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1994 DIGILAW 285 (KER)

Mary v. State of Kerala

1994-07-25

G.H.GUTTAL

body1994
Judgment :- 1. The petitioner B.D. Mary retired as Headmistress on 30-6-1992. After seeking the explanation by notice dated 19-10-1993 (Ext. P3), the District Educational Officer, the Respondent No. 3, and the State of Kerala fixed a sum of Rs. 1,08,063/- as her liability to the Government on account of the irregularities committed by her. This was done by Order No.B5.14135/93 dated 2-5-1994 (Ext. P5). The petitioner impugns this order. 2. The manner in which the petitioner is alleged to have caused loss to the Government is this. The Government Order GO.MS.81/88/G.Edn. dated 11-4-88 announced the Government's policy in regard to the promotion of pupils from one Standard to another. This petition is concerned with promotion of pupils from Standards V, VII and IX. In respect of these standards the Government's policy directs the schools that a minimum of 80% pupils must be promoted. When the petitioner was the Headmistress students of Standards V, VII and IX were detained. Their number was in excess of the prescribed 80%. This resulted in the employment of more teachers thereby compelling the Government to pay their salaries. This is how the Government claims to have incurred the loss on account of the petitioner's conduct. 3. The Government's authority to recover the amount of loss from the death-cum-retirement gratuity or pension of a government servant flows from R.3 of S.1 Chapter I of Part III of the Kerala Service Rules. In respect of the death-cum-retirement gratuity the amount of loss could be recovered without resorting to departmental or judicial proceedings. But, in the case of pension, this could be done only upon departmental or judicial proceedings. R.3 employs the words "loss caused to Government" (emphasis supplied). It is of the essence of this right that the Government servant concerned must have caused loss to the government. There must be a casual connection between the act of, the employee and the pecuniary loss incurred by the Government. The rule does not permit recovery of the amount of loss unless such a casual connection can be reasonably inferred. The petitioner as the Headmistress is not directly concerned with the promotion of individual pupils in the classes under the control of the Class Teachers. Promotions to higher standards are made on the basis of the pupils' performance as evaluated by the concerned teachers. The petitioner as the Headmistress is not directly concerned with the promotion of individual pupils in the classes under the control of the Class Teachers. Promotions to higher standards are made on the basis of the pupils' performance as evaluated by the concerned teachers. It is, therefore, an error to attribute the promotion or detention of pupils, to the Headmistress. 4. Rule 13 of Chapter VIII of the Kerala Education Rules which is statutory in its character lays down that "promotions shall be made to the next higher standard on the basis of the pupils' performance as assessed by periodical tests and on the basis of final examination". This is a statutory provision. It follows that a pupil cannot be promoted to a higher class unless his performance justifies it. The Government's order dated 11-4-88 (Ext. R2(a)) merely lays down a policy that a minimum of 80% of the pupils should be promoted to the higher standards. The order dated 11-4-1988 contains administrative instructions and cannot override the statutory provision of R.13 of Chapt VIII of the Kerala Education Rules. Any administrative order in regard to the promotion of pupils to higher classes is subordinate to this rule. Therefore, having regard to the force of R.13 and the judgment of this court in Manager, M.J. High School, Erettil v. Jt. Director of Public Instructions and others (I.L.R 1986(1) Kerala Series 546), I hold that the Order NO,MS.81/88/G.EDN. dated 11-4-1988 (Ext. R2(a)) which directs the promotion of 80% of pupils to higher classes is subordinate to R.13 of Chapt. VIII of the Kerala Education Rules. Where a competing claim based on the Government's instructions in regard to the per centage of promotion is made, R.13 must prevail over these instructions. Since promotion or detention of pupils has to be based on evaluation of the performance, promotion of students in excess of 80% cannot be made the basis of liability, either of the teacher or Headmistress. If it were otherwise, it would mean that the teacher and the Headmistress are held liable for the loss resulting from obedience of R.13. Such interpretation is opposed to the intention of R.3 of S.1 of chapt.1 of Part III of the Kerala Service Rules. 5. If it were otherwise, it would mean that the teacher and the Headmistress are held liable for the loss resulting from obedience of R.13. Such interpretation is opposed to the intention of R.3 of S.1 of chapt.1 of Part III of the Kerala Service Rules. 5. In my opinion, the respondents were in error in holding that the petitioner is liable for the pecuniary loss resulting from legitimate performance of duties under R.13 of the Kerala Education Rules. 6. Rule 116 of Part III of Kerala Service Rules (Ruling 5) stipulates that liabilities of an employee should be assessed and fixed before retirement and if this is not done the amount of death-cum-retirement gratuity should be released. The impugned order made on 2-5-94 is far beyond the statutory stipulation of one year. For this reason also, the impugned order is illegal. 7. For all these reasons the Original Petition is allowed. I direct the respondents 2 and 3 to counter sign the original of the non liability certificate dated 16-9-1993 (Ext. P2), and draw and disburse to the petitioner her entire death-cum-retirement gratuity of Rs. 35,750/-. 8. The Respondents have acted on an erroneous but a bonafide belief that the petitioner is liable under the circular already referred to. In this view of the matter, I do not think that I should award interest. The prayer for interest is rejected. No costs.