Saji T.M. v. The State of Kerala, Director of Higher Secondary Education, and Manager, St. Peter's Vocational and Higher Secondary School, Kolenchery

WP(C) NO. 35949 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944 WP(C) NO. 35949 OF 2010** ## **PETITIONER/S:** SAJI T.M ST.PETER'S VOCATIONAL AND HIGHER SECONCDARY, SCHOOL,, KOLENCHERY, ERNAKULAM. BY ADVS. SRI.M.V.BOSE SRI.VINOD MADHAVAN ## **RESPONDENT/S:** 1 THE STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT,, GENERAL EDUCATION DEPARTMENT,, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,, PIN-695001. 2 THE DIRECTOR HIGHER SECONDARY EDUCATION,, HOUSING BOARD BUILDING,, THIRUVANANTHAPURAM-695001. 3 THE MANAGER ST.PETER'S VOCATIONAL AND HIGHER SECONDARY, SCHOOL,, KOLENCHERY, ERNAKULAM, PIN-682311. BY ADV SRI.GEORGE POONTHOTTAM ## **OTHER PRESENT:** SMT.HANA KARNOLIA MADONA CYRIL FOR R3, SRI.C.N.PRABHAKARAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 35949 OF 2010 2 ## **P.V.KUNHIKRISHNAN, J --------------------------------------W.P.(C) No. 35949 of 2010 -------------------------------------Dated this the 20[th] day of October, 2022** ## **JUDGMENT** ## The above writ petition is filed with following prayers : “(i) To call for the entire records leading up to Exhibit P14 and to quash the same by the issuance of a writ of certiorari or any other writ, direction or order. (ii) To issue a writ of mandamus compelling the respondents to permit the petitioner to continue as Librarian Grade III in the 3[rd] respondent School with the continuance of payment of salary to him. (iii) To direct the respondents to approve the appointment of the petitioner as Librarian Grade III from 16.8.2001 with all allied benefits including payment of salary. (iv) To grant any other appropriate Writ, Direction, or Order as may be deemed fit and proper in the facts and circumstances of the case. (v) To award the cost of the petitioner in these proceedings.” WP(C) NO. 35949 OF 2010 3 2. The petitioner was appointed as Librarian Grade III in the School of the 3[rd] respondent from 16.8.2001 after duly selected by a selection committee. Eventhough approval was accorded to posts like Principal, Laboratory Assistants included in the Rules, approval was not granted to the post of Librarian Grade III and Grade IV because it is not included in the Rules. It is the case of the petitioner that in terms of the Division Bench decision reported in **Shaji v. Ramachandran** [2003 (2) KLT 814], his appointment as Librarian Grade III is necessarily to be approved by the Director. The petitioner approached this Court by filing W.P.(C.) No. 19221/2003. His claim was directed to be considered by the authorities. As per Ext.P5 judgment of the Division Bench, it was directed that the Government would take appropriate measures to see that proper Library is provided in aided schools and also to provide such library facilities in Government Schools also. In the common judgment in O.P. No. 10757/2002, the stand of the Government that the appointment of Librarian can be done only after Government sanction and the creation of such post was rejected by this Court. Thereafter, WP(C) NO. 35949 OF 2010 4 the petitioner filed W.P.(C.) No. 6112/2006. That was disposed and Ext.P7 is the judgment. This Court directed that in the light of the fact that apart from approval granted to the posts of Teachers, sanction and approval has been granted for appointments to the post of Lab Attenders in aided Higher Secondary Schools. In such circumstances, Librarians are also entitled for a similar treatment to that of Teachers and Lab Attenders. It is the case of the petitioner that the judgment was not implemented as on the date of filing this writ petition, even though extension of time was sought for repeatedly. Then the department filed writ appeal with a delay condonation petition. In Ext.P10 order of the Division Bench, it was ordered that the 1[st] respondent/petitioner should be appointed provisionally and salary should be paid from 22.10.2008 onwards. Consequently, the Government passed Ext.P11 order making it clear that the approval of the provisional appointment will be as Librarian Grade III in the scale of pay of Rs.8390-13270 with effect from 22.10.2008. It is also stated in Ext.P11 that he shall be paid salary and allowances in the said scale with effect from WP(C) NO. 35949 OF 2010 5 22.10.2008 without waiting for further proposals from the Manager of the School or the Director of Higher Secondary Education. Subsequently, writ appeal No. 2065/2008 filed by the respondents 1 and 2 was disposed of. Certain directions were issued by this Court in the Writ Appeal. Against which an SLP was filed as SLP No. 9169/2010 before the Apex Court. The Apex Court dismissed the SLP with an observation that the Director of Education while considering the question of grant of sanction to the post of Librarians will also be entitled to take into consideration any question of financial involvement that may surface. The petitioner's appointment was approved and he was getting salary also regularly pursuant to Ext.P10 order of this Court and Ext.P11 order of the Government. After passing Ext.P12 order by the Hon'ble Apex Court, the 2[nd] respondent passed Ext.P14 order directing to terminate the service of the petitioner forthwith and report compliance. Challenging Ext.P14, this writ petition is filed. 3. Heard the learned counsel for the petitioner and learned Government Pleader. WP(C) NO. 35949 OF 2010 6 4. The learned counsel for the petitioner reiterated his contentions in this writ petition. The counsel submitted that the Apex Court in effect dismissed the SLP and the observation of the Apex Court was only to the effect that the financial involvement can be looked into by the Director of Education. The counsel submitted that the petitioner challenged Ext.P14 before this Court and this Court passed an interim order and he continued as Librarian based on the interim order and based on Exts.P10 and P11. The counsel submitted that now the petitioner is going to retire from Service in 2024 May. Since, the only point mentioned by the Apex Court in Ext.P12 is that the financial involvement is to be looked into and the petitioner already received the salary and he continued as on now. Ext.P14 may be set aside, is the contention. 5. The Government Pleader on the other hand, tried to re-agitate the question which is settled as per Ext.P12 order of the Apex Court. The Government Pleader submitted that the Manager appointed the petitioner as Librarian without a sanctioned post. It is also submitted that the Manager has no WP(C) NO. 35949 OF 2010 7 authority to appoint the petitioner in the School. It is also submitted by the Government Pleader that there is huge financial liability to the Government, if the appointment of the petitioner is regularised. The Government Pleader takes me through the counter affidavit filed by the 2[nd] respondent. I also heard the counsel appearing for the 3[rd] respondent -Manager. The counsel appearing for the Manager supported the contention of the petitioner and submitted that in the light of Ext.P12 order passed by the Apex Court, the appointment is in effect regularised and the petitioner is continuing in the School. 6. This Court considered the contentions of the petitioner and the Government Pleader. Ext.P7 is the judgment passed by this Court in W.P.(C.) No.6112/2006 and another connected case. It will be beneficial to extract the relevant portion of Ext.P7. 9. “In the judgment produced as Ext.P4 in Writ Petition No.26127/2005 the subject matter of the dispute related to the appointment of Lab Attenders (Lab Assistants in Higher Secondary Schools). After considering the matter in detail with reference to the Government Orders which were in force, this court disposed of the writ petitions directing the Government to WP(C) NO. 35949 OF 2010 8 take a final decision in the matter of approval of appointment to the post of Lab Attenders made by the aided Higher Secondary school managements, in the light of the various Govt. Orders referred to in the judgment and also taking note of the approach made by the Government in the case of approval of appointment of teachers made as per executive orders prior to 14.11.2000. It is stated at the Bar that as regards the post of Lab Assistants are concerned, as per GO (MS) No.79/2003/G.Edn. dated 28.3.2003 sanction for creation of two posts of Lab Assistants in the scale of pay of Rs.2650-4150 in each Government and aided Higher Secondary schools has been granted. 10. It cannot be disputed by the respondents that the earlier circulars issued by the Government will justify the action of the managements in providing libraries in the schools concerned. Going by the circulars, as far as the liability of the management to provide infrastructure is concerned, library and laboratory facilities have been part of infrastructure to be compulsorily provided by the management for the purpose of granting permission to open the Higher Secondary schools. Therefore, the Government cannot take a stand now that it is optional and it is only a matter of discretion to allow or not to allow the post of Librarian. The history of the establishment of Higher Secondary schools will show that in the matter of appointment of teachers also various orders have been issued from time to time and pursuant to the judgment in AIR 2001 SC 216, the Government framed statutory rules. Going by the provisions of Chapter XXXII, a school must have Librarian Grade III or Librarian Grade IV and the qualifications and method of WP(C) NO. 35949 OF 2010 9 recruitment have also been specified in the rules. It is evident that based on these stipulations the petitioners were appointed. The approach made in Ext.P5 in Writ Petition No.26127/2005 and in Ext.P12 in Writ Petition No.6112/2006 is that even though the post of Librarians are included in the special rules for Higher Secondary schools, no post of Librarian has been created so far in the Higher Secondary Section in the State. It is also stated that it is a policy matter to be decided by the Government taking into account various aspects including the financial liability involved. It is clear from the rules that the staff pattern is prescribed by the rules and the authority is given power to sanction various posts required for a particular school. The question is whether the authority can take a stand that no orders will be passed creating the particular post as a policy to avoid financial liability. When the minimum requirement of a school includes a Librarian, it cannot be disputed that it should be manned by properly qualified Librarians subject to the requirements of the school. It is therefore clear that the approach made in Exts.P5 and P12 in the respective writ petitions are not correct.” 7. The above order was challenged by the State by filing a writ appeal with a delay condonation petition. This Court was not satisfied with the explanation rendered by the State for condoning the delay in filing Writ Appeal. In the delay condonation petition, this Court passed Ext.P9 order. It will be WP(C) NO. 35949 OF 2010 10 ## better to extract Ext.P9 order: “This is a petition to condone the long delay of 470 days in filing the appeal. The learned Single Judge in the impugned judgment found that one of the compulsory requirements for starting Higher Secondary courses in Government and aided sector is that there is a full fledged library and librarian is also necessary. After referring various decisions, the learned Single Judge found that the minimum requirement for starting a Higher Secondary School includes a qualified Librarian and because of the alleged financial difficulties, a Librarian cannot be appointed. Therefore, it was directed to approve the appointment of the writ petitioner as Librarian Grade III in St.Peters' Vocational Higher Secondary School, Kolenchery. But the judgment was not implemented in time. Time was sought for implementing the judgment and by Annexure R1(a), three month's time was granted as requested by the appellant for implementing the judgment as last chance. After time was sought for implementing the same, by Annexure R1(b), learned Single Judge found that the petitioner would have been working without any salary and further three month's time was also granted by order dated 15[th] February, 2008. the contention of the petitioner is that the School has got no full fledged library. It is for the appellant, who have given recognition to the School to see that the School has got a full fledged library. We are not satisfied with the reasons stated for condoning the long delay of more than one year and three months in filing the appeal. In these circumstances, we are of the opinion that the delay will be condoned only if the judgment is implemented atleast provisionally subject to further orders in WP(C) NO. 35949 OF 2010 11 the writ appeal.” ## 8. Thereafter, Ext.P10 order was passed in the delay condonotion petition itself which is also extracted hereunder : “Learned Government Pleader submitted that by Government Order dated 15.11.2008, order of this court dated 22[nd] October, 2008 has been complied with. In the above order, it is stated that approval will be given provided Manager will send the necessary papers. Therefore, the impugned order is not fully in accordance with the order passed by the Division Bench. The first respondent should be appointed provisionally and salary should be paid from 22.10.2008, the date of the order passed by the Division Bench, subject to disposal of the writ appeal. Only if that is done, delay shall stand condoned.” ## 9. Based on these orders, the Government passed Exct.P11 order. The relevant portion of Ext.P11 is extracted hereunder : 3. In the light of the above, Government are pleased to modify paragraph 3 (iii) of the Government Order read as 2[nd] paper above as follows : “The approval of provisional appointment will be as Librarian Grade III in the scale of pay of Rs.8390-13270 with effect from 22.10.2008. He shall be paid salary and allowances in the said scale with effect from 22.10.2008 without waiting for further proposals from the Manager WP(C) NO. 35949 OF 2010 12 of the school or the Director of Higher Secondary Education.” 4. The Government Order read as 2[nd] paper above stands, modified to that extent.” 10. Challenging the judgment in the Writ Appeal, the State filed SLP No. 9169/2010 before the Apex Court. The Apex Court dismissed the SLP with certain observations. It will be better to extract the order passed by the Apex Court. ## “Delay condoned. Although, we are not inclined to interfere with the Special Leave Petitions, we also make it clear that the Director of Education, while considering the question of grant of sanction to the post of Librarian will also be entitled to take into consideration any question of financial involvement that may surface. The Special Leave Petitions are dismissed.” 11. From the above, it is clear that the Apex Court confirmed the orders passed by this Court and only granted liberty to the Director of Education to consider the question of grant of sanction to the post of Librarian taking into consideration the question of financial involvement that may surface. Thereafter, Ext.P14 order is passed by the 2[nd] WP(C) NO. 35949 OF 2010 13 respondent terminating the service of the petitioner on 9.11.2010. This writ petition was filed on 30.11.2010 and this Court passed an interim order staying the implementation of Ext.P14 and allowing the petitioner to continue as Librarian Grade-III with continuance of payment of salary. The interim order is in force even now. Now, 13 years over after the interim order passed in the above writ petition. The petitioner is going to retire in 2024 May. The only ground that can be raised by the Department based on the Apex Court order is that if the appointment is regularised, there will be financial difficulties. The Government already paid salary to the petitioner and the petitioner is going to retire in 2024. In such circumstances, according to me, this is to be taken as a special case and regularise the service of the petitioner. The 2[nd] respondentDirector of Education should pass appropriate orders. To facilitate the 2[nd] respondent to pass appropriate orders, Ext.P14 can be set aside. Therefore, this writ petition is allowed in the following manner : WP(C) NO. 35949 OF 2010 14 - 1) Ext.P14 is set aside. - 2) The 2[nd] respondent is directed to pass appropriate orders in the light of the observations in this judgment as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 35949 OF 2010 15 ## **APPENDIX** PETITIONER'S EXHIBITS : EXT.P1 TRUE COPY OF THE NOTIFICATION DATED 12.11.2010 DATED 16.8.2001 OF THE PETITIONER. EXT.P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 16.8.2001 OF THE PETITIONER. EXT.P3 TRUE COPY OF AN INTERIM ORDER DATED 14.1.2003 IN OP NO. 35963/2002 F OF THIS HON'BLE COURT EXT.P4 TRUE COPY OF JUDGMENT DATED 1.3.2004 IN WPC NO. 19221/2003 EXT.P5 TRUE COPY OF THE JUDGMENT DATED 11.7.2005 IN WPC 33964/03 EXT.P6 TRUE COPY OF THE ORDER OF THE GOVERNMENT DATED 27.1.2006 EXT.P7 TRUE COPY OF THE JUDGMENT IN WPC 6112/2002 DATED 28.3.2007 EXT.P8 TRUE COPY OF THE ORDER DATED 15.2.2008 PASSED BY THIS HON'BLE COURT EXT.P9 TRUE COPY OF THE ORDER DATED 22.10.2008 EXT.P10 TRUE COPY OF THE ORDER DATED 19.12.2008 EXT.P11 TRUE COPY OF THE ORDER DATED 31.03.2009 PASSED BY THE GOVERNMENT EXT.P12 TRUE COPY OF THE ORDER DATED 15.3.2010 BY THE HON'BLE SUPREME COURT EXT.P13 TRUE COPY OF THE ORDER DATED 10.8.2010 ISSUED BY THE WP(C) NO. 35949 OF 2010 16 DIRECTOR, DR.V.M.SUNANDA KUMARI EXT.P14 TRUE COPY OF THE ORDER DATED 9.11.2010 ISSUED BY THE DIRECTOR, DR.V.M.SUNANDA KUMARI RESPONDENT'S EXHIBITS : NIL