IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 WP(C).No. 15503 of 2010(K) -------------------------------- PETITIONER: -------------- SUSAMMA MATHEW, AGED 32, W/O.JOSEMON.Y., THACHAYIL JOSE VILLA, MALOODU P.O. ADOOR, PATHANAMTHITTA, NOW WORKING AS HSST (JR) HINDI, ST.MARY'S HSS, KIZHAKKEKKARA, KOTTARAKKARA. BY ADV. SRI.BENOY THOMAS RESPONDENTS: ------------------ 1. STATE OF KERALA REPRESENTED BY SECRETARY GENERAL EDUCATION, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. REGIONAL DEPUTY DIRECTOR, DEPARTMENT OF HIGHER SECONDARY EDUCATION, CORPORATION BLDGS. PALAYAM, THIRUVANANTHAPURAM. 4. MANAGER, CORPORATION EDUCATIONAL AGENCY, MALANKARA SYRIAN CATHOLIC SCHOOLS, PATTOM P.O., THIRUVANANTHAPURAM. BY SMT. NISHA BOSE, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.15503/2010 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF THE APPOINTMENT ORDER APPOINTING THE PETITIONER AS HSST (JUNIOR) HINDI AT POPE PIUS XI HSS, BHARANIKAVU, ALAPPUZHA FOR the PERIOD FROM 19.11.03 TO 31.03.06. EXT. P1(a) : COPY OF APPROVAL ORDER ON EXT.P1 APPOINTMENT. EXT. P2 : COPY OF APPOINTMENT ORDER APPOINTING THE PETITIONER AS HSST(JUNIOR) HINDI AT ST.MARY'S HSS, KIZHAKKEKKARA, KOTTARAKKARA W.E.F. 21.7.08. EXT. P3 : COPY OF G.O.(MS) 278/06/GEN. EDN DTD. 9.11.06. EXT. P4 : COPY OF INTIMATION GIVEN BY R4 TO R2 CONCERNING THE OPTION OF SUBJECT COMBINATIONS OF 3 BATCHES INCLUDING THE 3 SECOND LANGUAGES. EXT. P5 : COPY OF G.O.(MS) 153/00/GEN.EDN DTD. 19.5.00. EXT. P6 : COPY OF STAFF FIXATION ORDER ISSUED BY R3 FOR THE ACADEMIC YEARS 2006-07, 2007-08 AND 2008-09 IN PETITIONER's SCHOOL. EXT. P7 : COPY OF LETTER No.527/08 DTD. 12.5.08 ISSUED BY R4 TO R3. EXT. P7(a) : COPY OF LETTER DTD. 20.11.08 ISSUED BY R4 TO R3. EXT. P7(b) : COPY OF LETTER No.529/08 DTD.11.6.09 ISSUED BY R4 TO R1. EXT. P7(c) : COPY OF LETTER DTD. 12.6.09 ISSUED BY R4 TO R1. EXT. P8 : COPY OF JUDGMENT IN WP(C) 2313/09 DTD.11.11.09. EXT. P9 : COPY OF ORDER PASSED BY GOVT. PURSUANT TO EXT.P8 JUDGMENT CREATING/UPGRADING THE POSTS OF PETITIONER's SCHOOL FOR YEARS 2006-07, 2007-08 AND 2008-09. EXT. P10 : COPY OF INTERIM ORDER PASSED BY HIGH COURT IN WP(C) 37392/09 DTD. 11.2.10. EXT. P11 : COPY OF PROCEEDINGS No.39389/TI/2009/GEN. EDN. DTD. 19.12.09 OF R1. WP(C).No.15503/2010 EXT. P12 : COPY OF DIRECTIONS IN PROCEEDINGS No.ACD-SPC- 3/68061/HSE/2009 DTD. 28.12.09 ISSUED BY R2. EXT. P13 : COPY OF INTERIM ORDER IN WP(C) 16058/09 DTD. 16.6.09. EXT. P14 : COPIES OF RELEVANT PART OF PROSPECTUS. EXT. P15 : COPY OF FIXATION ORDER DTD. 7.3.11. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.15503 OF 2010 --------------------------------------- Dated this the 2nd day of August, 2011. J U D G M E N T The petitioner herein is working as H.S.S.T (Junior) Hindi in the St.Mary's Higher Secondary School, Kizhakkekkara, Kottarakkara managed by the 4th respondent. The petitioner was appointed by the Staff Selection Committee constituted by the Manager as she was having the required qualification. The petitioner had an earlier stint in Pope Pius XI HSS, Bharanikavu, Alappuzha as H.S.S.T (Junior) Hindi in a leave vacancy for the period from 19.11.2003 to 31.03.2006. The said appointment was approved as evident from Exts.P1 and P1(a) orders. By Ext.P2 order, the petitioner was appointed in the present school. 2. The orders under challenge by the petitioner are Exts.P11 and P12 whereby the Government as well as the Director of Higher Secondary Education directed the Management not to admit students during 2010-2011 to Hindi 2nd language in the school till approval is granted by the Government. The other W.P.(C) No.15503/2010 2 grievance raised by the petitioner is that the appointment is not approved. 3. In the light of the contention raised by the parties herein, the question is whether for adopting Hindi as 2nd language, prior sanction or prior approval is required. It is submitted by the learned counsel for the petitioner that this Court in an earlier judgment in W.P.(C) No.17676/2009 has held that no prior sanction is required. As far as the school is concerned, it was sanctioned Higher Secondary course as per G.O.(MS) No.278/2006/Gen.Edn dated 09.11.2006. Three batches of Plus Two course one each in science, humanities and commerce with subject combination of the management's choice was allotted as per Ext.P3 Government Order. The Management opted subject combination of three batches including the three second languages permissible namely, Malayalam, Hindi and Syriac and Ext.P4 is the copy of the intimation given by the Management to the Director of Higher Secondary Education in that regard. 4. Ext.P5 is the Government Order prescribing the groups W.P.(C) No.15503/2010 3 and subjects and Part II languages which will be offered in the schools. It is specified in Ext.P5 under Part II that the minimum number of students required for Part II languages will be 10. The maximum number of Part II languages that can be offered in a Higher Secondary School is limited to 4. The languages mentioned therein include Malayalam, Hindi, Sanskrit etc. 5. Ext.P6 is the true copy of the staff fixation order issued for the academic years 2006-07, 2007-08 and 2008-09. For the years 2006-07 and 2007-08, sufficient number of students were not there for Hindi. But for 2008-09, the students have opted Hindi in Class XI which is evident from Ext.P6. It is thereafter the petitioner was appointed. In fact, Ext.P6 gives the details of the student strength for the respective years. 6. It is the case of the petitioner that even though separate sanction is not required, by way of abundant caution, the Management forwarded Exts.P7 to P7(c) applications addressed to the 3rd respondent and the 1st respondent. Ext.P8 is the judgment of this Court in W.P.(C) No.2313/2009 wherein some of the teachers including the petitioner approached for a direction to W.P.(C) No.15503/2010 4 consider and pass orders on Ext.P5 proposal. Thereafter, the Government passed Ext.P9 order creating/upgrading the posts in various disciplines in the school. But, the petitioner's approval was not considered in Ext.P9 order. 7. It is the case of the petitioner that by Ext.P11 the Government informed the Director of Higher Secondary Education that the students in the school who opted Hindi as 2nd language during 2008-09 and 2009-10 academic years may be allowed to attend examinations subject to the condition that approval of Hindi as a 2nd language will be considered separately and in future, Hindi will not be offered as a 2nd language without getting approval. Consequential directions were issued by the Director of Higher Secondary Education. It is in that context, this writ petition was filed. 8. This Court, by interim order dated 20.05.2010, stayed the implementation of Ext.P11 order. The 2nd respondent has filed a counter affidavit. In support of Ext.P11 in paragraph 8 of the counter affidavit it is stated that the Management has introduced Hindi as additional language under Part II from the W.P.(C) No.15503/2010 5 academic year 2008-09 without permission from the Government. In paragraph 5, it is mentioned that the Management permitted to opt Hindi as an additional language during 2008-09 unilaterally without obtaining previous sanction of the Director of Higher Secondary Education or Government. 9. In the reply affidavit filed, the petitioner has produced Ext.P14 the prospectus issued by the Director of Higher Secondary Education where against serial No.80 against St.Mary's HSS, Kizhakkekkara, Kollam, the 2nd languages offered are “1”, “2” and “9” which are the code numbers and the code No.“2” indicates Hindi. Ext.P15 is the staff fixation order issued for the year 2008-09 wherein even though the student strength in respect of Hindi is noted, the post is not sanctioned. 10. The question that arises is whether prior sanction is required for adopting the 2nd language. This aspect is considered in detail in the judgment in W.P.(C) No.17676/2009. For easy reference, paragraph 3 onwards are extracted: “3. The whole question posed relates only to one aspect, viz. whether the school is required to obtain prior sanction for introducing Sanskrit also as a second language and in appointing staff for manning the course. W.P.(C) No.15503/2010 6 Learned counsel for the petitioner relied upon Exts.P7 and P8 Government Orders in this regard, to show that no such prior sanction is required. The Government in Ext.P5 (b), has taken the view that the Director of Higher Secondary Education has issued a circular dated 25.11.2003 stating that no additional language should be offered under Part II without prior sanction from the Government, since it will cause additional financial commitment. 4. Ext.P7 is the Government Order dated 1.2.1991 which provides the procedure for permission to open Higher Secondary schools and Plus Two Course. The following have been provided under Parts I and II: “Details regarding course 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, for introducing Sanskrit, a minimum number of ten students alone is required. Ext.P8 is the copy of G.O.(Ms) No.153/2000/G.Edn. dated 19.5.2000. A restriction was imposed with regard to the maximum number of Part II languages that can be offered in a Higher Secondary School and it was limited to four. The stipulation reads as follows: W.P.(C) No.15503/2010 7 “The following groups (Subjects) and Languages will be offered. Part I English. Part II Malayalam, Hindi, Sanskrit, Arabic, Urdu, Tamil, Kannada, French, Latin, Cyriac, German and Russian. The minimum number of students required for Part II languages will be 10. Maximum number of Part II languages that can be offered in a Higher Secondary School is limited to 4.” Sanskrit is one of the subjects specified therein. Therein also, it is stated that the minimum number of students required for Part II languages, is 10. A reading of Exts.P7 and P8 will show that it is upto the Management to adopt Part II languages and nowhere it is stipulated that there should be prior sanction of the Government with regard to the adoption of the second language as far as the Higher Secondary Schools are concerned. Therefore, what is conveyed as per Exts.P7 and P8 is the method by which the schools can adopt the Part II languages and admit the students. The minimum number is also specified. Therefore, I find force in the submission of the learned counsel for the petitioners that as the entire scheme does not provide for any prior sanction in Part II languages and the insistence on a prior sanction as far as the school in question is concerned, is rather illusory. In this context, learned counsel for the petitioners also referred to the circular which has now been put against the petitioners, issued by the Director of Higher Secondary Education. The same is produced as Ext.P10 which is dated 25.11.2003. It shows that the W.P.(C) No.15503/2010 8 Director of Higher Secondary Education ordered that “the authorities of all Higher Secondary Schools are hereby directed not to introduce language under Part II or to change any language without prior permission of the Government.” 5. The question is whether, in the absence of any such procedure prescribed by the Government itself, the Director of Higher Secondary Education is empowered to issue such a circular. The said circular is also under challenge herein. Evidently, the Director has not drawn inspiration from any Government Orders issued in this regard to issue such a circular. How the idea of a prior permission to be obtained from the Government, has struck, is not clear from Ext.P10 or from the counter affidavit filed in this writ petition. What is introduced by the Director is a formality to be complied with and that too by moving the Government. Since the Government has not prescribed such a condition, normally the Director who is only a subordinate authority, cannot fix such a condition. 6. Learned Govt. Pleader submitted that it was to avoid irregularities that such a procedure was insisted. But, herein what is put against the petitioners is the absence of a prior permission. Evidently, the scheme for sanctioning of the course will only show that even if a sanction is required, it is only a formal sanction and not a prior permission. This is clear from a reading of Exts.P7 and P8, as already noticed, which do not insist any formal permission also in the matter. But the insistence of a formal sanction could be understood in the light of W.P.(C) No.15503/2010 9 the fact that the Government is paying salary to the teachers appointed. Therefore, the Government should be informed of the courses adopted and the teachers appointed. But this cannot be equated with the requirement of prior sanction. The non-obtaining of the same cannot be termed as fatal as against the petitioners. 7. In that view of the matter, the stand taken in Exts.P4(b) and P5(b) that in the absence of a prior permission for introduction of Sanskrit as a second language in the school in question, the appointment of the petitioner is irregular for want of such permission is not correct and the orders cannot survive for that reason. Actually, in Ext.P5(b) the Government only relies upon Ext.P10 circular issued by the Director of Higher Secondary Education. Therefore, it is clear that till the Director issued the circular, there was no insistence of a prior permission. The Director cannot impose a condition which is not introduced by the Government while sanctioning Higher Secondary Course by various orders including Exts.P7 and P8. 8. Evidently, in this case one thing is relevant, that the second language Sanskrit was introduced and the students have been admitted and they have also passed the examinations. Therefore, there is no point in insisting upon a prior sanction at this stage. All the students have been benefited by the efforts taken by the petitioner in adopting Sanskrit as a Higher Secondary School Teacher. Evidently, the real question was not therefore addressed by the Government. At the most, W.P.(C) No.15503/2010 10 what could have been insisted is a formal sanction, which ought to have been granted. In this regard, the order passed by the Government with respect to another school, viz. St. Mary's H.S.S., Irinjalakuda, under the same management, sanctioning the course has been produced as Ext.P9(a) in W.P.(C) No.17676/2009. A reading of the said order dated 7.2.2007 shows that it is also not a case of grant of prior sanction and the course was introduced in 2003-2004 itself. In this context, it is relevant to note that in St. Mary's Higher Secondary School, Irinjalakkuda, Sanskrit was sanctioned during the year 2003-2004 and the said school is also owned by the same management. Ext.P9 is the proceedings of the Director of Higher Secondary Education, whereby the approval of appointment of the teacher in Sanskrit has been sanctioned with effect from 15.7.2003 in the post of HSST Junior Sanskrit. The said order is dated 11.6.2008. Therefore, the requirement of a prior permission is belied by the said proceedings also”. 11. Therein, the 2nd language offered by the school was Sanskrit. The effect of the various orders including Ext.P5 herein were considered therein and therefore, the said findings will really apply as far as the present case is concerned. Therein also this Court noticed the issuance of the prospectus in paragraph 9 like the one issued herein namely, Ext.P14. 12. In the light of the above, the directions contained in W.P.(C) No.15503/2010 11 Exts.P11 and P12 cannot survive. Learned Government Pleader submitted that creation of post requires issuance of proceedings by the Government. Evidently, the required number of posts are being created by the Government for every year for different Higher Secondary subjects in respect of various schools. But, the question is whether any prior sanction was required for offering languages. Herein, evidently, permission is granted by Ext.P5 to adopt 2nd language. That doesn't insist for any prior sanction. Apart from that, once Higher Secondary courses are sanctioned to various schools and the 2nd language is to be among those given in Ext.P5, it cannot be said that by adopting any of the languages therein, the Management has acted against any of the Government Orders. Apart from that, going by Ext.P7 to P7(c) communications, the matter was duly informed to the authorities also and no contrary orders were issued. Therefore, the contention that prior sanction ought to have been obtained cannot be sustained. But, it requires a formal sanction of the course and creation of post as H.S.S.T (Junior) Hindi from the authorities and for that matter, the Government will issue orders W.P.(C) No.15503/2010 12 after hearing the school authorities and the petitioner. Another issue that is raised by the petitioner is with regard to the approval of appointment. Once sanction is granted to the course, normally the Director of Higher Secondary Education will take up the question of granting of approval to the petitioner. Evidently, for the years 2008-09 and 2009-10, students have passed out from the school opting Hindi as the 2nd language. Pursuant to the interim order passed by this Court, the implementation of Ext.P11 was stayed and the students are studying therein also. Therefore, appropriate orders will be passed in the light of the findings above within a period of two months from the date of receipt of a copy of this judgment. To enable the Government to reconsider the matter, Exts.P11 and P12 are quashed. This writ petition is allowed as above. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp