Appeal against Single Judge quashing government orders to recover unapproved teacher salary from school manager. High Court held manager not liable as payment followed court direction and no rule permits recovery in these circumstances.
Writ appeal dismissed; government orders for recovery of salary from manager upheld at no liability.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 8TH DAY OF AUGUST 2014/17TH SRAVANA, 1936
WA.No. 989 of 2011 ( )
(AGAINST THE JUDGMENT IN WP(C).NO. 15657/2004 DATED 04-11-2010)
APPELLANT(S)/RESPONDENTS:
1. STATE OF KERALA,REP BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM.
2. THE ASSISTANT EDUCATIONAL OFFICER, CHAVAKKAD.
BY GOVERNMENT PLEADER SRI.VIJU THOMAS
RESPONDENT/PETITIONER:
THE MANAGER, A.U.P SCHOOL, GURUVAYOOR, GURUVAYOOR P.O, PIN - 680 101.
BY SMT.V.P.SEEMANDINI,SENIOR ADVOCATE ADV. SMT.S.KARTHIKA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2014 , THE COURT ON 08-08-2014 DELIVERED THE FOLLOWING:
sts
Ashok Bhushan, Ag. C.J. & A.M. Shaffique, J.
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W.A. No. 989 of 2011
=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Dated this, the 8th day of August, 2014.
J U D G M E N T
Shaffique, J.
This appeal is filed by the State of Kerala against the judgment dated 4.11.2011 in W.P(C) No. 15657/2004. The 1st respondent is the writ petitioner.
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Government and its authorities as W.A. No. 887/1994 was also dismissed as per judgment dated 5th August, 1994. It is therefore contended that, it is by virtue of such interim order that the salary was being disbursed. The Original Petition was disposed of by a common judgment dated 31st January, 2003. It is therefore contended that the Manager is not responsible for payment of salary to the teacher and it was only on account of the interim order that such salary came to be paid. Hence, he has no responsibility to reimburse the amount paid to the teacher.
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recover the amount if the same was permissible under law, which is clear from paragraph 41 of the judgment and there is no provision enabling the Government to recover any compensation from the Manager and Rule 7(4) of Chapter III KER does not warrant the situation as available under the facts and circumstances of the case and hence the learned Single Judge quashed Ext. P5 and Ext. P6.
“The teachers who are found to have performed their duties are entitled to the salary for the relevant period subject to the condition that the Government may recover it from the Managements. This, by itself, would not, however, entitle the petitioners to claim the continuance of the posts or their service. The final decision in this behalf shall depend upon the order on their representations.”
On this basis, it is contended that when the Full Bench had permitted the Government to recover the salary paid to the teacher from the Management, no further
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statutory provision is required to enable the Government to recover the said amount. But, as held by the learned Single Judge, paragraph 41 of the judgment cannot be ignored wherein the question whether the teachers were entitled to get the salary was considered. In that connection, the Full Bench observed as under:
“41. In case the teachers have continued on the posts, the action in not paying them salary is wholly arbitrary and unfair. A person who performs his duties is entitled to the payment of his salary. The dispute between the school and the state cannot result in denial of salary to the teacher. The payment, if not already made, the needful should be done without delay. However, it looks difficult to believe that the teachers would continue to teach for more than 14 years without getting their wages. In this situation, it appears fair to direct the competent authority to ascertain the factual position from the employees and the employers. In case it is found that the payment has not been made, the Government shall pay for the duration for which the incumbent had actually worked without getting the wages. However, it is clarified that it shall be entitled to recover, if permissible under law, from the Managements that had appointed the teachers or illegally allowed the incumbents to continue in position. It shall not, however, confer on the incumbents of the posts a right to claim continuance in service or of the posts held by them. The second question is accordingly answered in the above terms.”
was regarding the entitlement of the teachers for salary. According to the Full Bench, since they have
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worked for more than 14 years, they are entitled to get the salary. However, it was clarified that the Government will be entitled to recover the amount if permissible under law from the Managements, if they have illegally appointed and allowed the incumbents to continue in position.
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given sanction to draw the salary in favour of the teacher till final judgment is passed in the original petition. Therefore, until a final decision was taken in the original petition, the 1st respondent Manager had no option other than to comply with the directions issued by this Court as well as by the appellant authorities. Under such circumstances, even on facts, we do not think that the appellants are entitled to seek recovery of the amount from the Manager.
“So far as the Manager is concerned, even though there are many provisions under the K.E.R. compelling the Manager to obey the directions of the Government and also the consequences in cases of disobeyance, no provision has been brought to my notice which enables the Government to recover the loss from the Manager suffered by it on account of the wrong staff fixation. The
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only relevant rule is sub-r. (4) of R.7 of Chap. III. It mentions the contingencies when the loss occasioned by the Government can be recovered, which are as follows:
“(4) In the case of a Manager who commits serious irregularities causing monetary loss to teachers/Government, the loss sustained by teachers/Government shall be recoverable from the Manager under the provisions of the Revenue Recovery Act for the time being in force as if it is an arrear of public revenue due on land, in the following cases, namely -
(a) Denial of appointment to a qualified thrown out teacher who has a rightful claim for reappointment by virtue of his/her holding the post earlier under R. 51A Chapter XIV A.
( b) Denial of promotion to a teacher to any higher grade of pay under Rr. 43, 43B or 43C as the case may be, of Chap. XIVA, for denial of promotion to the senior-mostrightful claimant to the post of Headmaster under Rr. 44 or 45 or 45 A, of Chap. XIV-A, when the post becomes vacant disobeying the directions from the department and/or Government causing denial of all monetary benefits which he/she would have got, had the promotion been effected as per rules in time.
(c) Suspension of teachers, framing cooked up and/or frivolous charges, keeping them out of service beyond fifteen days disobeying the orders of re-instatement of such incumbents passed by the Deputy Director (Education) or by the Educational Officer concerned, as the case may be, after a preliminary investigation into the grounds of suspension under sub-r. (8) of R. 67, Chap. XIVA, depriving such incumbents of their salary for which they would have been entitled to had they been reinstated by the Manager in compliance of the orders issued by the officer concerned.
(d) Making of irregular appointments and getting them approved by the Educational Officers concerned by furnishing false
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information/declaration by he Managers regarding the claimants, under R. 51 A, Chap. XIV A.”
Thus, no other circumstances are prescribed in the Rules, enabling the Government to recover the loss suffered by the Government.”
We do not find any reason to differ from the view taken in the aforesaid judgment. Under such circumstances, we do not think that the appellants have raised any grounds warranting interference with the judgment of the learned Single Judge.
Accordingly, the writ appeal is dismissed.
Ashok Bhushan, Ag. Chief Justice.
A.M. Shaffique, Judge.
Tds/
3 issues framed by the court
Whether the Government can recover salary paid to a teacher from the school manager when the appointment was irregular but the payment was continued by court interim order.
Whether Rule 7(4) of Chapter III KER provides for recovery of loss by the Government from the school manager in cases of wrong staff fixation.
Whether an interim order directing salary discharge creates a liability for the manager that overrides the department's right to recover the amount.
Colour shows how this judgement treated each authority
Vasudevan Namboodiri v. State of KeralaFollowed¶51
1997(2) KLT, 529
1 provisions across 1 enactments
State of Kerala
Assistant Educational Officer, Chavakkad
The Manager, A.U.P School, Guruvayoor
Ashok Bhushan
A.M. Shaffique
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
