IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 WP(C).No. 21717 of 2008(I) ------------------------------------- PETITIONERS: --------------------- 1. C.A.CHACKO, MANAGER, ST.THOMAS HIGH SCHOOL, KADAPRA, NIRANAM WEST, KIZHAKKUMBHAGOM, THIRUVALLA. 2. RACHEL ABRAHAM, TEACHER IN CHARGE, ST.THOMAS HIGH SCHOOL, NIRANAM WEST, KADAPRA, KIZHAKKUMBHAGOM, THIRUVALLA. BY ADV. SRI.V.A.MUHAMMED, ADV. SRI.K.E.HAMZA, ADV. SRI.P.HARIDAS. RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA AT TIRUVALLA. 4. THE DISTRICT EDUCATIONAL OFFICER, TIRUVALLA, PATHANAMTHITTA DISTRICT. 5. SRI.RAJESH KUMAR, VADASSERIL PUTHEN VEEDU, MUTHUKULAM SOUTH P.O., ALAPPUZHA. GOVT. PLEADER SRI. T.T. MOHAMMED FOR R1 TO R4, ADV. SRI.S.SUBHASH CHAND FOR R5. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.21717/2008-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE STAFF FIXATION ORDER NO. D. DIS.D1/4497/03 OF THE DISTRICT EDL. OFFICER, THIRUVALLA DTD. 02/09/2003. EXT.P.2: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C). NO. 19564/2005-D DTD. 30/06/2005. EXT.P.3: COPY OF THE ORDER NO. B1-6672/2005/K. DIS. OF THE DIST. EDL. OFFICER DTD. 16/08/2005. EXT.P.4: COPY OF THE REPRESENTATION SUBMITTED BY THE R.5. DTD. NIL. EXT.P.4.A: COPY OF THE -DO- -DO- DTD. 04/06/2004. EXT.P.5: COPY OF THE ENQUIRY REPORT DTD. 18/06/2005. EXT.P.6: COPY OF THE G.O. (RT). NO. 3450/2007/G. EDN. OF THE GOVERNMENT DTD. 25/07/2007. EXT.P.7: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C). NO. 30228/2005-W DTD. 07/11/2005. EXT.P.8: COPY OF THE ORDER NO. B1/10837/05 OF THE DIST.EDL. OFFICER DTD. 13/01/2006. EXT.P.9: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C). NO. 22362/2006-K DTD. 12/12/2006. EXT.P.10: COPY OF THE ORDER NO. B4/7640/06 OF THE DIST. EDL. OFFICER DTD. 04/04/2007. EXT.P.11: COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE DY. DIRECTOR OF EDUCATION DTD. 23/04/2007. EXT.P.12: COPY OF THE LETTER NO. B3-5595/07 OF THE DY. DIRECTOR OF EDN. DTD. 13/02/2008. EXT.P.13: COPY OF THE REVISION PETITION FILED BEFORE THE DIRECTOR OF PUBLIC INSTN., DTD. 07/03/2008. EXT.P.14: COPY OF THE STAY PETITION FILED -DO- DTD. 07/03/2008. EXT.P.15: COPY OF THE LETTER NO. MG/RK/2006/01 OF THE MANAGER DTD. 18/03/2008. EXT.P.16: COPY OF THE LETTER NO. B4-7640/08 OF THE DIST. EDL. OFFICER DTD. 26/03/2008. EXT.P.17: COPY OF THE LETTER NO. E3/08 OF THE P.2. DTD. 10/04/2008. EXT.P.18: COPY OF THE LETTER NO. B4-7640/06 OF THE DIST. EDL. OFFICER DTD. 24/04/2008. W.P.(C). NO.21717/2008-I: EXT.P.19: COPY OF THE REPLY OF THE P.2. DTD. 14/05/2008. EXT.P.20: COPY OF THE NOTICE NO. B4-7640/06 OF THE DIST. EDL. OFFICER DTD. 19/06/2008. EXT.P.21: COPY OF THE LETTER NO. E4/08 OF THE P.2. DTD. 08/07/2008. RESPONDENTS' EXHIBITS: EXT.R5.A: COPY OF THE STAFF FIXATION ORDER DTD. 02/09/2003 ISSUED BY R.1. EXT.R5.B: COPY OF THE APPEAL SUBMITTED BY P.1. BEFORE R.2. EXT.R5.C: COPY OF THE CIRCULAR DTD. 02/05/2005 ISSUED BY R.1. EXT.R5.D: COPY OF THE REPRESENTATION SUBMITTED BY R.5 BEFORE THE HEADMISTRESS OF THE SCHOOL. EXT.R5.E: COPY OF THE REPRESENTATIONS SUBMITTED BY THE R.5. BEFORE THE MANAGER OF THE SCHOOL. EXT.R5.F: COPY OF THE ORDER DTD. 14/02/2005 PASSED BY R.2. EXT.R5.G: COPY OF THE JUDGMENT DTD. 30/06/2005 PASSED BY THIS HON'BLE COURT IN W.P.(C). NO. 19564/05. EXT.R5.H: COPY OF THE ORDER DTD. 16/08/2005 PASSED BY THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA. EXT.R5.I: COPY OF THE ENTRY FORM IN RESPECT OF DISTRICT SCHOOL ATHLETIC MEET 2003-04. EXT.R5.J: COPY OF THE ENTRY FORM IN RESPECT OF DISTRICT SCHOOL ATHLETIC MEET 2003-04. EXT.R5.K: COPY OF THE PERMIT CUM INVOICE FOR SUPPLY OF TEXT BOOKS. EXT.R5.I: COPY OF THE PERMIT CUM INVOICE FOR SUPPLY OF TEXT BOOKS. EXT.R5.M: COPY OF THE PERMIT CUM INVOICE FOR SUPPLY OF TEXT BOOKS. EXT.R5.N: COPY OF THE PERMIT CUM INVOICE FOR SUPPLY OF TEXT BOOKS. EXT.R5.O: COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS ISSUED TO SR. K.C. VALSAMMA, FORMER H.M OF THE SCHOOL. //TRUE COPY// P.A. TO JUDGE. prv. ANTONY DOMINIC, J. =============== W.P.(C) NO. 21717 OF 2008 (I) ==================== Dated this the 23rd day of September, 2008 J U D G M E N T The first petitioner is the Manager and the 2nd petitioner is the Headmistress of an aided School. 2. The 5th respondent was a Physical Education teacher in the school. Ext.P1 is the staff fixation for the year 2003-04 resulting in the abolition of a post of Physical Education teacher and ordering retrenchment of the 5th respondent effective from 15/7/2003 applying the staff student ratio 1:45. An appeal filed was rejected by Ext.R5(f). Meantime, effective from the academic year 2002-03, by Ext.R5(c), the staff student ratio was revised to 1:40. In view of Ext.R5(c), WP(C) No.19564/05 field by the 5th respondent against Ext.P1 and Ext.R5(f) were disposed of by Ext.P2 judgment setting aside the impugned orders and directing the DEO to reconsider the matter to the extent it pertains to the 5th respondent. 3. The DEO accordingly reconsidered the matter and Ext.P3 revised staff fixation was issued on 16/8/05. In Ext.P3, it is stated as follows: In this case, during 2003-04, there will be one more division in Std.IX, applying 1:40 ratio and the periods available under Physical Education Teacher will be as follows: WPC 21717/08 :2 : VIII - 2 x 1} }5 periods IX - 2 x 1} During 2004-05, there is no scope for restoring PET applying 1:40 ratio, since the periods are not sufficient. As per the attendance register for 2003-04 it is noted that the teacher had actually worked during the period. In the above circumstances, staff fixation order for 2003-04 is revised applying 1:40 ratio and the post of Physical Education Teacher is restored, accordingly. 4. Thus, it can be seen that DEO had entered a factual finding that as per attendance register of the school for the year 2003-04, despite Ext.P1, the 5th respondent had actually worked in the school during the said period. There was no appeal or other proceedings in so far as Ext.P3 is concerned and that order has become final. The 5th respondent complained that follow up action was not taken for payment of his salary for the period from 15/7/03 to 14/7/04. According to him, after knocking at all avenues, he approached this Court and filed WP(C) No.30228/05 resulting in Ext.P7 judgment directing the DEO to take action for payment of the salary due to the petitioner. 5. It is stated that in pursuance to Ext.P7, the DEO passed Ext.P8 order which interalia contained the following finding. The undersigned has examined the case in detail and found that, the petitioner was working in the school during the accademic year 2003-04 vide attendance register maintained WPC 21717/08 :3 : in the school and performed the duties. He is therefore entitled to get the salary during the period 2003-04. Besides the Headmaster has not produced any valid reason for refusing the pay and allowances due to Sri.Rajesh Kumar. 6. Even thereafter, as monetary benefits still remain unpaid, the 5th respondent approached this court again by filing WP(C) No.22362/06. That writ petition was disposed of by Ext.P9 judgment directing the petitioner to approach the DEO for seeking compliance of Ext.P8. It is stated that this resulted in Ext.P10, in which the DEO issued the following direction. In the above circumstances, the Teacher-in-Charge of the Headmaster is hereby directed to draw and disburse the pay and allowances due to Sri.D.Rajeshkumar, formerly Physical Education Teacher for the period from 15.7.2003 to 14.7.2004, after regularising the period of absence, if any, as eligible leave within 7 days on receipt of a copy of this order, failing which the pay and allowances of the Teacher-in-Charge of the H.M. shall not be honoured without any further notice. 7. Petitioners contend that against Ext.P10, they filed Ext.P11 appeal before the Deputy Director and that resulted in Ext.P12 order of rejection. They pursued the matter by filing Ext.P13 appeal before the DPI accompanied by Ext.P14 stay petition. According to them, appeal and stay petition are still pending. The main grievance of the petitioners as is seen from ground G of the writ petition is that in the event they make payment WPC 21717/08 :4 : and an audit objection is raised, liability might ultimately fall on their shoulders. 8. On facts, the petitioners have a contention that the 5th respondent has not actually worked during the period. In support of this contention, petitioners refer to Exts. P4 and P4(a) and would contend that subsequent to the period in question, the 5th respondent himself had represented that he be permitted to mark attendance. It is also their contention that the then Headmaster was proceeded against in disciplinary proceedings for permitting the 5th respondent to mark attendance and that a finding of guilt has been entered against the Headmistress in Ext.P5 enquiry report resulting in her reversion as per Ext.P6. 9. Petitioners would also refer me to Ext.P20, where the Headmaster is threatened with disciplinary proceedings for non compliance with Ext.P12 order confirming Ext.P10. 10. In my view, Ext.P10 order as confirmed by Ext.P12, deserves to be upheld. The reason being that in Ext.P3 revised staff fixation order for 2003-04, the post has been restored with a positive factual finding that during the period in question, going by the attendance register, 5th respondent had actually worked in the school. It is on this basis that the 5th respondent claim salary for the period, which was ordered to be paid by WPC 21717/08 :5 : Exts.P8 and P10. As already noticed, no proceedings were initiated against Ext.P3 and the revised staff fixation order with the findings therein have become final and binding and therefore, necessarily, payments will have to be made. Since Ext.P3 has become final, the pendency of Ext.P13 appeal against Exts. P10 and P12 is inconsequential, as these are only consequential to Ext.P3 revised staff fixation order. True the apprehension of the petitioners is that if any audit objection is raised, ultimately the liability may fall on them. When this submission was made by the counsel for the petitioners, learned counsel for the 5th respondent has undertaken before this court that if in case any liability falls on the petitioners, he shall indemnify them. I record the submission and direct that an unconditional undertaking to this effect shall also be filed before the DEO. Such an undertaking will take care of the apprehension of the petitioners. In view of all this, I do not find any merit in the challenge raised in this writ petition. 11. However, having regard to the fact that now that I have held that the 5th respondent is entitled to the benefit of Exts. P8 and P10, once the claim of the 5th respondent is satisfied, the 2nd petitioner shall not be proceeded against in pursuance to Ext.P20. 12. The second petitioner shall prepare the bill and submit it to the WPC 21717/08 :6 : 4th respondent, who shall do the needful in this matter, as expeditiously as possible, at any rate within 8 weeks of receipt of the bills. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp