W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015

**W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 1** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 12[TH] DAY OF JANUARY 2023 / 22ND POUSHA, 1944 ``` ## **`WP(C) NO. 27942 OF 2012`** ## **`PETITIONERS:`** ``` 1K.JEEJAKUMARY UPSA, RVSM HIGHER SECONDARY SCHOOL, PRAYAR P.O, OACHIRA-690547 2LEENA P UPSA, RVSM HIGHER SECONDARY SCHOOL, PRAYAR P.O,OACHIRA- 690547,NOW WOKING AS CLUSTER COORDINATOR, BLOCK RESOURCE CENTRE ,MAVELIKKARA 3M.S.DEEPA LG HINDI, R V S M HIGHER SECONDARY SCHOOL, PRAYAR P.O,OACHIRA-690547,NOW WORKING AS CLUSTER COORDINATOR, BLOCK RESOURCE CENTRE, THURAVOOR BY ADVS. SRI.VAKKOM N.VIJAYAN SRI.P.ANIYAN SMT.V.RENJU SMT.M.A.RAMITHA ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001 2THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-695001 3THE DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA-688001 4THE DISTRICT EDUCATIONAL OFFICER MAVELIKKARA - 690101 5THE MANAGER R V S M HIGHER SECONDARY SCHOOL, PRAYAR P.O,OACHIRA- 690547 6HEADMASTER, RVSM HIGHER SECONDARY SCHOOL, PRAYAR PO, OACHIRA-690 547 ADDL.R7 IMPLEADED ADDL.R7.K.GOPINATHA PILLAI, ``` **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 2** ``` AGED 65, S/O.N.K.KESHAVAN NAIR(LATE), “ASWATHI”, ERUVA, KAYAMKULAM IMPLEADED AS PER ORDER DTD 11.8.2015 IN IA NO.11303/15 BY ADVS. GOVERNMENT PLEADER SRI.K.M.FAISAL SRI.BRIJESH MOHAN SRI.SAJU J.VALLYARA ``` ## **`OTHER PRESENT:`** ``` SRI.K.M.FAISAL, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2023, ALONG WITH WP(C).28369/2012, 24890/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 3** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 12[TH] DAY OF JANUARY 2023 / 22ND POUSHA, 1944 ``` ## **`WP(C) NO. 28369 OF 2012`** ## **`PETITIONER:`** ``` P.S REMADEVI AGED 53 YEARS W/O.GOPINATHAN PILLAI, HEADMISTRESS, R.V.S.M. HIGH SCHOOL, PRAYAR.P.O, OCHIRA-690 547. BY ADVS. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH, SRI.T.S.HARIKUMAR RESPONDENTS: 1THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695 001. 2THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM- 695 014. 3THE DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA-688 001. 4THE DISTRICT EDUCATIONAL OFFICER MAVELIKKARA-690 101. 5THE MANAGER R.V.S.M.H.S.S., PRAYAR.P.O, OCHIRA-690 547. 6K.JEEJAKUMARY UPSA, R.V.S.M. HIGH SCHOOL, PRAYAR.P.O, OACHIRA-690 547. 7LEENA.P. UPSA, R.V.S.M. HIGH SCHOOL, PRAYAR.P.O, OACHIRA-690 547, PRESENTLY WORKING AS CLUSTER CO-ORIDINATOR, BLOCK RESOURCE CENTRE, MAVELIKARA. 8M.S.DEEPA LG HINDI, R.V.S.M. HIGH SCHOOL, PRAYAR.P.O, OACHIRA-690 547, PRESENTLY WORKING AS CLUSTER CO-ORDINATOR, BLOCK RESOURCE CENTRE, THURAVOOR BY G.P.SRI.K.M.FAISAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2023, ALONG WITH WP(C).27942/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 4** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 12[TH] DAY OF JANUARY 2023 / 22ND POUSHA, 1944 ``` ## **`WP(C) NO. 24890 OF 2015`** ## **`PETITIONER:`** ``` K.GOPINATHAN PILLAI AGED 66 YEARS S/O.N.K.KESHAVAN NAIR, ASWATHI, ERUVA, KAYAMKULAM. BY ADV SRI.M.A.FAYAZ ``` ## **`RESPONDENTS:`** |`1`|`STATE OF KERALA`| |---|---| ||`REPRESENTED BY SECRETARY TO THE GOVERNMENT, GENERAL`| ||`EDUCATION DEPARTMENT, SECRETARIAT,`| ||`THIRUVANANTHAPURAM 695 001.`| |`2`|`DIRECTOR OF PUBLIC INSTRUCTIONS`| ||`JAGATHY, THIRUVANANTHAPURAM 695 001.`| |`3`|`DEPUTY DIRECTOR OF EDUCATION`| ||`ALAPPUZHA 688 011.`| |`4`|`THE DISTRICT EDUCATIONAL OFFICER`| ||`MAVELIKKARA 690 101.`| |`5`|`THE MANAGER`| ||`RVSM HIGHER SECONDARY SCHOOL, PRAYAR P.O, OACHIRA 690`| ||`547.`| |`THIS`|`WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON`| |`12.01.2023, ALONG WITH WP(C).27942/2012 AND CONNECTED CASES, THE`|| |`COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`|| **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 5** ## **P.V.KUNHIKRISHNAN, J.** ## **------------------------------** **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015** **---------------------------------------------Dated this the 12[th] day of January, 2023** ## **JUDGMENT** These three writ petitions are connected therefore, I am disposing of these writ petitions by a common judgment. 2. Petitioners in W.P.(C)No.27942/2012 are the teachers of RVSM Higher Secondary School, Oachira and the petitioner in W.P. (C)No.28369/2012 is the Head Mistress of that School. The petitioner in W.P.(C)No.24890/2012 is the husband of Smt.A.Jayalakshmi (late), who was the Headmistress of RVSM Higher Secondary School during the periods 2001-2011. 3. First, I will narrate the facts in W.P. (C)No.27942/2012: The petitioners were appointed in the RVSM Higher Secondary School as teachers on 05.06.2002, 01.07.2003 and 12/2000 respectively and their appointments were approved by the 4[th] respondent, the District Educational Officer. The School is owned **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 6** and managed by the Vidhyapracharanam (Pvt.) Ltd., a company registered under the Indian Companies Act, 2013. 4. It is submitted that on 14-10-2005 a Super Check Cell inspection was conducted in the school and certain students were found to be absent on that particular day. According to the petitioners, the reason for the absence was because it was the period of Ramadan fasting and also due to non availability of noon feeding supply. But the 2[nd] respondent, the Director of Public Instructions, Thiruvananthapuram passed an order on 21-06-2006 as evident by Ext.P1 reducing 3 divisions and abolishing 3 posts in the school with effect from 15-07-2005 and ordered to recover the loss sustained to Government from the Headmistress worked at that time. As per Ext. P1, 5[th] Division in standard VI, 6[th] division in standard VII and 9[th] division in standard VIII and consequently 2 posts of UPSAs and one HAS(core subject) were abolished with effect from 15-07-2005. Consequently, the 4[th] respondent issued Ext.P2 order. Even before passing Ext.P2 order, the then manager of the school filed revision petition before the 1[st] respondent challenging Ext.P1 order. But the said revision filed by the previous manager was rejected by the 1[st] **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 7** respondent. Thereafter the 5[th] respondent issued a memo of charges along with a statement of allegations to the then headmistress and initiated a recovery proceedings against her. She then filed a revision before the 1[st] respondent, the Secretary to Government, General Education Department, Thiruvananthapuram. When the same was not considered, she filed W.P.(C) No. 28693/2009 before this Court and this Court disposed of that writ petition with a direction to the 1[st] respondent to consider and pass orders on the revision filed by her after hearing her, the 5[th] respondent, who is the manager of the RVSM Higher Secondary School and the affected teachers who are the petitioners in this writ petition. Ext.P3 is the judgment. As directed in Ext.P3, a hearing was conducted. On that day the 5[th] respondent, the then headmistress and the petitioners attended the hearing. The petitioners also submitted a statement before the 1[st] respondent as evident by Ext.P4. The 1[st] respondent after hearing all parties dismissed the revision filed by the headmistress as evident by Ext.P5. Challenging Ext.P5, the then headmistress filed W.P.(C) No.22021/2010 before this Court. The petitioners herein impleaded in the writ petition as additional respondents 6 to 8. The 5[th] respondent **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 8** submitted the details of 44 students who had appeared for the SSLC examination from the school whose names were shown as bogus admissions in Ext.P1. Ext.P6 is the said list. This Court directed the 4[th] respondent to file a report before this Court after verifying the revision filed by the petitioner therein and Ext.P6. The 4[th] respondent then filed Ext.P7 report. Thereafter, this Court was pleased to set aside Ext.P5 and directed the 1[st] respondent to reconsider the entire issue and pass fresh orders in the matter as per Ext.P8 judgment. In compliance with Ext.P8 judgment, a hearing was conducted on 9-32012. Thereafter, the 1[st] respondent as per Ext.P9 order, directed to recover an amount of 2,33,464/- from the salaries of the petitioners in 36 equal installments. The recovery ordered in Ext.P9 is based on Ext.P10 circular. In the meanwhile, the 1[st] petitioner, K. Jeejakumary was reappointed as UPSA in a leave vacancy for five years from 2507-2008 to 24-07-2013. The 2[nd] and 3[rd] petitioners, Leena P and MS Deepa were included in the list of retrenched teachers as per G.O (MS) No.102/2012/G. Edn. Dated 29-3-1012. They are appointed as Co-ordinators under the New Adyapaka Package organised by the Government of Kerala and implemented under the Education **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 9** department. Apprehending revenue recovery proceedings based on Ext.P9, the above writ petition is filed with the following prayers: _“(i) to issue a writ of certiorari or other appropriate writ direction or order calling for records leading to Ext .P9 and P10 quashing the same._ _(ii) To declare that the proposed recovery of Rs. 2,33,464/from the petitioners is illegal and unsustainable._ _(iii) To issue writ of mandamus or other appropriate writ, direction or order directing the respondents 2 to 4 to revise the staff fixation order of the school during the year 2005-2006 after setting aside Ext. P1, P2 and P5 and P9 and retain the affected teachers with retrospective effect._ _(iv) To issue writ of mandamus or other appropriate writ direction or order directing the respondents 2 to 4 to sanction the admissible 5th division to standard VI and VII and a second regular post of LG Hindi teacher by applying the 1:40 ratio and retain the retrenched teachers against that post._ _(v) to grant such other reliefs as this Hon'ble court may deems fit and proper in the interest of justice._ _(vi) to award cost to the petitioners.”[SIC]_ ## 5. W.P.(C). No.28369/2012 was filed by the successor ## Headmistress of R.V.S.M. High School with following prayers: i. _To declare that there is no bogus admissions in the petitioner's school during the academic year 2005-2006 and so respondents 6 to 8 are entitled to get the continuity of service with effect from their respective commencement of continuous service in_ **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 10** _the school;_ - _ii. To issue a writ of certiorari or other appropriate writ order or direction to call for the records leading to Exhibit P.1, P.2 quash the same;_ - _iii. To issue a writ of certiorari or other appropriate writ order or direction to call for the records leading to Exhibit P.11 to the extend of affecting the statutory and legal right of the school and the respondents 6 to 8 and quash the same;_ - _iv. To declare that the proposed recovery of Rs.2,33,464/- from the salary of the respondents 6 to 8 is illegal and unsustainable;_ - _v. To issue writ of mandamus or other appropriate writ, order or direction directing the respondents 2 to 4 to revise the staff fixation order of the School during the year 2005-2006 after setting aside Exhibit P.2 order and retain the affected teachers with retrospective effect;_ - _vi. Issue a writ of Mandamus or other appropriate writ order or direction to the respondents 2 to 4 to sanction the admissible 5[th] division to standard VI and VII and a second regular post of LG Hindi teacher by applying the 1:40 ratio and retain the retrenched teachers against that post;_ - _vii. Such other reliefs deems fit and proper in the circumstances of the case and the costs of this case._ _(SIC)_ 6. W.P.(C). No.24890/2015 is filed by the husband of late former Headmistress Smt.A.Jayalakshmi who retired from the service while working as Headmistress. The petitioner’s wife in this writ petition was the Headmistress of the 5[th] respondent School during **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 11** the periods 2001-2011 and she died in the year 2011 immediately after her retirement. Ext.P1 is the death certificate. As per Ext.P7, the petitioner’s wife was exonerated from the liability and ordered the recovery of salary received from the teachers by way of 36 equal monthly instalments. Ext.P7 produced in this writ petition is Ext.P9 in W.P.(C). No.27942/2012. As per Ext.P7 in this writ petition, the wife of the petitioner was exonerated from the liability. In Ext.P7 it is stated that only if any of the terminated teachers are not reemployed, the recovery can be effected from the former Headmistress. Admittedly the teachers who are the petitioners in W.P.(C). No.27972/2012 were re-employed, and hence, the former Headmistress is exonerated from the liability as per Ext.P7 order. Earlier, because the liability was fixed on the petitioner’s wife, the DCRG amount could not be claimed. In the light of Ext.P7 order, the petitioner submitted representation before the Government. But, as per Ext.P9, the 1[st] respondent, the Secretary to Government, General Education Department, Thriruvananthapuram, informed that since the liability against the petitioner’s wife has already been fixed before her retirement, the DCRG cannot be released. Ext.P9 is the letter ## **W.P.(C).Nos. 27942 & 28369 of 2012** **and 24890 of 2015 12** ## denying the DCRG. Aggrieved by Ext.P9, this writ petition is filed with ## following prayers: - _i. To issue a writ in the nature of mandamus directing respondents 1 to 4 to issue the Non Liability Certificate to the petitioner for the release of D.C.R.G. amount due to petitioner's wife A. Jayalakshmi;_ - _ii. To issue a writ in the nature of certiorari to quash Exhibit-P9 letter of the 1[st] respondent, to the extent the same is contrary to the decision in Exhibit-P7 Government Order exonerating petitioner's wife of all the liabilities in connection with the alleged staff fixation;_ - _iii. To declare that the petitioner's wife is entitled to receive the entire D.C.R.G. amount of Rs.7,00,000/- sanctioned by the Accountant General in view of Exhibit-P8 Government Order exonerating her of the liability fixed by the department earlier;_ - _iv. To direct the respondents 2 to 4 to release the entire D.C.R.G. amount of Rs.7,00,000/- due to the petitioner's wife with 12% interest forthwith due;_ - _v. To award cost of this proceedings to the petitioner;_ ## _And_ - _vi. To issue such other reliefs or orders as this Hon'ble court may deem fit and proper in the above case._ ## _(SIC)_ 7. Heard the learned counsel for the petitioners in these writ petitions and the learned Government Pleader. 8. The counsel for the petitioners in W.P.(C). **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 13** No.27942/2015 submitted that the points raised in that writ petition is covered in favour of the petitioners – teachers, in **Kishore v. State of Kerala [2019 (4) KLT 153]** . The counsel submitted that in the same set of facts, after considering Ext.P10 circular, this Court observed that the liability fixed on the teachers will not stand. The counsel for the petitioner in W.P.(C). No.24890/2015 submitted that as per the interim order passed on 11.07.2016, the DCRG was released to the petitioner and the order may be made absolute. The Government Pleader, based on the counter affidavit filed by the 1[st] respondent, submitted that there is no need to interfere with these impugned orders. 9. This Court considered the contentions of the petitioners and the Government Pleader. It is an admitted fact that the petitioners in W.P.(C). No.27942/2012 were appointed as teachers in the school and it is also an admitted fact that after the Super Check Cell Inspection on 14.10.2005, 3 posts were abolished because of the reduction of 3 divisions as per Ext.P1 order. Ext.P2 is the proceedings of the 4[th] respondent based on Ext.P1 order. It is also an admitted fact that the revision filed by the Manager against **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 14** Ext.P2 was rejected by the 1[st] respondent and thereafter memo of charges along with the statement of allegation was issued to the then Headmistress who is the wife of the petitioner in W.P.(C). No.24890/2015. **10.** Thereafter, the wife of the petitioner in WP(C) No.24890 of 2015 filed a revision before the 1[st] respondent and as directed by this Court in Ext.P3 judgment, the same was dismissed by the 1[st] respondent as evident by Ext.P5. When Ext.P5 was challenged before this Court by the wife of the petitioner in WP(C) No.24890 of 2015, this Court was pleased to set aside Ext.P5 produced in WP(C) No.27942 of 2012 and directed the Government to reconsider the matter and to pass fresh orders. It is also an admitted case that as per Ext.P9 the wife of the petitioner in WP(C) No.24890 of 2015 was exonerated and was ordered to recover the liability from the salary of the petitioners in WP(C) No.27942 of 2012 in 36 equal installments, after reappointment. The petitioners in WP(C) No.27942 of 2012 challenged Ext.P9 produced in that writ petition. The petitioner **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 15** in WP(C) No.24890 of 2015, who is the husband of the deceased former headmistress relied on Ext.P9 and submitted that the DCRG due to his wife is to be disbursed because she was exonerated from the liability. In **Kishor’s case** (supra) similar point was considered by this Court. It will be better to extract the relevant portions of the judgment. _13. There is no provision under the Kerala Education Act or the Rules which ascribe any role to a teacher in the administration of the School or even in the process of admission of students to the School. Therefore, in the absence of specific evidence, a teacher cannot be attributed with any role in the bogus admissions recorded in the admission register of the School. Hence, we are unable to accept the contention of the Senior Government Pleader that the appellant cannot plead complete ignorance regarding the bogus admissions. In this context it would be apposite to refer to the decision in Vasudevan Namboodiri's case (supra), wherein it was clearly held as follows:_ _“7. Chapter XXIII of K.E.R deals with the fixation of strength of teachers in departmental and aided schools. R.12 deals with the procedure for fixation of staff strength. The strength is verified by the Educational Officer by paying surprise visit to the school. Under R.123 the orders of staff fixation shall take effect on the 15th of July every year. R.12C empowers the superior officers to scrutinise the orders of staff fixation passed by the subordinate officers and may pass revised orders. The final orders are to be passed before the end of September every year. The power under R.120 is only to revise the order. The power of the appellate authority under R.12D shows that it only deals with creation of posts. In the present case, the power is exercised under R.12E(3) of the K.E.R. It reads as follows:_ **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 16** _'The Director may on his own motion or on the basis of the report of the authorised officer under R.16 including the evidence and other details, if any, collected by him or otherwise call for the records of the orders relating to fixation of staff strength issued by Subordinate Officers and revise the same._ _Provided that an order affecting the interest of a person shall not be passed under these rules unless the person concerned has been given an opportunity of taking any representation which he may wish to make against such orders.'_ _8. This also shows that the power is given only to revise the order of staff strength. No other power is given. It is no doubt true that when a power is given to the authorities it clothes him all the incidental powers to exercise it. The question is whether the right to recover the loss is incidental to the powers to revise the order of fixation of staff strength. To me it appears that such a power is not given under R.12E(3). What the authority is concerned is only to find out whether the order passed by the subordinate officers is proper or not. Here, he considers whether the principles regarding the fixation of staff strength are followed or not. Further, he has to consider the effective student strength. In assessing the student strength he has to consider the guidelines of the admissions and if he is convinced that the fixation is not proper he can cancel the same. This may result in the termination of service of a teacher. But this power does not clothe him with the right to recover the salary paid to the teacher on the ground that the Headmaster or Manager were responsible for misleading the authorities. According to me, the loss occasioned is a consequence of the power exercised by the authorities and is not incidental to the power exercised by them.”_ _Similar view was taken by the Division Bench in Padmini's case (supra) also._ _14. With respect to the contention based on Rule 1A Chapter XXVI that power is vested in the Government or the Director to order refund, in appropriate cases, of salary paid to teachers in excess of the amount_ **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 17** _legally due or payment made irregularly, we accept the contention of the learned counsel for the appellant that Chapter XXVI deals exclusively with the scales of pay of aided school teachers and therefore the recovery/refund provided thereunder is only with respect to the excess salary paid consequent to a wrong fixation of pay. Rule 1A of Chapter XXVI does not confer general power on the Government or the Director of Public Instructions to recover salary from the teachers._ _15. The next contention is based on Circular No.34025/J2/12/G.Edn. dated 21.6.2012. In this context it may be relevant to consider that in Exhibits P4 and P6, the direction was to recover the loss sustained by the Government by way of salary to the teachers who had worked against the irregular posts, from the Headmistress. This direction was reiterated in Exhibit P9. Further, in Exhibit P6 there was a direction to examine the eligibility of protection including 1:40 ratio and to extend the benefit to the affected teachers. In Exhibit P10, reference is made to the Circular and direction issued to recover an amount of Rs.1,42,297/- from the petitioner in 36 equal instalments. Exhibit P10 does not even mention as to how the petitioner was found liable to repay the amount. It is not disputed that the appellant was not heard before issuing Exhibit P10. The only contention is that the Circular provides for such recovery and the appellant having been appointed in pursuance of the Circular, she is estopped from challenging the recovery. It may be worthwhile to mention that as a policy; the Government had decided to provide protection to the teachers retrenched consequent to reduction of class divisions. Various Government orders were issued in this regard and a comprehensive teachers package was constituted as per G.O(P)No.199/11/G.Edn. dated 1.10.2011. It is seen that as per G.O(MS).No.177/2012/G.Edn. dated 5.6.2012, the Government acted on the report of the DPI and appointed 1190 Cluster-Co-ordinators under SSA from among the retrenched teachers. Later, the Government issued Circular No.34025/J2/12/G.Edn. dated 21.6.2012, the circular referred to in Exhibit P10, clarifying that the approved teachers thrown out due to detection of bogus admission of pupils by the Super Check Cell will be included in the list of retrenched teachers and on their appointment, the amount disbursed by way of salary, while they worked in the excess posts from which they were retrenched, shall be recovered from their current salary in 36 equal instalments. It is true that there is no_ ## **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 18** _challenge to the Circular. But the question remains as whether a teacher, who was not in any manner found liable for the bogus admissions and who undisputedly had worked as a teacher during the period which her salary is sought to be recovered, can be mulcted with the liability to repay the salary, on her being reappointed in accordance with the Government policy. According to us, mulcting of such liability as a condition of re- appointment would not only violate the principles of natural justice and fair play, but would, in a way, be a compulsion to do bonded labour. Such action, even if by the Government, would be illegal. It is also evident that no consent for recovery was taken from the teacher and the teacher who was thrown out was incapable of bargaining with the Government, when she is offered some mitigation from the vagaries of the Manager. We are not commenting upon the legality or otherwise of the Circular, in the absence of a challenge against the same. But we have no hesitation to hold Exhibit P10, in so far as it directs recovery from the salary of the appellant, to be illegal._ _In the result, the impugned judgment is set aside, Exhibit P10 is quashed and the writ appeal is allowed to that extent. No order as to costs._ 11. In the above judgment, this Court has clearly stated that Chapter VI of KER deals with the admission, transfer and removal of pupils from schools. The Division Bench of this Court observed that there is no provision under the Kerala Education Act or the Rules, which ascribe any role to a teacher in the administration of the school or even in the process of admission of students to the school. Therefore, the Division Bench observed that in the absence of any specific evidence, a **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 19** teacher cannot be attributed with any role in the bogus admissions recorded in the admission register of the school. Hence the Division Bench of this Court was pleased to observe that the liability fixed on the teachers cannot be accepted. The same is the situation in this case also. There is no case to the department that the petitioners in WP(C) No.27942 of 2012, who are the teachers were parties to the alleged bogus admission. There is no allegation against them that the bogus admissions were created with their connivance. Under such circumstances, the recovery from the petitioners based on Exts.P9 and P10 is unsustainable. But as observed by the Government in Ext.P9 order produced in WP(C) No.27942 of 2012, there is no reason to review the revised staff fixation order issued by the Director of Public Institution at this point of time. The fact finding authority has considered the matters in detail and hence this Court need not interfere with the same. But recovery from the petitioners in WP(C) No.27942 of 2012 based on Exts.P9 and P10 is to be quashed. **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 20** 12. As far as WP(C) No.24890 of 2015 is concerned, this Court passed an interim order on 11.07.2016 which is extracted hereunder: _“Heard._ _There will be a direction to the respondents to release the DCRG amounts of Rs.7,00,000/- (Rupees seven lakhs only) due to the petitioner’s late wife, in the light of Ext.P7 Government Order exonerating petitioner’s late wife of all liabilities._ _The 3[rd] and 4[th] respondents shall take steps to release the aforesaid amounts to the petitioner, within a period of two months from today.”_ 13. Admittedly, the wife of the petitioner in that writ petition was exonerated from the liability as per Ext.P7 produced in that writ petition. Under such circumstances, the petitioner, who is the husband of the deceased headmistress is entitled the DCRG. The DCRG is already disbursed based on the interim order. Therefore, the same can be made absolute. Therefore, these writ petitions are allowed in the following manner: 1. WP(C) No.27942 of 2012 and WP(C) No.28369 of 2012 are allowed quashing recovery proceedings from **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 21** the salary of the petitioners in in WP(C) No.27942 of 2012 based on Exts.P9 and P10 in that writ petition (Exts.P11 and P12 in WP(C) No.28369 of 2012). 2. WP(C) 24890 of 2015 is allowed and the interim order passed in that writ petition on 11.07.2016 is made absolute. SD/- **P.V.KUNHIKRISHNAN JUDGE** DM JV DAS **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 22** ## **`APPENDIX OF WP(C) 27942/2012`** ## **`PETITIONERS EXTS:`** ``` EXT P1: COPY OF ORDER DTD 21.6.2006 PASSED BY R2 ``` ``` EXT P2: COPY OF PROCEEDINGS OF R4 DTD 31.7.2006 ``` ``` EXT P3:COPY OF JUDGMENT DTD 17.12.2009 IN WPC NO.28693/2009 PASSED BY THIS COURT ``` ``` EXT P4:COPY OF STATEMENT SUBMITTED ON 30.4.2010 BY THE PETITIONERS BEFORE R1 ``` ``` EXT P5:COPY OF ORDER DTD 25.5.2010 PASSED BY R1. EXT P6:COPYT OF SAID LIST OF STUDENTS PRODUCED BY R5 EXT P7:COPY OF REPORT FILED BY R4. ``` ``` EXT P8:COKPY OF JUDGMENT DTD 15.11.2011 IN WPC NO.22021/2010 EXT P9:COPY OF SAID ORDER DTD 5.10.2012 PASSED BY R1. ``` ``` EXT P10:COPY OF CIRCULAR NO.34025/J2/12/G.EDN.DTD 21.6.2012 ``` ## `RESPONDENTS EXTS` ``` EXT R6(A):COPY OF COMMUNICATION ISSUED BY THE DY.DIRECTOR DTD ``` ``` 21.12.2012 ``` ``` EXT R6(B):COPY OF COMMUNICATION ISSUED BY R3 DTD 19.9.2014 ``` **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 23** ## **`APPENDIX OF WP(C) 24890/2015`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1. COPY OF THE DEATH CERTIFICATE IN RESPECT OF PETITIONERS WIFE A.JAYALAKSHMI. EXHIBIT P2. COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENTS OFFICE DATED 21.6.06. ``` ``` EXHIBIT P3. COPY OF THE PROCEEDINGS ISSUED BY THE 3RD RESPONDENT DATED 23.9.09. ``` ``` EXHIBIT P4. COPY OF THE DETAILS OF 44 STUDENTS WHO HAVE APPEARED FOR THE SSLC EXAMINATIONS FROM THE 5TH RESPONDENTS SCHOOL. ``` ``` EXHIBIT P5. COPY OF THE REPORT FILED BY THE 4TH RESPONDENT. EXHIBIT P6. COPY OF THE JUDGMENT OF THE HONOURABLE COURT IN WPC 22021 OF 2010 DATED 15.11.11. ``` ``` EXHIBIT P7. COPY OF THE ORDER ISSUED BY THE IST RESPONDENTS (G.O (RT) NO.4808/2012/G.EDN DATED 5.10.12. EXHIBIT P8. COPY OF THE GOVERNMENT CIRCULAR NO.21/6/2012. ``` ``` EXHIBIT P9. COPY OF THE LETTER ISSUED BY THE IST RESPONDENT DATED 26.5.15 TO THE 3RD RESPONDENT. ``` **W.P.(C).Nos. 27942 & 28369 of 2012 and 24890 of 2015 24** ## **`APPENDIX OF WP(C) 28369/2012`** ``` PETITIONER’S EXTS: ``` ``` EXT P1:COPY OF ORDER OF R2 DTD 21.6.2006 EXT P2:COPY OF ORDER OF R4 DTD 31.7.2006 EXT P3:COPY OF ORDER OF R1 DTD 28.3.2007 EXT P4:COPY OF MEMO OF CHARGES GIVEN TO SMT.A.JAYALEKSHMI, THE FORMER HEADMISTRESS, A/W. THE STATEMENT OF ALLEGATION DTD 12.1.2009 ``` ``` EXT P5:COPY OF REVISION PETITION FILED BY THE FORMER HEADMISTRESS ON 19.10.2009 BEFORE R1 ``` ``` EXT P6:COPY OF JUDGMENT IN WPC 28693/2009 DTD 17.12.2009 EXT P7:COPY OF LIST OF STUDENTS SUBMITTED BY THE PETITIONER BEFORE THE UNDER SECRETARY, DTD 3.5.2010 ``` ``` EXT P8:COPY OF ORDER OF THE UNDER SECRETARY, DTD 25.5.2010 EXT P9:COPY OF REPORT OF R4 SUBMITTED IN WPC NO.22021 OF 2010 EXT P10:COPY OF JUDGMENT IN WPC NO.22021 OF 2010 BY JUDGMENT DTD 15.11.2011 EXT P11:COPY OF ORDER OF R1 DTD 5.10.2012 EXT P12:COPY OF CIRCULAR NO.34025/J2/12/G.EDN.DTD 21.6.2012 ```