Prasad M.S. vs The State Of Kerala
2021 Latest Caselaw 3501 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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

                       WP(C).No.3482 OF 2014(I)


PETITIONER:

               PRASAD M.S., AGED 32 YEARS
               SON OF SURENDRAN, UPPER PRIMARY SCHOOL ASSISTANT,
               C.A. UPPER PRIMARY SCHOOL, MAMPAD, PALAKKAD DISTRICT.

               SRI.V.A.MUHAMMED
               SRI.M.SAJJAD

RESPONDENTS:

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

      2        THE DIRECTOR OF PUBLIC INSTRUCTIONS
               JAGATHY, THIRUVANANTHAPURAM-695014.

      3        THE DEPUTY DIRECTOR OF EDUCATION
               PALAKKAD DISTRICT-678001.

      4        THE ASSISTANT EDUCATIONAL OFFICER
               ALATHUR, PALAKKAD DISTRICT-678541.

      5        THE MANAGER, A.U.P.SCHOOL, MOOLANKODE,
               PALAKKAD DISTRICT-678684.

      6        THE HEADMISTRESS
               C.A.U.P. SCHOOL, MAMPAD, MOOLAMKODE, PALAKKAD
               DISTRICT-678684.

               SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD         ON
01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.3482 OF 2014(I)

                                        2


                                    JUDGMENT

Dated this the 1st day of February 2021

The petitioner, who is stated to have been working as an

Upper Primary School Assistant in the C.A.Upper Primary

School, Mampad, Palakkad - of which the fifth respondent is

the Manager - has approached this Court impugning Exts.P3

and P5, as per which, he has been mulcted with a liability of

Rs.42,389/-, being the amounts allegedly paid to him as salary

during the period when it is alleged that there were bogus

admissions in the school.

2. The petitioner says that his appointment was based on

a valid staff fixation order and there were sufficient students in

the school to justify the same. He says that all that is stated in

Exts.P3 and P5 are that when the Super Check Cell visited the

School, there were certain students who were found absent

and therefore, that the number of divisions in the school would

have to be reduced from 20 to 60.

3. The petitioner says that all proceedings have,

thereafter, been completed behind his back, even without

affording him an opportunity of being heard; and asserts that

this is contrary to the provisions of law, particularly Section WP(C).No.3482 OF 2014(I)

12A of the Kerala Education Act, which prohibits such an

action without following the mandatory procedure stipulated

therein. The petitioner, therefore, prays that Exts.P3 and P5

be set aside.

4. In response, the learned Senior Government Pleader,

Sri.P.M.Manoj, submitted that a counter affidavit has been

placed on record, wherein, it has been explained that during

the surprise check by the Super Check Cell the Malabar region

on 08.11.2006, the physical verification of students revealed

that some of them were absent. He says that a subsequent

enquiry revealed that these students never were in the School

after reopening and that even the other students were

unaware of their whereabouts. He says that a subsequent visit

was conducted by the Super Check Cell on 21.02.2007, when

again, these students were found not available and therefore,

that it was concluded that 123 names in the rolls were "bogus

admissions"; and that it was after observing all formalities,

that the second respondent revised the staff fixation of the

school and reduced four class divisions and four posts of

Assistant teachers for the academic year 2006-07, following

the mandate of Rule 12E(3), read with Rule 16 of Chapter WP(C).No.3482 OF 2014(I)

XXIII of the Kerala Education Rules (KER).

5. The learned Senior Government Pleader, therefore,

prayed that the action against the petitioner, through Exts.P3

and P5, be permitted.

6. When I consider the afore submissions and go through

the pleadings available on record, it is indubitable that the

entire proceedings against the petitioner had begun on the

basis of two inspections conducted by the Super Check Cell,

which finally led to the revision of class strength and to the

retrenchment of various teachers, including the petitioner.

However, it is also pertinent that none of the pleadings on

record show that any action had been taken by the Department

or by the competent Educational Authorities against the

Manager or against the teachers under the provisions of

Section 12A of the Kerala Education Act and in particular the

proviso thereto; and it is now well settled, through a catena of

judgments of this Court and that of the Hon'ble Supreme

Court, that proceedings for recovery cannot be initiated

without following such mandatory procedure.

7. Even if the subsequent staff fixation order led to the

abolishment of certain posts, including that of the petitioner, it WP(C).No.3482 OF 2014(I)

was not justified for the Authorities to order recovery of the

salary already drawn by the petitioner , particularly when she

has not been found guilty, through any valid enquiry, of having

any role in making the alleged "bogus admissions".

In the afore circumstances, I have no doubt in my mind

that Exts.P3 and P5, to the extent to which it seeks to recover

amounts from the petitioner, cannot be granted approval by

this Court.

Resultantly, this writ petition is ordered and Exts.P3 and

P5 are set aside

Sd/- DEVAN RAMACHANDRAN

Stu JUDGE WP(C).No.3482 OF 2014(I)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE STAFF FIXATION ORDER DATED 28-7-2006.

EXHIBIT P2 TRUE COPY OF THE ORDER NO.SC 199/06-07/KKD DATED 17-10-2007 OF THE 2ND RESPODNENT.

EXHIBIT P3 TRUE COPY OF THE NOTICE NO. F/1898/2007 DATED 23-8-2013 OF THE ASSISTANT EDUCATIONAL OFFICER.

EXHIBIT P4 TRUE COPY OF THE REPLY OF THE PETITIONER DATED 15-9-2013.

EXHIBIT P5 TRUE COPY OF THE ORDER NO.F.1898/07 OF THE ASSISTANT EDUCATIONAL OFFICER DATED 2-1-2014.

EXHIBIT P6 TRUE COPY OF THE DECISION REPORTED IN 1990 (2) KLT 530 DATED 4-7-1989.

RESPONDENT'S EXHIBITS:

EXHIBIT R2(a) GOVERNMENT CIRCULAR No.34025/J2/12/G.EDN DATED 21-06-2012.