M.S Swapna vs The State Of Kerala
2021 Latest Caselaw 4049 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                       WP(C).No.6275 OF 2013(H)


PETITIONER:

               M.S SWAPNA, WIFE OF N.G.JINESH, AGED 40 YEARS,
               RESIDING AT MENOTH HOUSE, KANNAMPULLIPURAM,
               CHENTRAPPINNNI, THRISSUR DISTRICT (UPPER PRIMARY
               SCHOOL ASSISTANT (ON LEAVE) V.P.M. SREE NARAYANA
               DHARMA PARIPALANA HIGHER SECONDARY SCHOOL KAZHIMBRAM,
               THRISSUR DISTRICT).

               BY ADV. SRI.V.RAJASEKHARAN NAIR

RESPONDENTS:

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

      2        THE DIRECTOR OF PUBLIC INSTRUCTIONS,
               JAGATHY, THIRUVANANTHAPURAM - 695 014.

      3        THE DISTRICT EDUCATIONAL OFFICER,
               CHAVAKKAD, THRISSUR DISTRICT - 680 506.

      4        THE HEADMASTER, V.P.M. SREE NARAYANA DHARMA
               PARIPALANA HIGHER SECONDARY SCHOOL, KAZHIMBRAM,
               THRISSUR DISTRICT - 680 568.

      5        THE MANAGER, SREE NARAYANA DHARMA PARIPALANA SCHOOLS,
               P.B.NO.512, KOLLAM DISTRICT - 691 001.

               BY ADVS. SRI.A.N.RAJAN BABU
                        SRI.P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD         ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.6275 OF 2013(H)

                             -2-

                       JUDGMENT

Dated this the 4th day of February 2021

The petitioner says that she was

appointed as an Upper Primary School

Assistant in "Sree Narayana Dharma

Paripalana Higher Secondary School",

Thrissur District - of which the 5th

respondent is the Manager - and that she

worked in such capacity from 16.01.2001

to 31.03.2001. She says that this spell

was approved and salary was also paid.

Thereafter, she was re-appointed from

06.06.2001 to 11.06.2002, which was also

approved, leading to an appointment from

12.06.2002 onwards.

2. Petitioner says that even though

all her spells were approved and she had

drawn salary, subsequently, the WP(C).No.6275 OF 2013(H)

District Educational Officer (DEO),

Chavakkad, issued Ext.P6 order dated

20.01.2011, saying that her appointment

was cancelled with effect from

06.06.2001, so as to accommodate another

teacher by name Smt.K.C.Bindu, stated to

be enjoing a claim under Rule 51A

Chapter XIVA of the Kerala Education

Rules ('the KER' for short).

3. The petitioner further says that

through Ext.P6 order she was directed to

refund the amounts drawn between the

period 06.06.2001 and 31.12.2003 and

that this was followed by Ext.P7 order

of the DEO, dated 05.05.2011, which led

the Manager and the Headmistress to

issue Exts.P8 and P9 communications

respectively, asking to remit the WP(C).No.6275 OF 2013(H)

amounts drawn by her at the earliest.

4. The petitioner contends that, the

afore proceedings are totally illegal

and unlawful, since she had worked in

the school from 06.06.2001 to 31.12.2003

and salary was validly paid which is, in

fact, recorded in the impugned orders

also. The petitioner, therefore, prays

that Exts.P6 to P9 be set aside and all

steps taken by the Authorities to

recover the amounts be interdicted.

        5.    In     response             to    the      afore

   submissions       of        the       petitioner,       the

   learned     Senior          Government       Pleader      -

   Sri.P.M.Manoj,              submitted        that       the

   controversy           in     this       question      arose

   because         the        petitioner        had       been

appointed to the post of Upper Primary WP(C).No.6275 OF 2013(H)

School Assistant by the Manager of the

School, overlooking Smt.K.C.Bindhu, who

had a superior claim on account of the

fact that she enjoyed the benefit of

Rule 51A of the Kerala Education Rules.

The learned Senior Government Pleader

then explained that, Smt.K.C.Bindhu had

approached this Court and obtained a

judgment, pursuant to which the 2nd

respondent - Director of Public

Instructions issued an order appointing

her to the vacancy that arose from

06.06.2001; and consequently the

appointment of the petitioner was

cancelled, with a direction to the

Manager to realize the monetary loss

caused to the Government.

6. The learned Senior Government WP(C).No.6275 OF 2013(H)

Pleader submits that, in such

circumstances, the impugned orders cannot

be found to be in error and he prayed, that

this writ petition be dismissed.

7. Sri.A.N.Rajan Babu - learned

counsel appearing for the Manager of the

School, submitted that his client has been

forced to issue Ext.P8 to the petitioner on

account of Exts.P6 and P7 orders of the DEO

and that he had no other option, but to

initimate the petitioner to return the

money drawn by her as salary during the

period in question. The learned counsel,

therefore, prays that this writ petition be

dismissed as against his client.

8. I have considered the afore

submissions and have also examined the

materials available on record very

carefully.

WP(C).No.6275 OF 2013(H)

9. It is without doubt that the

petitioner was validly appointed during the

period from 06.06.2001 to 31.12.2003 in

different spells and that all of them were

approved, which led to her being paid

salary. The appointment secured by the

petitioner has not been found to be, in any

manner, on account of any cause that can be

attributed against her and she had worked

in the school during the said period as a

teacher and her services had also been

extracted by the School and the students.

10. Therefore, even when the DEO found

that Smt.K.C.Bindhu had a better claim in

preference to the petitioner, I fail to

understand how the salary paid to the

petitioner would have been directed to be

recovered. It is an uncontroverted

assertion of the petitioner that she worked WP(C).No.6275 OF 2013(H)

continuously during this period without any

fault and that she had been drawing salary

based on valid orders and approval during

the said period.

11. Obviously, therefore, when the

petitioner's salary was paid based on valid

orders and approval, which appeared to have

been cancelled only subsequently through

the impugned orders - I cannot find any

reason why the Authorities should have

asked her to return the amounts drawn by

her as salary particularly, when there is

nothing on record to show that

Smt.K.C.Bindhu had drawn salary during the

relevant period. I cannot hence discern the

reason for the Authorities to have sought

recovery of the amounts from the

petitioner, especially when there is

absolutely no evidence of double payment WP(C).No.6275 OF 2013(H)

during the relevant period in question.

In the afore circumstances, I set aside

Exts.P6 to P9 and order that no further

action for recovery of any amounts from the

petitioner will be initiated with respect

to her salary which she drew validly on the

sanction of approval between 06.06.2001 and

31.12.2003.

This writ petition is thus ordered.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C).No.6275 OF 2013(H)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 16.01.2001 AND THE APPROVAL THEREOF.

EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 06.06.2001 AND THE APPROVAL THEREOF.

EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 12.06.2002 AND THE APPROVAL THEREOF.

EXHIBIT P4 TRUE COPY OF THE G.O.(RT.) NO.

3198/09/G.EDN. DATED 31.07.2009 OF THE GOVERNMENT.

EXHIBIT P5 TRUE COPY OF THE G.O.(RT.) NO.

2600/2010/G.EDN. DATED 16.06.2010 OF THE GOVERNMENT.

EXHIBIT P6 TRUE COPY OF THE LETTER NO.B5-5129/10 OF THE DISTRICT EDUCATIONAL OFFICER DATED 20.01.2011.

EXHIBIT P7 TRUE COPY OF THE LETTER NO.B5-5129/10 OF THE DISTRICT EDUCATIONAL OFFICER DATED 05.05.2011.

EXHIBIT P8 TRUE COPY OF THE LETTER OF THE MANAGER DATED 10.6.2011.

EXHIBIT P9 TRUE COPY OF THE LETTER OF THE HEADMISTRESS OF THE SCHOOL DATED 6.8.2011.

EXHIBIT P10 TRUE COPY OF THE LETTER OF THE GOVERNMENT DATED 23.12.2013.

EXHIBIT P11 TRUE COPY OF THE LETTER OF THE DISTRICT EDUCATIONAL OFFICER DATED 18.01.2014.

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE