IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 WP(C).No. 21712 of 2010(L) --------------------------------------- PETITIONER(S): ----------------------- BINU M.MATHAI, (FORMERLY LIBRARIAN GR.III), MEKKADAMPU POST, KADATHY, MUVATTUPUZHA. BY ADV. SRI.M.V.BOSE, SRI.VINOD MADHAVAN. RESPONDENT(S): ------------------------- 1. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM, PIN-695 001. 2. THE MANAGER, M.K.M. HIGHER SECONDARY SCHOOL, PIRAVOM, PIN-686 664. R1 BY GOVT. PLEADER SMT.M.T. SHEEBA. R2 BY ADV. SRI.SAJI VARGHESE KAKKATTUMATTATHIL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 21712 of 2010(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CERTIFICATE DATED 17/06/2006. EXT.P2: COPY OF THE REPRESENTATION DATED 07/07/2009 TO R1. EXT.P3: COPY OF THE JUDGMENT IN WP(C) NO. 22818/2009 DATED 09/10/2009. EXT.P4: COPY OF THE ORDER NO.ACD A1/64822/HSE/09 DATED 17/02/2010. EXT.P5: COPY OF THE REPRESENTATION DATED 11/03/2010 TO 1ST RESPONDENT. EXT.P6: COPY OF THE EXHIBIT P10 IN WP(C) NO. 22818/2009. RESPONDENT'S EXHIBITS:- EXT.R2(a): COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 01/03/2004 IN WP(C) NO. 19221/2003. EXT.R2(b): COPY OF THE REPRESENTATION DATED 30/06/2004 SUBMITTED BY THE PETITIONER. //TRUE COPY// P.A. TO JUDGE rs T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.21712/2010-L ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 21st day of October, 2011 J U D G M E N T The petitioner's plea for grant of approval as Librarian Grade-III in a Higher Secondary School managed by the second respondent resulted in the Director passing Ext.P4 order wherein no decision has been rendered with regard to the grant of approval for the period during which he was appointed. This is the subject matter of challenge in the writ petition. 2. The appointment is evident from Ext.P1 certificate issued by the second respondent. It is agreed by both sides that approval was not granted by the first respondent. The petitioner after filing a representation before the first respondent approached this Court by filing W.P.(C).No.22818/2009 which was disposed of by Ext.P3 Judgment directing the Director of Higher Secondary Education to take a decision. 3. Heard both sides. 4. A reading of Ext.P4 order shows that the view taken is that even though the Special Rules prescribe W.P.(C). No.21712/2010 -:2:- the qualification and method of appointment to the various posts coming under the Higher Secondary Services, the posts will have to be created by the Government for enabling the Manager to make appointment. It is further stated that the Government has filed a Special Leave Petition against the Judgment of this Court with regard to the approval of appointment of a Lab Assistant and the same is pending, and his request will be considered subject to the creation of the post and as per the directions in the Special Leave Petition. 5. The learned counsel for the petitioner submitted that since the petitioner had been in service of the second respondent, in the absence of the approval, the Manager is liable to pay the salary. 6. The learned counsel for the Manager submitted that in the writ petition, the petitioner cannot seek for a direction to pay salary and there is no direction in Ext.P4 also to disburse any amount to the petitioner. 7. Evidently, the appointment was for the period from 16/08/2001 to 25/11/2004. Under the Special W.P.(C). No.21712/2010 -:3:- Rules, the post is available. But in the light of the various directions issued by this Court and the Special Leave Petition, the post will have to be created by a proper decision by the Government and the Director of Higher Secondary Education. Going by para.3 of the counter affidavit filed by the first respondent, it is stated that the Apex Court while dismissing the Special Leave Petition directed that the Director, 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. Evidently, even as on today, the post of Librarian Grade III has not been created in the school. 8. Now that the Special Leave Petition has been disposed of, a decision will have to be taken by the Director of Higher Secondary Education as to the requirement of the post in question, in the school managed by the second respondent. Only if the post is created, the petitioner will be able to seek approval of appointment for the period from 16/08/2001 to 25/11/2004. It is also stated at the Bar that the W.P.(C). No.21712/2010 -:4:- petitioner is working in a different school now. Therefore, what has to be considered is the scope of creation of the post and the approval of appointment from 16/08/2001 to 25/11/2004 of the petitioner. 9. The learned counsel for the petitioner prayed for a direction to the Manager to pay the amount claimed as salary. 10. Evidently, in Ext.P4, there is no direction to make payment and there is no quantification also. Therefore, I am not expressing any view on that, especially, in a writ petition under Article 226 of the Constitution of India, this Court will not be justified in granting a declaration like the one sought for. 11. Ext.P4 order is, therefore, quashed. Respondents 1 and 2 will take a decision with regard to the creation of the post of Librarian Grade III in the school. With regard to the request for grant of approval of appointment of the petitioner also, a decision will be taken after hearing the Manager and the petitioner. Appropriate decision will be taken within a period of five months from the date of receipt W.P.(C). No.21712/2010 -:5:- of a copy of this Judgment. The writ petition is allowed as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms