IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WP(C).No. 30730 of 2006(G) ------------------------------------- PETITIONER(S): ------------------------ V.R.RAJAPPAN NAIR, AGED 56, PERSONAL ASST.TO D.E.O., IDUKKI, (RETIRED), 'POURNAMI', DESOM P.O., ALUVA-683 013. BY ADVS. MR.P.SREEKUMAR MR.P.S.SIDHAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE D.P.I., THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, KAKKANAD P.O., KOCHI. 4. THE DISTRICT EDUCATIONAL OFFICER, THODUPUZHA, IDUKKI DISTRICT. 5. THE ASST.EDUCATIONAL OFFICER, NORTH PARUR, ERNAKULAM DISTRICT. GOVERNMENT PLEADER MR.V.TEKCHAND FOR R1 TO 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30730/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.P17/PEN A/962/AR/04-05 OF THE ACCOUNTANT GENERAL , THIRUVANANTHAPURAM. P2:- COPY OF THE ORDER NO.PA/3/9204/05 DT. 4.2.06 OF THE DPI, THIRUVANANTHAPURAM. P3:- COPY OF THE NOTICE DT. 12.6.06 ISSUED BY R2 . P4:- REPLY BY THE PETITIONER DT. 26.6.06. P5:- COPY OF THE ORDER NO.A 5012/05 DT. 29.7.06 AEO, N.PARUR. P6:- COPY OF THE INSPECTION REPORT OF A.G., THIRUVANANTHAPURAM. P7:- COPY OF THE JUDGMENT IN OP. 501/03 DT. 8.1.03 OF THE HIGH COURT OF KERALA. P8:- COPY OF THE LETTER FROM SMT.R.DINAMONI DT. 26.8.03. P9:- COPY OF THE LETTER FROM SMT.M.V.SATHI. P10:- COPY OF THE JUDGMENT IN WRIT APPEAL NO.2293/02 OF THE HIGH COURT OF KERALA. TRUE COPY P.S. TO JUDGE TSS P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C)No. 30730 OF 2006 ......................................................................... Dated this the 27th March, 2009 J U D G M E N T The petitioner is aggrieved of non-issuance of NLC so as to claim the remaining portion of the DCRG payable to him, which has been withheld in compliance with Ext.P5 order fixing the liability of Rs.17774/- on him, in connection with the alleged lapses and loss caused to the Government. 2. The petitioner retired from the service on 31.03.2005 while working as P.A. to the District Educational Officer, Thodupuzha. Prior to that, he was working as Sr. Superintendent in the office of the A.E.O., North Paravur. While so, the petitioner was required to issue NLC to two other retired teachers, by name Dinamani, Headmistress, Government LPS, Puthiyakavu and Sathy,P.D.Teacher, GovernmenT LPS, Kottuvallikad, who retired from the service on 31.03.2002 and 31.05.2002 respectively. In fact, the above teachers had W.P.(C)No. 30730 OF 2006 2 exercised their re-option for fixing their pay which was originally granted, but invited audit objection seeking to effect recovery stating as excess liability. Since NLC was not issued to the said teachers, they approached this Court by filing O.P.Nos. 501 of 2003 and 38365 of 2002. The former case was allowed as per Ext.P7 judgment dated 08.01.2003 holding that the cancellation of re-option was not correct and that the said teacher was entitled to get all consequential benefits flowing there from. The latter case was disposed of directing the concerned authority to consider the petitioner's representation and to pass appropriate orders thereon by judgment dated 20.12.2002. Both the above teachers approached the office of the 5th respondent and produced copies of the judgment rendered in their favour. Since the merits of the cases were considered and decided in their favour, both the teachers sought for issuance of NLC to give effect to the verdict as above, which made the petitioner herein to place necessary office notes thereon while forwarding the files to the A.E.O. The then A.E.O., by name W.P.(C)No. 30730 OF 2006 3 K.V. Thresia considered the matter and granted NLC dated 26.08.2003 in respect of the retired teacher by name Sathy and NLC dated 28.08.2003 in favour of the other retired teacher by name Dinamani. It is submitted by the petitioner that the State though preferred W.A.No. 2188 of 2004 challenging Ext.P7 verdict, the same was dismissed on 14.12.2005. 3. While so, the fifth respondent issued Ext.P3 memo to the petitioner on the basis of the audit objection, stating that issuance of NLC to the above mentioned teachers has caused loss to the Government to an extent of Rs. 35,549/-, directing to show cause as to why the said amount shall not be recovered from him. The petitioner submitted Ext.P4 explanation stating that there was absolutely no lapse or fault on his part and that he was only acting with all bonafides in compliance with the directions given by this Court declaring the rights of the above retired teachers . It was also pointed out that, at the relevant time, the petitioner was working only as the Sr. Superintendent and hence was not the appropriate authority to issue NLC W.P.(C)No. 30730 OF 2006 4 which responsibility was actually vested with the then AEO. After considering the facts and figures, the 5th respondent passed Ext.P5 order holding that the petitioner, though was not the concerned authority to issue NLC , was equally liable as in the case of the then A.E. O. and then accordingly the total liability of Rs.35540/- was fixed equally on the shoulders of both the above persons, confining the liability of the petitioner to Rs.17774/-, sustainability of which is challenged in this Writ Petition. 4. In the meanwhile, the DCRG payable to the petitioner was released to him, but for retaining 10% of the same, in view of non-issuance of NLC. The claim made by the petitioner for disbursing the balance is resisted by the respondents seeking to sustain Ext.P5 order, contending that there was clear lapse on the part of the petitioner, in so far as he had issued NLC in favour of both the above retired teachers by name Dinamany and Sathy, immediately after Ext.P7 verdict and during the pendency of the W.A.No. 2188 of 2004 (paragraph No.6 of the counter affidavit of the third respondent). This appears to be very much W.P.(C)No. 30730 OF 2006 5 contradictory to the reasoning given in Ext.P5 order itself, where the case of the 5th respondent is that the Accountant General was not addressed to know whether there was scope for appeal or to know about the implications of the judgment. It is revealed from the pleadings and proceedings that the W.A. was actually filed only on 23.11.2004; whereas the NLC was issued by the petitioner to the concerned teachers in compliance with Ext.P7 judgment on 26.08.2003 and 28.08.2003 respectively; i.e. not during pendency of the Writ Appeal. 5. Learned Government Pleader submits that there is some distinction between the cases of the retired teachers by name Dinamany and Sathy. In the case of Smt. Dinamany, there was a positive verdict, whereas in the case of Smt. Sathy, the direction was only to consider the matter. However, it remains to be a fact that the claim made by both the above teachers was rather similar in nature and no distinction on merits is pointed out. The sustainability of the said claim on the basis of the relevant provisions of law has been answered by this Court W.P.(C)No. 30730 OF 2006 6 as per Ext.P7 judgment. There was nothing wrong on the part of the petitioner to have acted in tune with the same, putting 'office notes' for granting NLC to the other teacher as well. In any view of the matter, the challenge raised by the State against Ext.P7 verdict has ended up in dismissal of the Writ Appeal and it has become final. The merits of the case having been answered against the State, there is absolutely no rhyme or reason in retaining the sum of Rs.17774/- from the DCRG payable to the petitioner. Learned counsel for the petitioner also points out that the similar liability to pay an equal extent, as fixed on the then A.E.O. by name Thresia, as per Ext.P5 order, was not given effect to and the authorities subsequently have issued NLC in her case as well, without deducting any amount from the DCRG. A copy of the said order has been placed for perusal of this Court as well. In the above facts and circumstances, there is no justification to sustain the stand pursued by the respondents. Accordingly, Ext. P5 is set aside. The petitioner is entitled to get W.P.(C)No. 30730 OF 2006 7 the entire amount including the sum of Rs. 17774/- ordered to be recovered as the alleged loss caused to the Government. The respondents are directed to take appropriate steps to disburse the balance amount to the petitioner within a period of three months from the date of receipt of a copy of the judgment. The Writ Petition is allowed; no costs. P.R. RAMACHANDRA MENON, JUDGE. lk