IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 WP(C).No. 6403 of 2008(K) ------------------------------------- PETITIONER(S): --------------------- T.V. GOURI, AEO (RTD.), THALASSERY SOUTH, KANNUR DIST., THUSHARA, MAKRERI P.O., (VIA) MUNDALUR, KANNUR. BY ADV. MR.POOVAMULLE PARAMBIL ABDULKAREEM RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 4. THE ASSISTANT EDUCATIONAL OFFICER, THALASSERY SOUTH. 5. THE DISTRICT TREASURY OFFICER, DISTRICT TREASURY, KANNUR. 6. THE MANAGER, JUNIOR BASIC UPS, KODIYERI, KANNUR DISTRICT. * ADDL. R7 IS IMPLEADED *ADDL. R7: ACCOUNTANT GENERAL (A& E) KERALA, OFFICE OF THE ACCOUNTANT GENERAL (A & E) KERALA, THIRUVANANTHAPURAM. *ADDL. R7 IS IMPLEADED AS PER ORDER DATED 18/06/2008 IN I.A.NO.7500/2008. R1 TO R5 & ADDL. R7 BY SR.GOVERNMENT PLEADER MR.MUHAMOOD T.T. R6 BY ADV. MR.R.SURENDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 6403/2008-K APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS DATED 01/01/2002 ISUED BY THE 2ND RESPONDENT. EXT.P2: COPY OF THE PROCEEDINGS DATED 01/01/2002 OF THE 2ND RESPONDENT. EXT.P3: COPY OF THE LETTER DATED 27/05/2002 ISSUED BY THE 3RD RESPONDENT. EXT.P4: COPY OF THE LETTER DATED 06/05/2002 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT. EXT.P5: COPY OF THE REPRESENTATION DATED 24/10/2002 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P6: COPY OF THE HEARING NOTE. EXT.P7: COPY OF THE PROCEEDINGS DATED 26/08/2002. EXT.P8: COPY OF THE ORDER NO.SC(1)42161/94 DATED 05/05/1994. EXT.P9: COPY OF THE LETTER DATED 22/06/2004 ISSUED BY THE 4TH RESPONDENT ALONGWITH CHALAN RECEIPT. EXT.P10: COPY OF THE JUDGMENT DATED 15/06/2007 OF THIS HONOURABLE COURT IN WP(C) NO. 39687/2004. EXT.P11: COPY OF THE REVISION PETITION. EXT.P12: COPY OF THE HEARING NOTE. EXT.P13: COPY OF THE GO(RT)NO.538/08/G.EDN. DATED 29/01/2008. EXT.P14: COPY OF THE ORDER DATED 20/10/2004 ISSUED BY THE ACCOUNTANT GENERL ( A& E) KERALA. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.6403/2008-K ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 28th day of July, 2009 J U D G M E N T The petitioner who retired from service as Assistant Educational Officer is aggrieved by Exts.P3, P4 and P13 by which a liability to the tune of Rs.51,960/- has been imposed against her. The circumstances under which the liability was fixed are the following:- 2. The petitioner was the Assistant Educational Officer of Thalasseri South and she retired from service on 31/03/2003. Two Schools, namely, the Kodiyeri Junior Basic School and the North Vayalalam L.P.School were under the administrative jurisdiction of the Assistant Educational Officer, Thalassery South. The test check for the year 2000- 2001 was conducted by the petitioner and the records and the strength of the students were verified. Later on, on 16/11/2000, the Super Check Cell visited the North Vayalalam L.P.School and they came to the conclusion that the pupils who were absent on that day were bogus/irregular admissions and that two posts out of 7 Teachers have to be reduced in terms of Rule 15 of Chapter 23 K.E.R. Ext.P1 is the proceedings issued by the Director of W.P.(C). No.6403/2008 -:2:- Public Instructions in this regard. Similarly, in respect of the other School also, i.e. Kodiyeri J.B School, Ext.P2 orders have been passed. In Exts.P1 and P2, the Headmaster and the Assistant Educational Officer have been found jointly liable for the loss sustained to Government Exchequer by payment of salary to Teachers. Thereafter, by Ext.P3 issued under Rule 1A (1) of Chapter XXVI K.E.R, the liability was fixed against the petitoiner and the Headmaster of North Vayalalam L.P. School. Ext.P4 shows that a total amount of Rs.1,03,832/- has been fixed against the Headmaster of Kodiyeri J.B.School and the Assistant Educational Officer, Thalasseri South equally. Even though, he filed explanations Exts.P5 and P6, he was not exonerated from the liability. Ext.P7 is the order passed by the Director of Public Instructions with regard to Vengara Mopla U.P.School, wherein, in identical circumstances, it was found that there were bogus admissions/irregular retentions on rolls of the School and the Headmistress was directed to refund the amount paid as salary to the Teachers. Ext.P8 is a Circular issued by the Director of Public Instructions in the matter wherein, it is made clear that since the admission, promotion and removal of pupils are done directly by the Headmasters and if bogus admissions are found out, the Headmasters will alone be liable for refund of the amount W.P.(C). No.6403/2008 -:3:- found as loss to the Department. 3. When the petitioner approached this Court earlier by filing W.P.(C).No.39687/2003, he was directed to approach the Government in the matter and, accordingly, he filed Ext.P11 revision before the Government which was disposed of by Ext.P13 order. 4. The view taken in Ext.P13 is to the effect that it was the duty of the Assistant Educational Officer to verify the strength correctly and find out irregularities if any. Since bogus admission has resulted in the wrong fixation, the petitioner is also bound to bear the burden. 5. The learned counsel for the petitioner submitted that going by Rule 12 of Chapter XXIII K.E.R, the Assistant Educational Officer is expected only to verify the physical strength. Accordingly, the physical strength of the students was verified by the petitioner in respect of 64 Schools under the administrative jurisdiction of the A.E.O. It was not physically possible for the petitioner to verify the details of admissions in respect of each pupil in the respective Schools and find out whether there was any bogus admission or not at that stage. Even if it is found on reverification that there is bogus admission, that cannot result in fixing any financial liability against the petitioner. It is submitted that going by Ext.P8 W.P.(C). No.6403/2008 -:4:- Circular issued by the Director of Public Instructions, the authorities of the Schools, namely, the Headmasters can be made liable if staff fixation is revised based on the subsequent Check either by Super Check Cell or by other authorities. The admission of pupils etc. are being done by the Headmaster alone and therefore, it is submitted that as per the Circular (Ext.P8) no liability could be fastened against the petitioner. It is also submitted that Rule 1A of Chapter XXVI K.E.R. cannot be invoked against the Educational Officers. Reliance is placed on the Division Bench of this Court in Beena v.State of Kerala [2002 (2) KLT 545] in support of the above plea. 6. It is clear from the proceedings Exts.P1 and P2 that there is a finding that bogus admissions have been made in the two Schools. In paragraph (10) of Ext.P1 a finding is entered to the effect that “the Headmaster of the School is responsible for the admission, removal and maintenance of records and for supervision of the work of subordinates. It is the duty of the Assistant Educational Officer to verify the strength correctly and to unearth the irregularities.” True that there is responsibility on the Assistant Educational Officer to verify the physical strength, but it cannot be said that on the date fixed for verification of the strength of W.P.(C). No.6403/2008 -:5:- pupils, the Assistant Educational Officer will have to go through the entire records to find out whether there is any bogus admission or not. Therefore, the question is whether on any subsequent verification if there is change in strength, the Assistant Educational Officer can be saddled with any liability for refund of the salary paid to the Teachers. 7. The Circular Ext.P8 issued by the DPI is relevant in this context. Going by the specific stipulations of the Circular, it is evident that the Headmaster alone can be saddled with the monetary liability. The Division Bench in similar circumstances had occasion to consider Rule 16 of Chapter XXIII K.E.R in Beena's case (2002 (2) KLT 545). It was held thus in paragraph (9):- “We are of the view that when the Director exercises his power under R.16 after getting a report of an officer authorised by the State Government, it is always open to the said Officer to take appropriate action against the School authorities. It is in exercise of the said power that the Director directed that the salary paid to appellants unauthorisedly should be recovered from the Headmaster.” Therefore, the liability is on the Headmaster of the School. Even going by the findings herein, the Headmaster is responsible for the bogus admission etc. There is no finding either in Ext.P1 or in Ext.P2 herein that the petitioner had helped the School W.P.(C). No.6403/2008 -:6:- authorities to make any bogus admission. In these circumstances, the question is whether Exts.P3 and P4 could be sustained. Unless and until it is found that the petitioner is personally responsible for the admission, inflation of the physical strength of the students and the consequential staff fixation, the petitioner cannot be asked to refund the amounts paid as salary to the Teachers. The view taken by the Division Bench in the above reported case also is relevant in the circumstances. Even though the petitioner had explained in detail that she cannot be personally made liable, the Government has chosen to repel the contentions on the finding that the Assistant Educational Officer has to find out and substantiate the manipulation and fraudulent tactics of the School authorities. The facts as already noticed show that there were 64 Schools under the jurisdiction of the Assistant Educational Officer. Therefore, within the time of 15 days allowed to the Assistant Educational Officer, it would have been impossible for her to find out the bogus admission in respect of various Schools. Even going by the method adopted by the authorities while passing Ext.P1, it can be seen that several visits were conducted for the said purpose and the Headmasters of the Schools to which Transfer Certificates were issued were also addressed to ascertain whether the pupils were admitted in their W.P.(C). No.6403/2008 -:7:- Schools. Therefore, the enquiry regarding bogus admission, going by express provision of Chapter XXIII K.E.R, is also a time consuming process and it cannot be held that on the date of visit made by the Assistant Educational Officer for checking the strength of the students, he will have to undertake all these exercises to prove that the students strength that is reflected in physical verification is not bogus or fraudulent admissions. It is evident from the scheme of Chapter XXIII that various provisions enable the authorities to check the strength of pupils at different stages. It is well settled that the liability can be fastened against the employee/pensioner only if there is clear finding that he has caused loss to the Government. Herein, she is asked to refund part of the amount paid as salary to the Teachers under Rule 1A(1) of Chapter XXVI K.E.R. 8. In the light of the above, I find that Exts.P3, P4 and P13 cannot be sustained and accordingly, they are quashed. It is held that the petitioner is entitled to be paid the entire amount of DCRG sanctioned and therefore, the withheld amount from the D.C.R.G namely, Rs.52,054/- is to be disbursed to her. Therefore, the competent authority among respondents 2 to 4 will issue NLC to the petitioner and on production of which she will be W.P.(C). No.6403/2008 -:8:- disbursed the amount by the Sub Treasury Officer within a period of one month from the date of receipt of a copy of the judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms