The Corporate Manager of MES Schools MES Central Office, Kozhikode-2 v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **TUESDAY, THE 8[TH] DAY OF AUGUST 2023 / 17TH SRAVANA, 1945** ## **WP(C) NO. 22264 OF 2022** ## **PETITIONER:** THE CORPORATE MANAGER OF MES SCHOOLS MES CENTRAL OFFICE, KOZHIKODE-2. BY ADVS. BABU KARUKAPADATH M.A.VAHEEDA BABU P.U.VINOD KUMAR ARYA RAGHUNATH VAISAKHI V. T.M.MUHAMMED MUSTHAQ KARUKAPADATH WAZIM BABU P.LAKSHMI AYSHA E.M. ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 004. 2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DPI, THIRUVANANTHAPURAM, PIN-695 014. 3 THE DEPUTY DIRECTOR OF EDUCATION, SECOND FLOOR, CIVIL STATION, AYANTHOL, THRISSUR, PIN680 003. 4 THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKKUDA, THRISSUR, PIN-680 121. BY ADV ADVOCATE GENERAL OFFICE KERALA SMT.SURYA BINOY-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No.22264 OF 2022 2 # **ANU SIVARAMAN, J.** ========================= **W.P.(C) No.22264 of 2022** ========================= Dated this the 8[th] day of August, 2023 ## **JUDGMENT** This writ petition is filed seeking the following ## reliefs: _“i. Issue a writ of certiorari or other appropriate writ, order or direction quashing Exhibits P14, P16 and all further proceedings, if any, initiated in pursuance to the same._ _ii. Issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents to drop all further proceedings including revenue recovery against the petitioner in pursuance to Exhibit P16 for realization of Rs.8,38,792/- as held liable therein and demanded in Exhibit P14._ 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. The petitioner, who is a Corporate Manager of the Muslim Educational Society (MES) had appointed one Smt. V.A. Sakeena as H.S.A (Malayalam) with effect from 18.06.2004 in a School managed by the Society, in an WP(C) No.22264 OF 2022 3 additional division vacancy. The appointment was rejected by the Educational Officers on the ground that protected teachers were not appointed. The teacher, along with another appointee had filed W.P.(C) No.1666 of 2009, seeking a direction to consider the revision petitions preferred by them. 4. By Ext.P1 order dated 17.12.2009, the 1[st] respondent approved the appointment of Smt. V.A. Sakeena as H.S.A (Malayalam). Later, a detailed order dated 05.01.2010 was passed by the 1[st] respondent, disposing of the revision petitions and directing approval of the appointment of the teacher from 01.02.2006. The 4[th] respondent, thereafter, approved the appointment of Smt. Sakeena by order dated 12.03.2010 as H.S.A (Malayalam), with effect from 01.02.2006. It is submitted that thereafter, the teacher submitted a representation before the Minister for Education, requesting grant of approval with effect from the initial date of appointment that is 18.06.2004. While so, the 4[th] respondent objected to the payment of salary and allowances to the teacher, on the ground that she was not duly qualified for appointment as H.S.A. (Malayalam). Ext.P3 order was passed WP(C) No.22264 OF 2022 4 by the Government on 20.09.2012, directing to lift the objection with regard to payment of salary and allowances to the teacher. Thereafter, Ext.P4 letter was issued on 31.05.2014 cancelling Ext.P3, pursuant to which the teacher approached this Court filing W.P.(C.) No.15252 of 2014. 5. By Ext.P5 judgment, which is reported as **Sakeena v. State of Kerala** [2014 (3) KLT 977] _**,**_ this Court held that the qualification possessed by the teacher was not in accordance with the qualification prescribed for the post of H.S.A. (Malayalam) under Rule (2)(b)(i) of Chapter XXXI of the Kerala Educational Rules, 1959. It is stated that, since the teacher did not have a Degree in Malayalam and had studied Malayalam only as a second language and not as one of the two optional Subjects under Pattern II of Part III, she was not qualified for appointment as H.S.A. (Malayalam), either with effect from 18.06.2004 or 01.02.2006. The writ petition was disposed of, finding that the teacher had acquired the qualification of B.A Degree in Malayalam in April 2013-14 and therefore, she would be entitled to approval with effect from the date on which the schools reopened during the academic WP(C) No.22264 OF 2022 5 year 2013 and it was further directed that the salary and allowances paid to the teacher for the period prior to such date shall not be recovered for the reason that she had actually worked as a teacher and had not undertaken to work gratuitously. The writ petition was accordingly disposed of as under; “ _I accordingly dispose of the Writ Petition with a direction to the District Educational Officer, Irinjalakuda to pass revised orders approving the petitioner's appointment as H.S.A. (Malayalam) on a regular basis with effect from the date on which the schools reopened during the academic year 2013-14. Salary and allowances disbursed to the petitioner, pursuant to the approval initially granted to her appointment shall not be recovered from her. Revised orders approving the petitioner's appointment as H.S.A. (Malayalam) with effect from the date on which the schools reopened during the academic year 2013-14 shall be issued within two weeks from the date on which the petitioner produces a certified copy of the judgment before the District Educational Officer, Irinjalakkuda. Arrears of salary and allowances with effect from that date shall be drawn and disbursed to the petitioner within a month thereafter.”_ 6. It is submitted that, thereafter, revised orders of approval were rendered by the District Educational Officer. However, the petitioner was required to attend a hearing with WP(C) No.22264 OF 2022 6 regard to the recovery of the amounts paid to the teacher for the period from 01.02.2006 to 31.03.2013. Though the petitioner submitted Ext.P8 and other further replies, Ext.P14 communication was received on 15.11.2021. The petitioner approached this Court and by Ext.P15 judgment, the Government was directed to pass orders on the revision petition submitted by the petitioner. Ext.P16 order was passed on 06.06.2022 by the Government, which is under challenge in the present writ petition. 7. It is submitted by the learned Counsel for the petitioner that, since the qualification for appointment to the post of H.S.A. (Malayalam) had undergone an amendment and since the specific nature of the qualifications required was declared only by Ext.P5 judgment, the appointment of the teacher as also the forwarding of the proposal for approval by the Manager was a clear mistake which had occurred due to the confusion prevailing with regard to the required qualifications and that there was absolutely no intention to cause any loss to the Government. It is submitted that, since the teacher had actually worked during the period in question WP(C) No.22264 OF 2022 7 and had approved service from 2013 onwards, there is no loss caused to the Government, which is liable to be recovered in terms of the impugned orders. It is further contended that, since the appointments are duly approved by the Educational authorities, the contention in Ext.P16 order that the Manager is responsible for the wrong payment of salary is completely unsustainable. 8. A counter affidavit has been placed on record by the 4[th] respondent, contending that the appointment given to V.A. Sakeena by the Manager was obviously an erroneous appointment. It is stated that the Manager is the primary authority responsible for the appointment of teachers under it, and that the primary responsibility to see that only a teacher with the required qualification is appointed in the Schools, is on the Manager. It is submitted that since the Manager had made the appointment and forwarded the proposal and had extracted work from the teacher in question during the relevant period, the Manager was the person who had secured the benefit of the services of the teacher, which was not liable to be approved. It is, therefore, contended that it is for the WP(C) No.22264 OF 2022 8 Manager to reimburse the Government the loss which was occasioned due to the wrong payment of salary to an unqualified teacher. 9. The decision of the Apex Court in _**Government of Andhra Pradesh and others v. K. Brahmanandam and**_ _**Others** [(2008) 5 SCC 241]_ , is relied on by the Learned Government Pleader to contend that the liability of the State to pay salary to a teacher appointed in an Aided School would arise, only if the provisions of the Statutory Rules are complied with and in case a wrong appointment is made by the Manager, then the liability to pay compensation to the teacher will also be on the Manager and not the State. 10. The learned Government Pleader would also place reliance on the decision of a Full Bench of this Court in _**State of Kerala v. B.C. Elsy & Others** [1987 (2) KLT 882] to_ contend that the Manager being the appointing authority, is liable to make good any claim for salary on account of a wrong appointment made in the School. 11. The decision in _**Hymavathy v. Addl. Secretary**_ _[1988 (2) KLT 741]_ is also relied on to contend that, where an WP(C) No.22264 OF 2022 9 appointment is made _de hors_ the provisions of the Rules, it is not for the Government to compensate the teacher so wrongly appointed, but the Manager, who has actually made such appointment. 12. I have considered the contentions advanced. The main difference that is discernible in the instant case from the decisions relied on by the learned Government Pleader is the fact that the appointment of Smt. V.A. Sakeena stood approved pursuant to Ext.P1 proceedings of the Government dated 17.12.2009. The appointment made by the Manager was forwarded for approval to the District Educational Officer, as provided under the Kerala Education Act and the Rules. It is pertinent to note that, an appointment made by a Manager in an Aided School would become effective only on the appointment being approved by the Educational authorities concerned. The Educational authorities had initially rejected approval only on the ground that protected teachers had not been appointed. There was no contention raised with regard to the educational qualification possessed by Smt. V.A. Sakeena. WP(C) No.22264 OF 2022 10 13. By Ext.P1 dated 17.12.2009, the appointments were directed to be approved with effect from 01.02.2006. This was followed by Ext.P2 detailed Government Order dated 05.01.2010, again directing approval with effect from 01.02.2006. Thereafter, it appears that steps had been taken in the office of the 4[th] respondent to recall the approval, on the ground that there was a discrepancy in the qualification. It is evident from Ext.P5 judgment that such steps had been initiated in the year 2011 itself. However, by Ext.P3 dated 20.09.2012, the Government had directed lifting of the ban on payment of monetary benefits to the teacher. However, by Ext.P4 the issue was reconsidered and Ext.P3 was recalled by the Government. It is thereafter that the teacher approached this Court and Exhibit P5 judgment was rendered. Ext.P5 considers the contention with regard to qualifications and holds that the petitioner was not entitled for appointment or approval in the post of H.S.A. (Malayalam) either with effect from 18.06.2004 or from 01.02.2006. It was held that, it was only after acquiring B.A. Degree in Malayalam, in April 2013, that she can be considered to be duly qualified. However, it WP(C) No.22264 OF 2022 11 was directed in Ext.P5 that the amounts paid on account of the approval granted with effect from 01.02.2006 shall not be recovered from the teacher. 14. Having considered the contentions advanced, I notice that the power to make recovery from the Managers of Aided Schools is governed by the provisions of Rule 7 of Chapter III of the KER. It is in the event of mismanagement, malpractice, corruption or maladministration, gross negligence of duty, disobedience of departmental instructions etc. on the part of the Manager that the Government is empowered to take action against the Manager or to recover amounts found due from the Manager. The recovery of amounts is governed by Rule 7(4), which provides that where a Manager who commits serious irregularities causing monetary loss to teachers or Government, the loss sustained by the teachers or Government shall be recoverable under the provisions of the Revenue Recovery Act. In the instant case, it is clear that the teacher appointed did not possess the requisite qualification at the time of appointment. However, the question with regard to the qualification possessed by the WP(C) No.22264 OF 2022 12 teacher was not pointed out either by the approving authority or even by the Government, while passing Exts.P1 and P2 orders. It is only thereafter that the issue came to the notice of the 4[th] respondent, who had issued orders directing a ban on drawal of salary by the teacher concerned. However, it appears that by Ext.P3 the Government had ordered that the ban be lifted and the payment be made to the teacher concerned. 15. In the facts and circumstances of the instant case, I am of the opinion that the Corporate Manager cannot be mulcted with the liability of making payment to the teacher concerned, since the appointment admittedly stood approved. 16. The learned Government Pleader would contend that, atleast from the date on which the qualification was found to be irregular, the Manager should be directed to make good the loss, which has occurred to the Government. However, in the light of Ext.P5 judgment and the finding therein that the teacher need not refund the salary paid by her, on account of the fact that she had actually worked during the period in question, I am of the opinion that, such prayer WP(C) No.22264 OF 2022 13 cannot be allowed. The writ petition is, therefore, liable to be allowed. I do so. The impugned orders shall stand set aside. **Sd/ANU SIVARAMAN JUDGE** SSK/07/08 WP(C) No.22264 OF 2022 14 ## **APPENDIX** ||**APPENDIX**| |---|---| |PETITIONER EXHIBITS|| |Exhibit P1|A TRUE COPY OF THE GOVERNMENT ORDER DATED| ||17/12/2009 ISSUED BY THE 1ST RESPONDENT| ||APPROVING THE APPOINTMENT OF THE TEACHER AS| ||H.S.A. (MALAYALAM) IN THE SCHOOL.| |Exhibit P2|A TRUE COPY OF THE GOVERNMENT ORDER DATED| ||05/01/2010 OF THE 1ST RESPONDENT, DIRECTING| ||THE 4TH RESPONDENT TO APPROVE THE| ||APPOINTMENT OF THE TEACHER AS H.S.A| ||(MALAYALAM) IN M.E.S.H.S.S,| ||SREENARAYANAPURAM, THRISSUR, W.E.F| ||01/02/2006.| |Exhibit P3|A TRUE COPY OF THE ORDER DATED 20/9/2012 OF| ||THE 1ST FINDING THAT THE TEACHER WAS| ||ELIGIBLE TO BE APPOINTED AS H.S.A.| ||(MALAYALAM) HAVING REGARD TO THE TERMS OF| ||G.O. DATED 19/9/2008, FURTHER DIRECTING TO| ||LIFT THE OBJECTION RAISED BY HIM FOR PAYMENT| ||OF SALARY AND ALLOWANCES TO HER.| |Exhibit P4|A TRUE COPY OF THE LETTER DATED 31/5/2014 OF| ||THE 1ST RESPONDENT, CANCELLING EXHIBIT P3.| |Exhibit P5|A TRUE COPY OF THE JUDGMENT-DATED 26/6/2014| ||OF THIS HON'BLE COURT, IN W.P. (C)| ||NO.15452/2014 FILED BY THE TEACHER REPORTED| ||IN 2014(3) KLT 997.| |Exhibit P6|A TRUE COPY OF THE INTIMATION DATED| ||26/9/2014 OF THE 1ST RESPONDENT ISSUED TO| ||THE 4TH RESPONDENT, IN PURSUANCE TO THE| ||DIRECTIONS IN EXHIBIT P5.| |Exhibit P7|A TRUE COPY OF THE HEARING NOTICE DATED| ||09/09/2015, ISSUED BY THE 3RD RESPONDENT,| ||PROPOSING TO REALIZE THE SALARY AND| ||ALLOWANCES GIVEN TO THE TEACHER FOR THE| ||PERIOD FROM 01/02/2006 TO 31/03/2013, FROM| ||THE PETITIONER, ALONG WITH THE ORDER DATED| ||4/7/2015 OF THE 1ST RESPONDENT.| |Exhibit P8|A TRUE COPY OF THE AFOREMENTIONED STATEMENT| ||DATED 21/09/2015.| |Exhibit P9|A TRUE COPY OF THE NOTICE DATED 25/1/2016| ||ISSUED TO THE PETITIONER BY THE 4TH| ||RESPONDENT, DIRECTING HIM TO REMIT BACK THE| ||SALARY AND ALLOWANCES GIVEN TO THE TEACHER| ||FROM 01/02/2006 TO 31/3/2013.| |Exhibit P10|A TRUE COPY OF THE NOTICE DATED 30/11/2018| ||ISSUED TO THE PETITIONER BY THE 4TH| ||RESPONDENT, DIRECTING HIM TO REMIT BACK THE| WP(C) No.22264 OF 2022 15 ||SALARY AND ALLOWANCES GIVEN TO THE TEACHER| |---|---| ||(RS.8,38,792/-) FROM 01/02/2006 TO| ||31/3/2013.| |Exhibit P11|A TRUE COPY OF THE NOTICE DATED 01/04/2019| ||ISSUED TO THE PETITIONER BY THE 4TH| ||RESPONDENT, DIRECTING HIM TO REMIT BACK THE| ||SALARY AND ALLOWANCES GIVEN TO THE TEACHER| ||(RS.8,38,792/-) FROM 01/02/2006 TO| ||31/3/2013.| |Exhibit P12|A TRUE COPY OF THE REVISION PETITION DATED| ||11/6/2019 SUBMITTED BY THE PETITIONER BEFORE| ||THE 1ST RESPONDENT AGAINST EXHIBIT P11.| |Exhibit P13|A TRUE COPY OF THE REQUEST DATED 11/6/2019| ||SUBMITTED BY THE PETITIONER BEFORE THE 4TH| ||RESPONDENT, REQUESTING TO KEEP IN ABEYANCE| ||FURTHER PROCEEDINGS IN PURSUANCE TO EXHIBIT| ||P11, TILL A FINAL DECISION IS TAKEN ON| ||EXHIBIT P12 BY THE 1ST RESPONDENT.| |Exhibit P14|A TRUE COPY OF THE NOTICE DATED 15/11/2021| ||RECEIVED BY THE PETITIONER FROM THE 4TH| ||RESPONDENT, INTIMATING THAT REVENUE RECOVERY| ||STEPS WOULD BE INITIATED, IF THE AMOUNT| ||DEMANDED IN EXHIBIT P11 IS NOT REMITTED,| ||SINCE, NO ORDERS ARE PASSED BY THE 1ST| ||RESPONDENT ON EXHIBIT P12.| |Exhibit P15|A TRUE COPY OF THE JUDGMENT DATED 14/02/2022| ||OF THIS HON'BLE COURT, IN W.P. (C)| ||NO.29677/2021 FILED BY THE PETITIONER.| |Exhibit P16|A TRUE COPY OF THE ORDER DATED 06/06/2022| ||PASSED BY THE 1ST RESPONDENT, REJECTING| ||EXHIBIT P12 AND AFFIRMING THE DECISION IN| ||EXHIBIT P7 BASED ON WHICH EXHIBITS P9 TO P11| ||AND P14 NOTICES WERE ISSUED.|