found the pre-KER building unfit, the DEO revised staff fixation on 13.03.2017, reducing posts including three UPSA, three LPS, and one LG Hindi Teacher. The excess salary reportedly resulted from Ext.P13. The petitioner contends she discharged duties under the valid staff fixation order and cannot be penalized by a later revision. Respondents rely on Kishore v. State of Kerala, Vasudevan Namboodiri v. State of Kerala, and an unreported W.A. No.1288/2007 to justify salary recovery. The court held that the petitioner’s 2015-16 services were under a valid order and that subsequent revision cannot warrant recovery; Ext.P13’s recovery against the petitioner is set aside to that extent, while preserving rights against the Manager/Headmaster.”

Provisions of Law Cited

Kerala Education ActKerala Education Rules (KER)Rule 12E(3) of the Kerala Education Rules (KER)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that she discharged her duties as LG Hindi Teacher during the 2015-16 academic year under the staff fixation order (Ext.P8) and cannot now be subjected to salary recovery based on a revised staff fixation issued later. She argues that, since the 2015-16 services were performed under a valid order, no recovery should be directed and relies on established precedents (Kishore v. State of Kerala; Vasudevan Namboodiri v. State of Kerala; W.A. No.1288/2007) to show that a teacher cannot be penalized for administrative decisions and that recovery of salary is not provided under Rule 12E(3) of the KER.

Contentions of Respondents

The respondents contend that, due to the procurement of unfit classrooms, the pre-KER accommodation was found unsafe and a statutory staff fixation revision was necessary, reducing staff and leading to recovery of excess salary. They argue the action is grounded in administrative power to revise staff strength and that the alternative remedy of appeal/revision exists but is not a bar to recovery. They emphasize that the petition is not free of fault given the unfitness of buildings and the need to safeguard students’ safety and compliance with KER requirements.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Kishore v. State of Kerala	2019 (4) KLT 153	Positive	Cited to support the proposition that a teacher cannot be blamed for administrative decisions and salary recovery under standard staff fixation is not provided by Kerala Education Act/Rules.
Vasudevan Namboodiri v. State of Kerala	1997 (2) KLT 529	Positive	Cited to show that the power to revise staff strength does not authorize recovery of salary; authority must determine only whether subordinate orders were proper.
W.A. No.1288/2007	W.A. No.1288/2007 (unreported, 25-06-2009)	Positive	Division Bench held there is no provision enabling DPI to order recovery from Headmistress in revised staff fixation; recovery permissible only in disciplinary proceedings.

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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 N.NAGARESH** **THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** ## **WP(C).No.17325 OF 2017(M)** ## **PETITIONER:** **N.T. FILOMINA LOWER GRADE HINDI TEACHER, ST.FRANCIS XAVIER'S HIGH SCHOOL, PARISAKKAL, PALAKKAD-678001.** **BY ADV. SRI.U.BALAGANGADHARAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-695001.** - **3 THE DEPUTY DIRECTOR OF EDUCATION PALAKKAD-678001.** - **4 THE DISTRICT EDUCATIONAL OFFICER PALAKKAD-678001.** - **5 THE MANANGER ST.FRANCIS XAVIER'S HIGH SCHOOL, PARISAKKAL, PALAKKAD-678001.** **BY GOVERNMENT PLEADER SRI. RENIL ANTO KANDAMKULATHY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) No.17325 OF 2017(M)** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 6[th] day of February, 2020**_ Petitioner is an approved LG Hindi Teacher working in the aided school managed by the 5[th] respondent. She has been working there since 1992. By Ext.P13 order, the District Educational Officer found that since there was no proper accommodation to conduct classes in certain standards of the school, certain Divisions are to be closed and seven teachers are to be retrenched. Due to the fall in staff strength, the DEO found that the post of LG Hindi Teacher allotted to the 5[th] respondent school also cannot be sustained. On these premises, the DEO has directed that salary paid to the petitioner and certain other teachers and the Headmaster for the Academic Year 2015-'16 be recovered. It is challenging the said Ext.P13 order that the petitioner has filed this writ petition. 2. The 5[th] respondent's school had two buildings; one satisfying the requirements of pre-KER stipulations and the **WP(C) No.17325 OF 2017(M)** **3** other satisfying the requirements of KER. Till the year 2014-'15, both these buildings were taken into account for staff fixation and for approval of appointment of teachers. Ext.P5 would show that the nine classrooms in the pre-KER accommodation were also taken into account for fixing the staff strength. 3. The staff fixation made taking into account the pre-KER accommodation continued for the Academic Year 2015-'16 also. Ext.P8 order of the DEO would show that the nine classrooms in the pre-KER accommodation owned by the 5[th] respondent school were again taken into account for the purpose of staff fixation. 4. It appears that one Natarajan K, Palakkad, made complaints in the year 2016 against the usage of this pre-KER accommodation for classrooms as the building is unfit. On that basis, the authorities conducted an inspection and a detailed report dated 04.02.2017 was submitted to the Director of Public Instructions. Consequent to the findings contained in the report, the staff fixation for the year 2015-'16 **WP(C) No.17325 OF 2017(M)** **4** was revised by the DEO and consequently, it was found that six teachers (three in U.P. and three in L.P.) and one LG Hindi Teacher were found excess. It was on the basis of the said revised staff fixation that orders have been issued to recover the salary from the petitioner. The petitioner prayed to set aside Ext.P13 and to declare that no recovery can be made from her salary since she had discharged her duties as UPSA on the basis of the staff fixation order issued by the 4[th] respondent. 5. Respondents 1 to 4 opposed the writ petition. The 3[rd] respondent filed a counter affidavit in which it was stated that conducting classes in unfit building is illegal and hence, the DEO's re-fixation of staff strength on 30.03.2017 should be implemented. Excess salary drawn by six teachers, the petitioner and the Headmaster, should be refunded. L.P. and U.P. classes were functioning in the unfit building till 13.03.2016. On these premises, the counter affidavit justified Ext.P13 order. 6. The learned counsel for the petitioner contended **WP(C) No.17325 OF 2017(M)** **5** that the petitioner cannot be found fault with for the so-called unauthorised use of unfit building. The petitioner has discharged her duties during the Academic Year 2015-'16. After having utilised the services of the petitioner as LG Hindi Teacher, respondents 1 to 4 cannot now seek to recover salary paid to the petitioner, for no fault of the petitioner. The learned counsel relied on the judgment of this Court in _**Kishore v. State of Kerala** [2019 (4) KLT 153]_ and the unreported judgment in W.A. No.1288/2007 dated 25.06.2009. 7. The learned Government Pleader strongly opposed the petitioner and submitted that the 5[th] respondent has taken exception in accommodating children in an unfit room. It is showing the dilapidated building also that the staff fixation orders were obtained by the 5[th] respondent till the year 2015-'16. When the competent Engineers visited the school building and found that the pre-KER accommodation, which was being utilised by the school for long years, was totally unfit for accommodating students safely, the **WP(C) No.17325 OF 2017(M)** **6** respondents have taken action by way of revision of staff fixation reducing the number of standards. It was as a consequence of this statutory exercise of power that the service of the petitioner was found to be irregular and consequently, salary was sought to be recovered from the petitioner. 8. The learned Government Pleader further submitted that neither the Manager nor any of the other teachers made mention in Ext.P13 have challenged Ext.P13 order so far. The revised staff fixation order is also not under challenge. The petitioner has a statutory alternate remedy to file appeal or revision before higher educational authorities. In view of the availability of alternate remedies also, no relief can be granted in this writ petition. 9. I have considered the pleadings in the writ petition and arguments raised by the petitioner and the learned Government Pleader. 10. It is a fact that when the petitioner discharged her duties during the Academic Year 2015-'16, the staff fixation **WP(C) No.17325 OF 2017(M)** **7** order as per Ext.P8 was in force. As per Ext.P8, there was a post of LG Hindi Teacher. The petitioner has admittedly discharged the duties holding that post. The staff fixation order was revised much later on 13.03.2017, i.e. during the next Academic Year. The service rendered by the petitioner during the Academic Year 2015-'16, when a valid staff fixation order was in existence, cannot be ignored and salary paid to the petitioner during that period cannot be recovered on the basis of a revised staff fixation order issued in the subsequent year. 11. This Court also had occasion to consider such recovery of salary from teachers for no fault of the said teachers. A Division Bench of this Court in _**Kishore** (supra)_ held that there is no provision under the Kerala Education Act or the Rules which ascribe any role to a teacher in the administration of the school. This Court held that in the absence of specific evidence, a teacher cannot be attributed with any role in the administrative matters of the school. Relying on the judgment in _**Vasudevan Namboodiri v. State**_ **WP(C) No.17325 OF 2017(M)** **8** _**of Kerala** [1997 (2) KLT 529]_ , the Division Bench held that the power is given to the authorities only to revise the order of staff strength. Power to recover the loss is not given under Rule 12E(3) of the KER. What the authority is concerned is only to find out whether the order passed by the subordinate officers is proper or not. This power does not clothe the authority with the right to recover the salary paid to the teacher. 12. In the judgment in W.A. No.1288/2007, a Division Bench of this Court held that there is no provision which enables the DPI while passing a revised staff fixation order to order recovery from the Headmistress. Such recovery from the Headmistress may be permissible only as part of the disciplinary proceedings. In view of the afore judgments of this Court also, the prayer of the petitioner is liable to be granted. 13. As regards the argument of the learned Government Pleader that the petitioner has efficacious alternate remedy, I am not inclined to accept that contention **WP(C) No.17325 OF 2017(M)** **9** at this stage. The writ petition was filed on 24.05.2017 and the petitioner is to retire at the end of this Academic Year. Therefore, when the facts and the law involved in the case are clear, driving the petitioner to avail the alternate remedy will ultimately affect her claim for receiving terminal benefits in time. In such circumstances, this writ petition is disposed of setting aside Ext.P13 order to the extent it applies to the petitioner. It is declared that no recovery of salary can be effected from the petitioner on the basis of revision of staff fixation for the Academic Year 2015-'16. It is made clear that this will be without prejudice to the right of the respondents to recover any loss caused to the Government from the Manager or Headmaster of the School, in accordance with law. Sd/- **N. NAGARESH, JUDGE** aks/07.02.2020 **WP(C) No.17325 OF 2017(M)** **10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 1-6-92 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE APPROVED PLAN OF THE ST.XAVIER'S H.S. PARISAKKAL.** **EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR FITNESS CERTIFICATE FOR THE PRE-KER AND POST-KER BUILDINGS OF THE SCHOOL SUBMITTED BY THE 5TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE FITNESS CERTIFICATE FOR THE ACADEMIC YEAR 2014-2015 ISSUED BY THE ASST. ENGINEER, LSGD DEPT.** **EXHIBIT P5 TRUE COPY OF THE STAFF FIXATION ORDER DATED 15-07-2014 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE APPLICATION FOR FITNESS CERTIFICATE FOR THE ACADEMIC YEAR 2015-16 FOR THE PRE-KER AND POST-KER BUILDINGS OF THE SCHOOL SUBMITTED BY THE 5TH RESPONDENT.** **EXHIBIT P7 TRUE COPY OF THE FITNESS CERTIFICATE ISSUED BY THE ASST. ENGINEER, LSGD DEPARTMENT FOR THE POST-KER BUILDING. EXHIBIT P8 TRUE COPY OF THE STAFF FIXATION ORDER DATED 27-04-2016 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 30-32016 SUBMITTED BY THE 5TH RESPONDENT FOR FITNESS CERTIFICATE.** - **EXHIBIT 10 TRUE COPY OF THE FITNESS CERTIFICATE ISSUED BY THE ASST. ENGINEER FOR THE ACADEMIC YEAR 2016-17 FOR THE POST-KER AND NEWLY CONSTRUCTED 2ND FLOOR OF POST-KER BUILDING.** **EXHIBIT P11 TRUE COPY OF THE APPLICATION SUBMITTED BY THE 5TH RESPONDENT FOR FITNESS CERTIFICATE FOR THE ACADEMIC YEAR 2016-17 FOR THE POSTKER BUILDING INCLUDING NEW CONSTRUCTION.** **WP(C) No.17325 OF 2017(M)** **11** **EXHIBIT P12 TRUE COPY OF THE FITNESS CERTIFICATE ISSUED BY THE ASST. ENGINEER, LSGD FOR CONDUCTING CLASSES IN THE POST-KER BUILDING OF THE SCHOOL.** **EXHIBIT P13 TRUE COPY OF THE ORDER DATED 30-3-17 ISSUED BY THE 4TH RESPONDENT.**