IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 WP(C).No. 26658 of 2007(W) -------------------------- PETITIONER: -------------------- V.K. SAVITHRI, PHYSICAL EDUCATION TEACHER, ICHANNUR A.U.P.SCHOOL, P.O. KANNANKARA, CHEVAYOOR, KOZHIKODE. BY ADVS. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL SRI.ANIL K.NAIR SRI.V.MADHUSUDHANAN SRI.PRAMJI PAUL VAZHAPPILLY RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. ASSISTANT EDUCATIONAL OFFICER, CHEVAYOOR, KOZHIKODE. R1 TO 3 BY GOVERNMENT PLEADER , SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26658 of 2007(W) -------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF THE GOVT. ORDER G.O. (RT) NO.282/83/G.EDN. DATED 28.1.1983. EXT.P2. COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.16226 OF 2004 DATED 18.8.2004. EXT.P3. COPY OF THE SHOW CAUSE NOTICE NO.RA4/90758/04M DPI DATED 30.5.2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXT.P4. COPY OF THE REPLY DATED 19.6.2006 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P5. COPY OF THE ORDER NO.90758/2004/DPI./RA (4) DATED 1.7.2006 ISSUED BY THE 2ND RESPONDENT. EX.P6 . COPY OF THE REVISION PETITION DATED 29.8.2006 FILED BY THE PETITIONER BEFORE THE 1ST RESPNENT. EXT.P7. COPY OF THE ORDER G.O. (RT) NO.3441/2007/G.EDN. DATED 25.7.2007 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS : NIL ---------------------------------------- / TRUE COPY / P.A. TO JUDGE VK T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.26658/2007-W ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 12th day of January, 2011 J U D G M E N T The petitioner challenges the orders passed by the Director of Public Instruction and the Government, namely, Exts.P5 and P7 wherein it is declared that the sanction of the full-time benefits to the petitioner in the post ordered by the Assistant Educational Officer is bad in law. 2. The petitioner was appointed as Physical Education Teacher on 25/11/1981 in A.U.P School, Ichannur. It was in a retirement vacancy which was not initially approved. Later, in terms of the Government Order dated 28/01/1983 a part-time post of Physical Education Teacher was sanctioned and consequential orders were passed by the Assistant Educational Officer approving the appointment of the petitioner. 3. During the staff fixation for the year 1990- 91, the Assistant Educational Officer issued orders sanctioning the post of Physical Education Teacher as a full-time post depending upon the periods of work, namely, 16 per week. Accordingly, the petitioner was W.P.(C). No.26658/2007 -:2:- accommodated in the full-time post and the approval was also granted. This situation continued for the subsequent years also. In the year 2004, the Deputy Director of Education by order dated 23/04/2004 objected to the sanctioning of full-time post which was challenged before this Court in W.P.(C).No.16226/2004. The writ petition was allowed on technical grounds like want of authority on the Deputy Director as per Ext.P2 Judgment. In terms of the directions issued in the Judgment, the arrears of salary were also paid upto 15/07/2006. 4. The Director of Public Instructions thereafter initiated fresh proceedings and issued show cause notice which was replied as per Ext.P4. The consequential order passed is produced as Ext.P5 whereby the said authority held that sanctioning of full-time post from 1990-91 and granting the incumbent approval as full-time Physical Education Teacher are not in order. This was confirmed by the Government in the revision petition filed. W.P.(C). No.26658/2007 -:3:- 5. The learned counsel for the petitioner mainly contended that the orders passed by the Director of Public Instruction and the Government are not correct in the light of the fact that there were 16 periods and also in the light of Rules 3 and 7(1) of Chapter XXIII K.E.R. Reference to the Rules shows that Rule 3 of Chapter XXIII K.E.R provides for the strength of the teaching staff in U.P Schools which have to be fixed on the basis of the number of recognised class divisions and periods of work. Rule 7(1) provides that the post of a language Teacher or High School Assistant-Language as the case may be or of a specialist Teacher or Craft Teacher created for less than 15 periods of work per week in the concerned language or subject shall be part-time. It is therefore contended that since there were 16 periods, the action of the Assistant Educational Officer in sanctioning the post and approving it cannot be found irregular. Even though the rules provide as such, in the light of the specific provisions of Chapter XXIII K.E.R, namely, Sub Rule 2 of Rule 6B, the said contention may not be available to the petitioner. Sub Rule 2 of Rule 6B provides that W.P.(C). No.26658/2007 -:4:- notwithstanding anything contained in Rule 7 or any other rule in this Chapter no post of Specialist Teacher shall be allowed to continue in any Upper Primary School or Upper Primary Section of High School except as specified therein, and Sub Rule (a) of sub- rule (2) is extracted below:- “(a) One post of Specialist Teacher namely Music Teacher or Physical Education Teacher or Drawing Teacher or Sewing Teacher as decided by the Educational Officer concerned during staff fixation in the case of Departmental Schools and as required by the Manager in the case of Aided Schools will be sanctioned in each Upper Primary School or Upper Primary Section of a High School having an effective strength of 500 pupils and above in the complete Upper Primary Section on the 6th working day of each academic year.” Going by the same, the effective strength should be 500. Herein, as evident from the orders impugned, the effective strength was below 500. In the light of the W.P.(C). No.26658/2007 -:5:- above, it cannot be said that the action taken by the Director of Public Instruction to recall the order passed by the Assistant Educational Officer is in any way bad in law. The Director of Public Instruction has invoked the power under Rule 12E(3) of Chapter XXIII K.E.R. The Government also in Ext.P7 held that the sanctioning of any post of Specialist Teacher was irregular since the effective strength of the school was below 500. Apart from that, the part time posts were approved in the light of the Government Order dated 28/01/1983 and unless the conditions for sanctioning a full-time post were not satisfied, it could not have been sanctioned. 6. The learned counsel for the petitioner then submitted that the recovery of the amount paid to the petitioner as salary as ordered in Exts.P5 and P7 cannot be justified. It is pointed out that the full- time post was approved and the petitioner had worked in that post also. Reliance is placed on the decision of this Court in Usuvathunnisa v. Asst.Educational Officer [1990 (2) KLT 530]. Therein, in paragraph (9) this Court considered a similar issue and it was held thus:- W.P.(C). No.26658/2007 -:6:- “Consequent on the posts being sanctioned and on approval being granted for the appointments, the petitioners had functioned as full-time Arabic Teachers in the respective schools from the respective dates of their appointment. Having obtained the benefit of their service, based on orders for which the petitioners were not responsible, and which they had no reason to suspect were, in any manner, illegal, it is not open to the respondents subsequently to turn round and claim refund of the salary paid, branding the entire proceedings as null and void, or as illegal. The petitioners have every reason to presume that the statutory authority, namely the Assistant Educational Officer has acted legally and within the bounds of his powers and jurisdiction in sanctioning the full-time posts and in approving their appointment. As stated by Kochu Thommen, J. (as he then was) in Aleyamma v. Deputy Director, Education, ILR 1982 (2) Kerala 509, every person has a right W.P.(C). No.26658/2007 -:7:- to place his trust in orders made by a competent authority in the normal course of his jurisdiction unless of course, the order is vitiated by fraud or interests of third parties are adversely affected. It is unjust and unfair to call upon persons like the petitioners to refund amounts drawn by them, for service rendered by them, years after the event after they had acted on the faith and strength of the orders of the statutory functionary, and adjusted their affairs accordingly. When the petitioners have worked in a particular grade, (as full time teachers) and the benefit of that work has gone to the schools, it cannot be said that they did so at their own peril, with liability to refund the salary in case it was found in any subsequent collateral proceedings that the sanctioning of their posts was not legal or proper.” 7. Reliance is also placed in a recent decision of the Apex Court reported in Aleyamma Varghese v. W.P.(C). No.26658/2007 -:8:- Secretary, General Education Department and Others [ILR 2007 (3) Kerala 105] wherein it was held that the recovery proceedings after long duration of time cannot be justified. Their Lordships took a view that “a mistake apparent on the face of the record may be rectified but in a matter of this nature, we would expect the State to react more magnanimously and not resort to recovery proceedings after a period of 17 years”. 8. Apart from the same, the arrears of salary were paid to the petitioner in terms of the directions issued by this Court in Ext.P2 Judgment. Therein, this Court, after setting aside Exts.P7 and P8 orders (produced therein) held the view that the petitioner shall be continued to pay salary on the basis of Ext.P2 order (produced therein) and arrears were thus paid. Accordingly, the petitioner received salary upto 15/07/2006. 9. It is pointed out that during the pendency of the writ petition, the petitioner has already retired from service. In the light of the fact that the W.P.(C). No.26658/2007 -:9:- petitioner has worked in the post and has received arrears in terms of the directions issued in Ext.P2 Judgment, there is no basis for recovery of any amount of salary paid to the petitioner as full-time teacher at this distance of time. Therefore, orders Exts.P5 and P7 to the extent to which they direct recovery of arrears and salary paid to the petitioner are set aside. In all other respects, the orders are held as valid. Since the petitioner has retired from service, she will be entitled for retirement benefits on the scale of pay applicable to part-time Physical Education Teacher and the same will be sanctioned and disbursed to the petitioner within three months from the date of receipt of a copy of this Judgment. The writ petition is disposed of as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms