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2022 DIGILAW 870 (KER)

Sindhu P. C. v. State Of Kerala

2022-10-13

RAJA VIJAYARAGHAVAN V.

body2022
JUDGMENT : 1. The petitioners in these petitions are all working as teachers in different capacities at the High School, Pengamukku. They have approached this Court being aggrieved by the proceedings issued by the DEO, Chavakkad, dated 22.04.2017, revising the staff fixation of the school for the years 2007-2008, 2008-2009, and 2009-2010 on the ground that pertaining to the above academic years, the Accountant General has raised certain audit objections regarding the staff fixation carried out by the educational authorities. 2. Since common issues are involved, these writ petitions are considered together and are disposed of by a common judgment. 3. The petitioners contend that the order issued by the DEO, purportedly on the basis of an audit objection, cannot be sustained under the law in view of the law laid down by this Court in Usuvathunnisa v. Asst.Educational Officer, [ 1990 (2) KLT 530 ] and Somanatha Panicker v. State of Kerala, [ 1997 (1) KLT 305 ]. It is further argued that while issuing the impugned proceedings, the respondents have overlooked the statutory provisions, particularly Chapter XXIII of the KER. It is further contended that, in terms of the original staff fixation order, most of the teachers have discharged their duties, and on the basis of an audit objection raised by the Accountant General, the DEO cannot undo the issue, which has become final. 4. In the counter affidavit filed on similar lines, it is stated that the Accountant General conducted an audit of accounts of the DEO, and the special audit party found instances of bogus admissions for the academic years 2007-2008 to 2009-2010. It was revealed that most of the students who came through transfer from other schools had left the school immediately after the one-day verification. In addition, some of the newly admitted students were removed from the roll due to continuous absence. The removal of students was not reported by the Headmaster of the school to the DEO. If fixation was revised based on the removal of students, one division each in Standard VIII, IX and X ought to have been reduced during 2008-2009 and 2009-2010, and consequently, three High School Assistants (core subjects) were in excess. In terms of the audit objection, directions were issued by the Director to the DEO to revise the staff fixation, and it is consequent to the same that five teachers were found in excess. In terms of the audit objection, directions were issued by the Director to the DEO to revise the staff fixation, and it is consequent to the same that five teachers were found in excess. The excess amount drawn by the above teachers was liable to be recovered from the teachers concerned. 5. I have heard Sri.Brijesh Mohan and Sri.V.A.Muhammed, the learned counsel appearing for the petitioners and the learned Government Pleader. 6. Chapter XXIII of the KER deals with the mechanism for fixing the staff strength of teachers in Departmental and aided schools. Rule 12 provides that subject to the availability of accommodation, the strength of teaching staff in each school shall be fixed, and order shall be issued by the Educational Officer by the 15th July of each year after finalizing the number of divisions in each class, based on the strength of pupils on the roll. Rule 7 provides that the manager or the affected parties shall have the right to apply for a review of the order passed by the Government in terms of subrule (6) within 30 days from the date of the order. Rule 12C(1) enjoins the District Educational Officer to scrutinize all orders passed by the AEO in regard to fixation of staff strength insofar as primary schools are concerned. Rule 12C(2) provides that the Deputy Director of Education shall scrutinize all orders passed by the DEO in regard to the fixation of staff strength in High and Training Schools. The Manager of a school is entitled to prefer an appeal by invoking Rule 12D before the Deputy Director against an order passed by the DEO. A revision would lie to the Director against the orders passed by the Deputy Directors under the Chapter. Under Rule 12F, the Government is empowered, at any time, at their own motion or otherwise to call for the records and revise any order passed by the Director. I have detailed the provision to substantiate the fact that a detailed procedure is prescribed under the Rules while carrying out the fixation of the strength of teachers. 7. A perusal of the proceedings issued by the DEO would reveal that the impugned proceedings have been issued based on the audit objection raised by the Accountant General, Kerala. The staff fixation orders have been issued by the DEO in the exercise of the powers conferred on him. 7. A perusal of the proceedings issued by the DEO would reveal that the impugned proceedings have been issued based on the audit objection raised by the Accountant General, Kerala. The staff fixation orders have been issued by the DEO in the exercise of the powers conferred on him. The above fact is undisputed. There is no case for the respondents that the Director in exercise of the powers conferred on the said authority under Rule 12E(3), has on his own motion or on the basis of the report of the authorized officer, revised the order of staff fixation. At any rate, if any such exercise is to be carried out, orders affecting the interest of the petitioners can be passed only after affording the person concerned an opportunity of making any representation that he may wish to make against such order as provided under the proviso to Rule 12E(3). 8. The question whether the audit objection raised by the Accountant General can render the staff fixation carried out by the educational authorities, had come up for consideration before this Court. In almost identical circumstances, a learned Single Judge of this Court (T.L.Viswanatha Iyer, J as he then was) considered the issue and had laid down as under: 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 motu to set right the illegality by exercising a power of revision, is the Director of Public Instruction under R.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. 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. xxxxxxxxx xxxxxxxxx xxxxxxxxx 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, ILR 1982 (2) Ker. 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. 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. 9. It was held with great emphasis that the Accountant General can only point out the illegality in the proceedings, and his objections cannot have the effect of nullifying orders of proceedings taken by the statutory authorities. It was also held that the educational authorities could not have acted on the basis of the audit report of the Accountant General and treated all the prior proceedings carried out by them as null and void. 10. In Somanatha Panicker (supra), this Cout was confronted with the situation wherein the DCRG due to some of the petitioners who had worked as Assistant Educational Officers were not disbursed on account of the objection raised by the Accountant General during the audit of accounts and registers of the Aided Schools pertaining to a previous period. The alleged irregularities pertained to the sanction of additional divisions in an Aided School and based on the inspection report submitted by the Assistant Educational Officer. The learned Single Judge (C.S.Rajan, J., as he then was), after evaluating the facts and circumstances, held that the safeguards contained in the KER are sufficient enough to prevent any abuse of authority by the 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 by the educational officer. It was further held that the office of the Accountant General is not equipped with the knowledge or expertise available with the statutory authorities in the matter of fixation of staff strength. After relying on the observations made in Usuvathunnisa (supra), it was observed as under in paragraph No.7 of the judgment. 7. It was further held that the office of the Accountant General is not equipped with the knowledge or expertise available with the statutory authorities in the matter of fixation of staff strength. After relying on the observations made in Usuvathunnisa (supra), it was observed as under in paragraph No.7 of the judgment. 7. 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 re-visit, 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. 11. In view of the discussion above, I hold that the impugned order issued by the DEO revising the staff fixation order of the school for the years 2007-2008 to 2009-2010 on the basis of the objection raised by the audit party cannot be sustained under law. I find that on the basis of the impugned order, directions have been issued to withhold the salary of the petitioners herein. As the impugned order stands quashed, the petitioners cannot be called upon to refund amounts that they have received as remuneration for service rendered in the school. Having obtained the benefit of their service based on orders for which the petitioners were not responsible, it would not be open to the respondents to demand the salary already paid to the petitioners. As held by this Court in Usuvathunnisa (supra), when the teachers have worked in a particular grade 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 solely on the basis of certain collateral proceedings. In view of the discussion above, the petitioners are entitled to succeed. In view of the discussion above, the petitioners are entitled to succeed. The following directions are issued: a) W.P.(C) No. 37030/2018 will stand allowed. Exts.P1, P2, P6, P8 and P10 will stand quashed. The respondents shall disburse the consequential benefits, if any, due to the petitioner expeditiously, in any event, within a period of three months from the date of receipt of a copy of this judgment. b) W.P.(C) No. 38632/2018 will stand allowed. Exts.P4 to P6, P10 and P12 will stand quashed. The respondents shall disburse the consequential benefits, if any, due to the petitioner expeditiously, in any event, within a period of three months from the date of receipt of a copy of this judgment. c) W.P.(C) No. 38633/2018 will stand allowed. Exts.P4 to P6, P10 and P12 will stand quashed. The respondents shall disburse the consequential benefits, if any, due to the petitioner expeditiously, in any event, within a period of three months from the date of receipt of a copy of this judgment.