The Manager vs State Of Kerala
2021 Latest Caselaw 3457 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

     MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942

                       WP(C).No.22980 OF 2020(V)


PETITIONERS:

      1        THE MANAGER
               ST.CLARE ORAL HIGHER SECONDARY SCHOOL FOR THE
               DEAF,MANICKAMANGALAM,KALADY-683574.

      2        SR.T.O.SIJI,
               H.S.A.(MALAYALAM),ST.CLARE ORAL HIGHER SECONDARY
               SCHOOL FOR THE DEAF,
               MANICKAMANGALAM,KALADY-683574.

               BY ADVS.
               SRI.K.JAJU BABU (SR.)
               SMT.M.U.VIJAYALAKSHMI
               SRI.BRIJESH MOHAN

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY SECRETARY TO GOVERNMENT,GENERAL
               EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM-695001.

      2        THE DEPUTY DIRECTOR OF EDUCATION,
               ERNAKULAM-682011.

      3        THE DISTRICT EDUCATIONAL OFFICER,
               ALUVA-683101.

               R1-3 BY GOVERNMENT PLEADER


               BIJOY CHANDRAN GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.22980 OF 2020(V)

                                             2




                                      JUDGMENT

Dated this the 1st day of February 2021

Petitioners have approached this Court seeking the following

reliefs:

"(i) issue a writ of certiorari or any other appropriate writ, order or direction, calling for Ext.P-9 and quash the same;

(ii) Declare that Ext.P-3 and P-4 are valid and legal and not liable to be altered or modified as per Ext.P-9 more particularly in view of Ext.P-5 to P-7.

(iii) Issue a writ of mandamus any other appropriate writ, order or direction, directing the 1st respondent to consider and pass appropriate orders on Ext.P-10 cancelling Ext.P9 based on audit objection;"

2. Heard the learned senior counsel appearing for the

petitioners and the learned Government Pleader.

3. It is submitted by the learned senior counsel for the

petitioners that the 2nd petitioner, who had been working as H.S.A

(Malayalam) in the Holy Family Girls High School, Angamaly had

availed leave without allowance for taking up other employment

and had joined service in the 1st petitioner's special school. The 2nd

petitioner's appointment in the 1st petitioner's school had been WP(C).No.22980 OF 2020(V)

duly approved and the 2nd petitioner, who was fully qualified was

working as Principal-in-charge of the school. While so, on the

ground that the 2nd petitioner had been on the rolls of the Holy

Family Girls High School also when she had been appointed in the

1st petitioner school, the respondents have raised an audit

objection and Ext.P9 order was passed by the Deputy Director of

Education directing that the salary paid to the petitioner from

27.08.2005 to 25.09.2006 may be recovered.

4. The learned senior counsel for the petitioners submits that

Ext.P10 representation has been preferred by the 2 nd petitioner

before the Government. It is submitted that the 2 nd petitioner had

been on leave without allowance for the period from 06.07.2004 to

05.07.2007 and had not drawn any salary from the earlier school

and therefore no loss was occasioned. It is submitted that the 2 nd

petitioner's resignation could be pre-dated to the date of

appointment in the 1st petitioner school and the audit objection

now raised can be rectified. It is submitted that the action of the

respondents in relying on an audit objection to recall salary for the

period of approved service, is completely untenable and unjustified WP(C).No.22980 OF 2020(V)

in the light of the binding decisions of this Court in Somanatha

Panicker Vs. State of Kerala [1997 (1) KLT 305] and Usuvathunnisa

Vs. Assistant Educational Officer [1990 (2) KLT 530].

5. A counter affidavit has been placed on record by the 2 nd

respondent. It is stated therein that the 2 nd petitioner while on

sanctioned leave without allowance from the Holy Family Girls

High School, Angamaly from 06.07.2004 to 05.07.2007, had been

appointed as H.S.A (Malayalam) in the 1 st petitioner school with

effect from 29.08.2005. It is stated that it was only after the lapse of

a year from the date of approval of appointment with effect from

29.08.2005 that the 2nd petitioner had resigned from the post of

H.S.A (Malayalam) at the Holy Family Girls High School, Angamaly

on 25.09.2006 by her resignation letter dated 18.09.2006. It is

submitted that this had led to a situation where the 2 nd petitioner

had been on the rolls of two schools at the same time. It is stated

that the audit is undertaken as a corrective measure and the

directions to rectify the discrepancies are liable to be carried out

by the Educational Authorities.

WP(C).No.22980 OF 2020(V)

6. I have considered the contentions advanced. It appears

that the 2nd petitioner was working as H.S.A (Malayalam) in the

Holy Family Girls High School, Angamaly. She had availed leave

without allowance for taking up other employment which was

sanctioned by Ext.P1 dated 11.06.2004. The period of leave without

allowance sanctioned to the 2nd petitioner was from 06.07.2004 to

05.07.2007. The learned senior counsel appearing for the

petitioners would submit that the 2nd petitioner had specifically

availed leave for better employment and had been appointed as a

teacher in the special school of the 1 st petitioner. The 1st petitioner

school thereafter became an aided school. The 2nd petitioner's

appointment from 29.08.2005 in the 1st petitioner school was

approved on 20.05.2006. On 18.09.2006, the 2nd petitioner submitted

her resignation letter to the Manager of the Holy Family Girls High

School, Angamaly. The said resignation was accepted and duly

approved on 08.12.2006. In the light of the judgments of this Court

referred to above, I am of the opinion that the exercise by which

salary due to a teacher on account of an approved appointment is

sought to be withdrawn and directions issued to refund the WP(C).No.22980 OF 2020(V)

amount is completely untenable.

7. In any view of the matter, I also notice that since the 2 nd

petitioner was on leave without allowance for the relevant period,

no loss of any nature has been occasioned to the Government on

account of the irregularity that has occurred in the submission of

resignation from the Holy Family Girls High School, Angamaly on a

date after her appointment in the 1st petitioner's school.

In the above view of the matter, I am of the opinion that

Ext.P9 is an unsustainable exercise, in view of the specific

provisions contained in the KER and in the light of the binding

judgments of this Court. The 2nd petitioner has preferred Ext.P10

representation before the Government. It appears that the issue

can be resolved in case the resignation of the 2 nd petitioner from

the earlier employment is given effect to from the date of

appointment in the 1st petitioner school. In the above view of the

matter, there will be a direction to the 1 st respondent to take up

Ext.P10 representation preferred by the 2 nd petitioner and to

consider the same, in accordance with law and pass appropriate

orders regulating the appointment of the 2 nd petitioner so that the WP(C).No.22980 OF 2020(V)

audit objections raised can be withdrawn. Orders shall be passed

within a period of two months from the date of receipt of a copy of

this judgment, after hearing the petitioners through any

appropriate means including through video conferencing.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE SVP WP(C).No.22980 OF 2020(V)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE G.O.

(RT)NO.2394/04/G.EDN.DATED 11.06.2004

EXHIBIT P2 TRUE COPY OF THE G.O.

(HANDWRITTEN)NO.338/05/G.EDN DATED 27.8.2005

EXHIBIT P3 TRUE COPY OF APPOINTMENT ORDER DATED 29.8.2005 ISSUED BY THE 1ST PETITIONER TO THE 2ND PETITIONER

EXHIBIT P4 TRU COPY OF THE RESIGNATION LETTER DATED 18.9.2006 SUBMITTED BY THE 2ND PETITIONER TO THE MANAGER,HFHS,ANGAMALY.

EXHIBIT P5 TRUE COPY OF THE ORDER NO.B3/12670/2014/HSE/RDDE DATED 23.5.2015 ISSUED BY THE REGIONAL DEPUTY DIRECTOR,HIGHER SECONDARY EDUCATION,ERNAKULAM.

EXHIBIT P6 TRUE COPY OF THE ORDER NO.B3/7662/RDDE/HSE/2013 DATED 9.9.2015 ISSUED BY THE REGIONAL DEPUTY DIRECTOR,HIGHER SECONDARY EDUCATION,ERNAKULAM.

EXHIBIT P7 TRUE COPY OF THE ORDER NO.01/2019 DATED 1.4.2019 OF THE 1ST PETITIONER

EXHIBIT P8 TRUE COPY OF THE REPLY VIDE NO.6/18 DATED 16.3.2018 ISSUED BY THE 1ST PETITIONER TO THE DIRECTOR OF GENERAL EDUCATION,THIRUVANANTHAPURAM

EXHIBIT P9 TRUE COPY OF THE LETTER VIDE NO.

O.A1/8239/17 DATED 14.4.2018 ISSUED BY THE 2ND RESPONDENT TO THE HEADMASTER OF THE 1ST PETITIONER SCHOOL.

EXHIBIT P10 TRUE COPY OF REPRESENTATION DATED 16.1.2020 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT.