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Kerala High Court · body

1989 DIGILAW 253 (KER)

Usuvathunnisa v. Asst. Educational Officer

1989-07-04

VISWANATHA.IYER

body1989
Judgment :- These original petitions are filed by Arabic Teachers, whose appointment as full-time teachers in the respective Lower Primary Schools had been approved by the Assistant Educational Officer concerned since 1982-83. The facts in O.P.No. 9273 of 1985 are as follows. The petitioner was appointed as a full-time Arabic Teacher on 15-7-1982 in an additional post, which was sanctioned in the staff fixation for the year 1982-83. Her appointment was approved for the year 1982-83 by the proceedings Ext.P1 of the Assistant Educational Officer. The post was continued in the subsequent years 1983-84,1984-85 and 1985-86 as well and the petitioner continued in service. While so, the Accountant General by his proceedings dated 8-2-1985, raised objection to the sanctioning of the additional post of full-time Arabic Teacher in the school in 1982-83. It was his view that the strength of Muslim pupils studying Arabic did not warrant the additional post and that the additional post had been sanctioned contrary to the provisions of Rule 2A(1) of Chapter XXIII of the Kerala Education Rules (the rules ). On the objection being raised, the Assistant Educational Officer instructed the Manager by his proceedings Ext.P2 dated 5-9-1985 to terminate the services of the petitioner with immediate effect, and also to recover the excess salary paid to her for the period from 15-7-1982 to 30-6-1985. Petitioner challenges the proceedings Ext.P2 of the Assistant Educational Officer. 2. Though the petitioner has challenged Ext.P2 in its entirety, including the direction to terminate her services, the latter challenge is not pressed at the time of hearing for the reason that the petitioner has got relief from the Department itself regarding her continuance in the school. It is said that the Assistant Educational Officer subsequently passed an order approving her continuance in the school. The only question to be considered therefore is the validity of the direction to recover the excess salary for the period from 15-7-1982 to 30-6-1985. 3. The facts in O.P. No 9381 of 1985 are similar. The petitioner in that case was appointed as full-time Arabic Teacher on 19-7-1982 in a post sanctioned as per the order of staff fixation for the year 1982-83. The post was continued in the subsequent years as well. The appointment was approved all along from 1982-83 to 1985-86. 3. The facts in O.P. No 9381 of 1985 are similar. The petitioner in that case was appointed as full-time Arabic Teacher on 19-7-1982 in a post sanctioned as per the order of staff fixation for the year 1982-83. The post was continued in the subsequent years as well. The appointment was approved all along from 1982-83 to 1985-86. It was while so that consequent on an audit note of the Accountant General, Trivandrum, and the Assistant Educational Officer directed the Manager of the school to terminate the petitioner.s services and to recover the salary drawn for the period from 15-7-1983. The reason for the direction was that the Assistant Educational Officer had wrongly sanctioned the post to which the petitioner was appointed by taking into account the strength of students in Standard V as well, instead of confining the strength to Standards I to IV. Consequent on this direction Ext, P4, the Manager issued Ext.P3 notice to the petitioner to refund the salary drawn from 15-7-1983 and also to show cause why his service should not be terminated forthwith. Subsequently the Assistant Educational Officer passed an order Annexure 2 on 24-10-1985 sanctioning the petitioner.s appointment as full-time Arabic Teacher in the school from 15-7-1985, however, directing that he will be paid only at the minimum of the scale of pay admissible for such teacher without taking into account the past services rendered from 19-7-1982. The petitioner has not challenged Annexure 2 in this original petition, so that at this stage the only question for consideration is whether the direction contained in Ext.P3 and P4 for refund of the salary drawn from 15-7-1983 is legal and valid. 4. Counsel for the respective petitioners submit that when the staff fixation orders had sanctioned the posts, the petitioners. appointment to those posts approved, and those proceedings have become final, it is not open to the Assistant Educational Officer subsequently to give directions nullifying these proceedings, or to act in a manner operating as a virtual review of the prior proceedings. The Assistant Educational Officer does not possess any power of review. The only remedy open to the Department in case there is wrongful sanctioning of a post, is for the Director of Public Instruction to exercise suomotu powers under Rule 12 E (3) of Chapter XXIII of the Rules and to revise the same. The Assistant Educational Officer does not possess any power of review. The only remedy open to the Department in case there is wrongful sanctioning of a post, is for the Director of Public Instruction to exercise suomotu powers under Rule 12 E (3) of Chapter XXIII of the Rules and to revise the same. The Director has not exercised any revisional powers in this case. It is also pointed out that the Assistant Educational Officer is not vested with any power under the Act or the Rules to direct recovery of amounts paid to teachers, for service rendered in schools. At any rate, the teachers who have rendered approved service, cannot be denied salary for the period of their service. 5. The learned Government Pleader.s submission in reply is that the Assistant Educational Officer had committed a gross illegality in sanctioning the posts in the staff fixation orders by taking into account the strength of students studying Arabic in Standard V as well, when rule 2A (1) of Chapter XXIII on the face of it, enjoined reckoning of the strength only in Standards I to IV. When such a patently illegal order has been passed, it is said, the Assistant Educational Officer has the power to take corrective action and to direct refund of the salary paid to teachers appointed on the basis of such illegal order. 6. I find it difficult to accept the contentions of the learned Government Pleader for more than one reason. Sanction for the post of full-time Arabic Teacher in the two schools had been granted in the year 1982-83 and that had continued up to the year 1985-86. The appointment of the petitioners to these posts had also been approved. Power to review an order has to be expressly conferred. The Assistant Educational Officer has not been vested with any power of review under the Education Act or the Rules. He has no power to set aside an order of staff fixation made by him, on the ground that it is not in accordance with the rules. That power rests elsewhere. The only authority who could act suomotu to set right the illegality by exercising a power of revision, is the Director of Public Instruction under Rule 12E(3) of Chapter XXIII of the Rules. He has not acted so far in this matter. That power rests elsewhere. The only authority who could act suomotu to set right the illegality by exercising a power of revision, is the Director of Public Instruction under Rule 12E(3) of Chapter XXIII of the Rules. He has not acted so far in this matter. The audit objections raised by the Accountant General cannot render the staff fixation order invalid or illegal, or render ineffective the approval of appointment of a teacher made pursuant thereto. The Accountant General can only point out the illegality in the proceedings. His objections cannot have the effect of nullifying orders of proceedings taken by the statutory authorities. Therefore, it was illegal on the part of the Assistant Educational Officer to have acted on the basis of the audit report of the Accountant General and treated his prior proceedings sanctioning the full-time Arabic teachers. posts as null and void and directing recovery of the salary paid to the petitioners. On this short ground, the directions issued by the first respondent Assistant Educational Officer, namely Ext.P2 in O.P. No. 9273 of 1985, and Ext.P4 and the consequential order Ext. PS in O.P. No.'9381 of 1985 have to be quashed. 7. This is apart from the fact that the Assistant Educational Officer does not possess any power under the Rules to direct recovery of amounts of salary paid. Rule 1A of Chapter XXVI does not vest any such power in the Assistant Educational Officer. It was so held by a Full Bench of this court in Regional Deputy Director of Public Instructions. Vasu 1976 KLT 181, where it was pointed out that the Assistant Educational Officer was not entitled even to determine any question regarding alleged excess payment of salary. 8. Narendran, J. has in the decision in O.P. No. 5440 of 1975 reported at page 85 of the Short Notes Section of 1976 K.L.T. taken the view that an order for refund of salary paid can be made only by the authorities mentioned in Rule 1A of Chapter XXVI of the Rules. The direction for refund of the excess salary drawn by the respective petitioners is therefore totally without jurisdiction and without sanction under any statutory provision. 9. In any view of the case, the petitioner cannot be called upon at this stage to refund amounts which they have received as remuneration for service rendered in the schools. The direction for refund of the excess salary drawn by the respective petitioners is therefore totally without jurisdiction and without sanction under any statutory provision. 9. In any view of the case, the petitioner cannot be called upon at this stage to refund amounts which they have received as remuneration for service rendered in the schools. Consequent on the posts being sanctioned and on approval being granted for the appointments, the petitioners had functioned as full-time Arabic Teachers in the respective schools from the respective dates of their appointment. Having obtained the benefit of their service, based on orders for which the petitioners were not responsible, and which they had no reason to suspect were, in any manner, illegal, it is not open to The respondents subsequently to turn round and claim refund of the salary paid, branding the entire proceedings as null and void, or as illegal. The petitioners have every reason to presume that the statutory authority, namely the Assistant Educational Officer has acted legally and within the bounds of his powers and jurisdiction in sanctioning the full-time posts and in approving their appointment. As stated by Kochu Thommen, J. (as he then was) in Aleyamma v. Deputy Director, Education, I.L.R.1982 (2) Kerala 509, every person has a right to place his trust in orders made by a competent authority in the normal course of his jurisdiction unless of course, the order is vitiated by fraud or interests of third parties are adversely affected. It is unjust and unfair to call upon persons like the petitioners to refund amounts drawn by them, for service rendered by them, years after the event after they had acted on the faith and strength of the orders of the statutory functionary, and adjusted their affairs accordingly. When the petitioners have worked in a particular grade, (as full time teachers) and the benefit of that work has gone to the schools, it cannot be said that they did so at their own peril, with liability to refund the salary in case it was found in any subsequent collateral proceedings that the sanctioning of their posts was not legal or proper. 10. The decisions of Kochu Thommen, J. in Padmanabha Pillai v. University of Kerala, 1982KLT503andofNarendran,J.in O.P. No. 5440 of 1975 (1976 KLT Short Notes page 85 - Case No. 195) also support the above view of mine. 10. The decisions of Kochu Thommen, J. in Padmanabha Pillai v. University of Kerala, 1982KLT503andofNarendran,J.in O.P. No. 5440 of 1975 (1976 KLT Short Notes page 85 - Case No. 195) also support the above view of mine. I must also mention that the impugned orders have been passed in gross violation of the principles of natural justice and that also justifies their cancellation. 11. For all these reasons I hold that the action of the Assistant Educational Officer directing refund of the excess salary/salary paid to the petitioners for the periods mentioned is illegal. The original petitions are allowed. The orders Ext.P2 in O.P. No. 9273 of 1985 and Ext.P4 in O.P. No. 9381 of 1985 are quashed. No costs.