Arun, J.

1. 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 installments 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 already sanctioned. A second visit was conducted on 8.2.2010, on which day also, the student strength was much less than what was recorded in the admission register. Based on the report of the Super Check Cell, the Director of Public Instructions proposed to reduce certain posts, before which an opportunity of hearing was provided to the affected parties. After hearing all concerned, the DPI issued Exhibit P4 order abolishing one post of HSA (Malayalam), one post of UPSA, one post of LG (Hindi) and one post of FTM with effect from 15.7.2009, for the year 2009-2010. It was submitted that after retrenchment, the petitioner got re-appointment at BRC Ranni as CRC Co-Ordinator. It was contended that as per Circular No.34025/J2/12/G.Edn. Dated 21.6.2012 the Government have clarified that the teachers, who were appointed, given approval, had drawn salary and subsequently thrown out by the Super Check Cell due to detection of bogus admission of pupils, will be included in the list of retrenched teachers and the amount disbursed to the teachers by way of salary shall be recovered from them in 36 installments. It was submitted that Exhibit P10 was issued in terms of the Circular.

6. The learned Single Judge held that Exhibit P10 was issued on the basis of the Circular of 2012 and that the petitioner having been appointed as Cluster-Co-Ordinator on the basis of the very same Circular, cannot challenge one part of the Circular, while enjoying the benefit of the other part. It was hence held that there was no illegality in directing recovery from the petitioner's salary, in view of the Circular issued by the Government, which is not under challenge in the writ petition. Considering the fact that the petitioner was working only as a Cluster-Co-Ordinator, it was directed that recovery from salary shall be affected in 72 installments, instead of 36. With the said modification to the impugned Exhibit P10 order, the writ petition was dismissed.

7. Aggrieved by the judgment, the petitioner has come up in appeal reiterating the contentions in the writ petition. It is also contended that though Exhibit P10 is dated 8.2.2012, the petitioner received the communication only in February, 2013 and she had commenced work as CRC Co-Ordinator only with effect from 1.3.2013. It is contended that the salary received by the petitioner was towards the work actually rendered by her and hence, the recovery of that amount is illegal. Reliance is placed on a judgment of this Court in Vasudevan Namboodiri v. State Of Kerala [1997 (2) KLT 529], in support of the contention that there is no provision under the KER providing for recovery of salary from a teacher. Reliance is also placed on Exhibit P11 judgment of a Division Bench in U.Padmini v. State of Kerala and others [judgment dated 25.6.2009 in W.A.No.1288 of 2007].

8. The learned Senior Government Pleader countered the contentions and submitted that Chapter XXVI Rule 1A empower the Government or the Director to recover salary paid to teachers in excess of the amount legally due or made irregularly. It is submitted that the teacher is also a party to the conspiracy hatched by the Manager and the Headmistress to make bogus admissions in the School, so as to provide inflated number of students to the educational authorities resulting in increased number of class divisions and sanctioning of more posts of teachers. It is contended that the petitioner cannot therefore plead complete ignorance regarding the bogus students in her class.

9. Heard Sri. Varun C. Vijay, learned counsel appearing for the appellant and Sri.A.J.Varghese, the learned Senior Government Pleader appearing for the official respondents.

10. The question as to whether there was bogus admissions in the School during 2009-2010, is a factual dispute, which this Court need not enter into in exercise of jurisdiction under Article 226 of the Constitution of India. Therefore, the question that arises for consideration is regarding the liability of a teacher retrenched from a sanctioned post, consequent to abolition of the post by the DPI based on the report of the Super Check Cell. For deciding this question, it would be appropriate to refer to the relevant provisions under the Kerala Education Act and the Rules, specifying the persons responsible for admitting students and for submission of details regarding the number of students and the required staff strength.

11. Section 7 of the Kerala Education Act provides for appointment of Manager in an aided school by the educational agency, subject to the approval of such officer as may be authorised by the Government in this behalf. Section 7(2) stipulates that the Manager shall be responsible for the conduct of the School in accordance with the provisions of the Act and the Rules there under. Section 11 empowers the Manager to appoint teachers of aided schools subject to the Rules and conditions laid down by the Government. As per Rule 3(1) of Chapter III KER, the management of every aided school may be vested by the educational agency in a person, who shall be referred to as the Manger and who shall be responsible to the Department for the management of the institution. Rule 9 of Chapter III deals with the duties and powers of the Managers of aided schools. Rule 9(1) stipulates that the Manager shall be responsible for the conduct of the school strictly in accordance with the provisions of the Kerala Education Act and the Rules issued there under. He shall also abide by the orders that may be issued from time to time by the Government and the Department, in conformity with the provisions of the Act and the Rules issued there under. Rule 9(5) further provides that the Manager shall verify the staff position of the school in conformity with the number of class divisions sanctioned by the Department.

12. Chapter VI of the KER deals with the admission, transfer and removal of pupils from schools. A reading of the various provisions under Chapter VI, especially Rules 4, 6, 15, 17 etc. reveal that the person authorised to admit, remove or to issue transfer certificate to a student is the Headmaster of the School.

13. There is no provision under the Kerala Education Act or the Rules which ascribe any role to a teacher in the administration of the School or even in the process of admission of students to the School. Therefore, in the absence of specific evidence, a teacher cannot be attributed with any role in the bogus admissions recorded in the admission register of the School. Hence, we are unable to accept the contention of the Senior Government Pleader that the appellant cannot plead complete ignorance regarding the bogus admissions. In this context it would be apposite to refer to the decision in Vasudevan Namboodiri's case (supra), wherein it was clearly held as follows:

“7. Chap. XXIII of K.E.R deals with the fixation of strength of teachers in departmental and aided schools. R.12 deals with the procedure for fixation of staff strength. The strength is verified by the Educational Officer by paying surprise visit to the school. Under R.123 the orders of staff fixation shall take effect on the 15th of July every year. R.12C empowers the superior officers to scrutinise the orders of staff fixation passed by the subordinate officers and may pass revised orders. The final orders are to be passed before the end of September every year. The power under R.120 is only to revise the order. The power of the appellate authority under R.12D shows that it only deals with creation of posts. In the present case, the power is exercised under R.12E(3) of the K.E.R. It reads as follows:

'The Director may on his own motion or on the basis of the report of the authorised officer under R.16 including the evidence and other details, if any, collected by him or otherwise call for the records of the orders relating to fixation of staff strength issued by Subordinate Officers and revise the same.

Provided that an order affecting the interest of a person shall not be passed under these rules unless the person concerned has been given an opportunity of taking any representation which he may wish to make against such orders.'

8. This also shows that the power is given only to revise the order of staff strength. No other power is given. It is no doubt true that when a power is given to the authorities it clothes him all the incidental powers to exercise it. The question is whether the right to recover the loss is incidental to the powers to revise the order of fixation of staff strength. To me it appears that such a power is not given under R.12E(3). What the authority is concerned is only to find out whether the order passed by the subordinate officers is proper or not. Here, he considers whether the principles regarding the fixation of staff strength are followed or not. Further, he has to consider the effective student strength. In assessing the student strength he has to consider the guidelines of the admissions and if he is convinced that the fixation is not proper he can cancel the same. This may result in the termination of service of a teacher. But this power does not clothe him with the right to recover the salary paid to the teacher on the ground that the Headmaster or Manager were responsible for misleading the authorities. According to me, the loss occasioned is a consequence of the power exercised by the authorities and is not incidental to the power exercised by them.”

Similar view was taken by the Division Bench in Padmini's case (supra) also.

14. With respect to the contention based on Rule 1A Chapter XXVI that power is vested in the Government or the Director to order refund, in appropriate cases, of salary paid to teachers in excess of the amount legally due or payment made irregularly, we accept the contention of the learned counsel for the appellant that Chapter XXVI deals exclusively with the scales of pay of aided school teachers and therefore the recovery/refund provided there under is only with respect to the excess salary paid consequent to a wrong fixation of pay. Rule 1A of Chapter XXVI does not confer general power on the Government or the Director of Public Instructions to recover salary from the teachers.

15. The next contention is based on Circular No.34025/J2/12/G.Edn. dated 21.6.2012. In this context it may be relevant to consider that in Exhibits P4 and P6, the direction was to recover the loss sustained by the Government by way of salary to the teachers who had worked against the irregular posts, from the Headmistress. This direction was reiterated in Exhibit P9. Further, in Exhibit P6 there was a direction to examine the eligibility of protection including 1:40 ratio and to extend the benefit to the affected teachers. In Exhibit P10, reference is made to the Circular and direction issued to recover an amount of Rs.1,42,297/- from the petitioner in 36 equal instalments. Exhibit P10 does not even mention as to how the petitioner was found liable to repay the amount. It is not disputed that the appellant was not heard before issuing Exhibit P10. The only contention is that the Circular provides for such recovery and the appellant having been appointed in pursuance of the Circular, she is estopped from challenging the recovery. It may be worthwhile to mention that as a policy; the Government had decided to provide protection to the teachers retrenched consequent to reduction of class divisions. Various Government orders were issued in this regard and a comprehensive teachers package was constituted as per G.O(P)No.199/11/G.Edn. dated 1.10.2011. It is seen that as per G.O(MS).No.177/2012/G.Edn. dated 5.6.2012, the Government acted on the report of the DPI and appointed 1190 Cluster-Co-ordinators under SSA from among the retrenched teachers . Later, the Government issued Circular No.34025/J2/12/G.Edn. dated 21.6.2012, the circular referred to in Exhibit P10, clarifying that the approved teachers thrown out due to detection of bogus admission of pupils by the Super Check Cell will be included in the list of retrenched teachers and on their appointment, the amount disbursed by way of salary, while they worked in the excess posts from which they were retrenched, shall be recovered from their current salary in 36 equal instalments. It is true that there is no challenge to the Circular. But the question remains as whether a teacher, who was not in any manner found liable for the bogus admissions and who undisputedly had worked as a teacher during the period which her salary is sought to be recovered, can be mulcted with the liability to repay the salary, on her being reappointed in accordance with the Government policy. According to us, 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.

In the result, the impugned judgment is set aside, Exhibit P10 is quashed and the writ appeal is allowed to that extent. No order as to costs.