Partly allowed

Korula Joseph and Others v. the State of Kerala and Others

Kerala HC3 Jun 2016WP(C)/72/2011

Case brief

AI extract

What is this about?

The court examined a complaint by the Director of Public Instruction fixing financial liability on the petitioner, a retired Deputy Director of Education, for approving teacher appointments violating rules requiring protected teachers. The court held the petitioner liable for most appointments but excluded liability for specific salaries where the school manager had provided a valid declaration of

What did the court decide?

Ext.P3 order directed to be modified to deduct liability related to Santhome High School, Kanamala appointments; fresh orders to be passed within three months.

Korula Joseph and Others Vs the State of… — Pension and Retirement Benefits | 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 SMT. JUSTICE P.V.ASHA

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FRIDAY, THE 3RD DAY OF JUNE 2016/13TH JYAISHTA, 1938H

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WP(C).No. 72 of 2011 (H)

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PETITIONER(S):

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KORULA JOSEPH, RETIRED DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM, THEKKEPARAMBIL HOUSE, MELUKAVU MATTAM P.O., KOTTAYAM DISTRICT.

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BY ADV. SRI.ESM.KABEER

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RESPONDENT(S):

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

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2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM.

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3. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM.

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BY GOVERNMENT PLEADER SRI.JOBY JOSEPH

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 72 of 2011 (H)

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APPENDIX

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PETITIONERS' EXHIBITS

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P1: COPY OF THE NOTICE DATED 22/1/10 OF THE R2

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P2: COPY OF REPLY SUBMITTED BY THE PETITIONER DATED 8/9/10

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P3: COPY OF THE ORDER DATED 8/11/10 OF THE R2

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P4: COPY OF THE PROCEEDINGS NO.K5/1533/09 DATED 1/2/10 FROM THE R3

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P5: COPY OF THE NOTE NO.B3/4682/03 SUBMITTED TO THE PETITIONER FOR THE APPROVAL OF ANNESH KUMAR.V.V.

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P6: COPY OF THE NOTE NO.B3/4051/06 SUBMITTED TO THE PETITIONER FOR THE APPROVAL OF ANNESH KUMAR V.V.

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P7: COPY OF THE NOTE NO.B3/4049/06 SUBMITTED TO THE PETITIONER FOR APPOINTMENT OF SANOOP KUMAR

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P8: COPY OF THE NOTE FILE NO.2/7501/07 JASMINE VARGHESE

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P9: COPY OF THE NOTE FILE NO.B2/7503/07 OF JIM JO JOSEPH

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P10: COPY OF THE CERTIFICATES ISSUED BY THE HEADMISTRESS C.KESAVAN MEMORIAL HIGHER SECONDARY SCHOOL, KORUTHODE DATED 17/12/10

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P11: COPY OF THE DECLARATION OF THE MANAGER DATED 1/6/07

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P12: COPY OF THE ORDER NO.K.DIS./B3/1636/09 DATED 13/4/09

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P13: COPY OF THE ORDER NO.B5/11256/08/K.DIS.DATED 6/2/09

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P14: COPY OF THE ORDER NO.B5/11504/08/K.DIS.DATED 7/11/08

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P15: COPY OF THE G.O.P.NO.46/06/GEN.EDN.DATED 1/2/06.

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P16: COPY OF THE INFORMATION RECEIVED UNDER THE RIGHT TO INFORMATION ACT FROM THE PUBLIC INFORMATION OFFICER OF THE DEPUTY DIRECTOR OFFICER DATED 9/5/11

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P17: COPY OF THE JUDGMENT IN WPC.NO.5497/10 DATED 5/3/10

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P18: COPY OF THE JUDGMENT IN WA.NO.1144/10 DATED 21/2/12

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P19: COPY OF THE JUDGMENT IN WPC.32439/2009 DATED 22/12/2011

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P20: COPY OF THE ORDER IN SPECIAL LEAVE APPEAL NO.37235/12 DATED 3/12/12

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WP(C).No. 72 of 2011 (H)

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P21: COPY OF THE ORDER NO.KDIS.B4/1857/2008 DATED 9/6/08

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P22: COPY OF THE ORDER DATED 2/6/08 OF THE DEPUTY DIRECTOR OF EDUCATION KOTTAYAM.

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RESPONDENTS' EXHIBITS

NIL.

/ TRUE COPY /

P.S. TO JUDGE

P.V.ASHA, J.

W.P.(C) No.72 of 2011

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Dated this the 3^rd day of June, 2016

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JUDGMENT

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The petitioner retired from service while working as Deputy Director of Education, Kottayam. The grievance in this writ petition is against Ext.P3 by which a sum of Rs.15,67,889/(Rupees Fifteen lakhs sixty seven thousand eight hundred and eighty nine only) was fixed as his liability.

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The petitioner had worked as District Educational Officer, Kanjirappilly during the period from 1.4.2004 to 31.3.2008. In the audit conducted for the above period several irregularities were found in granting approval to the appointments. It was found that the approval was granted contrary to the provisions contained in G.O.(P) No.178/02/G.Edn. dated 28.6.2002 and G.O.(P)46/06.G.Edn. dated 1.2.2006. As per those Government orders, it was provided that the vacancies arising in newly opened/upgraded aided schools shall be filled up from the list of protected teachers. As per G.O.(P) 46/06/G.Edn dated 1.2.2006, it was ordered that at least one protected teacher should be appointed in such schools. It was further ordered that in the

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W.P.(C) No.72 of 2011

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event of retirement or repatriation of those protected teachers, the resultant vacancies shall also be filled up by appointing protected teachers or else appointments shall be made only on daily wage basis. By Ext.P1 notice, the Director of Public Instruction informed the petitioner that five appointments were found approved by him contrary to the Government orders during the tenure of the petitioner. Therefore, the petitioner was found responsible for the loss caused towards the salary paid to the 3 teachers appointed in CKMHS, Koruthode till a protected teacher joined duty on 1.11.2009. The salary paid to 2 HSAs in Santhom High School, Kanamala for the period from 2.6.2007 and 1.6.2007 were also found as the liability of the petitioner. Explanation was called for from him against the proposal to fix the same as his liability.

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Petitioner submitted Ext.P2 representation stating that

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the appointments were made in permanent vacancies by appointing 51A claimants. Apart from that it was stated that the Mangers had furnished declaration that they had set apart vacancies for appointment of protected teachers. Apart from that, it was also pointed out that the Deputy Director of

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W.P.(C) No.72 of 2011

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Education had directed to grant approval in appeals against orders declining approval to similar appointments.

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Dissatisfied with the explanation, the Director of Public Instruction issued Ext.P3 order fixing the liability of the petitioner, at Rs.15,67,889/- (Rupees Fifiteen lakh sixty seven thousand eight hundred and eighty nine only) as proposed in Ext.P1. In Ext.P3, the salary paid to the UPSA appointed on 2.6.2003, for the period from 2.6.2003 to 5.6.2006 and salary paid for the period from 5.6.2006 to 1.11.2009 in respect of another UPSA appointed on 5.6.2006, were found as the liability of the petitioner. Other appointments objected were those made on 6.6.2006, 2.6.2007 and 1.6.2007. Consequent to Ext.P3, the Deputy Director of Education issued Ext.P4 directing the petitioner to remit the amount covered by Ext.P3 within a period of 15 days, failing which it was stated that proceedings would be initiated for recovering the same from his DCRG and from his movable and immovable properties.

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The petitioner submitted that he granted approval on the basis of notes furnished by the subordinate officers. According to him, there was no list of protected teachers and there was

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W.P.(C) No.72 of 2011

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declaration from the Managers undertaking that they appointed/would appoint protected hands. Exts.P5 to P9 notes are produced in order to show that the petitioner issued orders of approval on the basis of the notes thus received. Ext.P10 is a declaration from the Manager of C.K.M.Higher Secondary School, Koruthode by which the Manager declared that a protected teacher was appointed in the year 1993 and she worked as UPSA with effect from 7.7.1993. Ext.P11 is another declaration from the Manager, Santhom High School, Kanamala to the effect that he has already set apart a post vacant for a protected teacher and is ready to appoint a protected teacher in the retirement vacancy of HSA Hindi arising on 1.4.2007. The petitioner also relies on Ext.P12 order passed by the Deputy Director of Education, Kottayam by which the appointment which was made under the corporate educational agency of Archeparchy of Kottayam in the post of HSA(Maths) with effect from 21.11.2008 against a leave without allowance vacancy by appointing a rule 51A claimant was approved in appeal from the order declining approval passed by the District Educational Officer, Pala. He also relies on Ext.P13 order passed by the District Educational Officer,

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W.P.(C) No.72 of 2011

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Kottayam on 6.2.2009 by which the appointment of an HSA Malayalam on daily wages against the leave vacancy was directed to be approved by the Deputy Director of Education. In that case also the teacher was a 51A claimant. He relies on Ext.P14 order passed by the District Educational Officer, Kottayam on 7.11.2008 against one appointment made against the post of UPSA in St.Mary's HSS, Teekoy from 6.6.2007 onwards where in it was stated that the restriction was not applicable to 43/51A claimants.

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The Government have filed a counter affidavit justifying the action covered by Ext.P3 order passed by the Director of Public Instruction and the consequential order issued by the Deputy Director of Education. It is stated that being a District Educational Officer, the petitioner was bound to observe the Government orders which provides for filling up the vacancies in newly opened/upgraded schools by appointing protected teachers. It was also stated that the Managers of C.K.M.H.S.Koruthode and Santhom High School, Kanamala appointed protected teachers only on 2.11.2009 and 6.5.2009 respectively and at the time of appointment of the teachers

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W.P.(C) No.72 of 2011

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under objection, the Managers had not provided any protected teachers as envisaged in the Government order dated 1.6.2006. Regarding the contention of the petitioner with respect to the declaration of the Manager with respect to an appointment of protected teacher made in 1993, it is stated that she retired from service on 31.3.2001. But it was found that from 9.10.2007 onwards one post of UPSA was kept vacant in CKMHS, Koruthode for providing a protected teacher and that protected teacher joined duty on 2.11.2009.

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Heard the learned counsel appearing for the petitioner and learned Government Pleader as well.

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It is seen that the objections were raised in the audit as against the approval granted by the petitioner, as it was found that the petitioner had approved the appointments made in violation of the Government orders issued on 28.6.2002 as well as 1.2.2006. While the Government order issued on 28.6.2002 provided that all the existing/arising vacancies in the newly opened/upgraded schools should be filled up only by appointing protected teachers, a relaxation was made by issuing Government order dated 1.2.2006 by which it was ordered that

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W.P.(C) No.72 of 2011

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at least one vacancy in such schools shall be filled up by appointing protected teachers. It is seen that approval was granted by the petitioner for appointment of one UPSA with effect from 2.6.2003 and the salary for which he is held liable is for the period from 2.6.2003 to 5.6.2006. In the case of the 2^nd appointment relating to Sri.Aneesh Kumar, UPSA the appointment was made for the period from 5.6.2006 and the liability fastened is the salary from 5.6.2006 to 1.11.2009. Similar is the case with respect to the third appointment to one Sri.Anoop Sekhar as UPSA for the period from 6.6.2002 to 1.11.2009. Other appointments objected are of two appointments from 2.6.2007 and 1.6.2007 onwards. It is seen that there is a declaration- Ext.P11 made by the Manager of Santhome High School, Kanamala on 1.6.2007 undertaking to appoint a protected teacher with effect from 1.4.2007. The petitioner has approved the appointments of two HSA Malayalam in San Thome High School, Kanamala and salary paid to those teachers are included in his liability. Since there is a declaration by the Manager on 2.6.2007, the liability fastened on him for the period from 2.6.2007 and 1.6.2007 onwards cannot be justified.

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W.P.(C) No.72 of 2011

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As far as the other approvals are concerned, the petitioner has not produced any declaration with respect to the appointments already made. The contentions raised by the petitioner relying on the notes of subordinates cannot be accepted. When there are Government orders restricting appointments, petitioner was bound to ensure that the Managers were complying with those orders while filling up vacancies. Petitioner's case that there were no protected teachers or protected teachers were on the rolls in the School, etc. are found factually incorrect by the respondents. Being a DEO, he was expected to see that the appointments were made in accordance with rules and the Government orders in force. The allowing of appeal in respect of appointments made in other Schools in the case of 51A claimants or in respect of appointment on daily wages as per Exts. P12, P13, etc., cannot be a reason for him to grant approval, as claimed by him. Therefore, the petitioner cannot be absolved from the liability fixed by the Director of Public Instruction, except to the extent already found in the case of the two appointments.

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In the above circumstances, it is declared that Ext.P3 order to the extent it relates to the appointments in Santhome

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W.P.(C) No.72 of 2011

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High School, Kanamala is not proper. The 1^st respondent is directed to modify the quantum of liability fixed against the petitioner in Ext.P3 after deducting from it, the liability fastened on him with respect to the approvals made as against those appointments in San Thome High School.

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The Director of Public Instruction shall take appropriate action to issue orders revising Ext.P3 in terms of the observations and pass fresh orders within a period of three months from the date of receipt of a copy of the judgment.

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Further proceedings based on Exts.P3 and P4 shall be kept in abeyance till then.

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Sd/-

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P.V.ASHA JUDGE

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rkc

Korula Joseph and Others v. the State of Kerala and Others

Case brief

What is this about?

What did the court decide?

Korula Joseph and Others v. the State of Kerala and Others

Case brief

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