The main legal point established in the judgment is that the authorities did not have the power to recover the financial loss from the Manager and the Headmaster as it was not provided for in the relevant rules and no other provisions enabled the Government to recover the loss.

S. Sankarasubban, J.

These two Original Petitions are concerned with the same matter and hence they are heard and disposed of together. O.P. No. 1564 of 1990 is filed by the Manager of Ayamkudy High School, Ayamkudi, Palai, While O.P. No. 2575 of 1990 is filed by the Headmaster of Ayamkudi High School. Ayamkudi High School is an aided School within the jurisdiction of the District Educational Officer, Palai. In 1987-88, the District Educational Officer, Palai conducted an inspection of the School for fixation of the staff strength under R.12 of Chap. XXIII of the Kerala Education Rules. In this case, we are only concerned with the fixation of staff strength for Standard VI. There were three divisions for Std. VI. By order-dated 15.7.1987, the DEO held that three divisions for Std. VI would be retained in view of the effective student strength of Std. VI. Thus, the existing three divisions were allowed to continue.

2. There were certain allegations of misconduct against the Headmaster. The allegations included irregularities in the admission and removal of pupils. The D.E.O. Palai was directed to conduct an enquiry into the matter and submit a report. Accordingly, the enquiry was conducted on 3.3.1988 and he submitted a report on 7.3.1988. On the basis of the report, the Deputy Director (Education) Kottayam directed the Manager to take disciplinary proceedings against the Headmaster. This is evidenced by Ext. P1. Pursuant to Ext. P1, disciplinary proceedings were initiated against the Headmaster. The Manager proposed a punishment of compulsory retirement. This is awaiting the approval of the Director of Public Instruction. One of the allegations against the Headmaster was that he had manipulated admission of pupils for Std. VI for the year 1987-88 in order to see that the three divisions in Std. VI are retained.

3. A record check was conducted invoking the provisions of R.12E(3) of Chap. XXIII of the KER with regard to the staff strength for the year 1987-88. Thereafter, the Director of Public Instruction passed Ext. P2 order dated 5.3.1989. The Director found that the third division of Std. VI of High School, Ayamkudi has got sanctioned by illegal means and by the same order; the sanction of the third division was cancelled. Further, the Director held as follows:

"The financial loss sustained by the Government will be recovered from the District Edl. Officer, Palai, Headmaster, H.S. Ayamkudi and the Manager, H.S. Ayamkudi".

Against Ext. P2 order, both the Manager and the Headmaster filed revision petitions before the Government. These were dismissed by Ext. P3 order dated 29.11.1989. Exts. P2 and P3 produced in O.P. No. 1564 of 1990 are produced as Exts. P1 and P2 in O.P. No. 2575 of 1990. In O.P. No. 1564/90, the Manager has prayed for quashing Exts. P2 and P3 insofar as it direct the recovery of financial loss of the Government. In O.P. No. 2575 of 1990, the prayer is against the recovery of the financial loss from the Headmaster. It was submitted on behalf of the Headmaster that he had challenged the disciplinary proceedings before this court and it is pending by way of another petition.

4. In the counter affidavit filed on behalf of the State, the contention taken is that the Manager is liable for the loss. R.7(4) of Chap. Ill is relied on. Further, it was contended that the Manager had colluded with the Headmaster. In the counter affidavit filed in the O.P. filed by the Headmaster, in paragraph 5 it is stated as follows:

"The petitioner was given notice before passing Ext. P1 and this fact is mentioned in Ext. P1. Recovery of loss sustained by the Government is not a matter governed by the rules in Chapter XXIIIKER and so a hearing about the recovery is not necessary as per Rules. Moreover, the recovery is not a punishment."

5. Learned counsel for the petitioners contended that they are not challenging the cancellation of the Division. It is submitted that their contention is that the Department has no power to reco