Allowed

O.K.Sivaraman v. the State of Kerala and Others

Kerala HC20 Oct 2016WP(C)/4423/2010

Case brief

AI extract

What is this about?

A single judge set aside and quashed government orders directing a school manager to recover irregularly paid salaries from the government. The court held the manager could not be held liable for salaries paid due to government approval of appointments, even if some earlier appointments were irregular.

What did the court decide?

Exhibits P2, P3 and P4 to the extent they direct recovery of amounts paid to employees from the Manager are set aside and quashed.

O.K.Sivaraman Vs the State of Kerala and Others — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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THURSDAY, THE 20TH DAY OF OCTOBER 2016/28TH ASWINA, 1938

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WP(C).No. 4423 of 2010 (C)

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PETITIONER(S) :

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O.K.SIVARAMAN, S/O.PADMANABHAN,

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AGED 57 YEARS, MANAGER, VISWABHARATHI S.N.H.S.SCHOOL, NEEZHOOR, KOTTAYAM DISTRICT.

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BY ADV. SRI.V.A.MUHAMMED

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RESPONDENT(S) :

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1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM.

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2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14.

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3. THE DISTRICT EDUCATIONAL OFFICER, KADUTHURUTHY, KOTTAYAM DISTRICT.

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BY GOVERNMENT PLEADER SRI. BEJOY CHANDRAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 4423 of 2010 (C)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1: TRUE COPY OF THE ORDER NO. ET3/13537/2007/API/D.DIS OF THE 2ND RESPONDENT DATED 17.08.2007.

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EXHIBIT P2: TRUE COPY OF THE G.O(RT.)NO. 3118/08/G.EDN. OF THE GOVERNMENT DATED 08.07.2008.

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EXHIBIT P3: TRUE COPY OF THE ORDER NO. ET2/30176/2008/DPI/D.DIS OF THE 2ND RESPONDENT DATED 28.11.2009.

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EXHIBIT P4: TRUE COPY OF THE ORDER NO. B3/5707/06 OF THE DISTRICT EDUCATIONAL OFFICER DATED 08.01.2010.

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EXHIBIT P5: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.NO. 1049/1995-Y DATED 18.03.1996.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.S.TO JUDGE.

Msd.

ANU SIVARAMAN, J.

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----------------------------------------------W.P(C).No. 4423 of 2010

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----------------------------------------------Dated this the 20^th October, 2016

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JUDGMENT

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The challenge in this writ petition is against Exhibits P2, P3 and P4 orders to the extent they direct recovery of the loss sustained to the Government due to regular appointment in the post of Lab Assistant in the petitioner's school from the petitioner, who is the Manger of the School. It is contended that the petitioner had made appointment to the post of Lab Assistant on 12.1.2000. In the resultant vacancy of peon, one full time menial was promoted and in the said vacancy of the full time menial, a fresh hand was appointed. The fresh appointment as well as the promotion of full time menial was approved with effect from 24.4.2000. However, the appointment to the post of Lab Assistant was approved only with effect from 28.3.2003. Therefore, the Educational authorities found that the promotion of the full time menial as peon was erroneous, since there was no vacancy of peon on 28.3.2003. The fresh appointment was also found to be irregular.

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The petitioner preferred an appeal, which was ordered by Exhibit P1 allowing the rearrangement of non-teaching staff and directing the District Educational Officer to take steps to approve the appointment as ordered by the Director of Public Instruction. Though a revision was preferred by the full time menial, by Exhibit P2

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WP(C).4423/10

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Government order, it was dismissed, directing recovery of the loss, if any, sustained by the Government from the Manager. Payment of salary was directed to be made to the employees on the basis of the approval granted. The petitioner thereafter took up the matter with the Director of Public Instruction, but Exhibits P3 and P4 orders were passed fixing a liability of Rs.1,37,140/- and seeking to recover the same from the petitioner. The petitioner relies on Exhibit P5 judgment to state that the loss was occasioned only due to approval of the appointments even if it is made by the petitioner and the same could not be recovered from the Manager.

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Heard learned counsel for the petitioner and the learned Government Pleader.

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It is admitted that the appointment of Lab Assistant was approved by the Department only with effect from 28.3.2003. It appears that the filling up of the resultant vacancy of peon by promotion of a full time menial and the filing up of the vacancy of full time menial by appointment of fresh hand was however approved with effect from 24.4.2000. The salary due to the employees could have been paid only on the appointment being approved. The petitioner had made the appointments in question and had forwarded them for approval to the departmental authorities in accordance with law. The fact of grant of approval had promoted the payment of salary. Going by

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WP(C).4423/10

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the provisions of Chapter XIVA KER, it is the responsibility of the departmental authorities to approve the appointments made by the Manager in accordance with Rules. In the above view of the matter, no payment would have been made to the employees unless the appointments were duly approved by the department. The approval of appointment being the prerequisite for payment of salary, I am of the opinion that the Manager cannot be mulcted with the liability of payment of salary wrongly made on account of the approval of appointments even if such appointments are later found to be not in accordance with the rules, since appointments by themselves cannot lead to payment of salary to employees of the school.

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In the above circumstances, Exhibits P2, P3 and P4 to the extent they direct recovery of amounts paid to employees from the Manager are bad in law. Exhibit P2 to the extent it order recovery is set aside and Exhibits P3 and P4 are quashed.

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The writ petition is ordered accordingly.

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ANU SIVARAMAN

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vgs22/10

O.K.Sivaraman v. the State of Kerala and Others

Case brief

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O.K.Sivaraman v. the State of Kerala and Others

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