IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 WP(C).No. 11127 of 2008(Y) PETITIONER: --------------- K.K.GEETHA, W/O.K.P.SURESH KUMAR, AGED 38 YEARS, ASSISTANT TEACHER, A.U.P.SCHOOL, KANNIAMPURAM, OTTAPALAM 679 104. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: --------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, TRIVANDRUM-14. 3. THE ASSISTANT EDUCATIONAL OFFICER, OTTAPPALAM, PALAKKAD DISTRICT. 4. THE MANAGER, A.U.P.SCHOOL, KANNIAMPURAM, OTTAPPALAM 679 104, PALAKKAD DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER SRI.T.T.MUHAMOOD R4 BY ADV. SRI.P.SREEKUMAR SMT.P.S.SINDHU SRI.K.S.MANU (PUNUKKONNOOR) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER NO.D.DIS.D/1883/88 OF THE ASSISTANT EDUCATIONAL OFFICER, OTTAPPALAM DATED 15.7.1988. EXT.P2 TRUE COPY OF THE LETTER NO.L.DIS. D/2562/88 OF THE ASSISTANT EDUCATIONAL OFFICER, OTTAPPALAM DATED 10.8.1988. EXT.P3 TRUE COPY OF THE LETTER NO.L.DIS.592/88/SC OF THE SUPER CHECK OFFICER DATED 10.11.1988. EXT.P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 1.2.1989. EXT.P5 TRUE COPY OF THE LETTER NO.D/854/89 OF THE ASSISTANT EDUCATIONAL OFFICER DATED 3.6.1991. EXT.P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 31.3.1993. EXT.P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE HONOURABLE MINISTER FOR EDUCATION DATED 5.4.1993. EXT.P8 TRUE COPY OF THE PETITION FILED BEFORE THE ASSISTANT EDUCATIONAL OFFICER, DATED 25.8.1993. EXT.P9 TRUE COPY OF THE LETTER OF THE PETITIONER DATED 4.1.1994. EXT.P10 TRUE COPY OF THE APPEAL FILED BEFORE THE DIRECTOR DATED 16.4.1994. EXT.P11 TRUE COPY OF THE NOTICE NO.D/854/89 OF THE ASSISTANT EDUCATIONAL OFFICER DATED 3.8.1993. EXT.P12 TRUE COPY OF THE ORDER NO.K.DIS.D/954/89 OF THE ASSISTANT EDUCATIONAL OFFICER DATED 18.10.1993. EXT.P13 TRUE COPY OF THE ORDER NO.G1/59242/94 OF THE DIRECTOR OF PUBLIC INSTRUCTION DATED 7.9.1994. EXT.P14 TRUE COPY OF THE ORDER NO.D/2429/94 OF THE ASSISTANT EDUCATIONAL OFFICER DATED 14.11.1994. EXT.P15 TRUE COPY OF THE LETTER OF THE HEADMISTRESS DATED 10.2.1995. EXT.P16 TRUE COPY OF THE INTERIM ORDER IN CMP.NO.4962/1995 IN O.P.NO.2697/1995-U DATED 21.2.1995. EXT.P17 TRUE COPY OF THE G.O.(Rt)NO.342/89/GL.EDN. DATED 31.1.1989. EXT.P18 TRUE COPY OF THE JUDGMENT OF THIS COURT IN O.P.NO.2697 OF 1995 U, DATED 1.8.2007. EXT.P19 TRUE COPY OF THE ARGUMENT NOTES DATED 16.1.2008. EXT.P20 TRUE COPY OF THE DECISION REPORTED IN 1982(1) ILR KER.557, DATED 5.6.1980. EXT.P21 TRUE COPY OF THE G.O.(Rt) NO.848/08/G.EDN. DATED 14.2.2008. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 11127 OF 2008 Y ------------------------------------------------------ Dated this the 13th day of January, 2009 JUDGMENT The petitioner K.K.Geetha, was appointed on 6.1.1988 as Assistant Teacher in A.U.P School, Kanniampuram, Ottappalam Taluk, an aided school of which the 4th respondent is the Manager. It is stated by the petitioner that from 1975 onwards there are 8 class divisions in the school. 2. As per Ext.P1 staff fixation order dated 15.7.1988, it was found that there were six classes as per Pre-KER and two classes as per the Post-KER. However, on the basis of the students strength, number of class divisions sanctioned for 1988-89 was 7. Ext.P1 shows that reduction in the strength of pupil was taken note of. But readmission of students was not reckoned for the purpose of retaining the division. Ext.P1 staff fixation order was revised on the basis of the orders issued by the Government and communicated by the Director of Public Instruction as per order dated 28.7.1988. Ext.P2 revised staff fixation order was passed on 10.8.1988 and 8 class divisions were sanctioned for 1988-89. It is stated that the W.P.(C) NO.11127 OF 2008 Y :: 2 :: petitioner was appointed in the 8th class division, which was functioning since 1975. 3. An inspection was conducted by the Super Check Cell in the school on 5.8.1988. On 10.11.1988, the Super Check Officer addressed Ext.P3 to the Assistant Educational Officer, which reads as follows: “At the time of Super Check of the fixation of staff of the Kanniampuram AUPS for 88-89, it was noticed that the 2 post-KER buildings do not possess the required minimum height. So class divisions sanctioned in the School over and above the pre-KER divisions are not justified in case of accommodation. At the same time it is a fact that 7 divisions alone are sanctioned to the School in 88-89 against 8 Divisions in 87-88. Hence taking a lenient view, no further objections are raised against seven class divisions sanctioned in 1988-89. The Asst. Edl. Officer will see that no further divisions are sanctioned in future to the school if the Manager fails to increase the height of KER buildings to the prescribed minimum.” 4. The Assistant Educational Officer issued Ext.P5 letter dated 3.6.1991 to the Headmaster of the school, which reads as follows: W.P.(C) NO.11127 OF 2008 Y :: 3 :: “With reference to the above, I am to inform you that the Staff fixation orders come into force w.e.f. 15th July every year. As such the 8th division sanctioned irregularly in the UPS, Kanniampuram should be cancelled w.e.f. 15.7.1988. Hence you are requested to take urgent steps to recover the salary paid for the period from 15.7.88 to 31.10.88 to Smt.K.K.Geetha, Asst. Teacher and produce the chalan receipt for Rs.3,867/- urgently to this office for verification.” 5. Several representations were submitted by the petitioner to the Educational Authorities for cancelling the order for recovery of the salary from her and also to pay her salary for the period from 1.11.1988 to 9.11.1988. In one of said representation, namely, Ext.P10 dated 16.4.1994 addressed by the petitioner to the Director of Public Instruction, it is states thus. “But on the basis of the order of the Super Check Cell dated 10.11.88 the Manager, terminated my service in the afternoon of 9.11.88. The next day he appointed me in the maternity leave vacancy that existed in the School at that time. That appointment was also approved and pay sanctioned by AEO. By the time the order of the Cell came, I had already drawn my pay upto 31.10.1988. But after nearly three years, on 3.6.91 the AEO directed me to refund the salary drawn by me upto 31.10.88. He also returned the bill for my arrear salary from 1.11.88 to 9.11.1988. Through the Head Teacher I replied to AEO that I was not bound to refund the amount I had drawn, because the post and my approval were sanctioned by him.” W.P.(C) NO.11127 OF 2008 Y :: 4 :: 6. As per Ext.P12 proceedings of the Assistant Educational Officer dated 18.10.1993, an amount of Rs.3,867/- was directed to be recovered as excess salary drawn by the petitioner for the period from 15.7.1988 to 31.10.1988. The Headmaster was directed to recover the amount. 7. It would appear that Ext.P12 order dated 18.10.1993 and Ext.P5 order dated 3.6.1991 passed by the Assistant Educational Officer were challenged by the petitioner in O.P.No.2697/1995. An interim stay was granted on 21.2.1995. When O.P.2697/1995 came up for hearing, the learned Government Pleader submitted that the matter was considered by the Government on an appeal filed by the Manager and final orders were passed on 31.1.1989 (order dated 31.1.1989 is marked as Ext.P17 in the present Writ Petition). In view of the GO dated 31.1.1989, it was submitted that the Director of Public Instruction could not take any decision in favour of the petitioner as requested by her. The petitioner contended in O.P.2697/1995 that the Government had not considered her grievance and the case was disposed of only in the back ground of the contentions raised by the Manager. In the light of these facts and circumstances O.P.2697/1995 was disposed of on 1.8.2007 W.P.(C) NO.11127 OF 2008 Y :: 5 :: granting liberty to the petitioner to put forward her grievance before the Government within two months from the date of the judgment. In such an event, the Government was directed to consider the matter after affording an opportunity of being heard to the petitioner and the Manager. Thereafter the Government considered the matter and passed Ext.P21 order dated 14.2.2008. It was held by the Government that there is no ground for reconsidering the case. Ext.P5 order dated 3.6.1991 and Ext.P12 order dated 18.10.1993 passed by the Assistant Educational Officer and Ext.P21 order dated 14.2.2008 passed by the Government are under challenge in this Writ Petition. There is also a prayer to issue a writ of Mandamus commanding the Assistant Educational Officer to grant salary to the petitioner for the period from 1.11.1998 to 9.11.1988. 8. The learned counsel for the petitioner relied on a circular No.32746/J1/92/G.Edn. Dated 16.7.1992, wherein it is provided thus: “In continuation of the Government letters cited, the following clarificatory orders are issued: (i) Staff Fixation – Height of School Buildings. a) The requirement regarding minimum height will be insisted from 1985-86 onwards only, as already intimated to the Managers (Government letter read 1) W.P.(C) NO.11127 OF 2008 Y :: 6 :: b) The height rules will not be enforced to permanent and semi permanent buildings which have already been approved for Staff fixation in previous years. c) The Deputy Directors (Education) are competent to grant Temporary/Permanent exemption from minimum height of School buildings, on merits, vide GO read 2.” 9. The counsel for the petitioner also relied on the decision of the Supreme Court in Aleyamma Varghese Vs. Secretary, General Education Department (2007(3) KLT 700 (SC)) and submitted that recovery of the amount from the petitioner at this distance of time is not justified. The counsel also relied on 2008(3) KLT 188 Narayanan V. State of Kerala and ILR 1976 (1) Kerala 48 Gracy V. Assistant Educational Officer, Ambalapuzha. The counsel stats that the decision in Gracy V. Assistant Educational Officer, Ambalapuzha was confirmed in Writ Appeal. The learned counsel also relied on ILR 1982 (1) Kerala 557 Parukutty Amma V. Devaswom Commissioner and others and contended that the petitioner had actually worked during the relevant period and therefore recovery of the salary was not justified. In the decision in Parukutty Amma V. Devaswom Commissioner, it was held that 'when a person has worked in a post and the employer has had the benefit W.P.(C) NO.11127 OF 2008 Y :: 7 :: of his service, it is not legally permissible to call upon the employee to refund the salary and allowances paid to him for such work on its being subsequently discovered that the retention of the employee in service was not warranted by the rules. 10. The learned Government Pleader submitted that the recovery of the amount from the petitioner is justified under Rule 1(a) of Chapter XXVI of the Kerala Education Rules. Which provides that “the Government or the Director or Deputy Director (Education) concerned or the Educational Officer concerned shall have the power to order refund in appropriate cases of salary paid to teachers in excess of the amount legally due or payment made irregularly.” 11. The Government Pleader relied on the decision in Santhakumari v. State of Kerala (2005(4) KLT 649), wherein it was held that “if an employee has received any amount contrary to a statutory provision, the mistake is mutual since the administration as well as employee is bound by statutory provision. It was also held that unless there is statutory bar in recovering the amount, any amount paid by mistake can be recovered depending upon the facts and circumstances of each case.” The decision was rendered with reference to Ruling No.2 Rule 60 Part I of Kerala Service Rules. W.P.(C) NO.11127 OF 2008 Y :: 8 :: 12. The learned Government Pleader also submitted that the petitioner is liable to disgorge the benefit which she received during the period when no post itself existed due to the staff fixation order. The learned counsel for the petitioner further submitted that going by Rule 16 of Chapter XXIII of the KER, the Super Check Cell could only send a report to the Director of Public Instruction for appropriate action and the Assistant Educational Officer had no jurisdiction to rely on the report of the Super Check Cell and pass an order like Ext.P5. It was also submitted that the Director could exercise the revisional power under Rule 12 E (3) of Chapter XXIII on the basis of the report of the authorised officer under Rule 16 of Chapter XXIII. The Assistant Educational Officer, however, has no power to take action on the basis of the report of the Super Check Cell. 13. The contentions raised by the learned counsel for the petitioner as well as the learned Government Pleader are not seen considered in Ext.P21 order. In Ext.P21, the main reason for rejecting the contention of the petitioner is that the revision petition filed by the Manager against the staff fixation order 1988-89 was rejected by the Government upholding the decision taken by the W.P.(C) NO.11127 OF 2008 Y :: 9 :: Super Check Cell. Ext.P21 does not make mention of any action taken by the Director of Public Instruction under Rule 16 of Chapter XXIII. The Government have also not considered in Ext.P21 the long delay in passing the order for recovery of amount from the petitioner. It was not considered whether the amount should be recovered since the petitioner had actually worked during the period. The main contention raised by the petitioner is that no amount is recoverable from her and that she is entitled to get the salary for the period from 1.11.1988 to 9.11.1988. That question is also not seen considered in Ext.P21 order. 14. The circular which is referred to by the learned counsel for the petitioner states that in the matter of staff fixation, the requirement regarding minimum height of school building will be insisted from 1985-86 only. It is also provided that the height rules will not be enforced to permanent and semi permanent buildings which have already been approved for staff fixation in previous years. The petitioner contents that the buildings were approved and staff fixation orders were issued from 1975 onwards and therefore the circular will squarely apply. Ext.P3 which refers to the inspection by Super Check Cell, mentions that it was noticed by the Super W.P.(C) NO.11127 OF 2008 Y :: 10 :: Check Cell that two post-KER buildings do not have the required minimum height and therefore class divisions sanctioned in the school over and above the pre-KER divisions were not justified. It is to be noted that Ext.P1 staff fixation order for 1988-89 was revised as per Ext.P2 for the same year and 8 divisions were sanctioned. Ext.P2 is dated 10.8.1988 whereas Ext.P3 referring to the report of Super Check Cell is dated 10.11.1988. In the light of the facts mentioned above and in the light of the contentions put forward by the parties, I am of the view that the Government shall consider the matter afresh taking into account all the relevant aspects and pass an order. The Government shall also take into account the circular dated 16.7.1992. For the aforesaid reasons the writ petition is allowed. Ext.P21 order is quashed. The first respondent shall dispose of the matter afresh after affording an opportunity of being heard to the petitioner as well as the Manager. The contentions put forward by the parties as mentioned above are to be taken note of while disposing the matter. Till the matter is disposed of by the Government, all the proceedings for recovery of alleged excess amount drawn by the petitioner shall be kept in abeyance. The petitioner shall produce a W.P.(C) NO.11127 OF 2008 Y :: 11 :: copy of the Writ Petition, a copy of the counter affidavit and copy of the judgment before the first respondent. K.T.SANKARAN, JUDGE ab/ahz