Leslie Francis.M vs State Of Kerala
2021 Latest Caselaw 2853 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

          THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

  WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942

                  WP(C).No.33123 OF 2019(M)

PETITIONER :-

            LESLIE FRANCIS.M, AGED 37 YEARS
            S/O.M.V.FRANCIS, CLUSTER CO-ORDINATOR,
            BLOCK RESOURCE CENTRE, WADAKKANCHERY,
            THRISSUR DISTRICT, PIN - 680 582.

            BY ADVS.
            SRI.LINDONS C.DAVIS
            SMT.E.U.DHANYA

RESPONDENTS :-

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

      2     DIRECTOR OF GENERAL EDUCATION,
            JAGATHY, THIRUVANANTHAPURAM, PIN - 695 033.

      3     ASSISTANT EDUCATIONAL OFFICER,
            THRITHALA, PALAKKAD DISTRICT - 679 534.

      4     BLOCK PROGRAMME OFFICER,
            BLOCK RESOURCE CENTRE, SARVA SHIKHA ABHIYAN,
            WADAKKANCHERY, PIN - 680 582.

      5     PRINCIPLE ACCOUNTANT GENERAL (CIVIL AND
            COMMERCIAL AUDIT),
            OFFICE OF THE PRINCIPLE ACCOUNTANT GENERAL (CIVIL
            AND COMMERCIAL AUDIT), INDIAN AUDIT AND ACCOUNTS
            DEPARTMENT, THIRUVANANTHAPURAM - 695 001.

            BY SMT.NISHA BOSE, SR.GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C).No.33123 OF 2019(M)

                                        -: 2 :-


                                  JUDGMENT

Dated this the 27th day of January 2021

This writ petition is filed seeking the following reliefs :-

"i) to issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Exhibit-P4 & P7 as unjust, illegal and unsustainable.

(ii) to issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Exhibit-P8 as unjust, illegal and unsustainable to the extend it which denies the service benefits to the petitioner's service period from 15.07.2008 to 14.07.2009.

(iii) to issue a Writ of Mandamus or any other appropriate writ, order or direction directing respondents 2 to 4 to refix the pay of the petitioner by granting pay revision benefits and increments by taking in to the account of the petitioner's service for the period from 15.07.2008 to 14.07.2009.

(iv) to issue a Writ of Mandamus or any other appropriate writ, order or direction directing respondents 2 to 4 to pay arrears towards pay revision benefits and increments within a time frame fixed by this Hon'ble Court.

2. Heard the learned counsel for the petitioner and the

Government Pleader.

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

that the petitioner was appointed as UPSA on 27.6.2006 in the AUP

School, Ezhumangad and the appointment was approved. It is

submitted that during the academic year 2008-2009, there was an

objection raised with regard to bogus admissions by a super check WP(C).No.33123 OF 2019(M)

cell and Ext.P2 Government Order came to be passed in respect of the

same. After verification of the details and the connected records, the

Government found that the findings of the super check cell were not

justified and that there were several students whose admission in the

school could be considered for the Staff Fixation. It is stated that

even without reckoning the 28 students who were found to be bogus

admissions, 4 divisions would be admissible in Standard VII under the

1:40 ratio as per the student strength of 137 admitted by the super

check cell. The AEO was, therefore, directed to revise the staff

fixation order ensuring whether those students who were reported as

continuing in the school were admitted prior to the first day of visit

of the super check for reckoning them in the staff fixation orders of

the subsequent years. Thereafter, Ext.P3 revised staff fixation order

dated 29.03.2011 was issued sanctioning 4 class divisions to Standard

VII in the AUP School. However, thereafter, Ext.P4 audit objection

was raised stating that the inclusion of 27 students in excess of 32

students in the staff fixation was incorrect and that there would only

be two posts available in the year 2018. The petitioner took up the

matter in revision and Ext.P5 order was passed by the Government.

After examining the factual and legal aspects in the matter, the

Government in Ext.P5 held as follows:

"7. In the above circumstance, Government are pleased to issue orders directing the Director of Public instruction that the WP(C).No.33123 OF 2019(M)

said loss sustained to Government for Rs.142820/- shall not be recovered from the Petitioner and also directing to sanction all service benefits which was withheld and due to the petitioner at the earliest. The Appeal Petition read as 1 st paper above is disposed of accordingly and the Judgement of the Hon'ble High Court of Kerala read as 2nd paper above is thus complied with.

8. The Director of Public Instruction will conduct a comprehensive enquiry into the matter by the Vigilance wing of that Office on the lapses occurred from the part of the Officers who presided the staff fixation of the school for 2008-09 and will initiate appropriate disciplinary proceedings against the officers, who are found responsible and also take steps to recover the liability fixed by the Accountant General from them."

4. It is stated that even thereafter, though the benefits due to

the petitioner were released, the period from 15.07.2008 to

14.07.2009 was not counted for pay fixation and for other benefits

due to the petitioner. It is submitted by the learned counsel for the

petitioner that the AEO has gone beyond the directions contained in

Ext.P5 by not reckoning the period for the service benefits due to the

petitioner.

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

It is stated that though the Government had directed that the service

benefits of the petitioner should be released, there was no clarity in

Ext.P5 as to whether the period from 15.07.2008 to 14.07.2009 is to

be counted as duty for all purposes. It is stated that since there was

a mistake in Ext.P3 staff fixation order, there would be no post WP(C).No.33123 OF 2019(M)

available to accommodate the petitioner during the relevant period

and therefore, if the period is treated as duty for all purposes, there

would be loss occasioned to the Government.

6. I have considered the contentions advanced on all sides. It

is clear that the petitioner was continuing on approved appointment

during the academic year 2008-2009 as well. It appears that the

question with regard to bogus admissions has been given a quietus by

Ext.P3 revised staff fixation order issued by the AEO pursuant to the

directions issued in Ext.P2. The said staff fixation order remains

unchallenged and unamended till date. In spite of the audit

objections raised, no attempt has been taken by any authority

empowered in accordance with the provisions of the KER for revising

Ext.P3 staff fixation order, which has been issued as early as on

29.03.2011. By Ext.P5, the role of the petitioner has been examined

by the Government in detail. It was found that the recovery of pay

and allowances sanctioned to a teacher who had worked in a post,

even if the sanctioning was due to an erroneous staff fixation would

be untenable in law. The Government had specifically directed that

the loss assessed cannot be recovered from the petitioner and

directed that all service benefits withheld and due to the petitioner

should be released. The only logical conclusion therefore is that the

period from 15.07.2008 to 14.07.2009 when the petitioner had WP(C).No.33123 OF 2019(M)

continued on the basis of an approved appointment and on the basis

of an unamended staff fixation order is liable to be treated as duty for

all purposes. The contention of the AEO that since there would have

been a division fall, if the bogus admissions had been taken into

account, cannot be considered by this court in view of the fact that

the staff fixation order has undergone no revision for the past ten

years on the basis of any exercise permitted by law.

In the above view of the matter and in view of the specific

findings in Ext.P5 by the Government, I am of the opinion that the

petitioner is liable to succeed in this writ petition. There will be a

direction to respondents 2 to 4 to re-fix the pay of the petitioner and

to grant all benefits, treating the period from 15.07.2008 to

14.07.2009 as duty for all purposes, within a period of three months

from the date of receipt of a copy of this judgment. This will be

without prejudice to the rights of the respondents to recover

amounts, if any, found due from the officers responsible for any wrong

fixation, in accordance with law.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/29.1.2021 WP(C).No.33123 OF 2019(M)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER DATED 27.6.2006

EXHIBIT P2 A TRUE COPY OF GO(RT) NO 576/2011/G.EDN DATED 10.2.2011

EXHIBIT P3 A TRUE COPY OF THE STAFF FIXATION ORDER DATED 29.3.2011

EXHIBIT P4 A TRUE COPY OF THE AUDIT OBJECTION DATED 19.12.2011

EXHIBIT P5 A TRUE COPY OF THE GO(RT) NO 706/2018/G.EDN DATED 15.2.2018

EXHIBIT P6 A TRUE COPY OF THE PAY RE-FIXATION APPLICATION DATED 13.3.2019 FOR FIXATION OF PAY IN THE REVISED SCALE

EXHIBIT P7 A TRUE COPY OF THE LETTER FOR THE HEADMISTRESS AUPS EZHUMANGAD ALONG WITH THE COPY OF OBJECTION FOR PAY REVISION TO THE PETITIONER

EXHIBIT P8 A TRUE COPY OF THE ORDER K.DIS C/3743/2018 OF AEO, TRITHALA DATED 29.1.2019

EXHIBIT P9 A TRUE COPY OF THE LAST PAY FIXATION ORDER NO C/4517/2016 DATED 22.12.2017 OF AEO, TRITHALA.

RESPONDENTS' EXHIBITS:

EXHIBIT R3(a) : TRUE COPY OF CLARIFICATION LETTER DATED 19.2.2000.

//TRUE COPY//

P.A. TO JUDGE