IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 WA.No. 135 of 2008() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.28081/2006 Dated 01/12/2007 .................... APPELLANT(S): RESPONDENTS 4 AND 7: ----------------------- 1. T.S. SHEEJA, W/O. T.N.MOHANAN, AGED 38 YEARS, LOWER DIVISION CLERK, SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL, CHERAI, ERNAKULAM DISTRICT. 2. LIKHI N.P., FULL TIME MENIAL, SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL, CHERAI, ERNAKULAM DISTRICT. BY ADVS. MR.V.A.MUHAMMED MR.K.E.HAMZA RESPONDENT(S): PETITIONER & RESPONDENTS 1,2,3,5,6,8 AND 9: --------------------------- 1. SRI.D.SHINE, S/O. SHARMADAS, LABORATORY ASSISTANT, SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL, CHERAI, ERNAKULAM DISTRICT. (RESIDING AT KOMBARA HUOSE, KOTTUVALLIKKAD, P.O. MOOTHAKUNNAM, ERNAKULAM DISTRICT). 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (T) DEPARTMENT, GOVT.OF KERALA, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 4. THE MANAGER, V.V. SABHA EDUCATIONAL AGENCY, SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL, CHERAI, ERNAKULAM DIST. W.A. 135/2008 5. SRI.C.C.SIVAN, LABORATORY ASSISTANT, SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL, CHERAI, ERNAKULAM DIST. 6. SMT. N.S.SEENA, LABORATORY ASSISTANT, SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL, CHERAI, ERNAKULAM DIST. 7. THE DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, EDAPPALLY, ERNAKULAM DISTRICT. 8. SMT.V.RAJAMMA KUNJAMMA, JOINT SECRETARY, GENERAL EDUCATION (T) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY MRKURIAN GEORGE KANNAMTHANAM, SENIOR ADVOCATE BY ADVS.TONY GEORGE KANNANTHANAM FOR R1 BY GOVT. PLEADER MR.BENNY GERVACIS MR.M.S.UNNIKRISHNAN FOR R4 MR.K.S.MADHUSOODANAN MR.M.V.BOSE MR.N.SUGUTHAN MR.G.PADMAKUMAR MR.C.S.MANU SMT.S.KARTHIKA FOR R4 MR.M.R.ANISON FOR R4 MR.T.R.RAJESH FOR R4 SMT.K.P.GEETHA MANI FOR R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON 08/04/2009 DELIVERED THE FOLLOWING: K.Balakrishnan Nair P.N.Ravindran, JJ. ============================= W.A. No. 135 of 2008 ===================== Dated this the 8th day of April, 2009. JUDGMENT Ravindran,J. The appellants in this Writ Appeal are respondents 4 and 7 in W.P. (C) No.28081 of 2006. The first respondent is the petitioner and respondents 2 to 8 are respondents 1 to 3, 5, 6, 8 and 9 respectively therein. For the sake of convenience, the parties are referred to as they are arrayed in the Writ Petition. The brief facts of the case are as follows: 2. The higher secondary course was started in Sahodaran Memorial Higher Secondary School, Cherai managed by the fourth respondent during the academic year 1998-99. Classes in the 11th Standard commenced in June, 1998 and classes in the 12th Standard commenced in June, 1999. The qualifications and method of appointment of the teaching and non-teaching staff of aided higher secondary schools are those prescribed in Chapter XXXII of the Kerala Education Rules, hereinafter referred to as the “KER” for short, which was introduced with effect from 9.11.2001. Prior to the introduction of Chapter XXXII in the KER, the qualifications and method of appointment of the teaching and non-teaching staff of aided higher secondary schools were prescribed in Government orders issued from time to time. The Government orders permitted appointment of Laboratory Assistants in each Laboratory and WA.No. 135/08 -: 2 :- also stipulated that appointments will be made only after laboratory work/practicals start in Standard XI. It was further stipulated that appointments will be made by promotion from qualified Class IV staff in the school/management. 3. When the 12th Standard classes commenced in Sahodaran Memorial Higher Secondary School, Cherai, the then Manager issued Ext.P2 memo dated 30.6.1999 to all the non-teaching staff of the school seeking their willingness to be appointed as Lab Assistant. The fourth respondent (appellant No.1 in this Writ Appeal) who was then working as Full-time Menial in the school submitted Ext.P3 letter dated 30.6.1999 to the Manager informing him that she is not interested in being appointed as Lab Assistant. In fact, all the four class IV employees of the school namely, Sri. Thampi (Peon), Smt. Vimala (Full-time Menial), Sri. Pavithran (Peon) and the fourth respondent Smt. Sheeja (Full-time Menial) expressed unwillingness to be appointed as Lab Assistant in writing. The Manager thereupon appointed Smt. K.V. Manju, Sri. C.C. Sivan (the fifth respondent) and Smt. N.S. Seena (the sixth respondent) and Sri.T.C.Ajithmon as Lab Assistants from the open market on 1.7.1999. Sri. T.C.Ajithmon, one among the four Lab Assistants thus appointed by the Manager on 1.7.1999 resigned from service on 31.1.2000 and in that vacancy, the Manager appointed the writ petitioner from the open market as per Ext.P4 order dated 1.2.2000. 4. The Manager had, after Smt. K.V. Manju, Sri. C.C. Sivan, WA.No. 135/08 -: 3 :- Smt.N.S.Seena and Sri. T.C.Ajithmon were appointed as Lab Assistants, forwarded the appointment orders to the Director of Higher Secondary Education for approval. After the Writ Petitioner was appointed, the Manager forwarded a proposal to approve his appointment also to the Director of Higher Secondary Education. When orders were not passed approving the writ petitioner's appointment, he submitted a representation dated 5.12.2001 to the Director of Higher Secondary Education and thereafter filed O.P. No. 4254 of 2002 in this Court. In the said Writ Petition, a copy of the representation dated 5.12.2001 was produced and marked as Ext.P4. This Court disposed of O.P.No.4254 of 2002 by judgment delivered on 21.6.2002 with a direction to the Director of Higher Secondary Education to consider the representation dated 5.12.2001 submitted by the writ petitioner and take a decision thereon within two months from the date of receipt of a copy of the judgment. As directed by this Court, the Director of Higher Secondary Education considered the writ petitioner's representation dated 5.12.2001 and by order passed on 9.12.2002 declined to approve his appointment as Lab Assistant. 5. The writ petitioner thereupon filed W.P.(C) No.20009 of 2003 in this Court challenging the said order, a copy of which was produced and marked as Ext.P14 therein. W.P.(C) No.20009 of 2003 was filed on 24.6.2003. After the order impugned in W.P.(C) No.20009 of 2003 was passed and before the said Writ Petition was filed, the Government WA.No. 135/08 -: 4 :- issued Ext.P5 order dated 28.3.2003 according sanction for the creation of two posts of Laboratory Assistants in the scale of pay of Rs.2650-4150 in each Government/aided higher secondary school which has Science batches and where no posts of Laboratory Assistants were created previously. In view of Ext.P5 Government order that was passed after the order impugned in the Writ Petition was passed, this Court disposed of W.P.(C) No.20009 of 2003 by Ext.P6 judgment delivered on 25.6.2003 with a direction to the Director of Higher Secondary Education to reconsider the claim of the petitioner for approval of his appointment in the light of Ext.P5 Government order, untrammelled by his earlier order dated 9.12.2002 declining such approval. This Court also directed that if the Director of Higher Secondary Education has any objection in granting approval of appointment, the writ petitioner shall be put on notice and given an opportunity of being heard before final orders are passed in the matter. The writ petitioner was also permitted to file a representation pointing out his claim for approval. 6. As directed by this Court in Ext.P6 judgment, the writ petitioner filed a representation dated 15.7.2003 before the Director of Higher Secondary Education, enclosing along with it a certified copy of Ext.P6 judgment and requested the Director of Higher Secondary Education to approve his appointment as Laboratory Assistant with effect from 1.2.2000. The Director of Higher Secondary Education heard the writ petitioner and the Manager on 6.10.2003 and passed Ext.P7 order dated WA.No. 135/08 -: 5 :- 9.10.2003 declining to approve the appointment of the writ petitioner on the short ground that by Ext.P5 Government order dated 28.3.2003 only two posts of Laboratory Assistants had been created, that two other candidates have already been appointed and therefore his appointment cannot be approved. 7. Meanwhile, the educational agency appointed a new Manager. Apprehending that his service may be terminated in view of the order passed on 9.12.2002, the petitioner filed W.P.(C) No.29418 of 2003 in this Court seeking a writ in the nature of mandamus directing the respondents including the Manager of the school to refrain from terminating his service in implementation of the order passed by the Director of Higher Secondary Education on 9.12.2002 declining to approve his appointment. He also prayed for a writ in the nature of mandamus commanding the respondents including the Manager to refrain from making any further appointment to the post of Laboratory Assistant in Sahodaran Memorial Higher Secondary School, Cherai, pending approval of his appointment and to permit him to continue in service as Laboratory Assistant with all benefits. W.P.(C) No.29418 of 2003 was heard and disposed of by judgment delivered on 1.7.2004 along with a batch of cases relating to appointment to the post of Laboratory Assistants in aided higher secondary schools. By the said judgment this Court directed the State Government to take a final decision in the matter of appointment of Laboratory Assistants in aided WA.No. 135/08 -: 6 :- higher secondary schools. It appears, in view of the said direction, the writ petitioner did not separately challenge Ext.P7 order dated 9.10.2003 passed by the Director of Higher Secondary Education declining to approve his appointment as Laboratory Assistant. 8. After W.P.(C) No.29418 of 2003 was disposed of, the petitioner filed Ext.P9 representation dated 28.7.2004 before the Director of Higher Secondary Education requesting for approval of his appointment as Laboratory Assistant with effect from 1.2.2000 and to pay him salary and allowances with effect from that date. Shortly thereafter, the Government issued Ext.P8 order dated 24.9.2004 creating supernumerary posts of Laboratory Assistants in aided higher secondary schools having Science batches subject to a maximum of 4 Lab Assistants in each school so as to regularise the appointments made till 28.3.2003. The Government also ordered that such Laboratory Assistants will be eligible for salary with effect from 28.3.2003 subject to the further condition that salary will be paid in cash only from the month of September, 2004 and the arrears upto that date will be debited to the Provident Fund account. The writ petitioner thereafter filed W.P.(C) No.32856 of 2004 in this Court praying inter alia for expeditious orders on Ext.P9 representation that was produced and marked as Ext.P7 therein. In the said Writ Petition a copy of Ext.P8 Government order was produced and marked as Ext.P6. This Court disposed of W.P.(C) No.32856 of 2004, by judgment delivered on 10.11.2004 with a direction to the Director of Higher Secondary WA.No. 135/08 -: 7 :- Education to take a decision on Ext.P9 representation dated 28.7.2004 submitted by the writ petitioner in the light of Ext.P8 Government order. As directed by this Court in W.P.(C) No.32856 of 2004 the Director of Higher Secondary Education considered the writ petitioner's request in Ext.P9 representation and sent Ext.P19 letter dated 25.1.2005 to his counsel informing him that the writ petitioner's appointment cannot be approved as the Manager has not submitted a proposal and recommended approval of his appointment. 9. The petitioner thereupon filed W.P.(C) No.5856 of 2005 in this Court challenging Ext.P19 letter that was produced and marked as Ext.P11 therein. While the said Writ Petition was pending, by Ext.P14 order passed on 3.5.2005, the Director of Higher Secondary Education approved the appointment of respondents 4 and 5 and by Ext.P15 order dated 5.5.2005, the Director of Higher Secondary Education approved the appointment of Smt. N.S.Seena (6th respondent) and Smt. K.V.Manju. The approval of their appointments was however subject to the out come of W.P.(C) No.5856 of 2005. The fourth respondent herein was the fifth respondent in W.P.(C) No.5856 of 2005. Respondents 5 to 7 were impleaded as additional respondents 6 to 8 therein after Exts.P14 and P15 orders were passed. W.P.(C) No.5856 of 2005 was heard and disposed of by Ext.P20 judgment delivered on 25.4.2005. By the said judgment, this Court directed the petitioner to move the Government in revision and the Government was also directed to pass orders therein WA.No. 135/08 -: 8 :- within four months from the date of receipt of the revision petition. The parties were also permitted to submit written arguments. As directed by this Court in Ext.P20 judgment, the writ petitioner filed Ext.P21 revision petition dated 16.5.2006 before the Government. The parties were heard on 19.9.2006 and by Ext.P24 order passed on 7.10.2006, the Government rejected Ext.P21 revision petition. W.P.(C) No.28081 of 2006 was thereupon filed challenging Ext.P24 and seeking the following reliefs: “i) to call for the records relating to Ext.P24 and to quash the same by issuing a writ in the nature of certiorari. ii) to issue a writ in the nature of mandamus or other appropriate writ or order directing the 2nd respondent to approve Ext.P4 order appointing the petitioner as Laboratory Assistant in the School and to grant him all monetary benefits on that basis. iii) to issue a writ in the nature of certiorari or other appropriate writ or order quashing Exts.P7, P14, P15 and P19 orders. iv) to issue a declaration that the appointment of the petitioner as Laboratory Assistant with effect from 1.2.2000 is liable to be approved by the Department with all consequential benefits.” 10. The fourth respondent (appellant No.1) filed a counter affidavit resisting the Writ Petition. She contended relying on Chapter XXXII of the Kerala Education Rules that she was entitled to be appointed by transfer as Laboratory Assistant and that despite her entitlement the Manager WA.No. 135/08 -: 9 :- appointed her only as Lower Division Clerk by Ext.R4(b) order dated 31.1.2002. It was stated that pending approval of her appointment as Lower Division Clerk, she was being paid only the salary of Full-time Menial pursuant to the directions issued by the District Educational Officer in Ext.R4(c) order dated 23.3.2002. She also contended that she was appointed as Laboratory Assistant by transfer in the 25% quota. She further contended that though she had submitted Ext.P3 letter dated 30.6.1999 expressing her unwillingness to be appointed as Laboratory Assistant, Ext.P3 relinquishment letter was of no effect for the reason that at that time there was no sanctioned post of Laboratory Assistant and the post was sanctioned only on 28.3.2003 as per Ext.P5 Government order. She also contended that the Director of Higher Secondary Education has by Ext.R4(d) order dated 3.5.2005 (same as Ext.P14) approved her appointment as Laboratory Assistant with effect from 28.3.2003 and that by Ext.R4(f) order dated 2.6.2005, the request of the petitioner in Ext.P9 representation was rejected by the Director of Higher Secondary Education. 11. The petitioner filed a reply affidavit dated 2.12.2006 and produced along with it, the counter affidavit filed by the fourth respondent (appellant No.1) in W.P.(C) No.5856 of 2005 that was marked as Ext.P25. The writ petitioner stated that in Ext.P25 counter affidavit the fourth respondent (appellant No.1) had stated that she was appointed as Clerk with effect from 31.1.2002, that the said WA.No. 135/08 -: 10 :- appointment was not approved, that she was thereupon posted as Peon, that she is drawing the salary of Full-time Menial, that the Manager has appointed her as Laboratory Assistant with effect from 28.3.2003 and that she is attending to clerical work in the school. The writ petitioner also produced along with the reply affidavit, Ext.P27 letter dated 20.2.2004 sent by the Manager to the Deputy Director of Education, Ernakulam wherein the Manager had stated that he had appointed the fourth respondent (appellant No.1) as Lower Division Clerk by promotion from the post of Peon, that in the resultant vacancy of Peon, Sri.Rajesh, Full-time Sweeper was appointed, that the vacancy of Full-time Sweeper was filled up by appointing Smt. K.R.Suma, Sweeper and that the post of Sweeper was filled up by appointing Smt.N.P.Likhi the seventh respondent, a Rule 51A claimant. The Manager had in Ext.P27 also requested the Deputy Director of Education to set aside the order passed by the District Educational Officer, Ernakulam on 28.1.2004 declining to approve the appointment of the fourth respondent (appellant No.1) as Lower Division Clerk and to approve her appointment. 12. By the judgment impugned in this Writ Appeal, the learned Single Judge held that the writ petitioner is entitled to succeed. The learned Single Judge held that the action of the Manager in filling up the vacancies of Lab Assistants by direct recruitment from open market cannot be faulted for the reason that he had made such appointments only after ascertaining the willingness of the existing Class IV employees WA.No. 135/08 -: 11 :- of the school and only after they had expressed unwillingness to be appointed as Laboratory Assistants. The learned Single Judge also held that the fourth respondent (appellant No.1) who did not raise any claim even after Ext.P5 order Government order dated 28.3.2003 sanctioning two posts was issued, cannot seek to disturb the writ petitioner and others who had accepted appointment as Laboratory Assistant nearly 7 years back. Before the learned Single Judge, a copy of the order said to have been issued by the Manager on 31.1.2002 appointing the fourth respondent as Laboratory Assistant had not been produced, though a copy of the same is produced along with this Writ Appeal as Annexure I. The learned Single Judge also held that the writ petitioner is entitled to the benefits flowing from Exts.P5, P8 and P16 Government orders and that he is entitled to have his appointment approved. 13. We heard the learned counsel appearing on either side. By Ext.P24, which is impugned in the Writ Petition, the Government declined to approve the writ petitioner's appointment on the ground that his appointment as Laboratory Assistant from the open market is in clear violation of the existing orders, that in the Government order dated 26.11.2004 it had been clarified that only 75% of the posts can be filled up by direct recruits, that 25% of the posts are reserved for appointment by transfer from qualified Class IV employees and that the writ petitioner's appointment is in violation of the said stipulation. The higher secondary course was introduced in the State of Kerala initially in WA.No. 135/08 -: 12 :- selected Government schools by G.O.(MS) No.138/90/G.Edn. dated 27.6.1990. Paragraph 4(xiii) of the said Government order provided for one post of Laboratory Assistant in each laboratory in the Science subjects for which laboratory work is involved, namely, Physics, Chemistry, Zoology and Botany. Pursuant to the Government order dated 27.6.1990, the higher secondary course was introduced in 31 Government schools during the academic year 1990-91. During the academic year 1991-92 the higher secondary course was introduced in 55 Government schools in the State. The Government thereafter issued G.O. (MS) No.18/91/G.Edn dated 1.2.1991 permitting introduction of the higher secondary course in the private sector and directed the Director of Higher Secondary Education to publish a notification inviting applications for opening the higher secondary course in the private sector. The said Government order itself provided for appointment of four Laboratory Attenders, one in each laboratory, subject to the condition that the appointments will be made only when laboratory work/practicals start in Standard XI. It was further stated that the appointments will be made by promotion from qualified Class IV staff in the school/management. The Government thereafter issued G.O.(MS) No.162/91/G.Edn. dated 1.10.1991 wherein it was stipulated that the posts of Laboratory Attenders will be sanctioned when Standard XII is started. Still later, the Government issued G.O.(MS) No.21/93/G.Edn. dated 6.2.1993 prescribing the qualifications for appointment to the post of Laboratory WA.No. 135/08 -: 13 :- Attenders by promotion from Class IV staff in the school/ management. Thereafter, the Commissioner and Secretary to Government, General Education Department sent a letter dated 9.3.1993 to the Director of Higher Secondary Education informing him that first preference for appointment as Laboratory Attenders in aided higher secondary schools is to be given to the qualified Class IV employees in the school/ management concerned and in their absence to Class IV employees who do not posses the prescribed qualifications. It was also stated that in the absence of the said two categories, the Manager can make fresh appointments to the post. 14. The higher secondary course was sanctioned in Sahodaran Memorial Higher Secondary School, Cherai during the academic year 1998-99. At that point of time, four Class IV employees namely, Sri. Thampi (Peon), Smt. Vimala (Full-time Menial), Sri.Pavithran (Peon) and the fourth respondent, Smt. Sheeja (Full-time Menial) were working in the school. In tune with the stipulations in the Government letter dated 9.3.1993, the Manager circulated Ext.P2 memo through the Headmaster of the school among the four Class IV employees of the school to ascertain their willingness to be appointed as Laboratory Assistants. The fourth respondent thereupon submitted Ext.P3 letter dated 30.6.1999 expressing her unwillingness to be appointed as Laboratory Assistant. The other three Class IV employees also submitted similar letters. Since no one among the Class IV staff of the school was willing to be WA.No. 135/08 -: 14 :- appointed, the Manager appointed Smt. K.V.Manju, Sri. T.C.Ajithmon, Sri. C.C.Sivan and Smt. N.S.Seena as Laboratory Assistants from the open market on 1.7.1999. The Manager also forwarded their appointment orders for approval to the Director of Higher Secondary Education. For the reason that the Government had not issued formal orders sanctioning the post of Laboratory Assistants in aided Higher Secondary Schools, approval of their appointments was kept pending. 15. While matters stood thus, Sri. T.C.Ajithmon who was appointed as Laboratory Assistant on 1.7.1999 resigned from service on 31.1.2000. In view of the unwillingness expressed by the Class IV employees of the school including the fourth respondent, the then Manager appointed the petitioner as Laboratory Assistant in that vacancy by Ext.P4 order dated 1.2.2000. The fourth respondent did not object to the said appointment. The fourth respondent was thereafter admittedly appointed as Lower Division Clerk by Ext.R4(b) order dated 31.1.2002. Thereafter, by order passed on 9.12.2002 the Director of Higher Secondary Education declined to approve the writ petitioner's appointment on the short ground that by Ext.P5 Government order dated 28.3.2003 only two posts of Laboratory Assistants had been sanctioned in Government/aided higher secondary schools and as two persons have already been appointed, there was no post to accommodate the petitioner. In this context it is apposite to refer to the following observations and findings of this Court in the judgment delivered on 1.7.2004 in W.P.(C) No.29418 WA.No. 135/08 -: 15 :- of 2003 and connected cases. “The Higher Secondary Schools have been functioning in the State eversince 1991. All the appointments of teachers made upto 14.11.2000 as per the executive orders were approved. Various Government orders prior to 2003 would show that there was one post of Laboratory Assistant available against each Science laboratory. in the case of transfer made on that premises, appointments were approved. In cases where appointments could not be made by transfer, the management were permitted to make direct recruitment and their appointments also were approved. The fact remains that several batches of students have passed out from the schools where these poor petitioners worked as Laboratory Assistants. They were duly appointed by the managements as per the executive orders issued by the Government from time to time, which had permitted one post of Laboratory Assistant in each science subject. Section 9 read with section 11 of the Kerala Education Act empowers the managements of aided schools to make appointment against sanctioned post. A Division Bench of this Court in the judgment in Shaji vs. Ramachandran (2003(2) KLT 814) has made it clear that separate sanction by any authority is not necessary for making appointments against the posts already provided under the relevant orders/rules. However, for no justifiable reason the appointment of the petitioners have not been approved by the Directorate stating that the appointments have been made against the posts which have not been sanctioned. in view of the position clarified above, I am afraid the contentions of the learned senior Government Pleader to WA.No. 135/08 -: 16 :- the contrary cannot be appreciated.” (emphasis supplied) 16. This Court had by judgment delivered on 1.7.2004 in W.P.(C) No.29418 of 2003 and connected cases directed the Government to take a final decision in the matter of approval of appointments to the post of Laboratory Assistant made by the managements of aided