W.P.(C) Nos. 5846 of 2012 (E) and 23453 of 2012 – Corporate Manager, Corporate Educational Agency, Diocese of Mananthavady v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 19TH DAY OF NOVEMBER 2013/28TH KARTHIKA, 1935** **WP(C).No. 5846 of 2012 (E)** **---------------------------** **PETITIONER :** - **-----------** **CORPORATE MANAGER, AGED 44 YEARS, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF MANANTHAVADY, PASTORAL CENTRE MANANTHAVADY P.O., WAYANAD** ## **BY ADV. SRI.M.VIJAYAKUMAR** **RESPONDENTS :** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT THIRUVANANTHAPURAM 695001** **2. DISTRICT EDUCATIONAL OFFICER, WAYANAD 670645** **3. DEPUTY DIRECTOR OF EDUCATION, WAYANAD 670645** **R1 TO R3 BY GOVERNMENT PLEADER MR.RAMPRASAD UNNI.T** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/7/2013 ALONG WITH WPC NO.23453/12, THE COURT ON 19-11-2013 DELIVERED THE FOLLOWING:** **BP** **WP(C).No. 5846 of 2012 (E)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT. P1 THE TRUE COPY OF THE GOVERNMENT ORDER G.O(RT) NO. 4678/2009/G.EDN. DATED 11-11-2009 EXT. P2 THE TRUE COPY OF THE JUDGMENT IN WPC 53/2010 DATED 11.07.2011 EXT. P3 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE DISTRICT EDUCATIONAL OFFICER DATED 09-08-2011 EXT. P4 THE TRUE COPY OF THE ORDER NO. B3/3210/2011 DATED 03-12-2011 RESPONDENTS' EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE** **BP** ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.No.5846 of 2012 and 23453 of 2012 ---------------------------------------Dated this the 19[th] day of November 2013 ## **J U D G M E N T** W.P.(C) No.5846 of 2012 is filed by the Corporate Manager of an educational agency challenging Ext.P4 an order passed by the District Educational Officer (for short ‘DEO’), finding that the petitioner is responsible for the delay in settling the claim of Smt.O.M.Karmaleetha, the petitioner in W.P.(C)No.23453 of 2012, by neglecting the orders of the Department and Government in regard to payment of salary and allowances to her for the period from 01/06/2009 to 14/07/2011. 2. The facts involved in the above writ petition would disclose that the petitioner in W.P.(C)No.23453 of 2012, a teacher was transferred from Assumption High School, Sulthan Bathery, to St Joseph’s High School Kallody under the same management. She challenged the transfer by filing W.P.C.Nos.5846 & 23453 of 2012 2 an appeal before the Director of Public Instruction (for short ‘DPI’), who allowed the claim of the teacher and the transfer was set aside. A revision was preferred by the petitioner against the said decision of DPI before the Government, which came to be rejected by Ext.P1 order and directed the teacher to be posted in the school where she was working. In Ext.P1 there was a direction that the teacher has to be paid salary and allowances as provided under Rule 7(4) of Chapter III of Kerala Educational Rules (for short ‘KER’). The petitioner challenged the aforesaid order by filing W.P.(C) No.53 of 2010. The teacher also filed W.P.(C)No.8042 of 2011 to implement the order of DPI as well as the Government. The writ petitions came to be disposed by a common judgment dated 11/07/2011. This Court held that there is no reason to interfere with the impugned orders and the writ petition filed by the management was dismissed. The writ petition filed by the teacher was allowed and a direction was issued to implement the orders. In regard to W.P.C.Nos.5846 & 23453 of 2012 3 the salary, this Court directed the DEO to take a decision after issuing notice to the Manager. The direction to pay salary in Ext.P1 was therefore vacated. 3. Ext.P4 is the proceedings of the DEO who opined that though an order was issued by the DPI on 01/07/2009, the Manager refused to comply with the said direction. He filed a revision before the Government and until such time the order of DPI was not complied with. It was found that only after the judgment of this Court at Ext.P2, that the management had reposted the teacher on 14/07/2011 that is after two years. It is clearly observed that the Department as well as the Government had taken early decisions without delay to settle the claim by orders dated 01/07/2009 and 11/11/2009. She was kept out of service during the period from 01/06/2009 to 24/07/2011 only on account of the inaction on the part of the Manager and according to the DEO the petitioner was responsible for the delay and negligence in complying with the directions issued by DPI as W.P.C.Nos.5846 & 23453 of 2012 4 well as the Government. Hence it was found that the teacher was entitled for payment of salary and allowances for the above period and direction was issued to recover the same from the management by invoking Rule 7(4) of Chapter III of KER. 4. The main contention urged by the petitioner is that Rule 7(4) of Chapter III of KER does not enable the educational authorities to recover the salary payable to the teacher in the present case from the management. 5. In W.P.C.No.23453 of 2012 the teacher concerned has sought for a direction to pay the arrears of salary and allowances due and payable to her from 01/06/2009 to 14/07/2011 with interest at the rate of 18% per annum. Counter affidavit is filed by the third respondent, management in this case inter alia contending that there was no obligation on the part of the manager in paying the arrears of salary and allowances. Counter affidavit is filed by the second respondent inter alia stating that though the W.P.C.Nos.5846 & 23453 of 2012 5 Manager/Headmaster was called upon to submit necessary documents for releasing the salary and allowances for the period from 01/06/2009 to 14/07/2011, they have not taken any such action, failing which it may not be possible to release the salary due to the teacher. It was found that the Manager was solely responsible for the delay in settling the dues and hence he was directed to pay the arrear salary in terms of rule 7(4) of Chapter III of KER. 6. Since the facts involved in both the cases are substantially the same, the writ petitions are decided together by a common judgement. 7. The only contention raised by the Manager is with reference to their obligation to compensate the loss suffered by the teacher. According to them, Rule 7(4) of Chapter III of KER has no application. Rule 7(4) reads as under: _“(4) In the case of a Manager who commits serious irregularities causing monetary loss to teachers/Government, the loss sustained by teachers/Government shall be recoverable from_ W.P.C.Nos.5846 & 23453 of 2012 6 _the Manager under the provisions of the Revenue Recovery Act for the time being in force as if it is an arrear of public revenue due on land, in the following cases, namely -_ _(a) Denial of appointment to a qualified thrown out teacher who has a rightful claim for reappointment by virtue of his/her holding the post earlier under R.51A Chapter XIV A._ _**(** b) Denial of promotion to a teacher to any higher grade of pay under Rr. 43, 43B or 43C as the case may be, of Chap. XIVA, for denial of promotion to the senior-most rightful claimant to the post of Headmaster under Rr. 44 or 45 or 45 A, as the case may be, of Chap.XIV-A, when the post becomes vacant disobeying the directions from the department and/or Government causing denial of all monetary benefits which he/she would have got, had the promotion been effected as per rules in time._ _(c) Suspension of teachers, framing cooked up and/or frivolous charges, keeping them out of service beyond fifteen days disobeying the orders of re-instatement of such incumbents passed by the Deputy Director (Education) or by the_ W.P.C.Nos.5846 & 23453 of 2012 7 _Educational Officer concerned, as the case may be, after a preliminary investigation into the grounds of suspension under sub-r. (8) of R. 67, Chap. XIVA, depriving such incumbents of their salary for which they would have been entitled t o had they been reinstated by the Manager in compliance of the orders issued by the officer concerned._ _(d) Making of irregular appointments and getting them approved by the Educational Officers concerned by furnishing false information/declaration by he Managers regarding the claimants, under R.51 A, Chap. XIV A.”_ 8. It is not in dispute that the teacher was kept out of employment for a period from 01/06/2009 to 14/07/2011. The DPI as per order dated 01/07/2009, while setting aside the order of transfer directed the teacher to be posted in the same school from where she was transferred. The Manager filed a revision which is dismissed on 11/11/2009. Apparently until such time the teacher did not work in any of the schools. She did not join the school to which she was W.P.C.Nos.5846 & 23453 of 2012 8 transferred. Thereafter the order passed by DPI and the Government was challenged before this Court which was disposed on 11/07/2011. There is no indication in the writ petition to understand whether there was any stay of the proceedings by this Court. Therefore it is clear that the Manager had failed to comply with the directions issued by the DPI and the Government within a reasonable time. Admittedly she was reinstated only on 14/07/2011. The question is whether the Manager is responsible for the delay in appointing the teacher to the School from which she was transferred. There is no doubt about such a proposition and in general law the teacher will be entitled to recover the salary and allowances which she was actually entitled to as compensation for the delay on the part of the Manager in permitting her to join the school from which she was transferred. 9. But the Manager has raised a question regarding the right of the educational authorities in invoking Rule 7(4) W.P.C.Nos.5846 & 23453 of 2012 9 of Chapter III of KER. On a bare reading of the aforesaid provision indicates that it is possible for the Government to recover from the Manager monetary loss to the teachers/Government by resorting to the provisions of Revenue recovery Act. However it is stated that the said power can be invoked only in the cases referred in clause (a) to (d) of Rule 7(4). 10. The contention of the learned counsel for petitioner is that the facts involved in the case do not come within any of the provisions under clauses (a) to (d). It is true that going strictly by clauses (a) to (d), the facts of this case do not come under the said provisions. A learned Single Judge of this court had held in **Vasudevan Namboodiri v. State of Kerala** [ _1997 (2) KLT 529]_ that unless the claim is made specifically under any of the clauses (a) to (d) of Rule 7(4) of Chapter III of KER, the said provision cannot be invoked. If Rule 7(4) is not applicable the question is whether there is any other provision enabling the W.P.C.Nos.5846 & 23453 of 2012 10 Government to recover the damages suffered. No such provision is brought to my notice. 11. As already indicated, the teacher has to be compensated for denial of employment from 01/06/2009 to 14/07/2011 as directed by the DEO. Apparently the teacher was not working during the relevant period, but the facts involved would show that she was prevented from working in the said capacity. Therefore this is a case of deliberate inaction on the part of the Manager in reinstating the teacher to the school from which she was transferred. Under such circumstances, the teacher is entitled to recover the loss suffered by her from the Manager. Since the teacher has filed a writ petition claiming her salary and allowances for the period she was kept out of employment, I am of the view that this Court can impose penalty on the Management for their deliberate inaction and prevention. Accordingly while holding that Rule 7(4) cannot be invoked in the case, the writ petition filed by the teacher can be W.P.C.Nos.5846 & 23453 of 2012 11 allowed directing the Manager to pay the salary and allowances of the teacher from 01/06/2009 to 14/07/2011 with interest at the rate of 9% per annum from 11/11/2009 (date of Ext.P1 in W.P.(C)No.5846/2012). In the above circumstances, these writ petitions are disposed of as under: _(a) W.P.(C)No.5846 of 2012 is allowed and Ext.P3 is modified to the limited extent setting aside the direction to recover the loss suffered by the Government as per Rule 7(4) of Chapter III of KER._ _(b) W.P.(C)No.23453 of 2012 is allowed directing the third respondent to pay the petitioner her salary and allowances from 01/06/2009 to 14/07/2011 with interest at the rate of 9% per annum from 11/11/2009 (date of Ext.P1 in W.P.(C)No.5846/2012) within a period of one month from this date._ (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.Nos.5846 & 23453 of 2012 12