IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 WP(C).No. 17098 of 2007(I) -------------------------- PETITIONER(S): ------------------ JASMINE MARY CHACKO, KARAMPENTATHU HOUSE, NARANAMMUZHI P.O., RANNI-PERUNADU, PATHANAMTHITTA. BY ADV. SRI.KRB.KAIMAL (SR.) SRI.JACOB ALEX RESPONDENT(S): ------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. MANAGER, (CATHOLICATE & M.D.SCHOOL CORPORATE MANAGEMENT), DEVALOKAM, KOTTAYAM. GOVERNMENT PLEADER SMT.T.B.REMANI FOR R1& 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON 18/12/2008 DELIVERED THE FOLLOWING: WPC NO.17098/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE APPOINTMENT ORDER DT 18.9.2002. EXT.P2: TRUE COPY OF GO NO.4215/04/GEN EDU DT 27.09.2004. EXT.P3: TRUE COPY OF ORDER BEARING NO.C1-1325/HSE/01 DT 21.12.2005. EXT.P4: TRUE COPY OF REPRESENTATION DT 14.11.2002. EXT.P5: TRUE COPY OF GO(MS) 139/2004/GE DT 25.5.2004. EXT.P6(A) TO (C): TRUE COPY OF CERTIFICATES THAT EVIDENCES THE FUNCTIONING OF PETITIONER AS TEACHER WITH 3RD RESPONDENT. EXT.P7: TRUE COPY OF the ORDER NO.ACD.C1-1325/HSE/2005 EXT.P8: TRUE COPY OF THE ORDER BEARING NO.GO(RT) NO.1190/2007/GEN.EDU DT 16.3.2007. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. ============== W.P.(C) NO. 17098 OF 2007 (I) ==================== Dated this the 18th day of December, 2008 J U D G M E N T The prayers in the writ petition are for quashing Exts. P7 and P8 and to direct the 2nd respondent to approve the appointment of the petitioner as Higher Secondary School Teacher (Computer Application) w.e.f. 18/9/02 2. St.Behanan's Higher Secondary School, Vennikulam, of which the 3rd respondent is the Manager, was sanctioned Higher Secondary section in the academic year 2000-01 with two science and one commerce batches, both with optional Maths. According to the petitioner, in the year 2000-01, for Maths subject, one Sri.Reji Abraham was appointed as HSST and one Ms.Suja George was appointed in 2002-03 as HSST Junior, which were approved. 3. It is stated that on 22/6/01, the 3rd respondent Manager addressed the 2nd respondent for effecting change of optional subject from Maths to Computer Application, in so far as Commerce batch is concerned. Without obtaining any orders in this behalf from the 2nd respondent, the 3rd respondent is stated to have issued an advertisement inviting applications for the post of HSST (Computer Application) and the petitioner was WPC 17098/07 :2 : appointed by Ext.P1 order dated 18/9/2002. 4. Petitioner states that orders on the application dated 22/6/01, seeking change of subject was not passed, and in the meanwhile, Ext.P4 representation was made seeking expeditious orders on the request for subject change. Finally, by Ext.P5 order dated 25/5/2004, change of subject from Maths to Computer Application was allowed on condition that there shall be no additional financial commitment for the Government. 5. In the meantime, approval of the appointment of the petitioner was sought for and that was rejected. Petitioner pursued the matter before the 2nd respondent, who by Ext.P7 rejected the request of the petitioner. The reasons stated in Ext.P7 are extracted below for reference. i. Higher Secondary course was sanctioned to St.Behman's HSS Vennikulam from the Academic year 2000- 01 with two batches in Science with Physics, Chemistry, Biology and Mathematics and one batch Business studies Accountancy, Economics and Mathematics. ii. In the Academic year 2001-02 there were two posts of HSST(Full time) in Mathematics. Accordingly two teachers were given approval as HSST Full time in Mathematics. iii. During the Academic Year 2001-02, the Manager suo motu decided to teach Computer Application instead of the sanctioned Mathematics in the Commerce batch (Std.XI). Thereby there occurred the creation of a part time post in Computer Application leading to additional financial WPC 17098/07 :3 : expenditure. iv. As per the order ref.2 above, Smt.Suja Mary was granted approval as HSST full time in Mathematics w.e.f. 18.9.2002. It was on the very same day the petitioner Smt.Jasmine Mary Chacko was appointed as HSST Computer Application by dropping mathematics in Class XI Commerce batch. This impromptu action of the Manager will cause Smt.Suja Mary, the second HSST in Maths degraded as HSST Jr. from the Academic Year 2002-03. Hence the action taken by the Manager is irregular. v. Regarding the contention of the Manager that though Smt.Suja Mary has been approved as HSST full time, she has been drawing salary in the scale of pay of HSST Jr. does not stand to reason. As there are two posts of HSSTs Full time in Mathematics in that school, the approval granted to Smt.Suja Mary as HSST (FT) is in order. vi. The Manager's contention that the change in subject from Mathematics to Computer Application in the Commerce batch from the Academic year 2001-02 will not cause any additional financial burden is baseless. Had they continued with Mathematics in Commerce, ten total number of posts in Mathematics would have been 2 (Full time) from the Academic year 2001-02. Since they converted Maths in Commerce to Computer Application from the Academic year 2001-02, there arose an additional part time vacancy in Computer Application which will become Full time in the next Academic year resulting in heavy additional financial burden. Change of subject is allowed only if there is no additional financial commitment. vii. The GO read as 4 above is dtd. 25.5.04. And, there is no mention of the time from which the change in subject (Mathematics to Computer Application) was sanctioned for the school. Hence it is to be construed that the sanction is accorded from the date of the GO. Final appointment in the new subject can be done only on/after the date of the sanctioning order. Hence the Manager had hastily appointed the petitioner in a subject which the Government had not WPC 17098/07 :4 : sanctioned thereby making the appointee ineligible for approval. Further the Government order, read 4 expressly states that there should not be any additional financial commitment to Government on account of the implementation of change of subjects. In this case the change from Mathematics to Computer Application in fact necessitates the creation of an additional post of HSST Jr. in Computer Application which will become a senior post the next year resulting in huge financial commitment to the Government. Hence this change of subject cannot be granted. The matter has been reported to the government for the reconsideration of this order. viii. Since the Manager had illegally and suo motu changed a subject which was sanctioned by the Government and made fresh appointment violating the rules, the DHSE is not bound to approve the same. Also, if the petitioner has incurred any financial loss to the action of the Manager,that should be compensated by the Manager himself. 6. Again she represented to the 1st respondent and that was also rejected by Ext.P8. Petitioner submits that though she has been working in the school from 18/9/2002, since her appointment has not been approved, she is not drawing any salary for the work she is doing. 7. Separate counter affidavits have been filed by respondents 1 and 2. According to the respondents, the Higher Secondary section in the school was sanctioned w.e.f. 2000-01 and that the number of Maths periods justified the appointment of two HSST. It is stated that Sri.Reji Abraham and Smt.Suja Mary were the HSSTs so appointed and was WPC 17098/07 :5 : approved. According to the respondents, Smt.Suja Mary's appointment was approved w.e.f. 18/9/02 and it was on that date the 3rd respondent appointed the petitioner as HSST(Computer Application) by unilaterally changing Maths in the Commerce batch. According to the respondents, at the time when the petitioner was appointed, subject change was not allowed and hence, there was no sanctioned post. That apart, they also state that since the Manager converted Maths in Commerce to Computer Application from the academic year 2001-02, there arose an additional part time vacancy, which will become full time in the next academic year resulting in additional financial burden to the State. They also state that even in Ext.P5, subject change was allowed without additional financial commitments. 8. From the pleadings, it is thus evident that while the petitioner contends that for the subject Maths, the Manager was justified in appointing two HSSTs, only one HSST and one HSST Junior were appointed, this is disputed in the affidavit filed on behalf of the respondents and according to the respondents both were appointed and approved as HSSTs. Irrespective of this dispute, the admitted position is that subject change was allowed by Ext.P5 order dated 25/5/2004, WPC 17098/07 :6 : whereas subject change was effected in the school long prior to the order and the petitioner was appointed as HSST(Computer Application) w.e.f. 18/9/02. 9. Evidently, therefore, the appointment of the petitioner was in a subject that was not sanctioned and to a post which was not sanctioned. If that be so, the action of the Manager in appointing the petitioner is unauthorised. 10. Counsel for the petitioner argued that going by the student strength, they were entitled to have two HSSTs and that as the school had only one HSST and one HSST(Junior), the appointment of the petitioner does not result in any additional financial commitment to the State. It is stated that though the subject change was sanctioned without additional financial commitment, in view of the fact that the appointment did not result in any such additional financial liability for the State, the appointment was liable to be approved. I am not in a position to accept this contention primarily for the reason that at the time when the petitioner was appointed, subject change was not sanctioned and there was no sanctioned post. 11. If the Manager has unilaterally changed the subject and as a WPC 17098/07 :7 : result thereof any financial loss is caused to the petitioner, the remedy of the petitioner lies in proceeding against the Manager. 12. On an anxious consideration of the contentions raised, I am not in a position to take a view different from what has been taken by the 2nd respondent in Ext.P7, which is confirmed by the 1st respondent in Ext.P8. Necessarily, therefore, the writ petition is to be dismissed and I do so. ANTONY DOMINIC, JUDGE Rp