IMPORTANT POINTS
Mulcting of such liability as a condition of reappointment would not only violate the principles of natural justice and fair play, but would, in a way, be a compulsion to do bonded labour. Such action, even if by the Government, would be illegal. It is also evident that no consent for recovery was taken from the teacher and the teacher who was thrown out was incapable of bargaining with the Government, when she is offered some mitigation from the vagaries of the Manager. We are not commenting upon the legality or otherwise of the Circular, in the absence of a challenge against the same. But we have no hesitation to hold Exhibit P10, in so far as it directs recovery from the salary of the appellant, to be illegal.

JUDGMENT :

Arun, J.

The petitioner had worked as Upper Primary School Assistant at High School, Ranni, from 19.8.2005 onwards and was in continuous service against a sanctioned post from 5.6.2006 onwards. As per the staff fixation for the year 2008-2009, there existed the post of UPSA in which the petitioner was accommodated. But in an inspection conducted at the school by the Super Check Cell, it was found that there were bogus admissions and hence the staff fixation was liable to be modified. After issuing notice to the Manager, the Headmistress, and the concerned teachers, including the petitioner, the Director of Public Instructions issued Exhibit P4 proceedings reducing one post of UPSA and one post of High School Assistant in the school with effect from 15.7.2009. Consequently, the petitioner was retrenched from the post of UPSA.

2. In Exhibit P4 proceedings, the Director of Public Instructions had found that, the Headmistress of the School is responsible for the bogus admissions resulting in increase in the number of students and consequently, the number of staff. It was therefore directed that the loss sustained to the Government by way of payment of salary to the teachers, who had worked in the irregular posts, shall be recovered from the Headmistress.

3. Aggrieved by Exhibit P4, which resulted in her retrenchment, the petitioner filed revision before the Director of Public Instructions which was rejected as per Exhibit P6, reiterating the stand that the loss sustained by the Government should be recovered from the Headmistress of the School. In Ext.P6 it was further directed to examine the eligibility for protection including 1:40 ratio and to extend that benefit to the affected teachers, if found eligible. The petitioner challenged Exhibit P6 by way of a further revision before the Government under Chapter XXIII Rule 12F of KER, resulting in Exhibit P9, once again rejecting the petitioner's revision. Later, the petitioner was served with a copy of Exhibit P10 communication issued by the District Educational Officer to the Block Project Officer, Block Resources Centre, (SSA), Ranni, requiring the said officer to recover an amount of Rs.1,42,297/-from the petitioner, who, was re-appointed as cluster-co-ordinator. The direction was to recover the amount in 36 equal monthly instalments from the salary of the petitioner.

4. The writ petition was filed, mainly challenging the direction in Exhibit P10 to recover the salary drawn by the petitioner from 15.7.2009 to 29.3.2010, the date on which the petitioner was rendered excess to the date on which she was retrenched from service. Though the petitioner had challenged her retrenchment also, the focus was on the threat of recovery. This was for the reason that the petitioner was re-appointed as Cluster Co-ordinator by the time the writ petition was filed. The challenge against recovery was on the ground that there is no provision under the KE Act & Rules, providing for recovery of salary of a teacher who had worked in a sanctioned post, which was subsequently found to be in excess of the student strength. The other contention was that unless complicity in the matter of bogus admissions is found against the petitioner also, she cannot be mulcted with liability. It was contended that under the provisions of the Kerala Education Act and Rules, the Manager and the Headmaster are the persons responsible for admitting students, maintaining the registers and for submitting the details to the educational officers for the purpose of fixation of staff strength.

5. A counter affidavit was filed on behalf of the District Educational Officer contending that based on a complaint, the Super Check Cell attached to the office of the Director of Public Instructions had visited the school on 18.8.2009 and after physical verification, had detected certain bogus admissions and that, the strength, as verified by the Super Check Cell, was not sufficient for maintaining the class divisions and posts alrea