IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WP(C).No. 12030 of 2008(F) -------------------------------------- PETITIONER: ------------------- T.K.RAJENDRA PANICKER, MANAGER, K.V.SANSKRIT HIGHER SECONDARY SCHOOL, MUTHUKULAM, ALAPPUZHA DISTRICT. BY ADV. MR.GEORGE POONTHOTTAM. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM. 3. S.MANU, VAYALIL VEEDU, MAYYANAD P.O., KOLLAM DISTRICT. R1 & R2 BY SR. GOVERNMENT PLEADER SMT. T.B. REMANI, R3 BY ADVS. MR.K.JAJU BABU, MR.T.S.SHYAM PRASANTH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.12030/2008-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 01/06/05. EXT.P.2: COPY OF THE ORDER DTD. 07/11/05. EXT.P.3: COPY OF THE REPRESENTATION DTD. 18/09/06. EXT.P.4: COPY OF THE LETTER OF HONOURABLE MINISTER FOR EDUCATION DTD. 21/09/06. EXT.P.5: COPY OF THE REPRESENTATION DTD. 10/10/2006. EXT.P.6: COPY OF THE JUDGMENT IN W.P.(C).NO.21283/2007 DTD. 11/12/2007. EXT.P.7: COPY OF THE ORDER NO. ACD. C3/18598/HSE/01 DTD. 21/01/2008. RESPONDENTS' EXHIBITS: EXT.R2.A: ORDER NO. ACD. B1/8635/HSE/03, DTD. 07/06/2003. EXT.R2.B: G.O.(MS).NO.299/04/G. EDN. DTD. 24/09/2004. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 12030 of 2008-F - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2009. JUDGMENT The petitioner herein is the Manager of an aided higher secondary school. The main relief sought for in the writ petition is to quash Ext.P7 and for a declaration that the post of Lower Division Clerk in the petitioner’s higher secondary school is statutorily created and there is no necessity for the creation of the post again by the first respondent. 2. A reading of Ext.P7 shows that the Director has communicated the decision of the Government that the post of L.D.C. has not been created in higher secondary schools and hence the proposal for approval of appointment of Shri Manu S. who was appointed by the petitioner, cannot be considered. 3. The main contention raised by the petitioner is that under Chapter XXXII Rule 3, the post of L.D.C. is specified as category 7. It is therefore contended that in the light of the specific provisions contained in the relevant rules, the approval of appointment of the third respondent who is qualified for the post of L.D.C., cannot be rejected for the reason that the first respondent has not created the post. It is also stated that as the rule wpc 12030/2008 2 permits creation of post of Lower Division Clerk in each aided higher secondary schools, separate order of creation of post is not necessary. 4. The respondents have filed counter affidavit opposing the prayers in the writ petition. 5. Therefore, the question is whether there should be separate order of creation of post, for granting approval of appointment of the third respondent. An identical issue was considered by this court in Writ Appeal No.2065/2008 and connected cases, with regard to the sanctioning of post of Librarian Grade III in Higher Secondary Schools. After examining the relevant provisions of Chapter XXXII K.E.R., especially Rule 3, it has been held in para 6 as follows: “Among the posts mentioned in Rule 3 of Chapter XXXII of the K.E.R., in relation to each Higher Secondary School, the Director has got a discretion to sanction the posts having regard to its requirement. The power vested in the Director to sanction posts in the school is a power coupled with duty and it has to be exercised when circumstances warranting the exercise of that power are shown to exist and a person interested makes a motion.” It was further held that in the case of Librarian also, it is for the Director to decide whether a post should be sanctioned or not. The Division Bench wpc 12030/2008 3 was of the view that the Government has no role in sanctioning the posts in higher secondary wing by the statutory scheme. Finally, it was held that whether sanction of the post of Librarian in the school is justified or not, is a matter which the Director may decide independently. 6. Since the legal position has now been declared by this Court in the above judgment, the same principle will apply to the post of L.D.C. also. In that view of the matter, Ext.P7 will stand quashed. There will be a direction to the second respondent to take a decision in the matter as regards the creation of post and grant of approval of the third respondent. Appropriate orders will be passed within a period of three months from the date of receipt of a copy of this judgment, after hearing the parties. The petitioner will produce a copy of this judgment along with a copy of the judgment in W.A. No.2065/2008 and connected cases, before the second respondent for compliance. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/