IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 WP(C).No. 16058 of 2009(B) -------------------------- PETITIONER: --------------- THE MANAGER, SNM H.S.S., MOOTHAKUNNAM. BY ADV. SRI.K.B.GANGESH SMT.SMITHA CHATHANARAMBATH RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION (T), THIRUVANANTHAPURAM. 2. THE DIRECTOR, HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, EDAPPALLI P.O., ERNAKULAM. GOVERNMENT PLEADER SMT.RANI DIOTHIMA FOR R1-R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.16058/09 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF G.O.(MS)NO.162/98/G.EDN. DATED 13.5.1998. EXT.P2: TRUE COPY OF LETTER DATED 25.9.2006. EXT.P3: TRUE COPY OF GO(MS)NO.122/91/G.EDN. DATED 2.8.1991. EXT.P4: TRUE COPY OF GO(RT)NO.78/99/G.EDN. DATED 5.1.99. EXT.P5: TRUE COPY OF LETTER DT.26.10.2006 WITH ANNEXURES FORWARDED TO THE 2ND RESPONDENT BY THE PETITIONER. EXT.P6: TRUE COPY OF ORDER DT.6.5.08 PASSED BY THE 3RD RESPONDENT. EXT.P7: TRUE COPY OF RELEVANT PORTION OF THE PROSPECTUS FOR SINGLE WINDOW ADMISSIN TO HIGHER SECONDARY COURSE FOR THE YEAR 2008-09 DATED 23.4.08. EXT.P8: TRUE COPY OF LETTER DATED 21.5.07 PREFERRED BY THE PETITIONER TO THE 1ST RESPONDENT. EXT.P9: TRUE COPY OF LETTER DT.14.8.08 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXT.P10: TRUE COPY OF LETTER DT.7.10.08 ISSUED BY THE 1ST RESPONDENT. EXT.P11: TRUE COPY OF PETITION DT.5.2.09 PREFERRED BY THE PETITIONER TO THE GOVERNMENT. EXT.P12: TRUE COPY OF ORDER DT.4.5.09 PASSED BY THE 1ST RESPONDENT. EXT.P13: TRUE COPY OF LETTER DT.27.5.09 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P14: TRUE COPY OF CIRCULAR DATED 25.11.03 ISSUED BY THE 2ND RESPONDENT. ORDER ON I.A.No.9181/09 IN W.P.(C)No.16058/09 //DISMISSED// 26.5.2011 SD/-(T.R.RAMACHANDRAN NAIR, JUDGE) TRUE COPY P.A.TO JUDGE T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.16058 Of 2009-J ----------------------------------------------------- DATED THIS THE 26th DAY OF MAY, 2011 J U D G M E N T The petitioner is the Manager of a Higher Secondary School and the grievance raised is with regard to the orders passed by the Government as well as the 3rd respondent rejecting the approval of appointment of Sanskrit teacher of the school in question. 2. Higher Secondary courses were sanctioned to the school pursuant to Exhibit P1 order dated 13.5.1998. It is the case of the petitioner that in the Higher Secondary Section, Sanskrit has been adopted as a second language in view of the persistent demand by the students in the High School Section wherein Sanskrit has already been introduced. The same was introduced from the year 2006-07. Exhibit P2 is a letter from the Manager to the 2nd respondent, wherein the said fact was informed and formal sanction was also sought for. 3. When the Regional Deputy Director conducted inspection for the purpose of fixing the staff pattern, even though W.P.(C)No.16058/09 -2- the above facts were verified and was found correct, while issuing the final proceedings, as evident from Exhibit P6 dated 6.5.2008, it is noted in paragraph No.6 that the school started Sanskrit course as an additional language under Part II from the year 2006-07 academic year onwards without prior sanction from the Government and therefore, the strength of students in Sanskrit language for the +1 course for 2006-07 cannot be considered for fixation of staff in Sanskrit. 4. In answer to one of the representations filed by the petitioner, the Government informed as per Exhibit P12 that prior sanction from the Government is necessary for introduction of a new Part II language as it would generate additional financial commitment and as it was not obtained, the appointment could not be approved. 5. The short question is whether the introduction of the course in second language and consequential appointment made by the petitioner is in any way irregular for want of prior sanction from the Government. The argument raised by the learned counsel for the petitioner is that a reading of the various Government Orders by which the courses were being prescribed W.P.(C)No.16058/09 -3- by the Government would show that no prior sanction as such is not contemplated in any of the Government Orders as regards adoption of Part II language. It is further pointed out that the Government Order itself permits the management to introduce the course, namely, second language and the minimum number of students are also prescribed therein. In the absence of express provisions therein requiring prior sanction to be obtained from the Government, it is pointed out that the insistence now made by the Government and the Regional Deputy Director cannot be supported. 6. The petitioner has produced Exhibit P3, which is a Government Order, namely, G.O.(MS)No.122/91/Gen.Edn. Dated 2nd August, 1991. The same is in modification of G.O.(MS) No.18/91/Gen.Edn. dated 1.2.1991. Therefore, it is necessary to consider the provisions of the said Government Order before going into the contents of Exhibit P3, G.O.No.18/91/Gen.Edn. dated 1.2.1991 which relates to starting of Higher Secondary Courses after specifying various aspects with regard to the infrastructure and facilities, the details of the courses offered are specified and the same reads thus: W.P.(C)No.16058/09 -4- “......... Details regarding courses offered:- will be as follows: Part I - English Part II - Malayalam, Hindi, Sanskrit, Arabic, Urdu, Tamil, Kannada. Sanskrit will be introduced if there are ten students for studying the language. Arabic, Urdu, Tamil, Kannada will be introduced if there are 20 students for studying the Language.” Therefore Part II therein will show that Sanskrit can be introduced if there are 10 students for studying the language and for other subjects namely Arabic, Urdu, Tamil and Kannada if there are 20 students for studying the language. Except the said stipulation therein, in any other part of the said G.O., no stipulation is made regarding obtaining prior sanction for its adoption. Exhibit P3 states about “posts of Language Teachers under Part II”. Therein also it is mentioned that Sanskrit, Arabic, Urdu, Tamil and Kannada will be introduced in Higher Secondary Course, if there are 11 students for studying the language. Therein also it is not specified that prior sanction should be obtained for starting the course or for making appointment. Exhibit P4 is a later Government Order, namely G.O.(Rt.) No.78/99/Gen.Edn. dated 5.1.1999. Therein a restriction has been put regarding maximum number of languages that can be W.P.(C)No.16058/09 -5- offered and it is mentioned that the maximum number of Part II languages in each Higher Secondary Course will be limited to four instead of three and this will come into force with effect from the Academic Year 1999-2000. 7. Even though it is pointed out by the learned Government Pleader that the course was started without obtaining prior sanction, no support by way of any other Government Order is drawn and none of the clauses of the relevant Government Orders also are helpful to advance such a case. 8. The petitioner cannot, therefore, be found fault with for not obtaining previous sanction for adopting Sanskrit. When it is contended that previous sanction is required, there should be an express provision either by way of any statutory prescription/rules or in the absence of the same, by way of an executive order. In the absence of all these, the respondents cannot insist that prior permission should have been obtained. Herein only executive orders alone are in force with regard to the norms. Therefore, the petitioner cannot be found fault with for not obtaining prior sanction. At the most, what could be insisted W.P.(C)No.16058/09 -6- is a formal sanction. There is nothing to show that formal sanction sought for by the petitioner as per Exhibit P2 was rejected at any point of time. Evidently, this was submitted by the petitioner by way of abundant caution even though various Government Orders provide for adoption of Part II languages. When it is specified that second language can be introduced if sufficient number of students are there and the minimum is also prescribed by the said Government Order, it really amounts to permission and it can be safely concluded that there was real justification for the management to introduce the course especially in the absence of any contrary provisions in any of the Government Orders. A similar view has been taken in the judgment in W.P.(C)Nos.17676/2009 and 18638/2010 by me. 9. In that view of the matter, the view taken by the Regional Deputy Director in Exhibit P6 that the strength of Sanskrit students cannot be reckoned for fixation of staff strength without prior sanction cannot be supported. Equally, the view taken by the Government in Exhibit P12 and the communication Exhibit P13 also cannot be supported. Therefore, Exhibit P12 is quashed. If at all any sanction is required, that can only be a W.P.(C)No.16058/09 -7- formal sanction. 10. The learned counsel for the petitioner submitted that after the admission procedure by way of centralised allotment was introduced in the prospectus, as far as the petitioner's school is concerned one of the second languages shown is Sanskrit as evident from Exhibit P7. For all these reasons the petitioner is entitled to succeed in the Writ Petition. Exhibit P12 is therefore quashed. The Government will reconsider the matter in the light of the findings rendered above. Evidently, the students have undergone the courses and have passed out from the schools in various years from 2006-07 and according to them they have become successful also. This aspect also will be considered by the Government while taking a decision in the matter. 11. In that view of the matter, formal sanction will have to be granted for the courses and appointment of the teacher will be approved. Appropriate revised orders will be passed by the 1st respondent within a period of two months from the date of receipt of a copy of this judgment and the 3rd respondent will pass appropriate orders for approval of appointment of the teacher after verifying the qualification, etc. Consequent on the W.P.(C)No.16058/09 -8- approval he will be entitled to be granted monetary benefits also. 12. To make applicable in further cases, it will be desirable if the Government itself brings out any particular norms for the Higher Secondary Schools to adhere to so as to avoid any ambiguities in the matter. The Writ Petition is allowed as above. T.R.RAMACHANDRAN NAIR, JUDGE. dsn