High Court of KeralaSingle Judge2013-02-04Writ petition allowed in part; Ext.P9 order int...

W.P.(C) No. 8401 of 2011 (A) - The Manager, Vivekananda VHSS & HSS, Poredom v. State of Kerala and others

Case / Petition Number:WP(C).No. 8401 of 2011 (A)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.M. Shaffique
Judgment Date: 2013-02-04
Court Decision / Holding: Ext.P9 is interfered; there shall be a direction to the 2nd respondent to reconsider the matter afresh in the light of the observations made and in light of State of Kerala v. Saji (2009 (3) KLT 766) and the Supreme Court's judgment in SLP No. 6959/2010, including any clarifications from the Government about financial implications; the Director may seek necessary government directions in regard to financial aspects; the post can be sanctioned by the Director if feasible without undue financial strain.
Final Disposition: Writ petition allowed in part; Ext.P9 order interfered; Director directed to reconsider the post afresh in light of the authorities cited.

Parties to the Case

Appellants / Petitioners

The Manager, Vivekananda VHSS & HSS, Poredom, Chadayamangalam, Kollam

Respondents

State of Kerala, rep. by the Principal Secretary to Government, General Education Department, Govt. Secretariat, Thiruvananthapuram
Director of Higher Secondary Education, Housing Board Building, Thiruvananthapuram
Regional Deputy Director of Higher Secondary Education, Corporation Building, Thiruvananthapuram
Smt. Simi A, Ariyottuputhen Veedu, Poredom P.O., Chadayamangalam, Kollam district

Legal Representation & Advocates

Counsels for Petitioners

• Sri John Joseph Vettikad
• Sri C. Joseph Johny

Counsels for Respondents

• Sri Noushad Thottathil

Case Synopsis & Summary

This writ petition challenges Exts.P3 and P9, which disapprove the appointment of Smt. Sini A as Clerk at Vivekananda VHSS & HSS, Poredom. Ext.P3 notes that the Government has not yet created clerk posts in HS Schools; Ext.P9 contains the Director of Higher Secondary Education's view that creation of posts and sanctioning is subject to government approval and financial implications, referencing a Supreme Court ruling in W.P.(C) No.34024/2009 (Special Leave Petition No. 6959/2010). The petitioner contends the Director's observation contradicts a Division Bench decision in State of Kerala v. Saji (2009 (3) KLT 766) and that the Government's stance should not prevent the Director from approving the post. The respondents argued that the state budget and financial burden justify withholding sanction, and legal requirements under Chapter XXXII Rule 3 (KER) require Director sanction. Upon hearing, the court found Ext.P9 to be liable for interference and directed the Director to reconsider the matter afresh, in light of the above observations and the Division Bench ruling, and the Supreme Court SLP. It held that the Director must independently assess whether the post can be sanctioned without jeopardizing government finances and should seek necessary government directions for financial aspects. Thus the writ petition succeeds to the extent of directing reconsideration; the policy issue remains open for government action.

Provisions of Law Cited

Rule 3 of Chapter XXXII of Kerala Education Rules (KER)Note 2 of Rule 5 of Chapter XXXII of KER

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P9's observations negate the statutory authority of the Director to sanction posts and that creation of posts is a matter that can be considered by the Director independent of Government's post-creation. It was argued that Rule 3 of Chapter XXXII of KER vests sanctioning power in the Director and that the Government cannot preempt this by requiring government creation first; Ext.P3's reliance on non-creation of clerk posts is not legally sustainable and Ext.P9 should be tested against the Division Bench decision in State of Kerala v. Saji and the Supreme Court's observation in SLP 6959/2010.

Contentions of Respondents

The respondents argued that creating clerk posts involves substantial financial burden; the Director cannot sanction posts without government sanction and must consider government financial constraints. They relied on Rule XXXII, Rule 3 and Government policy; Ext.P9 was a reasonable exercise of the Director's power, and the Director's rejection is justified given the financial implications.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
State of Kerala v. Saji	2009 (3) KLT 766	Positive	Division Bench held that the Director is the sanctioning authority and Government cannot interfere; the present court relies on this principle.
Special Leave Petition No. 6959/2010	6959/2010	Positive	Supreme Court observed that the Director can consider financial involvement while sanctioning posts.
W.P.(C) No. 34024/2009	34024/2009	Positive	Judgment dated 03.12.2009 in W.P.(C) No.34024/2009 cited by the Supreme Court in SLP No. 6959/2010.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 4TH DAY OF FEBRUARY 2013/15TH MAGHA 1934** **WP(C).No. 8401 of 2011 (A) --------------------------** **PETITIONER:** ## **-----------** **THE MANAGER,V.V.H.S.S. & H.S.S. POREDOM, CHADAYAMANGALAM, PUNALUR EDUCATIONAL DISTRICT, KOLLAM.** **BY ADVS.SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY** **RESPONDENTS:** **--------------** **1. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT GOVT. SECRETARIAT, THIRUVANANTHAPURAM 695001.** **2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM 695001.** **3. THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, CORPORATION BUILDING THIRUVANANTHAPURAM 695001.** **4. SMT. SIMI A, ARIYOTTUPUTHEN VEEDU, POREDOM.P.O., CHADAYAMANGALAM, KOLLAM DISTRICT 691 534.** **R1, R2, R3 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** **WP(C).No. 8401 of 2011 (A)** **-------------------------** **APPENDIX --------** **PETITIONER'S EXHIBITS** **---------------------** **EXT.P1. COPY OF THE PROCEEDINGS ORDER NO.APPT1/NTS/HSS/2010 DATED 15.6.2010 OF THE PETITIONER.** **EXT.P2. COPY OF THE CHANGE OF STAFF STATEMENT DATED 15.6.2010** **EXT.P3. COPY OF THE REJECTION ORDER NO.TRO/5/4200/2010/HSE DATED 19.7.2010 OF THE 3RD RESPONDENT.** **EXT.P4. COPY OF THE JUDGMENT IN W.A. NO.2065/2008 DATED 16.7.2009** **EXT.P5. COPY OF THE JUDGMENT IN WP(C) NO.12030/2008 DATED 15.10.2009.** **EXT.P6. COPY OF THE ORDER DATED 15.3.2010 IN S.L.P. (C) C.C. NO.4178/2010 WITH S.L.P. (C) C.C. NO.4230/2010** **EXT.P7. COPY OF THE JUDGMENT IN W.P.C. NO.34789/2008 DATED 24.11.2009.** **EXT.P8. COPY OF THE JUDGMENT DATED 1.10.2010 IN WPC NO.30224/2010 OF THIS HON'BLE COURT.** **EXT.P9. COPY OF THE ORDER NO.ACD.B3/41839/HSE/10 DATED 14.01.2011 OF THE 3RD RESPONDENT.** **RESPONDENT'S EXHIBITS : NIL** **---------------------** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** A.M.SHAFFIQUE, J. ---------------------------------------------------W.P.(C) No. 8401 of 2011 - A --------------------------------------------------Dated this the 4[th] February, 2013 **J U D G M E N T** The manager of Vivekananda VHSS & HSS, Poredom is the petitioner who challenges Exts.P3 and P9 orders passed by the educational authorities disapproving the appointment of Smt. Sini A as Clerk. In Ext.P3, the reason stated is that the Government has not yet created the post of Clerk in Higher Secondary Schools and therefore the action of the manager was irregular. In Ext.P9, the Director considered the matter in the light of the judgment dated 03.12.2009 in W.P.(C) No.34024/2009 of the Supreme Court in the Special Leave Petition No.6959/2010 filed by the State. The Supreme Court observed that “ the Director of Higher Secondary Education while considering the question of grant of sanction to the post of Librarian, will also be inclined to take into consideration any question of financial involvement that may surface”. The Director therefore observed that the creation of posts solely vest with the Government and only if Government create any posts, the Director can sanction the said post. 2. The main argument of the learned counsel for the petitioner is that the said observation by the Director is totally contrary to W.P.(C) No. 8401 of 2011 - A 2 Ext.P4 judgment which is also reported in **State of Kerala** v. **Saji** (2009 (3) KLT 766). 3. Counter affidavit is filed by the 2[nd] respondent, inter alia contending that in the State there are 735 Government Schools and 529 aided Schools and if the Director is compelled to create parttime Menial staff also, the State will have heavy financial burden. Even in respect of creation of such post of L.D.Clerk, it involves heavy financial burden to the Government. It is further stated that considering the work of Clerk, the Clerical work in Higher Secondary School can be extended as 600 hours only and for sanctioning 1264 clerical posts in each and every Government/ aided Schools in the State huge financial commitment may come to nearly Rs. 14,31,22,720/-. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The learned Government Pleader highlights the financial involvement in the matter , if Government sanctioned any such post to the petitioner's school. That apart based on a Government order which is akin to Note 2 of Rule 5 of Ch.XXXII of KER it is argued that even for appointment of persons in non-teaching post recommendation of selection W.P.(C) No. 8401 of 2011 - A 3 committee is required. Further it is contended that even going by Ext.P9, the Director had taken into consideration the financial situation of the Government. Hence the Director was justified in rejecting approval of appointment made by the manager in terms of Ext.P1. 6. On a perusal of the judgment relied upon by the learned counsel for the petitioner, it is clear from Rule 3 of Ch. XXXII of KER, that any of the categories of posts has to be sanctioned by the Director. The Division Bench had come to the conclusion that the Government cannot interfere in the matter and the Director is the person to sanction such post. 7. The Supreme Court in the judgment in the SLP referred above has also come to the conclusion that it is open for the Director to consider the question of financial involvement of the Government while sanctioning such post. Therefore, even if without any interference by the Government or waiting for the Government to sanction a post, the Director has to independently consider the question as to whether such post can be sanctioned in HSST and whether sanctioning such post would involve a financial situation by which the Government W.P.(C) No. 8401 of 2011 - A 4 will not be in a position to pay the salary and other emoluments. In fact, in that regard the Director will have to obtain necessary clarification from the Government which should also form part of the order passed by the Director or at least a reference to such direction issued by the Government in this regard has to be made available. At any rate, as held by the Division Bench judgment referred above, it is for the Director to sanction the post and he cannot rest his shoulders on the Government's opinion. A statutory authority like the Director will have to comply with the provisions of the statute in terms with what is provided under the statute. At best, the Director can seek Government directions in regard to the financial aspects involved in sanctioning such post and whether it will be possible for the Government to meet the financial burden, if the posts are sanctioned. In the result Ext.P9 is liable to be interfered and I do so. There shall be a direction to the 2[nd] respondent to reconsider the matter afresh in the light of the observations made above and in the light of the judgment of the Division Bench of this Court in **State of Kerala** v. **Saji** (2009 (3) KLT 766) and the W.P.(C) No. 8401 of 2011 - A **==> picture [7 x 9] intentionally omitted <==** judgment of the Supreme Court in the Special Leave Petition No. 6959/2010. **A.M.SHAFFIQUE, JUDGE.** rka