Partly allowed

R. Bhanuvikraman Pillai v. Director of Public Instructions

Kerala HC19 Aug 2016WP(C)/1627/2007

Case brief

AI extract

What is this about?

The court considered writ petitions by a school manager and headmistress challenging revised staff fixation and salary recovery proceedings. The court upheld the staff revision order based on verified bogus admissions but set aside the immediate salary recovery from the headmistress without disciplinary action.

What did the court decide?

WP(C) No.1627 of 2007 dismissed; WP(C) No.36334 of 2008 allowed and recovery proceedings set aside; DCRG to be disbursed to petitioner.

R. Bhanuvikraman Pillai Vs Director of Public… — Education and Admissions | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE SMT. JUSTICE P.V.ASHA

¶4

FRIDAY, THE 19TH DAY OF AUGUST 2016/28TH SRAVANA, 1938

¶5

WP(C).No. 1627 of 2007 (R)

¶6

PETITIONER(S):

¶7

BHANUVIKRAMAN PILLAI,

¶8

MANAGER, DEVI VILASAM HIGHER SECONDARY SCHOOL, THALAVOOR P.O., KOTTARAKKARA, KOLLAM DISTRICT.

¶9

BY ADVS.SRI.P.RAVINDRAN (SR.) SRI.HARIKRISHNAN RAVINDRAN

¶10

RESPONDENT(S):

¶11

1. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.

¶12

2. DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA.

¶13

3. GOVERNMENT OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF GENERAL, EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM.

¶14

R1 TO R3 BY SENIOR GOVERNMENT PLEADER

¶15

SRI.SANTHOSH PETER

¶16

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-08-2016 ALONG WITH 36334/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

¶18

WP(C).No. 1627 of 2007 (R)

¶19

APPENDIX

¶20

PETITIONER'S EXHIBITS :

¶21

P1: COPY OF THE	STAFF FIXATION ORDER DT 31/7/2004.
P2: COPY OF THE	COMMUNICATION DT 27/1/2005.
P3: COPY REPLY	DT 5/2/2005.
P4: COPY OF THE	ORDER OF THE DPI DT 14/7/2005
P5: COPY OF THE	ORDER DT 13/7/2005.
P6: COPY OF THE	REVISION PETITION DT 8/8/2005.
P7: COPY OF THE	GOVERNMENT ORDER DT 23/11/2006.

¶22

RESPONDENT'S EXHIBITS : NIL.

//TRUE COPY//

P.A. TO JUDGE

P.V.ASHA, J.

W.P.(C) Nos.1627 of 2007 & 36334 of 2008

¶28

Dated this the 19^th day of August, 2016

¶29

JUDGMENT

¶30

These writ petitions are filed by the Manager and the Headmistress respectively of D.V.V.H.S.S., Thalavoor which is an aided school governed by the provisions contained in the Kerala Education Rules, 1959 (“KER” for short). Both these writ petitions relate to revision of staff fixation and the proceedings for recovery towards the salary paid to the teachers who were found surplus, consequent to the revision of staff fixation. W.P.(C) No.1627 of 2007 is filed by the Manager challenging the orders revising the staff strength in the school consequent to the findings of the super check cell and the order passed by the Director of Public Instruction as well as the Government upholding the direction to refix the staff in the school for the year 2004-05. In W.P.(C) No.36334 of 2008 the Headmistress of the school who retired from service on 31.3.2007 challenges the proceedings for recovery initiated against her towards the excess pay drawn by the teachers against the class divisions reduced in the revised staff fixation. These writ petitions are disposed of by common judgment, since common issue arises in these cases. The parties and documents referred to in this judgment are as

¶31

W.P.(C) Nos.1627 of 2007 & 36334 of 2008 :2:

¶32

described in the W.P.(C) 1627 of 2007.

¶33

As far as the case of the Headmistress is concerned, the staff fixation proceedings in respect of the school were issued as per Ext.P1 on 31.7.2004 whereby 34 divisions with 34 teachers were sanctioned. The effective strength of the pupils as per the proceedings was found to be 1321. The super check officer visited the school on 28.9.2004 when a total number of 185 pupils in various class divisions were found absent. Thereupon another visit was conducted on 23.11.2004 by the super check cell. At the time of the first visit the Headmistress of the school had stated that the short fall in the attendance was on account of medical check up of the pupils organised by the Health Department and a quiz competition which was being held. Thereupon super check cell visited the school again on 23.11.2004. On that day also the pupils were found not sufficient in order to satisfy the staff fixation order issued for the year 2004-05 and it was found that there was bogus admissions, practising fraud and misrepresentation, in order to avoid reduction/retrenchment of staff. When three pupils were absent in one of the visits alone, 185 pupils were found absent in both the visits. Based on the assessment, the total roll strength of the school was found to be 1123 and it was found that only 28 divisions could be sanctioned as against the re-verified strength of pupils.

¶34

W.P.(C) Nos.1627 of 2007 & 36334 of 2008 :3:

¶35

Accordingly, the Manager as well as the Headmistress were directed to submit explanation, if any, for the proposed reduction of divisions and abolition of posts with effect from 15.7.2004. It was found that 4^th division in Standard V, 5^th division in Standard VI, 5^th division in Standard VII, 6^th and 7^th divisions in Standard VIII and 7^th division in Standard XI were liable to be reduced, consequent to which 3 posts of UPSAs and 3 posts of HSAs had to be abolished for the year 2004-05. It was further found that the 5^th post of HSA Malayalam and the 3^rd post of HSA Hindi were also liable to be abolished. Show cause notice was also issued to the affected teachers. On receipt of Ext.P2, the Manager submitted Ext.P3 explanation stating that there was no bogus admission.

¶36

According to the Manager the school was started in year 1952 and most of the pupils in the school came from very poor families. It was stated that all the pupils who were found absent in both the days were actually studying in the school. It was also stated that on account of insufficient facilities for transportation in the area, absenteeism occur usually. Thereafter Ext.P4 order was issued by the Director of Public Instruction after hearing the teachers, the Manager and the Headmistress. In the order of the Director of Public Instructions, it was stated that the super check cell inspected the

¶37

W.P.(C) Nos.1627 of 2007 & 36334 of 2008 :4:

¶38

school on the basis of the directions issued by the Government and shortage of the very same pupils were found on both days. On being convinced of the bogus admissions after verification of their roll numbers and other details, it was found that the roll strength in the school was kept inflated in violation of the rules in KER. In these circumstances, it was proposed to refix the class divisions as provided under rule 12E (3) read with rule 16 of Chapter XXIII KER. As the contentions raised by the teachers as well as the Manager and the Headmistress were not found satisfactory, the Director of Public Instruction examined the matter and arrived at the conclusion that the finding of the super check cell was sufficient for reduction of class division as proposed in Ext.P2 and accordingly ordered the reduction of class divisions and abolition of posts. Thus the total number of 34 divisions were reduced to 28 and accordingly the staff fixation order Ext.P1 was modified to that extent. It was further stated that the Headmistress of the school was responsible for the bogus admissions and irregular fixation of staff and therefore loss sustained by the Government by way of payment of salary to the teachers who worked during the period against irregular posts was liable to be recovered from the Headmistress. Accordingly the District Education Officer was directed to examine the eligibility of teachers for protection including

¶39

W.P.(C) Nos.1627 of 2007 & 36334 of 2008 :5:

¶40

1:40 ratio in order to extend the benefit to the affected teachers. It was also directed to initiate disciplinary action against the Headmistress before fixing liability.

¶41

Based on Ext.P4 order, the District Education Officer issued Ext.P5 revised staff fixation proceedings sanctioning 28 divisions applying 1:40 ratio and reversion of eligible hands as UPSAs. Reduction of teachers was kept to the minimum and three UPSAs were retrenched on account of this. The Manager approached the Government submitting Ext.P6 petition which was rejected by Ext.P7 after hearing the Manager. The Government found that the action of the Director of Public Instruction on the basis of the findings of the super check cell was in accordance with rules and the Headmistress was responsible for bogus admissions. The Government also found that the direction contained in the order of the Director of Public Instruction was proper. Since it was directed to verify the eligibility for protection including observance of 1:40 ratio and the consequential order of the District Education Officer granting protection to the eligible hands applying 1:40 ratio, Government found that the orders passed by the Director of Public Instruction or District Education Officer were not liable to be interfered with. It is as against the orderExt.P7 that the Manager has filed WP(C) No.1627 of 2007 contending

¶42

W.P.(C) Nos.1627 of 2007 & 36334 of 2008 :6:

¶43

that the action initiated under rule 16 of chapter XXIII of KER is without authority and in the absence of sanctioning of additional divisions a scrutiny by the super check officer was not necessary.

¶44

As far as the case of the Headmistress is concerned, she is challenging Ext.P4 in her writ petition, by which the Deputy Director of Education, Kollam raised objections in the audit on the ground that the sum of Rs.85,939/- (Rupees Eighty five thousand nine hundred and thirty nine only) was liable to be realised from the Headmistress towards the pay drawn by the two teachers who had to be retrenched. Ext.P4 order was passed after issuing Ext.P2 notice on 31.3.2008 by which she was informed that the sum of Rs.85,939/- (Rupees Eighty five thousand nine hundred and thirty nine only) due was found objected by the audit towards the pay drawn by the teachers who continued in the school over and above the sanctionable limits. She was directed to submit explanation, if any, against the proposed recovery of the amount. The Headmistress submitted Ext.P3 explanation stating that she joined the school only on 1.4.2004 and she was not responsible for the absence of pupils or the admissions granted to the pupils who were absent. She also stated that the class teachers had not informed her about the continuous absence of the pupils. It was also her case that several of the students were admitted

¶45

W.P.(C) Nos.1627 of 2007 & 36334 of 2008 :7:

¶46

in the rolls by the previous Headmaster and she was not responsible for the same.

¶47

The respondents have filed counter affidavit in both the cases, in tune with the orders impugned in the writ petition. In the writ petition filed by the Headmistress, the 2^nd respondent has filed counter affidavit stating that the recovery was effected on the basis of the orders passed by the Director of Public Instruction which was passed based on the findings of the super check cell and therefore the petitioner was liable to remit the salary drawn by the teachers who held the inadmissible posts had to be retrenched.

¶48

Learned counsel for the petitioners relied on the judgment of the Division Bench of this Court in State of Kerala Vs. Manager, M.T.M., Higher Secondary School [2014 (3) KLT 23] . In that case what was considered was the case of higher level verification for sanction of additional divisions. This court held that scrutiny or refixation to assess the strength afresh was not necessary for that purpose. The factual circumstances arising in this case are different as evident from the impugned order itself. Therefore the said judgment cannot have any application in this case. The learned counsel for the petitioners relied on the judgment of this court in W.P(C) No.19330 of 2010 dated 2.2.2012 in which the Headmistress of the school faced

¶49

W.P.(C) Nos.1627 of 2007 & 36334 of 2008 :8:

¶50

with similar proceedings, had approached this court. This court relying on the judgment of the Division Bench which was produced as Ext.P11 in that writ petition, held that no recovery can be made from the Headmistress except by way of disciplinary proceedings. The Division Bench had in the judgment Ext.P11 therein ordered that the loss suffered by sanctioning of additional class divisions, which was based on bogus admission of pupils can be recovered from the Headmistress, only after initiating disciplinary proceedings. In WP(C) No.19330 of 2010 there were reduction of class divisions in which it was held that the Headmistress was responsible for the loss by way of payment of salary to teachers who worked against irregular post. In the light of the judgment of the Division Bench which is followed by the learned single Judge in WP(C) No.19330 of 2010, the proceedings for recovery ordered by the Deputy Director of Education in the case of the petitioner in WP(C) No.36334 of 2008 cannot be sustained. In fact what was directed by the Director of Public Instruction was to initiate disciplinary proceedings against the Headmistress and to recover the salary. But by Ext.P4 the recovery is ordered even before and without initiating any disciplinary proceedings against the Headmistress. In the above circumstances, Ext.P4 cannot stand and hence I stet aside the same.

¶51

W.P.(C) Nos.1627 of 2007 & 36334 of 2008 :9:

¶52

As far as the orders impugned by the Manger in WP(C) No.1627 of 2007 is concerned, it is seen that the Director of Public Instruction has issued the order-Ext.P4 on the basis of the verification made by the super check cell under rule 12(E)(3) read with Rule 6 of Chapter XXIII KER. Rule 12(E) provides that the Director may on his own motion or on the basis of the report of authorised officer under rule 16, including evidence and other details if any collected by him or otherwise call for the records of the orders relating to fixation of staff strength issued by the subordinate officers and revise the same. It further provides that the orders shall be passed only after affording opportunity of hearing to the persons who were likely to be affected.

¶53

From Ext.P2 it can be seen that the super check cell has visited the school twice and found continuous absence of the very same pupils. The Manager and the Headmistress could not furnish any satisfactory explanation for it. It was in these circumstances, that the Director of Public Instruction issued Ext.P4 order revising the staff fixation for which he is competent under rule 12E(3) read with rule 16. Rule 16 provides that any officer authorised by Government for checking the staff fixation proceedings made by educational officers shall enter any school or educational office, call for the relevant records, verify the strength of pupils and make enquiries to find out

¶54

W.P.(C) Nos.1627 of 2007 & 36334 of 2008 :10:

¶55

the irregularities if any committed in the staff fixation. The authorised officer shall send a report thereon to the Director of Public Instructions for appropriate action. The supercheck officer who visited the school, was convinced of the irregularities and report was submitted to DPI. The DPI has issued show cause notice based on the report of super check officer. Final orders were issued only after hearing all the affected parties.

¶56

It is pertinent to note that in the reply to the show cause notice, there was no explanation for the absence of very same pupils on both occasions. In such circumstances, the proceedings Ext.P4 or the consequential fixation of staff cannot be said to be illegal. Even while passing Ext.P4 order, the Director of Public Instruction has directed the District Education Officer to revise the staff fixation after verifying the eligibility of the teachers for protection and to observe 1:40 ratio so as to protect the maximum number of teachers from retrenchment. The order of Government upholding the order of the Director of Public Instruction in this circumstances cannot be said to be illegal. Both the orders are passed after giving sufficient opportunity of hearing to all the affected parties.

¶57

Under the above circumstances WP(C) No.1627 of 2007 is dismissed and WP(C) No.36334 of 2008 is allowed. The respondents

¶58

W.P.(C) Nos.1627 of 2007 & 36334 of 2008

¶59

:11:

¶60

shall disburse the DCRG, which is withheld in the case of the petitioner in WP(C) No.36334 of 2008 at the earliest at any rate within a period

¶61

of three months from the date of receipt of a copy of the judgment.

¶62

The writ petitions are disposed of.