T V Joseph Memorial Higher Secondary School, Pindimana v State of Kerala and Ors

**WP(C) NO. 33159 OF 2022** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, 1944 WP(C) NO. 33159 OF 2022** ## **PETITIONER/S:** T V JOSEPH MEMORIAL HIGHER SECONDARY SCHOOL PINDIMANA, CHELAD P.O, ERNAKULAM-686681, REP. BY ITS MANAGER, SIJU JACOB, AGED 45 YEARS, S/O P. J. JACOB, PADAYATTIL (H), MALIPPARA P.O, KOTHAMANGALAM, ERNAKULAM. BY ADVS. J.JULIAN XAVIER FIROZ K.ROBIN ANIES MATHEW NIRMAL KURIEN EAPEN **RESPONDENT/S:** 1 STATE OF KERALA REP. BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 DIRECTOR OF GENERAL EDUCATION, OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, GOVERNMENT PRESS P.O, THIRUVANANTHAPURAM - 695001. 3 REGIONAL DEPUTY DIRECTOR, OFFICE OF THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, ERNAKULAM - 682014. SMT. ANIMA M., GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 33159 OF 2022** **2** ## **JUDGMENT** ## T.V. Joseph Memorial Higher Secondary School, Pindimana, has approached this Court through its manager seeking the following reliefs: i. To call for the records connected with case leading to Exts.P10 and quash the original of Exts.P10 to the extent it declined to create the post of HSST (Jr) Hindi and declined to upgrade the post of HSST (Jr) English as HSST English in TV Joseph Memorial Higher Secondary School, Pindimana. ii. To issue a writ of mandamus or any other appropriate writ order or direction directing the 1st respondent to forthwith to create the post of HSST (Jr) Hindi and also upgrade the post of HSST (Jr) English as HSST English w.e.f 19.02.2021, the date of passing Ext.P6 order by the 1st respondent. iii. Declare that the teacher appointed by the petitioner in HSST (Jr) Hindi in the petitioner’s school in the light of the students strength and also in the light of the proposal submitted by the 2nd respondent is entitled to get salary from the date of appointment or at least 19.02.2021, the date of issuing Ext.P6 order and also disburse the salary including that of the HSST (Jr) English as HSST English from the date of passing Ext.P6 order dated 19.02.2021. **WP(C) NO. 33159 OF 2022** **3** 2. According to the petitioner, by Ext.P1 order dated 31.07.2014, a Science batch was allotted to the petitioner school with Malayalam as the second language. Later, by Ext.P2 order, three HSST posts in Chemistry, Physics and Mathematics and four HSST (Jr.) posts in Botany, Zoology, English, and Malayalam, and two Lab Assistant posts were approved by the 3rd respondent. Thereafter, by Ext.P3 order dated 06.02.2019, a Commerce batch was allotted to the petitioner school with Hindi as the 2nd language for the academic year 2015-2016 onwards. The petitioner refers to Ext.P4 order dated 11.11.2019, and it is submitted that the 3rd respondent has approved four posts. The petitioner asserts that though there are sufficient number of students who have taken Hindi as a second language, no posts were sanctioned. In the said circumstances, the petitioner submitted Exts.P7 and P8 representation, and pursuant to Ext.P9 judgment rendered by this Court, the 1st respondent has issued Ext.P10 order. According to the petitioner, though in Ext.P10, the 1st respondent has correctly noted that the petitioner has every entitlement to upgrade the post of HSST (Jr.) English as HSST **WP(C) NO. 33159 OF 2022** **4** English and also to create HSST (Jr) Hindi post, they have refused to upgrade the post on the ground of financial constraints and the stated policy of the Government. The petitioner states that the stand so taken cannot be sustained under law. It is in the said circumstances that the petitioner has approached this court seeking directions. 3. I have heard Sri. Julian Xavier J, the learned counsel appearing for the petitioner and the learned Government Pleader. ## 4. Paragraphs No.3 and 4 of Ext.P10 reads as follows: “3. നേ ർക്കാഴ്ചയി ൽ പങ്കെടുത്ത എറണാകുളം മേഖലാ ഉപമേധാവി പ്രസ് തസ്തികകൾ സൃഷ്ടിക്കാവുന്നതാണെ ന്നും ആയതിനുള്ള 2019-20, 2020-21 വർഷത്തെ സ്റ്റാഫ് ഷൻ ഓർഡർ ഫിക്സേ ലഭ്യമാക്ുയും ചെയ്തിട്ടുണ്ട്. കൂടാതെ പൊ തുവിദ്യാഭ്യാസ ൾക ർ ഡയറക്ടറുടെ പ്രതിനിധിയും ടി സ്കൂളിന് പ്രസ് തസ്തികക ക അ ഹതയുള്ളതായി ൽ സമർ അറിയിക്ുയും ആയത് സംബന്ധിച്ച് പ്രൊ പ്പോസ പ്പിച്ചിട്ടുള്ളതായും അറിയിച്ചിരിക്കുന്നു. 4. മേ ൽ വിവരിച്ച സാഹചര്യങ്ങളുടെയും പരാമശം ർ 3 പ്രകാരം ലഭ്യമാക്കിയ ICT സെ ൽ റിപ്പോർട്ട് ഉൾപ്പെടെയുള്ള രേഖകളുടെയും അടിസ്ഥാനത്തി ൽ ഹർജിക്കാരന്റെ ർ ർ ർ പണ മന ട. വ. ജ സഫ പരാമ ശം 1 ലെ ആവശ്യം സ ക്കാ വിശദമായി പരിശോ ധിച്ചു. മ മമോറയൽ സളന് ഒര ഹ ന HSST ജനിയർ തസ ക സഷകനതന ഇ ഗഷ ഇനിയർ തസ ക അപഗരഡ ച യനതന അർഹതയളത യ ക ണന. **WP(C) NO. 33159 OF 2022** **5** വിദ്യാ ർത്ഥികളുടെ എണ്ണം മാത്രം അടിസ്ഥാനമാക്കി തസ്തിക സൃഷ്ടിക്കാനാകില്ല. വിദ്യാഭ്യാസ ൾ, സർ ആവശ്യകത, അക്കാദമിക താല്പര്യങ്ങ ക്കാരിന്റെ നിലവിലെ സാമ്പത്തിക സ്ഥിതി എന്നിവയെല്ലാം പരിഗണിച്ചു മാത്രമേ പുതിയ തസ്തിക സൃഷ്ടിക്കാ ൻ സാധിക്ുയുള്ളൂ. ഈ ൽ ൽ ഹയർ ൽ സാഹചര്യത്തി പിണ്ടിമന ടി.വി. ജോ സഫ് മെമ്മോറിയ സെ ക്കന്ി സ്കൂളി ഇംഗ്ലീഷ് തസ്തിക അപ്ഗ്രേഡ് ചെയ്യണമെന്നും ഹിന്ദി ജൂനിയർ തസ്തിക ഉയർത്തണമെന്നുമുള്ള മാനേജരുടെ പരാമർശം 1 ലെ ആവശ്യം നിരസിച്ചും അപ്രകാരം പരാമർശം 2 ലെ വിധിന്യായം നടപ്പിലാക്കിയും ഉത്തരവ് പുറപ്പെടുവിക്കുന്നു.” 5. In Exhibit P10, a perusal of all the relevant documents, including the ICT Cell report, would reveal that the School is entitled to upgrade HSST (Jr.) English as HSST (English) and also to create HSST (Jr) Hindi Post. However, it is stated that upgradation cannot be carried out merely by taking note of the student's strength. The educational need, academic requirements, and the financial constraints faced by the Government are all factors that are to be reckoned with while considering the request for upgradation. 6. In Jayadevan V. State of Kerala [2022 (4) KLT 265 ], this Court after referring to the law laid down by the Division Bench of this Court in **State of Kerala and Ors. v. K.V.Sreejith and Ors** . (2019 (2) KLT 253) and in **Fr. Somy Mathew & Anr. v. State of Kerala and Ors.** (2021 (5) KLT 543) **WP(C) NO. 33159 OF 2022** **6** ## had occasion to observe as follows : 18. A Division Bench of this Court in K.V.Sreejith (supra) had occasion to interpret the provisions of the Rules and had held that upgradation cannot be a matter of policy of the Government and would depend on an increase in the workload of a teacher 15 periods or beyond. The upgradation would depend on the parameters contained in Chapter XXXII K.E.R., referred to above. After examining the statutory provisions, it was held as follows in paragraph Nos.7 and 8 of the judgment. 7. …In the above context, it is necessary to notice that Rule 3 of Chapter XXXII governs the manner in which posts are to be sanctioned to Higher Secondary Schools. Rule 3 to the extent relevant reads as under:- 3. The Kerala Aided Higher Secondary Education Service-The service of every aided Higher Secondary School shall consist of all or any of the following categories of posts as the Director may sanction. 8. What is necessary to be noticed from the above provision is that the service of every aided Higher Secondary School is directed to consist of all or any of the categories of **WP(C) NO. 33159 OF 2022** **7** posts mentioned therein “as the Director may sanction”. Therefore, the authority to sanction posts, going by Rule 3 above is the Director of Higher Secondary Education. In the above context, the definitions in Rule 1(d) and (e) being relevant are extracted herein below:- (d) ‘Higher Secondary School Teacher’ means a Higher Secondary School Teacher of an aided school whose work load is 15 or more periods per week per subject. (e) ’Higher Secondary School Teacher (Junior)’ means a Higher Secondary School Teacher of an aided school whose workload is less than 15 periods per week per subject. The above Rules stipulate that a Higher Secondary School Teacher (Junior) means a Higher Secondary School Teacher whose workload is less than 15 periods per week. The above Rules stipulate that a Higher Secondary School Teacher (Junior) means a Higher Secondary School Teacher whose workload is less than 15 periods per week. A Higher Secondary School Teacher means a Higher School Teacher whose workload is 15 or more periods per week per subject. It, therefore, follows that a Higher Secondary School **WP(C) NO. 33159 OF 2022** **8** Teacher (Junior) has to be upgraded to the post of Higher Secondary School Teacher, once the workload exceeds 15 periods per week. The above exercise has to be done by the Director of Higher Secondary Education, going by Rule 3 of Chapter XXXII. It is only in the matter of creation of posts that the State has power. As per Exhibit P2, posts of H.S.S.T. (Junior) were sanctioned by the Government with effect from 06.08.2011 onwards. The question as to whether the said posts were to be upgraded to H.S.S.T. would depend on whether the workload had exceeded 15 hours per week. The authority to assess the said situation and to sanction such upgradation is the Director of Higher Secondary Education. In the present case, the Director of Higher Secondary Education had recommended for such sanction to the Government. The Government accepted the said recommendation and has issued Exhibit P3 Government Order upgrading the posts but subject to the condition that such upgradation shall take effect only prospectively from the date of the order. Though we have tried to ascertain the basis for fixing the date of the Government Order as the date from which such upgradation has been directed to take effect, the only explanation is that since the matter involved financial commitments, it was part of the policy of the Government to do so. We find no other explanation. Since going by the Rules, the upgradation has to depend on increase in the workload of a teacher beyond 15 periods, it cannot be said that upgradation is a matter of policy of the Government. The policy of the **WP(C) NO. 33159 OF 2022** **9** Government would end when posts are sanctioned by it. Thereafter, upgradation would have to depend on the parameters contained in Chapter XXXII K.E.R., referred to above. In these cases, as the Higher Secondary Schools were sanctioned during the year 2010, it is not in dispute that the courses had continued to be conducted thereafter, without any break. Therefore, the students who were admitted in the year 2010-11 would certainly have come to the second year of the course during 2011-12. The teachers who were appointed initially as guest lecturers have been accommodated in the newly sanctioned posts of H.S.S.T.(Junior), with effect from 06.08.2011 onwards. The question as to whether they were entitled to be upgraded as H.S.S.T. would depend on the workload of each one of them, as indicated above. … 19. As held by this Court, an HSST(Jr. ) has to be upgraded to the post of HSST once the workload is at least 15 periods per week and the said exercise has to be done by the Director of Higher Secondary Education as per the mandate under Rule 3 of Chapter XXXII. It can only be in the matter of the creation of posts that the State has power. The question as to whether the said posts are to be upgraded to HSST would depend on the solitary question as to whether the workload is at least 15 hours per week per subject. Upgradation cannot be regarded as a matter of policy of the Government as the policy of the Government would end when posts are sanctioned by it. **WP(C) NO. 33159 OF 2022** **10** 7. In the case on hand, Ext.P10 order would reveal that the Director had recommended the upgradation of posts. As held by this Court, an HSST(Jr.) has to be upgraded to the post of HSST once the workload is at least 15 periods per week, and the said exercise has to be done by the Director of Higher Secondary Education as per the mandate under Rule 3 of Chapter XXXII. The educational authorities have also found that there are enough students to create the post of HSST (Jr.) Hindi. It can only be in the matter of the creation of posts that the State has power. The question as to whether the said posts are to be upgraded to HSST would depend on the solitary question of whether the workload is at least 15 hours per week per subject. Upgradation cannot be regarded as a matter of policy of the Government as the policy of the Government would end when posts are sanctioned by it. In view of the law laid down above, Exhibit P10 cannot be sustained under the law. 8. Resultantly, this writ petition is disposed of, and the following directions are issued. **WP(C) NO. 33159 OF 2022** **11** ## a) Ext.P10 will stand quashed. b) There will be a direction to the respondents to create the post of HSST (Jr.) Hindi and upgrade the post of HSST (Jr.) English as HSST (English) in TV Joseph Memorial Higher Secondary School, Pindimana with effect from 19.2.2021, the date of issuance of Ext.P6 and disburse the consequential benefits. c) Appropriate orders shall be passed expeditiously, in any event, within six weeks from the date of receipt of a copy of this judgment. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** NS **WP(C) NO. 33159 OF 2022** **12** ## **APPENDIX OF WP(C) 33159/2022** PETITIONER(S) EXHIBITS : |Exhibit P1|TRUE COPY OF THE RELEVANT PAGES OF G.O| |---|---| ||(MS) NO.143/2014/G.ED DATED 31.07.2014| ||ISSUED BY THE 1ST RESPONDENT.| |Exhibit P2|TRUE COPY OF THE ORDER NO.B1/1506/HSD/2018| ||DATED 27.07.2018 .| |Exhibit P3|TRUE COPY OF THE RELEVANT PAGES OF G O| ||(MS) NO.14/2019 DATED 06.02.2019. .| |Exhibit P4|TRUE COPY OF THE ORDER| ||B1/10609/RDD/HSD/EKM/2019 DATED| ||11.11.2019.| |Exhibit P5|TRUE COPY OF THE RELEVANT PAGES OF THE GO| ||(MS) NO.41/2021/GED DATED 25.01.2021| ||ISSUED BY 1ST RESPONDENT.| |Exhibit P6|TRUE COPY OF THE RELEVANT PAGES OF THE G.O| ||(MS) NO.105/2021/G.EDN DATED 19.02.2021.| |Exhibit P7|TRUE COPY OF THE REPRESENTATION DATED| ||24.02.2021 SUBMITTED BY THE PETITIONER| ||BEFORE THE 2ND RESPONDENT.| |Exhibit P8|TRUE COPY OF THE REPRESENTATION DATED| ||30.08.2021 SUBMITTED BY THE PETITIONER| ||BEFORE THE 1ST RESPONDENT.| |Exhibit P9|TRUE COPY OF THE JUDGMENT DATED 05.10.2021| ||IN W.P (C) NO. 20202/2021 .| |Exhibit P10|TRUE COPY OF THE ORDER GO (RT.)| ||5162/2022/GEDN DATED 29.08.2022 ISSUED BY| ||THE 1ST RESPONDENT.| RESPONDENT(S) EXHIBITS : NIL