Govindan Nair, C.J.
1. This appeal is from the judgment of a learned single Judge of this Court allowing O.P. No. 4639 of 1969 (Ker). That petition prayed for the quashing of two orders Exts. P5 and P7 produced along with the Original Petition, passed respectively by the 3rd respondent, the Assistant Educational Officer, Mala, and by the 1st respondent the Regional Deputy Director of public Instruction, in the petition, Ext. P5 stated that the petitioner in the Original Petition, a Craft Teacher, the respondent herein, is entitled only to a consolidated pay of Rs. 110/-. Having said so, the following direction had been issued:
'The Headmaster will draw up a statement in the following from (form?) and forward to this office within 3 days.
Pay due from 1.6.86
Fay drawn from 1.6.68
Excess drawn to berefunded.
The excess drawn should be recovered from the teacher at once and details ofcredit. The Service book is herewith returned.'
Ext. P 5 communication was sent to the Headmaster of the school where the respondent-teacher was working. The teacher appealed to the Regional Deputy Director and Ext. P7 is the order dismissing the appeal.
2. The Orders Exts. P5 and P7 were set aside by the learned single judge on the ground that there was no provision of law either under the Kerala Education Act or the Kerala Education Rules enabling the authorities that passed the orders Exts. P5 and P7 to pass such orders. When the Writ Appeal came up for hearing before a Division Bench, reliance was placed by the appellants on two rulings of this Court, one by a Single Judge in O.P. No. 3423 of 1968 (Ker) and the other by a Division Bench in O.P. No. 738 of 1970 (Ker). The Division Bench before which this Writ Appeal came up for hearing doubted the correctness of the view taken in those decisions and therefore referred the matter to a Full Bench.
3. The question that arose for decision in O.P. No. 3423 of 1968 (Ker) and in O.P. No. 738 of 1970 (Ker) relates to the recovery of 'project allowance' said to have been paid in excess. The persons to whom payments were made therein were Government servants. There was no statute governing the question. Here the Kerala Education Act and the Rules have to be construed. So we need not consider whether O.P. No. 3423 of 1968 (Ker) and O.P. No. 738 of 1970 (Ker) have been correctly decided or not.
4. As far as the case before us is concerned, there is a specific section, Section 9 of the Kerala Education Act which imposes an obligation on the Government to pay the salary of all teachers in Aided Schools directly or through the Headmaster of the school. In the light of this provision, we do not think that either the Assistant Educational Officer who passed the order Ext. P5 or the Regional Deputy Director who confirmed that order by Ext. P7 is entitled to give any direction that salary should be withheld. We do not mean to say that any such direction has been given by Ext. P5. All that has been stated in Ext. P5 is that steps will be taken for the recovery of the excess amount. It is quite probable that what was meant was that the excess amount should be recovered from the salary. Whatever that be, the questioncannot be determined either by the Assistant Educational Officer or by the Regional Deputy Director. On that short ground, Exts. P5 and P7 will have to be vacated. We do so.
5. Our attention has been drawn to Rule 1A in Chapter XXVI of the Kerala Education Rules, which has been introduced by a notification published in the Gazette dated 25-6-19 2 (sic) that the Government or the Director shall have the power to order refund in appropriate cases of salary paid to teachers in excess of the amount legally due, or payment made irregularly. No action had been taken under this rule. No action could have been taken either by the Assistant Educational Officer or the Regional Deputy Director under that Rule. This provision cannot therefore sustain Ext. P5 or Ext. P7 orders.
6. We express no opinion on the question whether the Government is entitled in given circumstances to withhold payment of salary notwithstanding the obligation imposed by Section 9. No such question arises in this case. We also make it clear that this judgment will not preclude any action that the Government or the Director may be entitled to take under Rule 1A in Chap. XXVI.
7. Subject to what we have stated in paragraph 6 above, we dismiss this Writ Appeal. We make no order as to costs.