IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 WP(C).No. 12883 of 2007(H) -------------------------- PETITIONER(S): ------------------ K.M.JAMEELAMMA, W/O.C.A.IBRAHIM RAWTHER, SEETHAKULATH HOUSE, EZHUMATTOM P.O., MALLAPPALLY (ARABIC TEACHER, DEVASWOM BOARD HIGH SCHOOL, ERUMELI). BY ADV. SRI.S.SUBHASH CHAND RESPONDENT(S): ------------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 3. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KANJIRAPPALLY. 4. THE CORPORATE MANAGER, TRAVANCORE DEVASWOM BOARD SCHOOLS/ SECRETARY, OFFICE OF THE TRAVANCORE DEVASWOM BOARD DEVASWOM BOARD BUILDING, NANDHANCODE, THIRUVANANTHAPURAM. 5. THE HEADMASTER, DEVASWOM BOARD HIGH SCHOOL, ERUMELI. ADDL.R6. THE ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, KOLLAM. ADDL.R7. THE HEADMISTRESS, DEVASWOMBOARD LOWER PRIMARY SCHOOL, THIRUMULLAVARAM (ADDL.R6 AND R7 ARE IMPLEADED AS PER ORDER DT 6.6.07 IN IA 7012/07.) ADV. SRI.K.N.VENUGOPALA PANICKER, SC, TDB FOR R4,5 GOVERNMENT PLEADER SRI.T.T.MOHAMMED FOR R1 TO 3 ,ADDL.6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.12883/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER BEARING NO.B5-14624/97/D.DIS DT 16.2.1998 ISSUED BY RESPONDENT NO.2. EXT.P2: TRUE COPY OF THE ORDER BEARING NO.K.DIS/12289/03/B5 DT 14.11.2003 ISSUED BY RESPONDENT NO.2. EXT.P3: TRUE COPY OF THE STAFF FIXATION ORDER DT 14.7.2006 PASSED BY RESPONDENT NO.3 IN RESPECT OF DEVASWOM BOARD HIGH SCHOOL, ERUMELI. EXT.P4: TRUE COPY OF THE ORDER DT 5.3.2007 PASSED BY RESPONDENT NO.3. EXT.P5: TRUE COPY OF THE CIRCULAR DT 29.8.1992 ISSUED BY THE DEPUTY SECRETARY, GENERAL EDUCATION (J) DEPARTMENT. EXT.P6: TRUE COPY OF THE ORDER BEARING ROC NO.2653/05/EDN DT 28.3.2007 PASSED BY RESPONDENT NO.4. EXT.P7: TRUE COPY OF THE REPRESENTATION (EXCLUDING ANNEXURES) DT 20.4.2007 SUBMITTED BEFORE RESPONDENT NO.1. EXT.P8: TRUE COPY OF THE GOVERNMENT ORDER BEARING GO(MS) NO.258/90/G.EDN. DT 15/12/1990. EXT.P9: TRUE COPY OF THE JUDGMENT DT 16.10.2007 PASSED BY THIS HON'BLE COURT IN WPC NO.26710/2007. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. =============== W.P.(C) NO. 12883 OF 2007 (H) ==================== Dated this the 7th day of October, 2008 J U D G M E N T Since 15/7/94, petitioner was working as a Part Time Arabic Teacher and from 15/7/77 onwards, as a full time teacher. 2. The issue in this writ petition arises out of Ext.P3 staff fixation order for the year 2006-07, by which, a post which was abolished in the year 2003-04, was again sanctioned. However, it would appear that based on the direction of the Deputy Director, the DEO has issued Ext.P4 order abolishing the post on the ground that there were only 9 students. It is challenging Ext.P4, this writ petition is filed. 3. The main contention urged is that the DEO could not have reviewed his order and that the order passed was without giving opportunity to the affected parties. Counsel also relied on Rule 12 C of Chapter XXIII KER in support of this plea. It is stated that the petitioner happened to be the victim of Ext.P4 for the reason that the Manager had not disclosed the fact that a teacher junior to the petitioner was working in DBLPS, Thirumullavaram, who was not entitled to protection. If that be so, as rightly contended by the petitioner, it was that teacher who ought to have been retrenched and the petitioner ought to have been transferred WPC 12883/07 :2 : and accomodated in her place. However, subsequent to Ext.P4, Manager has issued Ext.P6 retrenching the aforesaid junior most teacher, then working in DBLPS, Thirumullavaram effective from 15/7/06 and posting the petitioner in that place. 4. Presently, therefore, petitioner is aggrieved by that part of Ext.P4 which directs that excess payment received by her shall be recovered. Yet another grievance of the petitioner is that she has not been paid for the period 1/3/2007 to 17/4/2007. 5. Now that it has come out that there was a teacher junior to the petitioner, who has since been retrenched, there is no question of the petitioner having received any excess payment, requiring to be recovered from her as ordered in Ext.P4. True that excess payment has been made by the Government and necessarily that is to be recovered. But in the aforesaid factual background, petitioner has to be exonerated of the liability and it will be open to the Department to take recourse to the provisions of the KER for recovering such excess payment either from the Manager or from the junior most teacher, whoever is liable. 6. In view of Ext.P6 and as the right of the petitioner for continuance has been recognised, necessarily, petitioner is also entitled to be paid for the period from 1/3/2007 to 17/4/2007 as well. WPC 12883/07 :3 : 7. Learned counsel for the petitioner complains that the petitioner is due for retirement on 31/3/2009. It is also pointed out that in view of the confusion that was prevailing, her service has not been regularised, increments have not been granted, DA arrears have not been paid and the pension papers also are not being processed. Now that I have held that the petitioner ought not have been visited with the consequence mentioned in Ext.P4, necessary orders have to be passed by the 1st respondent, remedying the grievance referred to above. This shall be done, as expeditiously as possible, at any rate within 2 months of production of a copy of this judgment. 8. Petitioner may produce a copy of this judgment before the 1st respondent for compliance. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp