IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 6403 of 2008(K)
1. T.V.GOURI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
3. THE DEPUTY DIRECTOR OF EDUCATION,
4. THE ASSISTANT EDUCATIONAL OFFICER,
5. THE DISTRICT TREASURY OFFICER,
6. THE MANAGER,
For Petitioner :SRI.POOVAMULLE PARAMBIL ABDULKAREEM
For Respondent :SRI.R.SURENDRAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :28/07/2009
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C). No.6403/2008-K
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Dated this the 28th day of July, 2009
J U D G M E N T
The petitioner who retired from service as Assistant Educational
Officer is aggrieved by Exts.P3, P4 and P13 by which a liability to the tune
of Rs.51,960/- has been imposed against her. The circumstances under
which the liability was fixed are the following:-
2. The petitioner was the Assistant Educational Officer of
Thalasseri South and she retired from service on 31/03/2003. Two Schools,
namely, the Kodiyeri Junior Basic School and the North Vayalalam
L.P.School were under the administrative jurisdiction of the Assistant
Educational Officer, Thalassery South. The test check for the year 2000-
2001 was conducted by the petitioner and the records and the strength of the
students were verified. Later on, on 16/11/2000, the Super Check Cell
visited the North Vayalalam L.P.School and they came to the conclusion
that the pupils who were absent on that day were bogus/irregular admissions
and that two posts out of 7 Teachers have to be reduced in terms of Rule 15
of Chapter 23 K.E.R. Ext.P1 is the proceedings issued by the Director of
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Public Instructions in this regard. Similarly, in respect of the other School
also, i.e. Kodiyeri J.B School, Ext.P2 orders have been passed. In Exts.P1
and P2, the Headmaster and the Assistant Educational Officer have been
found jointly liable for the loss sustained to Government Exchequer by
payment of salary to Teachers. Thereafter, by Ext.P3 issued under Rule 1A
(1) of Chapter XXVI K.E.R, the liability was fixed against the petitoiner
and the Headmaster of North Vayalalam L.P. School. Ext.P4 shows that a
total amount of Rs.1,03,832/- has been fixed against the Headmaster of
Kodiyeri J.B.School and the Assistant Educational Officer, Thalasseri South
equally. Even though, he filed explanations Exts.P5 and P6, he was not
exonerated from the liability. Ext.P7 is the order passed by the Director of
Public Instructions with regard to Vengara Mopla U.P.School, wherein, in
identical circumstances, it was found that there were bogus
admissions/irregular retentions on rolls of the School and the Headmistress
was directed to refund the amount paid as salary to the Teachers. Ext.P8 is
a Circular issued by the Director of Public Instructions in the matter
wherein, it is made clear that since the admission, promotion and removal of
pupils are done directly by the Headmasters and if bogus admissions are
found out, the Headmasters will alone be liable for refund of the amount
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found as loss to the Department.
3. When the petitioner approached this Court earlier by filing
W.P.(C).No.39687/2003, he was directed to approach the Government in
the matter and, accordingly, he filed Ext.P11 revision before the
Government which was disposed of by Ext.P13 order.
4. The view taken in Ext.P13 is to the effect that it was the duty of
the Assistant Educational Officer to verify the strength correctly and find
out irregularities if any. Since bogus admission has resulted in the wrong
fixation, the petitioner is also bound to bear the burden.
5. The learned counsel for the petitioner submitted that going by
Rule 12 of Chapter XXIII K.E.R, the Assistant Educational Officer is
expected only to verify the physical strength. Accordingly, the physical
strength of the students was verified by the petitioner in respect of 64
Schools under the administrative jurisdiction of the A.E.O. It was not
physically possible for the petitioner to verify the details of admissions in
respect of each pupil in the respective Schools and find out whether there
was any bogus admission or not at that stage. Even if it is found on
reverification that there is bogus admission, that cannot result in fixing any
financial liability against the petitioner. It is submitted that going by Ext.P8
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Circular issued by the Director of Public Instructions, the authorities of the
Schools, namely, the Headmasters can be made liable if staff fixation is
revised based on the subsequent Check either by Super Check Cell or by
other authorities. The admission of pupils etc. are being done by the
Headmaster alone and therefore, it is submitted that as per the Circular
(Ext.P8) no liability could be fastened against the petitioner. It is also
submitted that Rule 1A of Chapter XXVI K.E.R. cannot be invoked against
the Educational Officers. Reliance is placed on the Division Bench of this
Court in Beena v.State of Kerala [2002 (2) KLT 545] in support of the
above plea.
6. It is clear from the proceedings Exts.P1 and P2 that there is a
finding that bogus admissions have been made in the two Schools. In
paragraph (10) of Ext.P1 a finding is entered to the effect that “the
Headmaster of the School is responsible for the admission, removal and
maintenance of records and for supervision of the work of subordinates. It
is the duty of the Assistant Educational Officer to verify the strength
correctly and to unearth the irregularities.” True that there is responsibility
on the Assistant Educational Officer to verify the physical strength, but it
cannot be said that on the date fixed for verification of the strength of
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pupils, the Assistant Educational Officer will have to go through the entire
records to find out whether there is any bogus admission or not. Therefore,
the question is whether on any subsequent verification if there is change in
strength, the Assistant Educational Officer can be saddled with any liability
for refund of the salary paid to the Teachers.
7. The Circular Ext.P8 issued by the DPI is relevant in this context.
Going by the specific stipulations of the Circular, it is evident that the
Headmaster alone can be saddled with the monetary liability. The Division
Bench in similar circumstances had occasion to consider Rule 16 of Chapter
XXIII K.E.R in Beena’s case (2002 (2) KLT 545). It was held thus in
paragraph (9):- “We are of the view that when the Director exercises his
power under R.16 after getting a report of an officer authorised by the State
Government, it is always open to the said Officer to take appropriate action
against the School authorities. It is in exercise of the said power that the
Director directed that the salary paid to appellants unauthorisedly should be
recovered from the Headmaster.” Therefore, the liability is on the
Headmaster of the School. Even going by the findings herein, the
Headmaster is responsible for the bogus admission etc. There is no finding
either in Ext.P1 or in Ext.P2 herein that the petitioner had helped the School
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authorities to make any bogus admission. In these circumstances, the
question is whether Exts.P3 and P4 could be sustained. Unless and until it
is found that the petitioner is personally responsible for the admission,
inflation of the physical strength of the students and the consequential staff
fixation, the petitioner cannot be asked to refund the amounts paid as salary
to the Teachers. The view taken by the Division Bench in the above
reported case also is relevant in the circumstances. Even though the
petitioner had explained in detail that she cannot be personally made liable,
the Government has chosen to repel the contentions on the finding that the
Assistant Educational Officer has to find out and substantiate the
manipulation and fraudulent tactics of the School authorities. The facts as
already noticed show that there were 64 Schools under the jurisdiction of
the Assistant Educational Officer. Therefore, within the time of 15 days
allowed to the Assistant Educational Officer, it would have been impossible
for her to find out the bogus admission in respect of various Schools. Even
going by the method adopted by the authorities while passing Ext.P1, it can
be seen that several visits were conducted for the said purpose and the
Headmasters of the Schools to which Transfer Certificates were issued were
also addressed to ascertain whether the pupils were admitted in their
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Schools. Therefore, the enquiry regarding bogus admission, going by
express provision of Chapter XXIII K.E.R, is also a time consuming process
and it cannot be held that on the date of visit made by the Assistant
Educational Officer for checking the strength of the students, he will have
to undertake all these exercises to prove that the students strength that is
reflected in physical verification is not bogus or fraudulent admissions. It is
evident from the scheme of Chapter XXIII that various provisions enable
the authorities to check the strength of pupils at different stages. It is well
settled that the liability can be fastened against the employee/pensioner only
if there is clear finding that he has caused loss to the Government. Herein,
she is asked to refund part of the amount paid as salary to the Teachers
under Rule 1A(1) of Chapter XXVI K.E.R.
8. In the light of the above, I find that Exts.P3, P4 and P13 cannot
be sustained and accordingly, they are quashed. It is held that the petitioner
is entitled to be paid the entire amount of DCRG sanctioned and therefore,
the withheld amount from the D.C.R.G namely, Rs.52,054/- is to be
disbursed to her. Therefore, the competent authority among respondents 2
to 4 will issue NLC to the petitioner and on production of which she will be
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disbursed the amount by the Sub Treasury Officer within a period of one
month from the date of receipt of a copy of the judgment.
The writ petition is disposed of as above. No costs.
(T.R. Ramachandran Nair, Judge.)
ms