Sudhakaran V.K. v. District Educational Officer, Tirur; Assistant Educational Officer, Parappanangadi; Deputy Tahsildar, RR; Manager, Devi Vilasam AUP School

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY ,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** ## **WP(C).No. 312 of 2015** **PETITIONER:** **SUDHAKARAN V.K. ASSISTANT TEACHER, DEVI VILASAM A.U.P. SCHOOL, ARIYALLUR, BEYPUR, KOZHIKODE DISTRICT.** **BY ADV. SRI.R.K.MURALEEDHARAN** ## **RESPONDENTS:** |**1**|**THE DISTRICT EDUCATIONAL OFFICER**| |---|---| ||**TIRUR, MALAPPURAM - 676 301.**| |**2**|**THE ASSISTANT EDUCATIONAL OFFICER**| ||**PARAPPANANGADI, MALAPPURAM- 676 303.**| |**3**|**THE DEPUTY TAHSILDAR RR**| ||**KOZHIKODE, KOZHIKODE - 673 020.**| |**4**|**THE MANAGER**| ||**DEVI VILASAM AUP SCHOOL,**| ||**ARIYALLUR, MALAPPURAM - 676 312.**| ## **SRI.B.JAYASURYA, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 312 of 2015** 2 ## **JUDGMENT** The writ petitioner, who was Headmaster in Devi Vilasam AUP School, Ariyallur, Beypur, now retired from service, has filed this writ petition seeking to set aside Ext.P12 order whereby he is required to remit an amount of Rs.2,09,608/- and also aggrieved by Ext.P9 demand notice issued under the Kerala Revenue Recovery Act for recovery of the said amount. 2. The writ petitioner was an Assistant Teacher under the fourth respondent-School. He was promoted as Headmaster on 02.02.1996. Subsequently, he was reverted back as Assistant Teacher on 15.06.2010, on his request. 3. It appears that during 2005-06, the Super Check Cell engaged by the educational authorities conducted an inspection in the school. It was found that there were bogus students whose names are entered in the muster roll. On the basis of the findings of the Super Check Cell, one post of teacher was reduced and three teachers were thrown out. Subsequently, on the basis of the orders of the Deputy Director of Education, the AEO has permitted continuance of the three thrown out teachers following **WP(C).No. 312 of 2015** 3 1:40 ratio, contends the petitioner. On a finding that there was bogus marking of attendance, DPI issued a notice to the petitioner. The petitioner submitted reply to the notice on 30.06.2006 stating that there was no bogus admission and students in question were absent from school due to Ramzan season and due to certain festivals in the nearby mosque. It is the case of the petitioner that, the three teachers who were permitted to continue, had given undertaking to the effect that if their continuance is found to be irregular, they are willing to repay the salary received by them. 4. The petitioner contends that, on 24.11.2007 he was issued with Ext.P2 order of the AEO proposing that Rd.2,09,608/paid to the said three teachers in question from 15.07.2005 to 14.07.2006 is going to be made a liability of the petitioner. To Ext.P2, petitioner submitted Ext.P3 reply. The petitioner stated that, the teachers were permitted to continue on the oral permission granted by the AEO and teachers in question have granted undertaking to repay the salary. Therefore, there is no reason to make the said amount a liability of the petitioner. **WP(C).No. 312 of 2015** 4 However, the respondents did not accept the reply of the petitioner and the Deputy Director of Education upheld Ext.P2 order. 5. Aggrieved, petitioner filed WP(C)No.35632/2008 on 03.12.2008. This Court as per judgment dated 03.12.2008 directed the DPI to consider the representation of the petitioner. However, DPI as per Ext.P4 dated 18.04.2009, held that there is no merit on the arguments of the petitioner and the petitioner is liable to make good Rs.2,09,608/- to the public exchequer. In view of the stand taken by the DPI, the Assistant Educational Officer resorted to Revenue Recovery Act, to recover the amount from the petitioner. 6. The petitioner filed WP(C)No.27206/2009 challenging the recovery. In the said writ petition, this Court relied on judgment in WA No.1288/2008, in which it was held that no amount can be recovered from a Headmaster without resorting to disciplinary proceedings. Relying on the said judgment, WP(C)No.27206/2009 was disposed of holding that the recovery without disciplinary proceedings against the petitioner cannot **WP(C).No. 312 of 2015** 5 stand the scrutiny of law. 7. Thereafter, Ext.P6 Charge Memo was issued to the petitioner alleging that petitioner is responsible for the loss of Rs.2,09,608/-. Petitioner submitted Exts.P7 and P8 replies to the Charge Memo. After enquiry, a show cause notice was also issued to the petitioner on 24.01.2011. The petitioner stated that, no final order was passed subsequent to Ext.P6. However, Ext.P9 notice dated 04.04.2013 under the Revenue Recovery Act was served on the petitioner. 8. Hence, the petitioner filed WP(C)No.11749/2013 challenging the Revenue Recovery proceedings. This Court after hearing the petitioner, directed the Assistant Educational Officer to first serve a copy of the order in the disciplinary proceedings and directed that the revenue recovery proceedings shall be kept in abeyance for twelve weeks. On the basis of the directions of this Court, Ext.P12 order dated 17.02.2011 was served on the petitioner as per Ext.P12 letter dated 12.09.2014. Aggrieved by the said order, the petitioner filed appeal before the DEO, as per Ext.P13. When EXt.P13 appeal was not considered and at the **WP(C).No. 312 of 2015** 6 same time revenue recovery proceedings were proceeded with, the petitioner filed the above writ petition on 05.11.2015 seeking to set aside Ext.P12 order and Ext.P9 demand notice and to direct the first respondent to consider Ext.P13 appeal. 9. This writ petition was admitted on 06.01.2015 and an interim order was granted in favour of the petitioner restraining recovery. Pending the writ petition, the District Educational Officer rejected Ext.P12 appeal filed by the petitioner as per Ext.P15 order dated 28.05.2018. According to the petitioner, Ext.P15 has been passed without considering the legality of the disciplinary proceedings and the undertaking given by the three thrown out teachers to repay the salary irregularly received by them. Further more, it is the case of the petitioner that similarly situated teachers were granted instalment facility to repay the salary received by them, as per Ext.P10 Government Circular. Without considering all these aspects, the appeal has been rejected. 10. The respondents filed a detailed counter affidavit and opposed the writ petition. Learned Government Pleader appearing for respondents 1 to 3 stated that during the year 2005- **WP(C).No. 312 of 2015** 7 06, the Super Check Cell made a surprise visit in the school and detected 64 bogus admission. This resulted in reduction of three posts of LPSA and staff fixation was accordingly revised, the salary paid to the three teachers against the inadmissible posts was fixed as liability of the Headmaster. According to respondents 1 to 3, the Headmaster is the only responsible person for admission, removal of the students etc. Malpractice in school records done by the Headmaster is the only reason for retention of inadmissible posts in the school. During the year 2005-06, 12 posts were sanctioned. Later, considering the report of the Super Check Cell, the DPI has revised and reduced the staff strength. 11. The respondents also stated that pursuant to the directions contained in WP(C)No.27206/2009, the Assistant Educational Officer initiated disciplinary proceedings against the petitioner and the liability was fixed on the petitioner only after conducting a disciplinary proceedings. Respondents 1 to 3 reiterated that in case of bogus admission of students in any school, the Headmaster is the sole responsible person and if any excess amounts have been paid by the Government to the **WP(C).No. 312 of 2015** 8 excess teachers, whose retention was due to the bogus admission of students, the amount is liable to be recovered from the Headmaster concerned. 12. I have considered the pleadings in the matter and arguments raised by learned counsel for the petitioner and the learned Government Pleader. 13. Going through the facts of the case, I am of the opinion that, there is considerable force in the arguments of the learned counsel for the petitioner that disciplinary proceedings against the petitioner is illegal since it has been started and proceeded with, in violation of proviso to Section 12A of the Kerala Education Act. The said proviso to Section 12A requires the educational authorities to direct the Manager concerned to take action against a teacher/headmaster, if any misconduct is alleged. It is only on the failure of the Manager to take disciplinary action, can the educational authorities can proceed against the teacher. 14. Learned Government Pleader has stated that in fact such a notice was given to the Manager and it is only on the failure of the Manager that disciplinary proceedings were initiated **WP(C).No. 312 of 2015** 9 by the educational authorities. A reading of Ext.P6 Charge Memo does not reflect this fact, it does not refer to any letter of the educational authorities to the Manager requiring to take disciplinary action against the petitioner. Further more in Ext.P13 appeal preferred before the DEO, Thirur, the petitioner had specifically raised a ground that the respondents have not complied with Section 12A of the Education Act by issuing notice to the Manager. Petitioner had relied on a judgment of this Court in **Yamuna v. State of Kerala** reported in [2008(1) KLT 378] also in support of his contention. Ext.P15 order passed on Ext.P13 appeal has not met the legal ground urged by the petitioner. Therefore, it has to be presumed that there was non-compliance of Section 12A of the Kerala Education Act. 15. Another fact is that in Ext.P10 Circular dated 21.06.2016 issued by the General Education Department, the Government of Kerala has considered the issue of recovery of amounts from teachers consequent on the inspection of Super Check Cell and abolition of divisions and posts in aided schools. In the said Ext.P10 Circular the Government has stated that the **WP(C).No. 312 of 2015** 10 teachers who were appointed and given approval, drawn salary and then subsequently thrown out by Super Check Cell due to detection of bogus admission to pupil will be included in the list of retrenched teachers and the amount disbursed by way of salary shall be recovered from the teachers in 36 equal instalments after getting re-appointment in the Educational department. In Ext.P10 it has been further stated that if there is no chance to recover the amount from any of the retrenched teachers due to nonacceptance of re-appointment then the amount shall be recovered from the Headmaster of the school concerned. The teachers in the fourth respondent school were thrown out as a consequence of the inspection conducted by the Super Check Cell during the period and the Government has taken a compassionate view in recovering the excess pay received by the teachers by granting them facility of easy instalments of repayment. Therefore, Ext.P10 Circular is equally applicable to the issue in hand. 16. The contention of the petitioner is that, the petitioner had obtained Ext.P14 series undertakings from the said three teachers that if the salary received by them is found not **WP(C).No. 312 of 2015** 11 payable, the concerned teachers will repay the same. From the pleadings of the writ petition it can be seen that the respondents have not taken any attempt to recover the amount from the teachers who have actually received the same. In the light of Ext.P10 Government Circular, without making such attempt, it will not be just and proper to realise the amount from the petitioner. 17. For all these reasons I find that Exts.P9 and P12 are liable to be set aside. Accordingly, Exts.P9 and P12 orders are set aside. The respondents 1 and 2 to will be at liberty to realise the amount of Rs.2,09,608/- from the concerned thrown out teachers following Ext.P10 Circular with due notice to them and in accordance with law. The terminal benefits if any due to the petitioner and withheld, should be made available to the petitioner expeditiously. Writ petition is disposed of accordingly. **Sd/-** **N.NAGARESH** dlk19.03.19 **JUDGE** **WP(C).No. 312 of 2015** 12 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 24/05/2006 BASED ON THE ORDER OF THE DDE.** - **EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 24/11/2007.** - **EXHIBIT P3 TRUE COPY OF THE REPLY DATED 01/12/2007.** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 18/04/2009.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN W.P(C) 27206/2009 DATED 08/02/2010.** - **EXHIBIT P6 TRUE COPY OF THE CHARGE MEMO AND STATEMENT OF ALLEGATIONS DATED 23/07/2010.** - **EXHIBIT P7 TRUE COPY OF THE REPLY DATED 13/09/2010.** - **EXHIBIT P8 TRUE COPY OF THE REPLY DATED 03/01/2011.** - **EXHIBIT P9 TRUE COPY OF THE DEMAND NOTICE DATED NIL** - **EXHIBIT P10 TRUE COPY OF THE CIRCULAR NO. 34025/J2/12/G.EDN. DATED 21/06/2012.** - **EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN W.P(C) 11749/2013 DATED 08/08/2014** - **EXHIBIT P12 TRUE COPY OF THE COVERING LETTER ALONG WITH THE ORDER DATED 17/02/2011.** - **EXHIBIT P13 TRUE COPY OF THE COVERING LETTER OF HEADMISTRESS DATED 16/09/2014 ALONG WITH THE RELEVANT PAGE OF THE APPEAL DATED 16/09/2014 FILED BEFORE THE IST RESPONDENT.** **EXHIBIT P14 TRUE COPY OF THE UNDERTAKING SUBMITTED BY SRI.K.BIJU DATED 29.05.2006 AND COUNTERSIGNED BY THE HEADMASTER** **EXHIBIT P14A** **TRUE COPY OF THE UNDERTAKING SUBMITTED BY SMT.C.SHEEBA DATED 29.05.2006 AND** **WP(C).No. 312 of 2015** 13 ## **COUNTERSIGNED BY THE HEADMASTER** **EXHIBIT P14B TRUE COPY OF THE UNDERTAKING SUBMITTED BY SMT.K.BUSHARA DATED 29.05.2006 AND COUNTERSIGNED BY THE HEADMASTER** **TRUE COPY OF THE ORDER PASSED BY THE 1ST EXHIBIT P15 RESPONDENT DATED 28.05.2015**