IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WA.No. 2065 of 2008 ------------- --------------------- AGAINST THE JUDGEMENT IN WPC.76112/2006 Dated 28/03/2007 .................... APPELLANT(S): RESPONDENTS 1 AND 2 ---------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GERNERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, TRIVANDRUM. BY GOVERNMENT PLEADER SMT. R. BINDU RESPONDENT(S): PETITIONER AND 3RD RESPONDENT ------------------------- 1. SAJI. T.M., LIBRARIAN GR.III, ST. PETER'S VOCATIONAL HIGHER SECONDARY SCHOOL, KOLENCHERY, ERNAKULAM. 2. THE MANAGER, ST. PETER'S VOCATIONAL HIGHER SECONDARY SCHOOL, KOLENCHERY, ERNAKULAM. R1 BY ADV. SRI.M.V.BOSE, ADV. SRI.VINOD MADHAVAN & ADV. SMT.NISHA BOSE R2 BY ADV. SRI.GEORGE POONTHOTTAM THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2009, ALONGWITH W.A. Nos.1923/08 AND 1137/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “C.R.” K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.A. Nos.2065/08, 1923/08 and 1137/09 ------------------------------ Dated this, the 16th day of July, 2009 JUDGMENT Balakrishnan Nair, J. W.A. Nos.2065/08: The respondents 1 and 2 in the writ petition are the appellants. The first respondent herein was the writ petitioner. The point that arises for decision in this appeal is, whether the directions issued by the learned Single Judge to sanction the post of Librarian Gr.III in the second respondent's school, so as to approve the appointment of the first respondent in that post, is justified or not. 2. The brief facts of the case are the following: Higher Secondary course was sanctioned in the second respondent's school during the academic year 2000-01. The first respondent/petitioner pointed out that the Higher Secondary Course was sanctioned as provided in Ext.P1 W.A.Nos.2065/08, 1923/08 - 2 - & 1137/09. Government Order dated 1.10.1991. Ext.P2 Circular issued by the Director of Higher Secondary Education dated 2.2.1999 would reveal that it is mandatory to have infrastructural facilities like laboratories, libraries etc. for sanctioning Higher Secondary course. The second respondent appointed the first respondent as Librarian Gr.III in the Higher Secondary wing of the second respondent's school on 16.8.2001. Though motion for approval of the said appointment was made before the Director of Higher Secondary Education, no order was passed on it. In the meantime, the Government framed rules governing the qualifications and methods of appointment to various posts in the Higher Secondary wing. On 12.11.2001, Chapter XXXII, a new chapter was added to the Kerala Education Rules (for short, “K.E.R.”), enumerating the posts and laying down the qualifications and methods of appointment to them in the aided Higher Secondary sector. When the appointment of the writ petitioner was not approved by the Director of Higher Secondary Education, he moved the Government and as per the directions of this Court, the W.A.Nos.2065/08, 1923/08 - 3 - & 1137/09. Government rejected his claim by Ext.P12 order dated 27.1.2006. Challenging Ext.P12 and seeking consequential reliefs, the writ petition was filed. According to the first respondent/writ petitioner, Chapter XXXII, K.E.R., creates the posts of Librarian Gr.III and Librarian Gr.IV. The second respondent's school has got a library. Therefore, there must be a post of Librarian. Reliance was placed on the decision of the Division Bench of this Court in Shaji v. Ramachandran, 2003(2) KLT 814 and also the Full Bench decision in Aided Higher Secondary School Teachers Association v. State of Kerala, 2005(1)KLT 94 (FB), in support of his submissions. He also relied on Ext.P4 decision of the learned Single Judge, directing creation of posts of Lab Assistants, in support of his submissions. 3. The appellants, who were respondents 1 and 2 in the writ petition, resisted the prayers pointing out that though various posts are created under the K.E.R., appointment can be made if only sanction is given for the same by the Director W.A.Nos.2065/08, 1923/08 - 4 - & 1137/09. of Higher Secondary Education, in view of the express provisions contained in Rule 3 of Chapter XXXII, K.E.R.. In the case of the second respondent's school, the Director has not sanctioned the post of Librarian and therefore, the appointment of the first respondent in that post was illegal and unauthorised, it is submitted. The learned Single Judge after hearing both sides, accepted the contentions made by the first respondent relying on Shaji v. Ramachandran,(supra) and Aided Higher Secondary School Teachers Association v. State of Kerala, (supra). It was held that even if the post of Librarian is available as per Chapter XXXII, the appointment cannot be automatic. Sanction of the Director is necessary for making the appointment. The learned Judge noted that since it is mandatory to have a Library in a Higher Secondary School, the same cannot be manned without a Librarian and therefore, the Director was bound to sanction the post of Librarian and accordingly directed the Director to sanction the post of Librarian Gr.III, in which the first respondent could be accommodated. Feeling aggrieved by the above direction, the W.A.Nos.2065/08, 1923/08 - 5 - & 1137/09. appellants have preferred this writ appeal. 4. According to the appellants, the second respondent's school does not have a full-fledged library. When the appeal came up for admission, an inspection was conducted by the Deputy Director and it was found that there were only 720 books in the library. The Government have conducted a detailed study regarding the schools, their libraries and the financial commitment that may arise, if the post of Librarian is sanctioned in all the Higher Secondary schools in the State. Annexure 5 would show that the total financial commitment towards salary alone would come to Rs.6,25,62,702/-. So, the Government have decided not to sanction any post of Librarian, but directed to put one of the H.S.S.T (Junior) having the minimum number of teaching periods to be in charge of the library. Such incumbent would be given some training on the running of the library in consultation with the Library Council. As incentive, such teacher will be given Rs.250/- per month. The directions in this regard have been given as per Annexure A1 order dated 20.11.2006. In view of W.A.Nos.2065/08, 1923/08 - 6 - & 1137/09. the above position, it is not possible for the Government or the Director of Higher Secondary Education to sanction any post of Librarian. The financial position of the State does not permit the sanctioning of the post of Librarian, it is submitted. Therefore, the appellants prayed for setting aside the direction issued by this Court. 5. We heard Smt. Bindu, learned Government Pleader for the appellants, Sri.M.V.Bose for the first respondent and also the learned counsel for the second respondent. We also had the benefit of hearing Sri.T.H.Abdul Azeez and Sri.Jacob Abraham, who appeared for the contesting respondents in the connected appeals. The learned Government Pleader reiterated the aforementioned contentions raised in the appeal memorandum. The learned counsel for the contesting respondents pointed out that, the post of Librarian is created by the K.E.R.. The Manager is the appointing authority. Moreover, it is obligatory to have a full-fledged Library for sanction of Higher Secondary course. If that be so, W.A.Nos.2065/08, 1923/08 - 7 - & 1137/09. the Director is bound to sanction the post of Librarian. So, the learned Single Judge has rightly allowed the writ petition, it is submitted. They also relied on the aforementioned decisions of the Division Bench and Full Bench in [Shaji v. Ramachandran,(supra) and Aided Higher Secondary School Teachers Association v. State of Kerala, (supra)], in support of their submissions. 6. Rule 3 of Chapter XXXII, K.E.R. reads as follows: “3. The Kerala Aided Higher Secondary Education Service.- The service of every Aided Higher Secondary School shall consist of all or any of the following categories of posts as Director may sanction.” (emphasis supplied) After the above statement, the rule enumerates various categories of posts, starting from Principal - Category I and ending with Category VIII - Part time Menial. So, from among the aforementioned categories of posts, the Director has been W.A.Nos.2065/08, 1923/08 - 8 - & 1137/09. authorised by the Rules to sanction particular post/s, having regard to the requirements of the school concerned. The learned Single Judge after considering the aforementioned two decisions, held that creation of posts enumerated in Rule 3 is not automatic. Only the Director can sanction those posts. But, having regard to the existence of the Library and the same being one of the requirements for running a Higher Secondary Course, the learned Judge said that the Director cannot say that he will not sanction the post of Librarian. He has got a duty in this regard and therefore, the learned Single Judge directed to grant sanction for the post of Librarian. We agree with the finding of the learned Judge that sanctioning of the post is not automatic. 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 W.A.Nos.2065/08, 1923/08 - 9 - & 1137/09. to exist and a person interested makes a motion. See, the concept of power coupled with duty explained by the Apex Court in Commissioner of Police v. Gordhandas Banji, AIR 1952 SC 16 and Income Tax Officer v. Hirday Narain, AIR 1971 SC 33. In both the decisions, the Apex Court, relying on the speech of Earl Cairns, L.C. in the House of Lords in Julius v. Lord Bishop of Oxford, [1880 (5) AC 214], explained the concept of power coupled with duty. 7. The power is the capacity vested in a public authority to affect the rights of others, whereas, duty is an obligation to act in a particular manner. The duty vested in a public authority, will create a corresponding right on some other. In certain circumstances, having regard to the facts of the case, a power may become a power coupled with duty. As per the Rules, the Director of Higher Secondary Education has got the power to sanction the post of Principal in a Higher Secondary School. But, without the post of Principal, the school cannot function. So, it can be safely concluded that in regard to the post of Principal, the power of the Director is one W.A.Nos.2065/08, 1923/08 - 10 - & 1137/09. coupled with duty, which has to be exercised. Likewise, in the case of Librarian also, it is for the Director to decide whether a post should be sanctioned or not. Going by the statutory scheme, we find no role for the Government in sanctioning of posts in Higher Secondary wing. There is no rule in Chapter XXXII, similar to Rule 14 of Chapter XXIII of the K.E.R., which enables the Government to extend the prohibition introduced by it for creation of posts in Government Schools to aided schools also. If, owing to financial constraints, the Government issue some directions to the Director, and the Director acts upon it, such decision of the Director would be ultra vires and unauthorised, because he will be acting under dictation and will be surrendering his power to act in his discretion, to the Government, which have no say in the matter as per the Rules. So, in this case, we are of the view that, whether sanction of the post of Librarian in the second respondent's school is justified or not, is a matter which the Director may decide independently. The contention of the appellants that the school is having only 720 books, is seriously disputed by the W.A.Nos.2065/08, 1923/08 - 11 - & 1137/09. respondents. According to them, there are more than 11,000 books and a full-fledged Library is functioning, justifying the creation of the post of Librarian in the school. The same is a seriously disputed point. In view of such circumstances, we feel that it was not proper for the learned Single Judge to hold that the post of Librarian is liable to be created and direct the Director to do that. Normally, this Court will quash a wrong order and leave it to the authority to act in accordance with law. It is for the designated authority to take the decision. It is true, in extreme cases, as was held by the Apex Court in The Comptroller and Auditor General v. K.S. Jagannathan, AIR 1987 SC 537, the High Court under Article 226 can pass an order which the statutory authority could have passed, had it exercised the discretion vested in it properly. But, in this case, we find that there are no materials before this Court to come to the conclusion that, there was no other option for the Director but to sanction the post in the school. Though the learned Single Judge technically left the matter for the decision of the Director, practically, the Director has no other W.A.Nos.2065/08, 1923/08 - 12 - & 1137/09. option but to sanction the post of Librarian, in view of the clear finding in favour of sanction of the post of Librarian Gr.III. In view of the above position, we set aside the direction in the judgment under appeal, to sanction the post of Librarian Grade III in the second respondent's school. The second appellant is directed to consider the claim of the respondents herein for sanction of the post of Librarian Gr.III and take a decision in accordance with law, having regard to the students' strength, the number of books in the Library, the facilities in the Library etc. While taking the decision, the second appellant shall be uninfluenced by any view expressed by the first appellant. The second appellant need not personally inspect the school, but can cause the same to be done by some responsible officer under him. After giving an opportunity of being heard to the respondents herein, the 2nd appellant may take a final decision on sanctioning the post of Librarian. The second appellant shall complete this exercise within three months from the date of production of a copy of this judgment. The Writ Appeal is allowed as above. W.A.Nos.2065/08, 1923/08 - 13 - & 1137/09. W.A. Nos.1137/09 and 1923/08: The first respondent in W.A.No.1137/09 is a Grade III Librarian, whereas the first respondent in W.A.NO.1923/08 is a Grade IV Librarian. It is ordered that the directions issued to the Director of Higher Secondary Education in W.A. No. 2065/08 will govern these cases also. The Director shall take a fresh decision in these cases also within three months from the date of production of a copy of this judgment. The Writ Appeals are allowed as above. Sd/- K. Balakrishnan Nair, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy)