IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 WP(C).No. 10157 of 2006(H) ------------------------------------------- PETITIONER: -------------------- MANAGER, M.T.M.HIGHER SECONDARY SCHOOL, PAMPAKKUDA, ERNAKULAM DISTRICT. BY ADV. SRI.KURIAN GEORGE KANNAMTHANAM RESPONDENTS: ------------------------- 1. STATE OF KERALA, REP. BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.C.M.NAZAR FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 10157 of 2006(H) APPENDIX PETITIONER'S EXHIBITS: Ext.P1: Copy of judgment dated 5-7-2002 in W.A.2774/01 of this Hon'ble Court. Ext.P2: Copy of order dated 7-8-2002 in R.P.520/02 of -do- Ext.P3: Copy of order dated 2-8-2003 issued from the 1st respondent. Ext.P4: Copy of judgment dated 23-8-2005 in W.P.(C)No.21010/05 of this Hon'ble Court. Ext.P5: Copy of order dated 21-2-2006 of the General Education (T) Department. Ext.P6: Copy of order dated 24-9-2004 of -do- Ext.P7: Copy of list of Aided Higher Secondary School. Ext.P8: Copy of G.O.(MS)248/2000/G.Edn. dated 26-7-2000 of General Education (T) Department. Ext.P9: Copy of order dated 31-3-2005 of Director of Higher Secondary Education. Ext.P10: Copy of -do- -do-. Ext.P11: Copy of period allotment for the year 2008-2008 of Plus one Science. Ext.P12: Copy of period allotment for the year 2007-2008 of plus two science. Ext.P13 & P13(a): Copy of photographs showing Lab No.1 & 2. Ext.P13(b)& 13(c): Copy of photographs showing Lab No.3 & 4. // True copy // jes P.A. to Judge A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.10157 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT The Manager of M.T.M. Higher Secondary School, Pampakkuda, has filed this writ petition aggrieved by the refusal of the Government to sanction four posts of Laboratory Assistants in the petitioner's school with effect from the date of sanctioning of Higher Secondary Division. Petitioner contends that the benefit of Ext.P6 order issued by the Government sanctioning a maximum of four Laboratory Assistants in all schools ought to have been given to the petitioner's school also. 2. It is further contended that the Government should not have denied the right of the management to appoint four Laboratory Assistants in the school for the sole reason that the school had started functioning after March 28, 2003 and appointment of Laboratory Assistants had been made after the said date. 3. It is true that the petitioner had to fight really hard to get sanction to start Plus Two courses in the school. Ultimately, by judgment dated July 5, 2002, in W.A. No. 2774/01 this Court W.P.(C)No.10157 OF 2006 :: 2 :: directed the Government to sanction Plus Two courses in the petitioner's school within three weeks from the date of the judgment. It appears that the Government had challenged the above judgment before the Supreme Court unsuccessfully. 4. It is the admitted position that the petitioner could start the Plus Two courses in August 2003 only, and that too, on the teeth of initiation of proceedings under the Contempt of Courts Act. It is the contention of the petitioner that immediately on commencement of the Plus Two courses in the school, petitioner had made several appointment of teaching as well as non teaching staff in the school anticipating sanction and approval for creation of such posts in the school. Petitioner contends that four Laboratory Assistants were appointed in the school apart from the teaching staff in the year 2003 itself anticipating Government sanction for creation of such posts. 5. However, on September 24, 2004 Government issued Ext.P6 order “sanctioning creation of supernumerary posts of Laboratory Assistants in Higher Secondary Schools in Aided sector having Science batches subject to a maximum of four Laboratory W.P.(C)No.10157 OF 2006 :: 3 :: Assistants in each school so as to regularise the appointments made till 28.3.2003.” The Government further ordered that the Laboratory Assistants so regularised had to be engaged in clerical and other works in the school as and when required and they would be eligible for salary w.e.f. 28.3.2003 only. 6. In this context, it is pertinent to refer to G.O.(MS)No. 79/2003/G.Edn. Dated 28.3.2003. It was in the said Order that the Government had for the first time accorded sanction for creation of two posts of Laboratory Assistants in each Government/Aided Higher Secondary School having Science batches and where posts of Laboratory Assistants were not accorded previously. 7. The cut off date, viz. March 28, 2003, referred to in Ext.P6, to the above order of the Government. Obviously the government wanted to relate back sanction of the post of Laboratory Assistants to the original date of its sanction viz. March 28, 2003. The contention of the petitioner is that if the cut off date (March 28, 2003) is made applicable in the case of the petitioner, it will lead to miscarriage of justice because all those who have appointed as Laboratory Assistants in their school prior to March W.P.(C)No.10157 OF 2006 :: 4 :: 28, 2003 would get the benefit of sanction of approval whereas the petitioner would not get the said benefit, for the mere fact that petitioner could start the course only in August 2003. Learned Senior counsel points out that there was no laches or delay on the part of the petitioner in starting the course. The Government was directed by the Division Bench of this Court to accord sanction to start Plus Two courses in the petitioner's school in July 2002 itself. The Government had delayed sanction even in spite of the specific direction issued by this Court in Ext.P1 judgment, with the result the petitioner could start the course only in August 2003 and that too, after approaching this Court under the provisions of the Contempt of Courts Act. It is also pointed out by the learned Senior counsel that even for sanction of teaching and non teaching staff in the school, petitioner had to file writ petitions apart from petitions under the Contempt of Courts Act. 8. The contentions raised by the petitioner in this regard are not without force. But the Government, as a matter of policy had issued Ext.P6 order in continuation of the earlier order (G.O. (MS) No. 79/2003/G.Edn. dt. 28.3.2003) creating the post of Laboratory W.P.(C)No.10157 OF 2006 :: 5 :: Assistants in the Government as well as in the Aided Schools in the State. The mere fact that the Government had fought the case against the petitioner up to the Supreme Court and also that delay had been caused in sanctioning the course should not be treated as a reason to allow the prayer made by the petitioner to sanction four posts of Laboratory Assistants in the school. 9. There is yet another reason which persuades me to take the above view. It appears that the petitioner had started only one Science batch in the Plus Two course when it was started in the year 2003. Petitioner had not stated any reason as to why four posts of Laboratory Assistants should have been sanctioned in the school when there was only one batch of Plus Two course. Learned Senior counsel fairly concedes that there was only one science batch in the school. More over nothing has been brought on record to show who were the four Laboratory Assistants appointed in the school. Learned Senior Counsel submits that the names and other details of the appointees had been forwarded to the Department. 10. Anyway, in the facts and circumstances of the case, I find considerable force in the contention raised by the Department W.P.(C)No.10157 OF 2006 :: 6 :: in the counter affidavit that in petitioner's school there was only one science batch and the practical sessions were only for Standard XII. It is asserted in the counter affidavit that there was no sufficient workload for more Laboratory Assistants in the petitioner's school. In this context it is pertinent to note that even if the Government orders in this regard referes to the actual necessity for creation of such posts of Laboratory Assistants in the school, since the petitioner's school had got only one science batch the petitioner is not entitled to get four posts of Laboratory Assistants. 11. Having regard to the entire facts and circumstances of the case, I am not satisfied that petitioner is entitled to get any relief in this writ petition. Writ Petition fails and it is accordingly dismissed. 27-3-2007 (A.K.BASHEER, JUDGE) W.P.(C)No.10157 OF 2006 :: 7 :: 12. After dictating the above judgment in open court and before it was corrected and signed, the learned Senior Counsel appearing for the petitioner made a request to post the case for further hearing, since according to him certain additional materials, particularly with reference to some of the observations made in para 5 of the judgment can be made available for a proper adjudication of the matter. Therefore, the judgment was not signed and the case was posted for further hearing. 13. Thereafter, petitioners had filed a reply affidavit along with which Exts.P7 to P10 were brought on record. Respondent No.2 had also filed an additional counter affidavit dated April 11, 2007. Still later, petitioner had produced Exts.P11 to P13 also. Respondent No.2 also filed an additional affidavit dated April 4, 2008 reiterating the earlier stand taken by the Department and also asserting that petitioner was not entitled to appoint any Laboratory Assistants as claimed in the writ petition on the strength of G.O.(MS)No.138/90/G.Edn. dated 27.6.1990. 14. In para 5 of the judgment, it was observed by me that petitioner had not mentioned any reason as to why four posts of W.P.(C)No.10157 OF 2006 :: 8 :: Laboratory Assistants had to be sanctioned to the school, especially since there was only one batch of plus two course. It was also noticed that the petitioner had conceded that there was only one Science batch in the school. In clarification of the above submissions, it is contended by the learned Senior counsel that in G.O.(MS)138/90 and G.O.(MS)18/91, the Government had sanctioned one post of Laboratory Assistant for each laboratory. It is the case of the petitioner that in plus two course, subjects like Physics, Chemistry, Botany and Zoology ought to have separate laboratories. In fact this aspect had been referred to in G.O.(MS) 138/90. In this context, learned Senior counsel has invited my attention to Para 5 of the additional affidavit filed by respondent no.2. For the sake of convenience the said paragraph is extracted hereunder: “The number of Batches in MTMHSS, Pampakuda: 1 Science batch with Chemistry, Physics, Mathematics and Biology. 1 Humanities Batch with History, Geography, Economics and one Language Course. No. of periods : 8 per week for Physics, Chemistry. 4 per week for Botany, Zoology.” W.P.(C)No.10157 OF 2006 :: 9 :: No. of Laboratories : 4 No. of period for Practical classes : Physics : 2 per week Chemistry : 2 ” Science: Zoology : 1 ” Botany : 1 ” 15. It is contended by the learned Senior counsel that four Laboratory Assistants were in fact appointed immediately after commencement of the plus two course in the school, two of whom were promotees. The appointment of the promotees was approved too. But appointment of the other two through direct recruitment, was not approved by the Department on the ground that those appointments were made after March 28, 2003. It is in this context, learned Senior counsel had raised a contention that delay in commencement of the course had occurred only since the Government had dragged its feet. Ultimately, the Government had sanctioned Plus two course at the intervention of this court and the Supreme Court, to which reference has already been made in the earlier part of the judgment. W.P.(C)No.10157 OF 2006 :: 10 :: 16. Learned Government Pleader submits that petitioner cannot get the benefit of G.O.(MS)138/90 for the obvious reason that the said order applied to only those schools which were started during the academic year 1990-1991. Similarly, G.O.(MS)18/91 dated February 1, 1991 applied only to those schools which started functioning in the year 1991-1992 and thereafter. The Government had not sanctioned any posts after 1998-1999 to 2003. But Ext.P6, Order was issued by the Government as a one time measure to regularise certain appointments made by managements in the interregnum. It was clearly indicated in that Government Order that only those appointments which were made prior to March 28, 2003 would be liable to be approved. It is thus contended by the learned Government Pleader that petitioner is not entitled to get any relief in this writ petition. 17. But it may be noticed that petitioner had in fact appointed four Laboratory Assistants shortly after commencement of the plus two course. It is also the admitted position that four Laboratory Assistants were available in the school from 2003 onwards. It is submitted on behalf of the petitioner that in the year 2003 the W.P.(C)No.10157 OF 2006 :: 11 :: school had managed with two Laboratory Assistants though four could have been appointed. There was only one batch of first year students to begin with. In that first year 52 students had been admitted and they were divided into two batches for the practical class. When one batch was engaged in the practical class for Botany the other batch was engaged in the Zoology Laboratory. In short, the school had managed the practical classes on a rotation basis with the help of two Laboratory Assistants. But when the second year Plus two classes were started, the situation had changed. It had become necessary that all the four laboratories became functional with separate Laboratory Assistants. It was in that circumstance, petitioner had appointed two more Laboratory Assistants through direct recruitment. 18. It is on record that petitioner had forwarded the orders of appointment to the Department for approval. Thus evidently petitioner had appointed two more Laboratory Assistants in the year 2004. 19. In this context, it is pertinent to note that in Ext.P6 order dated September, 24, 2004, the Government had “created W.P.(C)No.10157 OF 2006 :: 12 :: supernumerary posts of Laboratory Assistants in the Higher Secondary Schools in the aided sector having Science batches, subject to the maximum of four Laboratory Assistants in each school so as to regularise the appointments made till March 28, 2003.” The said cut off date viz. March 28, 2003 is referable to yet another order issued by the Government on the instant date in G.O. (MS)79/03/G.Edn. By the said order, the Government accorded sanction for the creation of two Laboratory Assistants in the scale of Rs.2650-4150 in each Government/aided Higher Secondary School which had science batches and where no posts of Laboratory Assistants were created previously. It is contended on behalf of the Department that the first two appointments made by the petitioner were approved, since they were in accordance with the above order issued by the Government (G.O(MS)79/03). But according to the Department, by issuing Ext.P6 order in September 2004, the Government had clarified that only a maximum of four Laboratory Assistants in each school could be created and that too if they had been appointed on or before March 28, 2003. The short question for consideration is whether the claim made by the W.P.(C)No.10157 OF 2006 :: 13 :: petitioner is liable to be rejected on the ground that two of the four Laboratory Assistants were appointed after the cut off date. 20. Having regard to the entire facts and circumstances particularly the fact that the petitioner had four Laboratories for Physics, Chemistry, Botany and Zoology at the commencement of the course and also that he could have appointed four Laboratory Assistants at that time, I am of the view that the claim made by him is liable to be allowed. I am persuaded to take the above view since it is on record that a Division Bench of this court had directed the Government to sanction plus two course in petitioner's school in 2001 itself. The Department had unsuccessfully challenged the above order before the Supreme Court. Admittedly the department had complied with the order at the beginning of the 2003 academic year only, after the petitioner had initiated contempt proceedings. The above aspects in my view would justify the contention of the petitioner that the Department had been, for no apparent reason, taking a hostile attitude towards him. 21. Anyhow, I do not propose to go into that area of the controversy at this stage. In my view, the fact that the petitioner W.P.(C)No.10157 OF 2006 :: 14 :: had started four laboratories in the school in the year 2003 itself will justify his claim for appointment of four laboratory Assistants. Petitioner could not have been denied the services of two Laboratory Assistants who are recruited in the year 2004 solely on a technical ground. 22. Therefore, in the peculiar facts and circumstances of this case, I am satisfied that the prayer made by the petitioner is liable to be allowed. I do so. It is made clear that this order is being issued in the peculiar facts and circumstances of this case and this shall not be treated as a precedent. The writ petition is allowed. Respondents are directed to issue appropriate orders approving the appointment of the two laboratory assistants appointed by the petitioner in 2004, namely O.A.Mini and Manoj Abraham. This shall be done as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. 19-2-2008 (A.K.BASHEER, JUDGE) jes