ANU SOUMYA MATHEW; SMT. SHALINI SARAMMA VARUGHESE; SMT. SHALOM MARIAM ZACHARIAH v. STATE OF KERALA; PRINCIPAL SECRETARY, FINANCE DEPARTMENT; DIRECTOR, DIRECTORATE OF HIGHER SECONDARY EDUCATION; REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION; BISHOP HODGES HIGHER SECONDARY SCHOOL, MAVELIKKARA (represented by Corporate Manager, CMS School, Kottayam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 27TH DAY OF NOVEMBER 2014/6TH AGRAHAYANA, 1936** ## **WP(C).No. 19017 of 2013 (B)** ## **----------------------------** ## **PETITIONER(S):** **--------------------------** ## **1. ANU SOUMYA MATHEW** - **H.S.S.T.(JUNIOR) PHYSICS B.H. HIGHER SECONDARY SCHOOL MAVELIKKARA. RESIDING AT KAKKADAMPALLIL KALLUMALA.P.O., MAVELIKKARA-690110.** **2. SMT. SHALINI SARAMMA VARUGHESE** - **H.S.S. TEACHER(CHEMISTRY) B.H. HIGHER SECONDARY SCHOOL, MAVELIKKARA. RESIDING AT KODITHOPPIL, KOTTANAD.P.O. PATHANAMTHITTA-689615.** **3. SMT. SHALOM MARIAM ZACHARIAH** - **H.S.S. TEACHER (ELECTRONICS) B.H. HIGHER SECONDARY SCHOOL RESIDING AT THOPPIL HOUSE, CHENNITHALA.P.O. MAVELIKKARA-690105.** **BY ADVS.SRI.P.SANKARANKUTTY NAIR SRI.K.SANDESH RAJA KUM.VIDYA MENON** ## **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE PRINCIPAL SECRETARY GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695001.** ## **2. PRINCIPAL SECRETARY, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695001.** **3. THE DIRECTOR DIRECTORATGE OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDING, SHANTHI NAGAR THIRUVANANTHAPURAM-695001.** **WP(C).No. 19017 of 2013 (B)** **2** **----------------------------** **4. REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION DIRECTORATE OF HIGHER SECONDARY EDUCATION CORPORATION BUILDING, 4TH FLOOR, PALAYAM THIRUVANANTHAPURAM-695146.** ## **5. BISHOP HODGES** **HIGHER SECONDARY SCHOOL, MAVELIKKARA REPRESENTED BY CORPORATE MANAGER, C.M.S. SCHOOL KOTTAYAM-686001.** **R5 BY ADV. SRI.V.A.MUHAMMED** **R1-R4 BY ADV. SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL R1-R4 BY ADV.RAMAPRASAD UNNI, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JV** ## **WP(C).No. 19017 of 2013 (B)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** **P1. : COPY OF THE ORDER NO. G.O. (MS) 167/11/PED DATED 3-8-2011 ALONG WITH THE RELEVANT EXTRACT OF APPENDIX II P2. : COPY OF THE PROCEEDINGS OF THE MINUTES OF THE SELECTION COMMITTEE DATED 5-10-2011. P3. : COPY OF THE APPOINTMENT ORDER DATED 11-10-2011 ISSUED TO THE 1ST PETITIONER. P3A : DATED 11-10-2011 ISSUED TO THE 3RD PETITIONER. P3B : COPY OF THE APPOINTMENT ORDER DATED 10-10-2011 ISSUED TO THE 2ND PETITIONER. P4. : COPY OF THE REPORT OF THE STAFF FIXATION IN THE 5TH RESPONDENT HIGHER SECONDARY SCHOOL FOR THE ACADEMIC YEAR 2011-12 VERIFIED BY THE 3RD RESPONDENT. P5. : COPY OF THE RELEVANT PAGE OF REPORT OF THE STAFF FIXATION REPORT OF THE 5TH RESPONDENT SCHOOL FOR THE ACADEMIC YEAR 2012-13 VERIFIED BY THE 4TH RESPONDENT P6. : COPY OF THE INTERIM ORDER DATED 11-2-10 IN WPC NO.37392/2009. P7. : COPY OF THE INTERIM ORDER DATED 27-3-2013 IN WPC NO. 4053/2013. P8. : COPY OF THE RELEVANT EXTRACT OF THE GOVERNMENT ORDER G.O. (MS) NO. 211/2013/G.EDN. DATED 15-7-2013. P9. : COPY OF THE ORDER NO.G.O.(MS) NO.121/2014/G.EDN. DATED 03.07.2014 ALONGWITH ANNEXURE. P10. : COPY OF THE ORDER NO.G.O.(MS) NO.229/2014/G.EDN. DATED 06.11.2014** ## **RESPONDENT(S)' EXHIBITS: N I L** **---------------------------------------** **//TRUE COPY// P.A. TO JUDGE** **JV** ## **P.B.SURESH KUMAR, J. ------------------------------W.P.(C) No.19017 of 2013 ---------------------------------------------Dated this the 27[th] day of November, 2014** ## **JUDGMENT** This writ petition concerns the teaching posts of the additional higher secondary batch sanctioned during the academic year 2011-2012 to Bishop Hodges Higher Secondary School, Mavelikkara, hereinafter referred to as “the School,” for short. As per Ext.P1 order, the Government sanctioned an additional higher secondary batch of science group to the school. Pursuant to Ext.P1 order, the petitioners were appointed as Higher Secondary School Teachers in the school in anticipation of the sanctioning of the required number of additional teaching posts. Among them, the first petitioner was appointed as HSST (Junior) in Physics, the second petitioner was appointed as HSST (Junior) in Chemistry and the third petitioner was appointed as HSST (Junior) in Electronics. According to the petitioners, though they were appointed in the anticipated vacancies, the required number of additional posts were not sanctioned. Ext.P4 is the report of the fixation of the staff of the school, for the **W.P.(C) No.19017/2013** **2** academic year 2011-2012 submitted by the Principal to the Directorate of Higher Secondary Education. Ext.P4 indicates that four additional posts had to be sanctioned in the Higher Secondary section of the school for the academic year 20112012. It is stated by the petitioners that though Ext.P4 report was recommended for sanction of the required number of additional posts by the Director of Higher Secondary Education to the Government, no action was taken by the Government in that regard. While so, on 15.07.2013, as per P8 order, the Government sanctioned one additional post of HSST(Junior) in Electronics in the school for the academic year 2011-2012. Even though the said post was sanctioned from the year 2011-2012, it is stated in the order that the same will only have prospective effect. Later, on 3.7.2014, the Government has issued Ext.P9 order by which an additional post of HSST (Junior) in Physics and an additional post of HSST (Junior) in Chemistry were also sanctioned for the school from the Academic Year 2012-2013 with prospective effect. According to the petitioners, as per the provisions in Chapter XXXII of the Kerala Education Rules, it is for the Director of Higher Secondary Education to sanction the required number of additional posts in the Higher Secondary Schools and the Director of Higher Secondary Education has a **W.P.(C) No.19017/2013** **3** duty to sanction the additional posts in the school as mentioned in Ext.P4 report from the academic year 2011-2012. Petitioners, therefore, seek directions to the Director of Higher Secondary Education to sanction the required number of additional posts in the school as mentioned in Ext.P4 report from the year 20112012 onwards with retrospective effect, so that, their appointments will be approved with effect from the dates of appointments. 2. A counter affidavit has been filed on behalf of the third respondent, the Director of Higher Secondary Education. In the counter affidavit, the stand taken by the third respondent is that the petitioners cannot insist that appropriate number of additional posts should have been sanctioned by the authorities concerned during the relevant academic year itself. 3. In **State of Kerala v. Saji [2009 (3) KLT 766],** this Court held that going by the provisions contained in Chapter XXXII of the Kerala Education Rules, the Government has absolutely no role at all in the matter of sanctioning of posts in the Higher Secondary Schools and that, it is for the Director of Higher Education to sanction the required number of posts in the Higher Secondary Schools. Paragraph 7 of the judgment in **State of Kerala v. Saji** (supra) reads as follows: **W.P.(C) No.19017/2013** **4** _“The power is the capacity vested in a public authority to affect the rights of others, whereas, duty is an obligation to act in a particular manner. The duty vested in a public authority, will create a corresponding right on some other. In certain circumstances, having regard to the facts of the case, a power may become a power coupled with duty. As per the Rules, the Director of Higher Secondary Education has got the power to sanction the post of Principal in a Higher Secondary School. But, without the post of Principal, the school cannot function. So, it can be safely concluded that in regard to the post of Principal, the power of the Director is one coupled with duty, which has to be exercised. Likewise, in the case of Librarian also, it is for the Director to decide whether a post should be sanctioned or not. Going by the statutory scheme, we find no role for the Government in sanctioning of posts in Higher Secondary wing. There is no rule in Chap. XXXII, similar to R.14 of Chap. XXIII of the K.E.R., which enables the Government to extend the prohibition introduced by it for creation of posts in Government Schools to aided schools also. If, owing to financial constraints, the Government issue some directions to the Director, and the Director acts upon it, such decision of the Director would be ultra vires and unauthorised, because he will be acting under dictation and will be surrendering his power to act in his discretion, to the Government, which have no say in the matter as per the Rules. So, in this case, we are of the view that, whether sanction of the post of Librarian in the second respondent's school is justified or not, is a matter which the Director may decide independently. The contention of the appellants that the school is having only 720 books, is seriously disputed by the respondents. According to them, there are more than 11,000 books and a_ **W.P.(C) No.19017/2013** **5** _full-fledged Library is functioning, justifying the creation of the post of Librarian in the school. The same is a seriously disputed point. In view of such circumstances, we feel that it was not proper for the learned Single Judge to hold that the post of Librarian is liable to be created and direct the Director to do that. Normally, this Court will quash a wrong order and leave it to the authority to act in accordance with law. It is for the designated authority to take the decision. It is true, in extreme cases, as was held by the Apex Court in The Comptroller and Auditor General v. K.S.Jagannathan, AIR 1987 SC 537, the High Court under Art.226 can pass an order which the statutory authority could have passed, had it exercised the discretion vested in it properly. But, in this case, we find that there are no materials before this Court to come to the conclusion that, there was no other option for the Director but to sanction the post in the school. Though the learned Single Judge technically left the matter for the decision of the Director, practically, the Director has no other option but to sanction the post of Librarian, in view of the clear finding in favour of sanction of the post of Librarian Gr.III. In view of the above position, we set aside the direction in the judgment under appeal, to sanction the post of Librarian Gr.III in the second respondent's school. The second appellant is directed to consider the claim of the respondents herein for sanction of the post of Librarian Gr.III and take a decision in accordance with law, having regard to the students' strength, the number of books in the Library, the facilities in the Library etc. While taking the decision, the second appellant shall be uninfluenced by any view expressed by the first appellant. The second appellant need not personally inspect the school, but can cause the same to be done by some responsible officer under him. After giving_ **W.P.(C) No.19017/2013** **6** _an opportunity of being heard to the respondents herein, the 2[nd] appellant may take a final decision on sanctioning the post of Librarian. The second appellant shall complete this exercise within three months from the date of production of a copy of this judgment.”_ In the light of the said decision of this Court, I find merit in the contention of the petitioners that the sanctioning of the required number of additional posts in the higher secondary schools is a matter for the Director of Higher Secondary Education to consider. I also find that the Director of Higher Secondary Education has not till date considered the issue whether additional posts are to be sanctioned in the school from the year 2011-2012 onwards and the issue whether the petitioners are entitled to get their appointments approved with effect from the respective dates of their appointments. 4. The petitioners have also pointed out that though additional posts to accommodate them have been sanctioned by the Government as per Exts.P8 and P9 orders, their appointments have not been approved even with effect from the respective dates of the said orders, and as such they are working in the school even now without salary. **W.P.(C) No.19017/2013** **7** In the aforesaid circumstances, the writ petition is disposed of with the following directions: - 1) The third respondent shall consider the entitlement of the petitioners to get the additional posts sanctioned in Bishop Hodges Higher Secondary School, Mavelikkara with retrospective effect from the academic year 2011-2012 and get their appointments approved with effect from the respective dates of appointment, within three months from the date of receipt of a copy of this judgment. - 2) In the meanwhile, the third respondent shall consider the claim of the petitioners for approval of their appointments as against the additional posts sanctioned as per Exts.P8 and P9 orders and take steps for disbursement of their salary, within a period of three months from today. SD/- JV **P.B. SURESH KUMAR, JUDGE**