IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 WA.No. 2142 of 2008(E) --------------------------------- AGAINST THE JUDGEMENT IN W.P(C).NO.10157/2006 DATED 19/02/2008 ................. APPELLANTS/ RESPONDENTS IN W.P.(C): ------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. K. SANDESH RAJA. RESPONDENT/ PETITIONER IN THE W.P.(C): --------------------------------------------------------------- MANAGER, M.T.M. HIGHER SECONDARY SCHOOL, PAMPAKKUDA, ERNAKULAM DISTRICT. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B. Koshy & Thomas P.Joseph, JJ. -------------------------------------- W.A. No. 2142 of 2008 --------------------------------------- Dated this the 12th day of November, 2008 Judgment Koshy,J. Respondent in this case, Manager, M.T.M. Higher Secondary School, Pampakkuda filed the writ petition for extending the benefit of Ext.P6 order issued by the Government sanctioning a maximum of four Laboratory Assistants. According to the Government, benefit of Ext.P6 can be given only if appointments are made before 28.3.2003. Petitioner applied for starting the school in 2001 itself. Even though there was no reason to disallow the application, it was disallowed by the appellant State. Ultimately, by judgment dated 5.7.2002 in W.A.No.2774 of 2001, a Division Bench of this Court directed the Government to sanction plus Two courses in the petitioner's school within three weeks from the date of judgment. Government challenged the above judgment in the Supreme Court unsuccessfully, but, despite dismissal of the SLP sanction was not given. Finally, contempt of court proceedings were taken and thereafter plus Two courses were allowed to be started in August, 2003. Immediately teaching as well as non-teaching staff in WA.No.2142/2008 2 the school were appointed anticipating sanction for creation of posts. Four Laboratory Assistants were appointed in the school apart from the teaching staff for the year 2003. Two were appointed by promotion from the High School section and two were by direct recruitment. Science group granted to the petitioner was science group with chemistry, physics, mathematics and biology. There were four laboratories each for chemistry, physics, zoology and botany. Laboratory Assistants have also to assist clerical work as per Ext.P6 order. Ext.P6 order is as follows: "............... 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 Assistants in each school so as to regularise the appointments made till 28.3.2003." In Ext.P6, 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 with effect from 28.3.2003 only. It was by Government Order,G.O.(Ms) No.79/2003/G.Edn. dated 2.3.2003, that Government accorded sanction for the creation of two posts of Laboratory Assistants in each Government/Aided Higher Secondary School WA.No.2142/2008 3 having science batches and where posts of Laboratory Assistants were not accorded previously. The learned single Judge at the first instance dismissed the case, but, on the request of the counsel, the matter was re-opened. Before the judgment was signed, on the request of the parties, it was re-considered, counter and reply affidavits were filed by both sides. Without adequate staff, laboratories cannot function and students cannot study. The court also noticed that by G.O. (Ms) No.138/90/G.Edn. dated 27.6.1990, Government has sanctioned one post of Laboratory Assistant for each laboratory. Since petitioner has got four laboratories, four Laboratory Assistants have to be appointed. It is also stated that as per the Government direction, plus Two course ought to have been granted in 2001 before issuance of the Government Order dated 28.3.2003. Even the Supreme Court dismissed the same only because of the delaying tactics. Petitioner's schools were started in August, 2003 only. Apart from the two persons appointed by promotion, the learned single Judge directed that two others appointed directly also should be given the benefit. On the facts of this case, without treating as a precedent we are of the view that it is a discretionary order passed by the learned single Judge under article 226 of the Constitution of India. On the facts and peculiar WA.No.2142/2008 4 circumstances of the case, filing of the writ petition, approaching the Supreme Court and filing petitions etc. and also considering the necessity of having Laboratory Assistants in each laboratories, we are not inclined to admit the appeal and, therefore, the appeal is dismissed. J.B.Koshy Judge Thomas P. Joseph Judge vaa WA.No.2142/2008 5 J.B. KOSHY AND THOMAS P.JOSEPH,JJ. ------------------------------------- W.A.No. 2142/2008 ------------------------------------- Judgment Date:12th November,2008