The Manager Vivekananda Vocational Higher Secondary School & Higher Secondary School, Poredom, Chadayamangalam, Punalur Educational District, Kollam v. State of Kerala, Director of Higher Secondary Education, Regional Deputy Director of Higher Secondary Education, and Sajeena Beegum A.S

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942** ## **WP(C).No.7303 OF 2013(K)** ## **PETITIONER:** **THE MANAGER VIVEKANANDA VOCATIONAL HIGHER SECONDARY SCHOOL & HIGHER SECONDARY SCHOOL, POREDOM, CHADAYAMANGALAM, PUNALUR EDUCATIONAL DISTRICT, KOLLAM.** **BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REP. BY SECRETARY TO GOVERNMENT,**| ||**GENERAL EDUCATION DEPARTMENT,**| ||**GOVT. SECRETARIAT,**| ||**THIRUVANANTHAPURAM.**| |**2**|**THE DIRECTOR OF HIGHER SECONDARY EDUCATION**| ||**HOUSING BOARD BUILDING,**| ||**SANTHI NAGAR,**| ||**THIRUVANANTHAPURAM 695 001.**| |**3**|**THE REGIONAL DEPUTY DIRECTOR OF**| ||**HIGHER SECONDARY EDUCATION**| ||**REGIONAL DEPUTY DIRECTORATE,**| ||**IV FLOOR,**| ||**CORPORATION BUILDING,**| ||**PALAYAM, THIRUVANANTHAPURAM 695 033.**| |**4**|**SAJEENA BEEGUM A.S**| ||**ANZARI MANZIL,**| ||**THEVANOOR P.O,**| ||**KOLLAM.**| **WP(C).No.7303 OF 2013(K)** **2** ## **SENIOR GOVERNMENT PLEADER SRI.B.VINOD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.7303 OF 2013(K)** **3** ## **J U D G M E N T** **The Manager of an aided School has preferred this writ petition. The petitioner by Ext.P1 dated 22.07.2011, appointed the 4[th] respondent as Librarian in Vivekananda Vocational Higher Secondary School & Higher Secondary School, Poredom. The 3[rd] respondent rejected the proposal for appointment as per Ext.P2 order dated 17.10.2011 stating that a Government Order creating the post of Librarian Grade III is required for granting approval of the appointment. Ext.P2 was challenged before this Court in WP(C) No.33551/2011 which was allowed by this Court as per Ext.P3 judgment dated 12.10.2012. This Court set aside Ext.P2 and directed the Director of Higher Secondary Education to reconsider the issue in the light of the judgment of a Division Bench of this Court in W.A.No.2065/2008. The judgment referred to in Ext.P3 has been produced along with the writ petition as Ext.P7. In Ext.P7 this Court considered the question regarding sanctioning of the post of** **WP(C).No.7303 OF 2013(K)** **4** **Librarian in all Higher Secondary Schools in the State. Paragraph 7 of the judgment is extracted below:** **”7. 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 Chapter XXXII, similar to Rule 14 of Chapter 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** **WP(C).No.7303 OF 2013(K)** **5** **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 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 Article 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** **WP(C).No.7303 OF 2013(K)** **6** **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 Grade 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 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."** **2. It can be seen that this Court categorically** **held that it is for the Director to take a decision regarding the sanctioning of a post of Librarian in a** **school and that the Government cannot dictate the manner in which the Director should exercise his power to sanction a post. The judgment of the Division Bench was challenged by the State by filing** **WP(C).No.7303 OF 2013(K)** **7** **Special Leave Petition before the Apex Court. The Apex Court dismissed the SLP observing 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.** **3. Pursuant to the directions contained in Ext.P3 judgment, the Director issued Ext.P4 proceedings on 20.01.2013, once again rejecting the request for approval of the appointment of the 4[th] respondent. The reason stated in the order is that since there is a huge financial implication in sanctioning the post of Librarian in the Higher Secondary School, concurrence of the Government is required. Petitioner has challenged Ext.P4 order in this writ petition apart from challenging Ext.P8 amendment to the Kerala Education Rules issued on 11.12.2012, whereby the Government was empowered to extent any ban on creation of posts in aided Higher Secondary Schools.** **4. Heard Sri.John Joseph Vettikad, on behalf of** **WP(C).No.7303 OF 2013(K)** **8** **the petitioner and Sri.B.Vinod, learned Senior Government Pleader on behalf of the respondents 1 to 3.** **5. The learned counsel for the petitioner submits that in view of the judgment of the Division Bench of this Court produced as Ext.P7, the Director of Higher Secondary Education who is the 2[nd] respondent in the writ petition is duty bound to decide on the question of sanction of the post of Librarian in the Higher Secondary School, of which the petitioner is the Manager. Even though the State had challenged the judgment of the Division Bench before the Hon'ble Supreme Court, the SLP filed by the State was dismissed with an observation that the Director while taking the decision may also take into account, the financial involvement that may surface. Thus the decision regarding the sanction of the post has to be taken by the Director independently without being subject to any dictation from the Government. This Court in Ext.P3 judgment directed the 2[nd] respondent to take a decision, having regard to** **WP(C).No.7303 OF 2013(K)** **9** **Ext.P7 judgment of the Division Bench. It is pursuant to Ext.P3 that the Director has issued Ext.P4 order. It appears from a reading of Ext.P4 that the Director was under the wrong notion that concurrence of the Government is required before sanctioning a post. The reasoning stated in Ext.P4 is far from satisfactory and Ext.P4 is liable to be set aside. I do so.** **6. On 17.08.2015, the 1[st] respondent issued G.O. (MS) NO.220/2015/G.Edn, approving a scheme for creation of posts of Lower Division Clerk, full time/part time Menial and Librarian Grade IV in Government/aided Higher Secondary Schools. The scheme provided for creation of posts of Librarian Gr.IV in Higher Secondary Schools on the basis of certain criteria. When action was not forthcoming even after issuance of the order dated 17.08.2015, some of the affected persons approached this Court by filing writ petitions. The writ petitions were allowed by this Court, against which the State had filed appeals. The counsel for the petitioner has** **WP(C).No.7303 OF 2013(K)** **10** **placed before this Court the judgment dated 15.1.2020 in W.A.No.1600 of 2018 and connected cases. It can be seen from the judgment that, when the appeals were taken up for admission, this Court directed the Government and the Director to ensure that appropriate orders are passed pursuant to the order dated 17.08.2015 within a period of two months. When the above writ appeals were taken up for final hearing, there was no change in the situation and no order had been issued pursuant to the interim direction in the writ appeals. In the above situation, this Court was pleased to dismiss the appeals by judgment dated 15.01.2020 granting two more months time to the Government and its officers to comply with the directions issued in the writ petitions. The period granted by this Court has also elapsed.** **In the above circumstances, the writ petition is allowed. Ext.P4 order is quashed. The 2[nd] respondent is directed to take a decision regarding the sanctioning of the post of Librarian in Vivekananda** **WP(C).No.7303 OF 2013(K)** **11** **Vocational Higher Secondary School & Higher Secondary School, Poredom as directed by this Court in the judgment in WP(C) No.33511/2011 immediately at any rate, within a period of two months from the date of receipt of a copy of this judgment. The 2[nd] respondent shall give due regard to the judgments of the Division Benches of this Court in W.A.Nos.2065/2008 and 1600/2018.** ## **Sd/-** **T.R.RAVI** **JUDGE** **Pn 10/07** **WP(C).No.7303 OF 2013(K)** **12** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 22.7.2011 OF THE 4TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE REJECTION ORDER NO. TRO/5/14183/2011/HSE DATED 17.10.2011 OF THE 3RD RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WPC 33551/2011.** - **EXHIBIT P4 TRUE COPY OF THE ORDER NO.ACD. B4/49992/HSE/2012 DATED 20.1.2013 OF THE 2ND RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE NOTIFICATION ISSUED BY THE 2ND RESPONDENT VIDE NO. ACD.B5/20726/HSE/2010 DATED 16.6.2010 INVITING APPLICATION FOR SANCTION OF ADDITIONAL BATCHES OF HIGHER SECONDARY COURSES IN THE GOVERNMENT/AIDED SCHOOLS IN THRISSUR AND OTHER NORTHERN DISTRICT. EXHIBIT P6 TRUE COPY OF GO (MS) 76/2013/G.EDN. DATED 23.02.2013. EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WA NO. 2065/2008 DATED 16.07.2009. EXHIBIT P8 TRUE COPY OF THE G.O(P) NO.387/2012/GEN.EDN DATED 11.12.2012. EXHIBIT P9 TRUE COPY OF THE ORDER NO.ACD A1/20746/HSE/2005 DATED 30.3.2009 OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION.**