IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 WP(C).No. 34789 of 2008(N) --------------------------------------- PETITIONERS: --------------------- 1. KERALA AIDED SCHOOL NON-TEACHING STAFF ASSOCIATION, REPRESENTED BY ITS GENERALA SECRETARY, V.I.JOY,M.A.M.H SCHOOL, KORATTY – 680 308. THRISSUR DISTRICT. 2. P.M.SALIM, L.D.CLARK, D.U.V.H.S.& H.S. SCHOOL, ERNAKULAM,COCHIN-18. BY ADVS. MR.M.V.BOSE, MR.VINOD MADHAVAN, SMT.NISHA BOSE. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, HIGHER SECONDARY EDUCATION, HOSING BOARD BUILDING, THIRUVANANTHAPURAM. R1 & R2 BY SR.GOVERNMENT PLEADER SMT. M.R. SREELATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34789/2008-N: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE EXPLANATORY NOTES TO SPECIAL RULES. EXT.P.2: COPY OF THE G.O.(P) 145/2006/FIN. DTD. 25/03/2006. EXT.P.3: COPY OF THE REPRESENTATION DTD. 18/09/2006 FROM THE SECRETARY, KERALA AIDED SCHOOL NON-TEACHING STAFF ASSOCIATION, BEFORE THE HON'BLE MINISTER FOR EDUCATION & CULTURE. EXT.P.4: COPY OF THE LETTER OF THE HON'BLE MINISTER FOR EDUCATION & CULTURE TO R.1. EXT.P.5: COPY OF THE REPRESENTATION BEFORE THE R.1. DTD. 10/10/2006 FROM THE P.1. ASSOCIATION. EXT.P.6: COPY OF THE LETTER DTD. 29/03/2007 FROM THE PRINCIPAL INCHARGE, DARUL ULOOM H.S. SCHOOL. EXT.P.7: COPY OF THE LETTER OF MANAGER, DARUL ULOOM V.H.S. & H.S. SCHOOL. EXT.P.8: COPY OF THE MEMO NO. 23/07 DTD. 06/06/2007 ISSUED BY THE PRINCIPAL. EXT.P.9: COPY OF THE JUDGMENT DTD. 28/03/2007 IN W.P.(C).NO.6112/2006. EXT.P.10: COPY OF THE NEWS ITEM APPEARED IN NTSA NEWS BULLETTIN OF FEBRUARY 2006. EXT.P.11: COPY OF THE ORDER DTD. 29/07/2008 G.O.(RT).NO.3463/2008/G. EDN. EXT.P.12: COPY OF THE ORDER IN C.M. APPL. NO.915/2008 IN W.A. 2065/08. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.34789 of 2008-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November, 2009. JUDGMENT The first petitioner is an association, viz. Kerala Aided School Non- teaching Staff Association and the second petitioner is a clerk appointed in D.U.V.H.S. and H.S. School, Ernakulam. The main prayer in the writ petition is to quash Ext.P11 and to issue a writ of mandamus compelling the respondents to sanction the posts of Clerks, Peons and Menials in the Higher Secondary School as provided in Special Rules included in Chapter XXXII K.E.R. 2. In Ext.P11 order passed by the Government, the view taken is that creation of posts is a policy matter of Government and no decision is taken for the creation of post of ministerial staff like Clerks and Peons for the Higher Secondary Section. Accordingly, the request of the petitioners was rejected. 3. The second petitioner is working as a Clerk in the High School, but is made to do extra work in the Higher Secondary School. The case projected by the petitioners is that, burdening the staff of High Schools is not proper and various posts in Higher Secondary Schools should be created wpc 34789/2008 2 to relieve persons like the 2nd petitioner from bearing the additional burden. 4. Learned counsel for the petitioners brought to my notice a judgment of this Court in W.P.(C) N.12030/2008 which was rendered in the light of the judgment in W.A. No.2065/2008 and connected cases. Threin, this Court directed the Director of Higher Secondary Education to take appropriate decision in terms of the relevant rules and in accordance with law, regarding the creation of posts in Higher Secondary Schools. In W.A. No.2065/2008, the issue raised was in regard to the sanctioning of posts of Librarian Grade III in Higher Secondary Schools. In para 6 of the judgment, the Division Bench held thus: “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.” 5. In the light of the above, it is up to the second respondent herein to take a decision in the matter, but only after considering various aspects. The prayer in W.P.(C) No.12030/2008 was for creation of a post of wpc 34789/2008 3 Librarian Grade III in the Higher Secondary Division of the school involved therein. Therein also, this Court directed the Director of Higher Secondary Education to take a decision. 6. Heard learned Govt. Pleader, who submitted that so far no steps have been taken to create the posts including the post of Clerk, Full Time Menial, etc., as a policy decision is required in the matter. 7. In the light of the directions issued by the Division Bench as quoted above, it is up to the second respondent to take a decision in the matter in accordance with law. Therefore, Ext.P11 is quashed. The second respondent will take a decision in regard to the creation of posts of Clerks, Peons, Full Time Menials, etc. and an appropriate decision will be taken within a period of six months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/ The words “Librarian Grade III” occurring in the 2nd sentence of wpc 34789/2008 4 Paragraph 5 of the judgment in W.P.(C) No.34789/2008 dated 24.11.2009 are corrected as “Lower Division Clerk” as per order dated 01.02.2010 in I.A. No.1207/2010 in W.P.(C) No.34789/2008. sd/- Registrar (Judicial)