Partly allowed

The General Manager & Inspector of N.S.S.Schools v. State of Kerala

Kerala HC1 Jun 2017WP(C)/5476/2016

Case brief

AI extract

What is this about?

Single Judge quashed the Government order directing recovery of salary paid to a teacher. Court held that salary was consequential to the High Court's earlier appointment direction, causing no loss to the State, allowing recovery action underKER rules.

What did the court decide?

Exhibit P7 order quashed to the extent it directed reimbursement of salary; petitioner to issue fresh appointment order to Fifth Respondent within one month.

The General Manager & Inspector of… — Pension and Retirement Benefits | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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THURSDAY, THE 1ST DAY OF JUNE 2017/11TH JYAISHTA, 1939

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WP(C).No. 5476 of 2016 (H)

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PETITIONER:

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THE GENERAL MANAGER & INSPECTOR OF N.S.S.SCHOOLS

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N.S.S.HEAD OFFICE, PERUNNAI, CHANGANACHERRY, REPRESENTED BY SRI.K.V.RAVINDRANATHAN NAIR.

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BY ADV. SRI.P.GOPAL

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RESPONDENT(S):

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1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM - 695 001.

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3. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICE, THIRUVALLA, PATHANAMTHITTA DISTRICT. Pin 689 101

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4. THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA, THIRUVALLA - 689 101.

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5. S.ASHA,

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VIRUTHIPARAMBIL, KOTTAKKAKOM, MAVELIKARA P.O., ALAPPUZHA DISTRICT, NOW WORKING AS P.T.HSA (HINDI), NSS HIGH SCHOOL, OTHERA, PATHANAMTHITTA DISTRICT - 690 101.

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R1 TO R4 BY SR. GOVT. PLEADER SRI.ARAVIND KUMAR BABU R5 BY ADV. SRI.S.SUBHASH CHAND

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD

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ON 01-06-2017, THE COURT ON THE SAME DAY DELIVERED

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THE FOLLOWING:

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sdr/-

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WP(C).No. 5476 of 2016 (H)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1: TRUE COPY OF THE JUDGMENT IN W.A.NO.63 OF 2015 DATED 31.3.2015.

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EXT.P2: TRUE COPY OF THE ORDER ISSUED BY THE PETITIONER DATED 30.5.2015.

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EXT.P3: TRUE COPY OF THE ORDER OF THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA DATED 19.6.2012.

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EXT.P4: TRUE COPY OF THE ORDER DATED 1.6.2015 ISSUED BY THE PETITIONER.

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EXT.P5: TRUE COPY OF THE REVISION PETITION FILED BY THE 5TH RESPONDENT BEFORE THE 1ST RESPONDENT DATED 15.7.2015.

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EXT.P6: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 7.8.2015 IN WP(C) NO.22415 OF 2015.

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EXT.P7: TRUE COPY OF THE ORDER OF THE GOVERMENT DATED 28.1.2016.

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EXT.P8: TRUE COPY OF THE JUDGMENT OF THE LEARNED SINGLE JUDGE DATED 09.07.2014 IN W.P.(C) NO. 22377 OF 2013.

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RESPONDENT(S)' EXHIBITS

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EXT.R5(A) TRUE COPY OF THE OF GOVERNMENT ORDER BEARING GO (RT) NO 1245/2016/G.EDN. DATED 30.03.2016

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EXT.R5(B) TRUE COPY OF THE ORDER GO (MS) NO. 517/2017/G.EDN DATED 25/02/2017 ISSUED BY THE 1ST RESPONDENT.

/TRUE COPY/

PA TO JUDGE

sdr/-

Devan Ramachandran, J.

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W.P.(C)No.5476 of 2016 H

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Dated this the 1^st day of June, 2017

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JUDGMENT

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The petitioner is the Corporate Manager of the N.S.S. Schools and he impugns Exhibit P7 order to the extent to which the Government has invoked the provisions of Rule 7(4) of Chapter III of the Kerala Education Rules (KER) to recover certain amounts which represents the salary paid to a teacher by name Ms.Asha. The said teacher is the fifth respondent in this writ petition.

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The petitioner has challenged the said order to the extent I have indicated above on the ground that he had acted strictly in terms of the directions of this Court and that the Government has not suffered any monetary loss so as to warrant an action under Rule 7(4) of Chapter III KER.

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I have heard Sri.P.Gopal, the learned counsel for

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the petitioner, Sri.S.Subhash Chand, the learned counsel

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WPC 5476/16

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for the fifth respondent and the learned Government Pleader for respondents 1 to 4.

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Compendiously, the facts are as under:

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The fifth respondent is concededly a Rule 51A claimant and she was appointed as HSA (Hindi) in one of the schools under the petitioner with effect from 04.06.2002. This appointment was approved. She was thereafter transferred to another school, which was also approved and while so, she was reverted as an HSA parttime and posted to N.S.S. High School, Othera. This appointment was rejected on the ground that the said school is an uneconomic school and that the vacancy had to be filled up with a protected teacher. Due to further division fall the fifth respondent was thereafter retrenched from the school on 14.07.2008. Even though a vacancy of Part-time HSA (Hindi) had subsequently arisen with effect from 10.10.2012, on account of the promotion of certain Ms.Umadevi, the fifth respondent was not given appointment, but she was, in the meanwhile, included in

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WPC 5476/16

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the teachers' package and posted as a BRC Co-ordinator.

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The fifth respondent approached this Court against denial of appointment to her by filing W.P.(C)No. 37140/2009, which was disposed of in her favour. The petitioner herein filed an appeal against the said judgment, which culminated in Exhibit P1 judgment of the learned Division Bench. The Division Bench, after considering the whole issue, was of the view that in order to obtain a quietus to the disputes, the fifth respondent can be directed to be appointed as a Part-time HSA (Hindi) with effect from 10.10.2012 in the N.S.S. High School, Othera. The Division Bench proceeded to do so noticing the contentions of the Government in paragraph 7 of the counter affidavit in the writ appeal wherein the Government took the position that the fifth respondent, being a Rule 51A claimant, can only be considered for re-appointment in the future vacancy under the management. They also said that she can be considered for appointment against HSA (Hindi) Part-time post lying vacant in the N.S.S.High School, Othera, if the strength of

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WPC 5476/16

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the school satisfies the minimum requirement. The Government also proposed that if there were no vacancies available under management, she can be included in the list of retrenched teachers in connection with the teachers package.

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After noticing the specific stand of the Government, the Division Bench, in Exhibit P1 judgment, ordered that the fifth respondent be appointed as a HSA (Hindi) Part-time with effect from 10.10.2012 in the N.S.S. High School, Othera. Obviously, this direction was given taking into account the stated position of the Government that this could be so done, since in their counter affidavit they conceded, as I have already noticed above, that she can be considered for appointment against the post lying vacant.

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The matter should have normally ended there. However it did not.

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The petitioner, instead of complying with the directions contained in Exhibit P1, in its letter and spirit,

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WPC 5476/16

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issued Exhibit P2 order appointing the fifth respondent only notionally in N.S.S. High School, Othera. The petitioner says that this was done because the fifth respondent was working at that time as a BRC Co-ordinator and that she would be entitled to salary in the post of a teacher only after reducing the emoluments received by her as a Coordinator. Subsequent to Exhibit P2 the petitioner issued Exhibit P4 order favouring the fifth respondent, as per which, she was appointed as a teacher in N.S.S. High School, Othera but only with effect from 01.06.2015. In Exhibit P4, it was, however, specifically mentioned that the vacancy was one that arose with effect from 10.10.2012.

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The fifth respondent challenged Exhibits P2 and P4 orders before the Government, which culminated in Exhibit P7 order whereby the Government appears to have accepted all the contentions of the fifth respondent and further finding that the petitioner had transgressed the provisions of the KER as also the lawful orders issued by the authorities warranting action under Rule 7(4) of

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WPC 5476/16

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Chapter III of KER. The Government's proposal was that the salary and other benefits paid to the fifth respondent will be recovered from the petitioner after adjusting the emoluments obtained by her as a BRC Co-ordinator. It is this part of the order that is being challenged by the petitioner as I have already mentioned above.

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An assessment of the pleadings on record and the submissions made at the Bar makes a few facts ineluctable. The first is that the Division Bench of this Court in Exhibit P1 judgment has declared, without any ground for reservation, that the fifth respondent is entitled to be appointed as a teacher with effect from 10.10.2012. The order does not say that the fifth respondent is not entitled to salary for that period. On the contrary, the tenor of the directions, which were issued after noticing the submission of the Government that such an appointment could be done, is that the fifth respondent will be entitled to the full salary and benefits as a Part-time in HSA (Hindi) with effect from 10.10.2012 in the N.S.S. High School, Othera. True, the

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WPC 5476/16

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petitioner did not immediately appoint the fifth respondent as per the directions. On the contrary, the petitioner issued Exhibit P2 appointing the fifth respondent only notionally. The explanation given by the petitioner is of course that the fifth respondent was working as a BRC Co-ordinator and that she would not be entitled to full emoluments as a teacher. The learned counsel for the petitioner also says that the fact that that she was working as a BRC Coordinator had not been brought to the notice of the Division Bench and that if it were otherwise, this Court would have axiomatically made a provision for that also. He also asserts that the reason why the Division Bench could not be informed of the fifth respondent working as a BRC Coordinator was because her appointment as such, evidenced by Exhibit P3 order issued by the Deputy Director of Education, was never issued to him as the Manager but only to the fifth respondent.

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Noticing the above, I am certain that the stand of the Government, in Exhibit P7 order, that monetary loss

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WPC 5476/16

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has been caused to the Government, on account of the fact that the fifth respondent had to be accommodated as a teacher with effect from 10.10.2012 cannot hold water. This is because the directions in Exhibit P1 is clear and explicit. This Court had directed the authorities to appoint the fifth respondent and consequential orders were ordered to be made by the authorities treating her appointment to be from that date. Since this was done noticing the stand of the Government in the counter affidavit, I cannot countenance the assertion of the learned Senior Government that this Court did not intend that the fifth respondent should be paid salary with effect from 10.10.2012. The directions in Exhibit P1 cannot be watered down in that manner and I am certain that when the directions were given therein, consequential payment of salary was also inherently in built. In that view of the matter, I cannot find any cause to show that the Government had suffered loss merely because the fifth respondent was appointed in the school with effect from

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WPC 5476/16

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10.10.2012 as per Exhibit P7 order. This is more so because the emoluments paid to her as a BRC Co-ordinator was also directed to be adjusted against the salary to be paid to her with effect from 10.10.2012. That being so the order of the Government in Exhibit P7 to recover the amounts paid to the fifth respondent representing the salary and other benefits minus the emoluments accepted by her as a BRC Co-ordinator with effect from 10.10.2012 cannot obtain legal sustenance.

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The learned counsel for the fifth respondent says that since the fifth respondent has been appointed as per Exhibit P4 by the petitioner only with effect 01.06.2015, she has not been able to get approval with effect from 10.10.2012. He also refers to Exhibit R5(b) order of the Government, whereby the fifth respondent has already been given full time benefit for the part-time service from 10.10.2012 subject to the result of this writ petition. He says, therefore, that even though his client is only a respondent, who cannot normally be entitled to seek reliefs

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WPC 5476/16

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in a writ petition filed by another, some provisions may be reserved in her favour so as to enable her to get the benefits of the appointment with effect from 10.10.2012. Learned Senior Government Pleader, however, says that Exhibit R5(b) does not mention the date from which the fifth respondent is entitled to the full time benefits, contrary to the assertions of the learned counsel for the fifth respondent that it applies with effect from 10.10.2012. This may be so, but the fact is that Exhibit R5(b) does order full time benefits to the fifth respondent.

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On a conspectus of all that I have said above, I am certain in my mind that even though the petitioner has not been satisfactorily circumspect in the manner in which he has acted and even though he had not complied with the directions of the Division Bench in its letter and spirit, I am still of the view that the Government cannot recover the amounts paid to the fifth respondent because such payment of salary is automatic to the directions contained in Exhibit P1 judgment. Such salary cannot be seem to be a monetary

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WPC 5476/16

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loss to the Government and therefore, any action under Rule 7(4) of Chapter III KER against the petitioner would remain incompetent.

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In such view of the matter and for the reasons that I have already said above, I quash Exhibit P7 order to the extent to which the petitioner is directed to reimburse the salary paid to the fifth respondent with effect from 10.10.2012. All other directions in Exhibit P7 would continue to operate without any interdiction.

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As regards the fifth respondent is concerned, it will be necessary that the petitioner issue to her a fresh proper appointment order with effect from 10.10.2012 within a period of one month from the date of receipt of a copy of this judgment. On such appointment order being issued, the petitioner would be obligated to send the same to the third respondent, who shall thereafter pass necessary orders for approval of her appointment, subject to all the other requirements of KER and taking into account the specific directions contained in Exhibit P1

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WPC 5476/16 12

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judgment, as expeditiously as possible but not later than two months thereafter. Needless to say, the fifth respondent would be entitled to all consequential benefits after such approval, including the benefits given to her under Exhibit R5(b), subject to the contentions made by the learned Senior Government Pleader as noticed above.

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The writ petition is thus ordered.

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Devan Ramachandran, Judge

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tkv

The General Manager & Inspector of N.S.S.Schools v. State of Kerala

Case brief

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The General Manager & Inspector of N.S.S.Schools v. State of Kerala

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