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Judgment
Justice A.M. Shaffique
Petitioner challenges Ext. P5 and P7 orders. Ext. P5 is an order passed by the 4th respondent finding that the petitioner is liable for the loss sustained by the Government by way of payment of salary to Smt. P.P. Anandavally for the period from 01.07.2002 to 01.01.2003. Ext. P7 is a demand notice dated 05.10.2007 issued by the District Educational Officer calling upon the petitioner to remit the said amount within a period of 7 days failing which he is threatened with Revenue Recovery proceedings. The facts involved in the passing of Ext. P5 order relates to appointment made to the post of Headmistress in C.K.M.U.P. School, Thottakom in the year 2001.
Initially, Smt. P.P. Anandavally who was the senior most teacher in the school was appointed as teacher in charge since there was no qualified teachers to be promoted as Headmistress, on account of the retirement vacancy in the year 2001.
Smt. M. Leela Bai staked her claim to the said post. She was a teacher working under protection in a nearby government school and according to her she was qualified to be appointed as Headmistress in the said school. The second respondent by Ext. P1 order found that Smt. M. Leela Bai was the legitimate claimant for the post of Headmistress and direction was issued to the management to appoint her as Headmistress. Since the order was not implemented Smt. M. Leela Bai filed W.P. (C). No. 33945/2001 for implementing the order. Smt. P.P. Anandavally filed O.P. No. 29783/2001 challenging Ext. P1 order. She was directed to file a statutory revision before the first respondent. W.P.(C). No. 33945/2001 was disposed of directing Leela Bai also to be heard while disposing of the revision filed by Smt. P.P. Anandavally.
Pursuant to the judgment, in the above cases the first respondent passed Ext. P2 order upholding the right of Smt. M. Leela Bai and the second respondent by Ext. P3 directed Smt. M. Leela Bai to be appointed as Headmistress in the said school. Hence in compliance of Ext. P3, Smt. Leela Bai was posted as Headmistress of the said school with effect from 28.06.2002.
Smt. P.P. Anandavally filed W.P.C. No. 17398/2002 again challenging Ext. P1 and P2 orders and the High Court passed an interim order stating that Smt. P.P. Anandavally shall not be reverted in implementation of Ext. P1 and P2 order. It is the case of the petitioner that the interim order was communicated to him only on 13.07.2002. W.P.(C). No. 17389/2002 filed by Smt. P.P. Anandavally was subsequently allowed by the learned Single Judge against which an appeal was filed by Smt. M. Leela Bai as Writ Appeal No. 2488/2002. The writ appeal was heard and dismissed on 14.11.2002 upholding judgment of the learned Single Judge. Thus Smt. P.P. Anandavally was to be appointed as the Headmistress of the school. Smt. P.P. Anandavally re-joined duty as Headmistress with effect from 02.01.2003. Subsequently Smt. P.P. Anandavally approached the 4th respondent to get the period of her absence W.P. (C) No. 30888 OF 2008 from duty regularised from 01.07.2002 to 01.01.2003. After hearing the petitioner, the 4th respondent passed Ext. P5 order. According to the 4th respondent there was deliberate inaction on the part of the manager to reinstate Smt. Anandavally as Headmistress despite the office order dated 09.07.2002. In regard to the claim of Smt. P.P. Anandavally orders were issued to regularise her service 01.07.2002 to 01.01.2003 as duty and there is a finding that she is eligible for pay and allowance and all other service benefits. It is also stated in the said order that no salary was paid to Smt. M. Leela Bhai for the period which she worked at that school from 28.06.2002.
It is the contention of the petitioner that he had submitted Ext. P6 explanation to the 4th respondent and thought that there would not be any further proceedings pursuant to the same. But according to him after more than 3 years Ext. P7 demand has been issued. Hence the challenge.
The second respondent has filed a counter affidavit. According to them, the action of the Manager terminating the service of Smt. P.P. Anandavally was without observing the procedures laid down in KER and against the spirit of judgment dated 27.06.2002 in W.P.(C).No. 17398/2002. It is further stated that the 4th respondent had interfered in the matter and issued an order dated 09.07.2002 directing the manager to reinstate Smt. P.P. Anandavally as Headmistress in service with immediate effect but the Manager disobeyed the order. It is also contended that after the disposal of Writ Appeal No. 2448/2002, the 4th respondent issued orders approving the appointment of Smt. P.P. Anandavally by letter dated 26.12.2002 and she was reinstated in service only on 02.01.2003. It is also stated that since the service of Smt. P.P. Anandavally has been regularised and considered as duty for all service benefits including pay and allowances, the loss sustained by the Government by way of salary paid to Smt. P.P Anandavally for the said period is to be considered as the personal liability of the manager which according to the 4th respondent is an order as per Rule 67(8) of Chapter XIVA of KER.
The short question to be considered in this writ petition is whether the direction to recover the salary and other benefits paid to Smt. P.P. Anandavally from 01.07.2002 to 01.01.2003 is to be recovered from the petitioner or not in accordance as per Rule 67(8) of Chapter XIVA of KER.
Heard learned counsel appearing for the petitioner and the learned Government Pleader.
It is the case of the petitioner that Government had not sustained any loss on account of retaining Smt. M. Leela Bai in the said post, since she had not drawn any salary from the school from 28.06.2002 and therefore there is no pecuniary loss caused to the Government even if Smt. P.P. Anandavally was paid the salary and other allowances for a period from 01.07.2002 to 01.01.2003. It is also contented that the right of Smt. P.P. Anandavally to get appointment as Headmistress in the school was confirmed and had become final only when the Division Bench of the Kerala High Court in Writ Appeal No. 2448/2002 confirmed the judgment dated 13.09.2002 of the W.P. (C) No. 30888 OF 2008 learned Single Judge, on 14.11.2002. In fact according to the learned counsel, Smt. P.P. Anandavally was appointed by the Manager, she being the senior most teacher in the school as Headmistress which was not approved by the 4th respondent. But then O.P. No. 29783/2001 came to be filed along with another writ petition W.P.(C). No. 33945/2001 and ultimately Ext. P1 order was confirmed by Ext. P2. Therefore, when Smt. M. Leela Bai''s appointment was confirmed by the government by Ext. P2 order the petitioner had appointed her. Subsequently, Smt. P.P. Anandavally challenged the said order of the 1st respondent which resulted in the judgment of the learned Single Judge in W.P.(C). No. 17398/2002 which was confirmed in Writ Appeal No. 2488/2002. That being the situation, according to the learned counsel, Anandavally''s right got crystallised only when the writ appeal was disposed and therefore the manager cannot be found fault with for not appointing her during the pendency of the said writ petition or writ appeal.
On the other hand, the learned Government Pleader W.P. (C) No. 30888 OF 2008 supported the stand taken by the official respondents. According to the learned Government Pleader, though Smt. M. Leela Bai had not received the salary for certain period that does not disentitle the 4th respondent in passing Ext. P5 order since there was inaction on the part of the manager in not appointing Smt. P.P. Anandavally despite a direction issued by the said authority.
Rule 67 (8) of Chapter XIVA of KER reads as under.
(8) Where the orders of suspension is made by the manager he shall on the same day report the matter together with reasons for the suspension to the Educational Officer and were the suspension is in respect of Headmaster of Secondary school and Training School such reports shall be sent to the1[Deputy Director (Education)] also in addition to the Educational Officer. The [Deputy Director (Education)] if the suspension is in respect of Headmaster of a secondary School or Training School and the Educational Officer in other cases shall thereupon make a preliminary investigation into the grounds of suspension. If on such investigations the authority is satisfied that there was no valid ground for the suspension he may direct the manager to reinstate the teacher with effect from the date of suspension and thereupon the teacher shall forthwith be reinstated by the manager. If the teacher is not actually reinstated the teacher shall be deemed to have been on duty. It shall then be open to the Department to disburse the pay and allowances to the teacher as if he were not suspended and recover the amount so disbursed from the manager. If on such investigation it is found that there are valid grounds for such suspension, permission may be given to the manager to place the teacher under suspension beyond 15 days if necessary. The authority mentioned above shall pass orders permitting the suspension or otherwise within said 15 days
This rule apparently relates to an order of suspension issued by the manager and the refusal on the part of the manager to reinstate the teacher on the basis of directions issued by the department. The latter part of the Rule indicates that it shall be open to the department to disburse the pay and allowances to the teacher as if he were not suspended and recover the amount so disbursed from the manager. On a bare reading of the above Rule, I do not think that the said Rule applies to the case on hand. Hence Rule 67(8) of Chapter XIVA of KER cannot be relied upon by the respondents to fix compensation on the petitioner.
This is a case where the allegation is that the direction issued by the AEO was not complied with. Apparently, the direction was issued on 09.07.2002 on which date the rights of Smt. P.P. Anandavally had not been crystallised, and which event takes place only on the date of judgment in W.P.(C) No. 17398/2002 i.e., 13.09.2002, of High Court of Kerala. Admittedly, there was a writ appeal filed which was dismissed on 14.11.2002. Therefore, it could be seen that there was no deliberate inaction in the part of the manager in the matter relating to appointing Smt. P.P. Anandavally to the said post, justifying the order to pay compensation. Even according to the 4th respondent Smt. M. Leela Bai had not collected any amount as salary and therefore there is no pecuniary loss to the government.
In the above circumstances I am of the view that the writ petition is to be allowed and Ext. P5 is quashed to the extent it directs the manger to compensate the government. Consequently Ext. P7 is also set aside.