Somanatha Panicker v. State of Kerala — 1996 DIGILAW 546 (KER)

Judgment :- C.S. Rajan, J. The petitioners in these Original Petitions were Assistant Educational Officers in the Education Department. They retired from Government Service on superannuation on 31.5.1994 and 30.6.1995 respectively. Even though pensionary claims were sanctioned by the authorities the petitioners' were not paid the DCRG. The petitioner in O.P. 10997/96 was served with Ext. P4 letter dated 26.7.1996 by the Asst. Educational Officer in which it was stated that the 2nd respondent had instructed him to obtain explanation of the petitioner on the objection raised by the Accountant General during his audit of the accounts and registers of the aided schools pertaining to 1994-95. A copy of the audit objection from the inspection report was also enclosed along with the above letter. A reading of the above objection will go to show that the alleged irregularities are related to the sanction of additional divisions in an aided school. An additional post was sanctioned in the above school on account of the re-visit conducted by the petitioner when he found that the effective strength of the pupils warranted sanction of one more post. After extracting the roll strength of the school, the audit report came to the conclusion as follows: "Accordingly 8 divisions and 8 posts of LPS. As were sanctioned to the school for the year 1994-95. The revisit of the aeo in violation of the relevant rulings in KER resulted in the excess payment of salary of Rs. 34,000/- (Approx) to the junior-most teacher". The only sentence which related to the alleged illegality or irregularity on the part of the petitioner is that the re-visit of the Asst. Educational Officer is in violation of the relevant rules as in KER which resulted in excess payment of salary to the junior most teacher. There is no reference to the violation the exact rule in the KER. There is also no reference to the provisions contained in the KER relating to staff fixation and the various verifications to be made by the hierarchy of the officers in the Education Department. Petitioner filed Ext. P5 reply to the above audit report. He has detailed the reason for the revisit and sanctioning of one more post. Thereafter, what the petitioner received was only a copy of Ext. P6 communication from the 2nd respondent to the Treasury Officer. By Ext. P6, a liability certificate of Rs. Petitioner filed Ext. P5 reply to the above audit report. He has detailed the reason for the revisit and sanctioning of one more post. Thereafter, what the petitioner received was only a copy of Ext. P6 communication from the 2nd respondent to the Treasury Officer. By Ext. P6, a liability certificate of Rs. 3,77,205 has been forwarded with respect to the petitioner. 2. In the case of the petitioner in O.P. 9605/96 the 3rd respondent informed the petitioner by Exts. P2 and P3 that according to the audit objections an amount of Rs. 11437/- and 9846/- are pending as liability against the petitioner. 3. In view of these audit objections and fixation of the liability, the petitioners were not paid DCRG. That is why the petitioners approached this Court by filing these Original Petitions. 4. Sri. V. A. Mohammed the learned Counsel for the petitioners submitted that the audit party from the office of the Accountant General has absolutely no jurisdiction to sit in judgment over the order of staff fixation passed by the Educational Authorities. According to the learned counsel, R.12 of Chapter XXIII contains the complete machinery for fixation of the staff in aided schools. When the strength of the staff is fixed by an Asst. Educational Officer under R.12 of Chapter XXIII, the same is under scrutiny by higher officers under R.12C of Chap. XXIII KER. According to R.12C the DEO shall scrutinise all orders passed by the aeo in regard to fixation of staff strength in primary schools and may revise such of the orders as are found necessary. Such revision order shall be passed before the end of August every year. Appeal has been provided in R.12C of the above chapter. Under R.12E a revision shall lie to the Director of Public Instructions. Moreover, under R.15 not withstanding anything contained in these Rules if the educational authorities are satisfied for valid and sufficient reasons to be recorded in writing that the fixation of staff strength was obtained by bogus admission or attendance or by fraud or misrepresentation, and the like the Educational Officers shall be competent to refix the staff strength at any, time during the course of the year. Under R.15A if the staff strength is revised under R.12E or R.15 after September, an allowance for a fall of 10% in the effective strength only to support the first verification of staff strength shall be allowed. 5.lmayrefertoyetanotherruleinChapterXIVAofthe KER, that is R.8A. Under the above Rule, the Director may on his own motion or otherwise call for records of the orders relating to approval of appointments issued by the Subordinate Officers and revise the same. All these safeguards contained in the KER are sufficient enough to prevent any abuse of authority by the various Educational Authorities. The audit party which verified the records after a couple of years may not be justified in finding fault with the fixation of staff strength done by the educational officer. They are not equipped with the knowledge or expertise available with the statutory authorities in the matter of fixation of staff strength. As can be seen in this case a vague statement that the re-visit of the A.E.O. is against the relevant rulings (sic) in the KER is the basis for finding that the fixation of the staff strength is irregular. Therefore, the abbreviations and findings of the audit party really become arbitrary and not based on any material. 6. The counter affidavit filed in these original petitions will only strengthen the above conclusions. It has been stated in the counter affidavit that the action of the petitioner has been seriously objected to by the Accountant General holding that such actions are per se contrary to the statutory provisions in the KER. On the basis of the audit objection raised by the Accountant General, the same has been treated as petitioners^ liability. Thus it is obvious that the respondents did not make any attempt to see whether really the petitioners had acted in violation of the relevant provisions contained in the KER in the matter of fixation of staff. Apart from repeating what has been stated by the audit party, in the counter affidavit, the respondents have no case to support the arbitrary finding of the audit party. 8. The learned counsel for the petitioners invited my attention to the ruling reported in Usuvathunnisd v. Asst. Educational Officer (1990 (2) KLT530). Apart from repeating what has been stated by the audit party, in the counter affidavit, the respondents have no case to support the arbitrary finding of the audit party. 8. The learned counsel for the petitioners invited my attention to the ruling reported in Usuvathunnisd v. Asst. Educational Officer (1990 (2) KLT530). The question arose in the above case was with regard to the legality of the order to refund the salary drawn by a Teacher whose appointment was found to be not in order by the audit party after several years. Considering the authority of the audit party to deal with such a situation, Justice T.L. Viswanatha Iyer observed as follows (Para. 6 & 7): "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 upto 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 suo rnotu to set right the illegality by exercising a power of revision, is the Director of Public Instruction under R.12E(3) of Chap. XXIII of the Rules. He has not acted so far in tin's matter. The audit objections raised by the Accountant General cannot render the staff fixation order invalid or illegality, 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 Asst. 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. Therefore, it was illegal on the part of the Asst. 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. P3 in O.P. 9381 of 1985 have to be quashed. 7. This is apart from the fact dial the Asst. Educational Officer does not possess any power under the rules to direct recovery of amounts of salary paid. R.1A of Chapter XXIVI 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 Instruction v. Vasu 1976 KLT 181, where it was pointed out dial the Assistant Educational Officer was not entitled even to determine any question regarding alleged excess payment of salary." Thus, it is clear that the audit objections raised by the Accountant General have no legal force as far as the Statutory powers are concerned. When an authority acted in exercise of its statutory powers, the above action cannot be termed as illegal by an outside agency, which has no statutory power. When there is a hierarchy of officers in the Education Department functioning and dealing with the subject matter of fixation of staff armed with statutory powers under the KER., no outside agency can say that their actions are illegal or improper. The sanction of an additional division and consequent approval of a teacher done by the educational authorities pursuant to the revisit, must be corrected by the higher authorities-either in appeal or in revision for which there is ample power or provision in the KER itself. In the above area, the audit party has no role to play. 8. The liability, if at all against the retired persons has to be fixed by the respondents in accordance with the relevant provisions contained in Part III KSR. Note 3 to R.3 Part III KSR enables the authorities to fix the liability against a pensioner after giving notice. In the above area, the audit party has no role to play. 8. The liability, if at all against the retired persons has to be fixed by the respondents in accordance with the relevant provisions contained in Part III KSR. Note 3 to R.3 Part III KSR enables the authorities to fix the liability against a pensioner after giving notice. In this case, merely repeating the audit objection and requesting to offer explanation for the audit objection, the authorities have not done anything else. There is neither any application of mind nor any independent finding regarding the alleged fixation of liability. In the case of the petitioner in O.P. 9605/96 no show cause notice was issued and the petitioner was just informed about the Quantum of amount fixed a liability by the audit party. In O.P. No. 10997/96 referred to above, the petitioner was requested to offer his explanation regarding audit objection. After receiving his explanation there was no order either by the audit party or by the respondents except forwarding the liability certificate to the Sub Treasury Officer. 9. Under these circumstances, I am constrained to hold that the whole action on the part of the respondents in fixing the liability and thereby withholding the Death-cum-Retirement Gratuity due to the petitioners is without any authority of law. Therefore, the respondents are directed to disburse the DCRG due to the petitioners in these Original Petitions within three months from the date of receipt of, a copy of this judgment. Original Petitions are allowed as indicated above. The petitioner in O.P.10997/96 is entitled to get interest at the rate of 12% per annum from 1.9.95 to the date of payment. Petitioner in O.P. 9605/96 is entitled to get interest at the rate of 12% per annum from 1.8.1994 to the date of payment.