State of Kerala and Others v. Shanoj C.G. and Others (W.A. Nos. 961, 1123 & 1161 of 2023)

WA.Nos.961, 1123 & 1161 of 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 26[TH] DAY OF JUNE 2023 / 5TH ASHADHA, 1945** **WA NO. 1123 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 38632/2018 OF HIGH COURT OF KERALA APPELLANTS/RESPONDENTS 1 TO 4 & 7 IN WP(C):** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001 2 THE DIRECTOR OF PUBLIC INSTRUCTIONS DIRECTORATE OF PUBLIC INSTRUCTIONS,JAGATHI, THIRUVANANTHAPURAM., PIN - 695014 3 THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR,AYYANTHOLE, THRISSUR, PIN - 680001 4 THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR., PIN - 680001 5 THE ACCOUNTANT GENERAL(A AND E) KERALA,STATUE, THIRUVANANTHAPURAM., PIN - 695001 BY SR. GOVERNMENT PLEADER SRI.A.J.VARGHESE ## **RESPONDENTS/PETITIONER & RESPONDENTS NO.5 & 6 IN WP(C):** 1 SINDHU P.C HIGH SCHOOL ASSISTANT,HSA(MATHS), HIGH SCHOOL PENGAMUCK, THRISSUR WA.Nos.961, 1123 & 1161 of 2023 2 (NOW WORKING ON DEPLOYMENT AT GOVERNMENT HIGHER SECONDARY SCHOOL),MARUTHANCODE, THRISSUR DISTRICT - 680604 2 THE MANAGER HIGH SCHOOL PENGAMUKKU, THRISSUR DISTRICT (RESIDING AT PULIKKOTTIL HOUSE, KARICHAL ROAD, PENGAMUKKU - 680544) 3 THE PRINCIPAL HIGH SCHOOL PENGAMUCK, THRISSUR-680002. BY ADVS. K.JAJU BABU (SR.) M.U.VIJAYALAKSHMI M U BRIJESH MOHAN(K/1851/1999) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.06.2023, ALONG WITH WA.961/2023, 1161/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.Nos.961, 1123 & 1161 of 2023 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 26[TH] DAY OF JUNE 2023 / 5TH ASHADHA, 1945** **WA NO. 961 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 37030/2018 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 4 IN WP(C):** 1 STATE OF KERALA , REP. BY SECRETARY TO GOVERNMENT , GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEX-II, THIRUVANANTHAPURAM - 695001 2 THE DIRECTOR OF GENERAL EDUCATION , JAGATHI, THIRUVANANTHAPURAM-695 014 3 THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR, THRISSUR-680 003, PIN - 680003 4 THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR-680 506. BY SR. GOVERNMENT PLEADER SRI.A.J.VARGHESE ## **RESPONDENTS/PETITINERS & RESPONDENT NO.5 IN WP(C):** 1 SHANOJ C.G., S/O C.M. GEORGE, HEADMASTER, HIGH SCHOOL PENGAMUKKU, THRISSUR DISTRICT-680544 2 THE MANAGER, HIGH SCHOOL PENGAMUKKU, THRISSUR DISTRICT-680544 WA.Nos.961, 1123 & 1161 of 2023 4 (RESIDING AT PULIKKOTTIL HOUSE, KARICHAL ROAD,PENAGMUKKU-680544) BY ADVS. V.A.MUHAMMED M.SAJJAD(K/335/1997) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.06.2023, ALONG WITH WA.1123/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.Nos.961, 1123 & 1161 of 2023 5 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. MONDAY, THE 26[TH] DAY OF JUNE 2023 / 5TH ASHADHA, 1945 WA NO. 1161 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 38633/2018 OF HIGH COURT OF KERALA APPELLANTS/RESPONDENTS 1 TO 4 & 7 IN WP(C):** |1|STATE OF KERALA| |---|---| ||REP. BY SECRETARY TO GOVERNMENT,| ||GENERAL EDUCATION DEPARTMENT,| ||GOVERNMENT SECRETARIAT, PIN - 695001| |2|THE DIRECTOR OF PUBLIC INSTRUCTIONS| ||DIRECTORATE OF PUBLIC INSTRUCTIONS, JAGATHI.| ||THIRUVANANTHAPURAM, PIN - 695014| |3|THE DEPUTY DIRECTOR OF EDUCATION| ||THRISSUR, AYYANTHOLE,| ||THRISSUR - 680001| |4|THE DISTRICT EDUCATIONAL OFFICER,,| ||CHAVAKKAD, THRISSUR 680 001.| |5|THE ACCOUNTANT GENERAL (A&E) KERALA| ||STATUE, THIRUVANANTHAPURAM, PIN - 695001| ||BY SR. GOVERNMENT PLEADER SRI.A.J.VARGHESE| ## **RESPONDENTS/PETITIONER & RESPONDENTS 5 & 6 IN WP(C):** 1 SUNDER JISHA GEORGE C HIGH SCHOOL ASSISTANT, HSA (ENGLISH)HIGH SCHOOL PENGAMUCK,THRISSUR (NOW WORKING ON DEPLOYMENT AT SARVA SIKSHA ABHIYAN, WA.Nos.961, 1123 & 1161 of 2023 6 OLLUKKARA, THRISSUR DISTRICT) 2 THE MANAGER HIGH SCHOOL PENGAMUCK, THRISSUR - 680002 3 THE PRINCIPAL HIGH SCHOOL PENGAMUCK, THRISSUR - 680002 BY ADV BRIJESH MOHAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.06.2023, ALONG WITH WA.1123/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.Nos.961, 1123 & 1161 of 2023 7 ## A.K.JAYASANKARAN NAMBIAR, & MOHAMMED NIAS C.P., JJ ............................................................ ## W.A. Nos.961, 1123 and 1161 of 2023 ............................................................. Dated this the 26[th] day of June, 2023 ## JUDGMENT ## Mohammed Nias C.P., J. State of Kerala and its officials are in appeal aggrieved by the common judgment dated 13.10.2022 in W.P(C) Nos.37030/2018, 38632/2018 and 38633/2018 filed by teachers that challenged the proceedings of the District Educational Officer, Chavakkad dated 22.4.2017 revising the staff fixation orders of the school for the years 2007-2008, 2008-2009 and 2009-2010 on the ground of audit objections raised by the Accountant General regarding the staff fixation carried out by the educational authorities for the years mentioned above. 2. The petitioners essentially contended that the orders issued by the DEO on the basis of the audit objections cannot be sustained and the said proposition is covered by the judgments of this Court in Usuvathunnisa v. Assistant Educational Officer [1990 (2) KLT 530] and Somanatha Panicker v. WA.Nos.961, 1123 & 1161 of 2023 8 State of Kerala [1997 (1) KLT 305] . It was their further argument that the respondents have overlooked the statutory provisions in Chapter XXIII of the KER while issuing the impugned proceedings. They also contended that in terms of the original staff fixation order, they had discharged their duties which cannot be undone by a subsequent audit objection or their benefits taken away after extracting work from them. 3. Government contended that the special audit party found instances of bogus admissions for the academic years 2007-2008 to 2009-2010 in which it was revealed that most of the students who came through transfer from other schools had left the school immediately after the one-day verification and that some of the new students were removed from the roll due to continuous absence, which fact was not reported by the Headmaster to the DEO. The staff fixation after the revision, based on the student strength led to one division each in Standard VIII, IX and X being reduced during the relevant years and consequently, three High School Assistants (core subjects) were found to be in excess. It was in terms of these audit objections that directions were issued by the Director to the DEO to revise the staff fixation and as a consequence of the same, five teachers were found to be in excess. The amounts drawn by the said teachers were ordered to be recovered from the teachers concerned. 4. The learned Single Judge, who considered the writ petitions, found WA.Nos.961, 1123 & 1161 of 2023 9 that going by the provisions of Chapter XXIII of the KER, which deals with the mechanism for fixing the staff strength of teachers in the departmental and aided schools, provided for a detailed procedure for carrying out the fixation. No steps were taken under the said Chapter for any correction during or soon after the fixation of the relevant years. It was also found that the Director, in exercise of his powers conferred under Section 12E(3) has also not chosen to revise the orders of staff fixation. Even that exercise could have been carried out only after hearing the persons concerned. On the aspect, of whether the audit objection raised by the Accountant General can render the staff fixation carried out by the educational authorities bad or void, relying on the judgment in Usuvathunnisa (supra), the learned Single Judge found that the Accountant General can only point out the illegalities in the proceedings but his objections cannot have the effect of nullifying the orders or proceedings taken by the statutory authorities nor can the educational authorities act on the basis of the audit report and treat all the prior proceedings as null and void. The learned Single Judge also relied on the judgment in Somanatha Panicker (supra) to hold that the office of the Accountant General was not equipped with knowledge or expertise available with statutory authorities in the matter of fixation of staff strength and that the safeguards contained in the KER are sufficient enough to prevent any abuse of authority by the educational authorities. Accordingly, the learned Single Judge found that the impugned orders issued by the DEO revising the staff fixation order cannot be sustained. As a consequence of WA.Nos.961, 1123 & 1161 of 2023 10 the same, the learned Single Judge held that the writ petitioners cannot be called upon to refund the amounts that they have received as remuneration for the service rendered in the school, particularly when the Government had obtained the benefit of their service based on orders for which the writ petitioners cannot be held responsible. The writ petitions were allowed with a consequential direction to pay the benefits within a period of three months from the date of receipt of a copy of the judgment. 5. The State has filed these writ appeals contending that the DEO in the instant case has revised the staff fixation order based on the directions from the higher authorities. The Accountant General also conducted an audit of the student strength which revealed that most of the students who came on transfer from other schools left the school immediately after the one-day verification and the removal of the students was not reported by the Headmaster to the DEO and it was in the said circumstances that the staff fixation order had to be revised which led to the finding that five posts were in excess and the corresponding amount of Rs.13,04,447/- paid towards the salary of the teachers in excess, had to be recovered from the teachers concerned. 6. Having heard the learned Government Pleader and the learned counsel for the writ petitioners, we are of the firm view that the contentions of the State cannot be accepted at all. As rightly held by the learned Single WA.Nos.961, 1123 & 1161 of 2023 11 Judge, relying on the judgments of this Court that the DEO could not have revised the staff fixation order purportedly on the basis of the audit objections which were made years after the staff fixation order. It is not in dispute that no procedure as contemplated under Chapter XXIII of the KER was followed for varying the staff fixation order. Though the writ petitioners had a case that even during the year 2007-2008 there was enough student strength to accommodate the teachers, as rightly held by the learned Single Judge, the entire method adopted for revising the staff fixation orders was clearly wrong and liable to be interfered with. None of the grounds urged in the writ appeals merit consideration. We do not find any merit in these writ appeals and accordingly, they are dismissed. 7. Having held so, we are disturbed at the casual manner in which the educational authorities re-open finalised staff fixation orders. The allegations of students being brought in, if not hired are common, but the machinery under the Education Act, although provides for ample power under Chapter XXIII is not effectively deployed leading to malpractices and consequent excess creation of posts. Likewise, an audit ought to be conducted on a year-to-year basis so that any irregularity in staff fixation is immediately detected and a possible situation of erroneous/excess payment from the exchequer avoided. The government must remind itself that payments effected by it are from taxpayers' money and they are expected to act on the principles of trust while expending it. Whenever there is an WA.Nos.961, 1123 & 1161 of 2023 12 allegation of excess payment, it is of “taxpayers' money”, which belongs neither to the officers who have effected over-payment nor to the recipients, and in such cases, the Government should always try to recover such excess amount paid/received without the authority of law, either from the receiver of such amounts, or if that is not legally permissible, from the officers/persons who were responsible for the wrong payments. The result of such actions of the educational authorities and the officials in the audit department not performing the duties in a time-bound manner leads to the depletion of the Exchequer besides the erring officials going scot-free. The delay in finding out the errors also helps the erring officials who by then would have left the service or the posts in question leading to difficulty in identifying those responsible. Faced with this situation, we put it to the learned Government Pleader Sri. A.J.Varghese as to whether he is withdrawing the writ appeals so as to take such steps to find out those responsible for the situation and to take corrective measures. The learned Government Pleader insisted on a decision on merits. In such circumstances, we have no option but to dismiss these writ appeals with a further direction to the appellants to conduct a full-fledged enquiry into the lapses of officials of the Education Department and the Audit Department and to recover the amounts quantified from those officials responsible for the lapses. This will be done and an action taken report filed before this Court within three months from today. Needless to WA.Nos.961, 1123 & 1161 of 2023 13 say that the directions of the learned Single Judge as regards the writ petitioners will be complied with within the time granted in the impugned judgment, without fail. Sd/- ## A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- MOHAMMED NIAS C.P., JUDGE okb/ WA.Nos.961, 1123 & 1161 of 2023 14 ## **APPENDIX OF WA 961/2023** RESPONDENT ANNEXURES Annexure R-1(a) True copy of the Order of the Deputy Director of Education, Thrissur vide No. B4-25088/07 dated 22.03.2008