Sajeena Kolathoorkandiyil v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR FRIDAY, THE 4TH DAY OF JULY 2014/13TH ASHADHA, 1936 ## WP(C).No. 10542 of 2013 (P) ---------------------------- PETITIONER(S): ## -------------- SAJEENA KOLATHOORKANDIYIL HIGH SCHOOL ASSISTANT (HSA) MALAYALAM V.M.H.M.H.S.ANAYAMKUNNU ON PROTECTION AT BLOCK RESOURCES CENTRE (BRC) KUNNAMANGALAM, KOZHIKODE DISTRICT. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT(S): --------------- ## 1. THE STATE OF KERALA REP. BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN-695001. ## 2. THE DEPUTY DIRECTOR OF EDUCATION KOZHIKODE-673001 ## 3. THE DISTRICT EDUCATIONAL OFFICER THAMARASSERY, KOZHIKODE DISTRICT-673572. ## 4. THE BLOCK PROJECT OFFICER BRC, KUNNAMANGALAM, POST MANNASERRY MUKKAM, KOZHIKODE DISTRICT-673602. R1 -R 3 BY ADV. GOVERNMENT PLEADER SMT.M.J.RAJASREE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-06-2014, THE COURT ON 04.07.2014 DELIVERED THE FOLLOWING: WP(C).No. 10542 of 2013 (P) ---------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1: COPY OF THE APPOINTMENT ORDER IN FORM 27 DATED 9.8.1999 ALONG WITH THE PROCEEDINGS OF APPROVAL DATED 5.5.2003 EXHIBIT P2: COPY OF THE RELEVANT PAGES OF THE STAFF FIXATION ORDER DATED 31.7.2003 OF VMHMHS, ANAYAMKUNNU. EXHIBIT P3: COPY OF THE GO(MS)NO.305/2000/G.EDN. DATED 2.9.2000 EXHIBIT P4: COPY OF THE COMMUNICATION DATED 12.10.2012 ISSUED BY THE 3RD RESPONDENT TO THE HEADMASTER EXHIBIT P5: COPY OF THE NOTICE REPLY SUBMITTED BY THE PETITIONER DATED NIL. EXHIBIT P6: COPY OF THE COMMUNICATION ISSUED TO THE 4TH RESPONDENT BY THE 3RD RESPONDENT DATED 20.3.2013 RESPONDENT(S)' EXHIBITS : NIL. ----------------------------- (TRUE COPY) ## **P.B.SURESH KUMAR, J.** ## **----------------------------------------------** ## **W.P.(C) No.10542 of 2013** ## **----------------------------------------------** ## **Dated 4[th] July, 2014.** ## **J U D G M E N T** Petitioner was appointed as High School Assistant (HSA) in Malayalam with effect from 9.8.1999 in V. M. H. M. High School, Aanayamkunnu. The said appointment was approved by the authorities under the Kerala Education Rules. Ext.P2 is the staff fixation order of the said school, for the year 2003-04. Even though, there was no post to accommodate the petitioner in the school for the year 2003-04, in view of the provisions contained in Ext.P3 Government Order, she was retained in the school, as per Ext.P2 order. On the strength of Ext.P2, the petitioner continued to work till 31.7.2004, on which day, she was discharged from the duties of the teacher. According to the petitioner, she was later accommodated as Cluster Coordinator under the fourth respondent and she is presently working as such. 2. It is seen that Ext.P3 is an order, by which the W.P.(C) No.10542/13 2 Government clarified an earlier order issued on 15.7.2000. In the order dated 15.7.2000, the Government had stated that no post of HSA (Malayalam) will be sanctioned from the beginning of the academic year 2000-2001, reckoning the number of students studying languages other than Malayalam such as Arabic, Urdu, Sanskrit etc. As per Ext.P3, the Government clarified that the order dated 15.7.2000 shall be followed only prospectively and that the existing language teachers will not come under the purview of the said order and that they need not be disturbed. 3. After about nine years, petitioner was issued a copy of Ext.P4 communication by which the headmaster the school was asked to initiate steps for recovery of the salary paid to her for the period from 15.7.2003 to 31.7.2004. Even though it is stated in Ext.P4 that such a direction was issued to her earlier also, according to the petitioner, Ext.P4 is the first communication received by her for reimbursement of the salary paid to her for the said period. It is stated by the petitioner in the Writ Petition that on receipt of Ext.P4, she has submitted Ext.P5 representation to the third respondent, refuting the liability and requesting to withdraw the demand. According to the petitioner, during the W.P.(C) No.10542/13 3 pendency of Ext. P5 representation, Ext.P6 communication was issued by the District Educational Officer, by which, the fourth respondent was requested to recover the amount covered by Ext. P4 from the salary of the petitioner. The Writ Petition is filed, in the circumstances, challenging Exts.P4 and P6 directions issued by the third respondent. 4. A counter affidavit has been filed by the first respondent, contending that there was no post in the school in the year 2003-04 to accommodate the petitioner and that the District Educational Officer has allowed her to continue in the school without authority of law. It is stated in the counter affidavit that this mistake was detected by the second respondent while scrutinizing the staff fixation orders. It is also stated in the counter affidavit that the petitioner was informed about this defect in the staff fixation order and she attended the personal hearing conducted by the second respondent, in the matter of cancelling the sixth post of HSA (Malayalam) sanctioned in the year 2003-04. It is further stated that proceedings under the Revenue Recovery Act is also initiated against the petitioner for recovery of the said amount. A counter affidavit has been filed by W.P.(C) No.10542/13 4 the third respondent also, raising identical contentions. 5. A reply affidavit has been filed by the petitioner, stating that even though the second respondent conducted a hearing as disclosed in the counter affidavit, she was not served with any order revising Ext.P2 staff fixation. She has also stated in the reply affidavit that since she is not attending the school from 1.8.2004, no orders have been communicated to her by the respondents. 6. It was pointed out by the learned counsel for the petitioner that in so far as the petitioner had continued to work in the school till 31.7.2004 on the basis of a lawful staff fixation order issued by the competent authority, the salary drawn by her cannot be ordered to be recovered, on the ground that the staff fixation order is wrong. 7. It is evident from Ext.P2 staff fixation order of V.M.H.M.H.S., Aanayamkunnu, that the petitioner, who was in service from 9.8.1999, was retained in the school, in view of Ext.P3 order, for that year. It is beyond dispute that pursuant to Ext.P2, the petitioner had continued to work till 31.7.2004. An identical issue arose for consideration before this Court in W.P.(C) No.10542/13 5 **Usuvathunnisa v. Asst. Educational Officer** (1990 (2) KLT 530). In that case, the issue was as to whether the salary drawn by a few Arabic teachers, whose appointments had been approved by the department, can be permitted to be recovered, when it was realised that their appointments were not liable to be approved at all. The relevant portion of the judgment reads as follows: “9. In any view of the case, the petitioner cannot be called upon at this stage to refund amounts which they have received as remuneration for service rendered in the schools. Consequent on the posts being sanctioned and on approval being granted for the appointments, the petitioners had functioned as full-time Arabic Teachers in the respective schools from the respective dates of their appointment. Having obtained the benefit of their service, based on orders for which the petitioners were not responsible, and which they had no reason to suspect were, in any manner, illegal, it is not open to the respondents subsequently to turn round and claim refund of the salary paid, branding the entire proceedings as null and void, or as illegal. The petitioners have every reason to presume that the statutory authority, namely the Assistant Educational Officer has acted legally and within the bounds of his powers and jurisdiction in sanctioning the full-time posts and in approving their appointment. As stated by Kochu Thommen, J. (as he then was) in Aleyamma v. Deputy Director, Education, l.L.R. 1982 W.P.(C) No.10542/13 6 (2) Kerala 509, every person has a right to place his trust in orders made by a competent authority in the normal course of his jurisdiction unless of course, the order is vitiated by fraud or interests of third parties are adversely affected. It is unjust and unfair to call upon persons like the petitioners to refund amounts drawn by them, for service rendered by them, years after the event after they had acted on the faith and strength of the orders of the statutory functionary, and adjusted their affairs accordingly. When the petitioners have worked in a particular grade, (as full time teachers) and the benefit of that work has gone to the schools, it cannot be said that they did so at their own peril, with liability to refund the salary in case it was found in any subsequent collateral proceedings that the sanctioning of their posts was not legal or proper.” There is no contention in the counter affidavits that Ext P2 order is vitiated by fraud, or interests of third parties are adversely affected thereby. There is also no contention in the counter affidavits that the petitioner is in any way responsible for Ext P2 order. There is also no contention in the counter affidavits that Ext P2 order was issued at the instance of the petitioner. As such, in the light of the said decision of this Court, I do not find any justification for issuing Exts.P4 and P6. W.P.(C) No.10542/13 7 The Writ Petition, in the circumstances, is allowed and Exts.P4 and P6 communications are quashed. Sd/- **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)