IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 WP(C).No. 17676 of 2009(D) -------------------------- PETITIONER(S): --------------- SHINY ANTONY.A., AGED 33, W/O.STANLY AGUSTIN, KOLLOOKKARAN HOUSE, KOODAPUZHA, CHALAKUDY, NOW WORKING AS HSST JUNIOR (SANSKRIT) AT ST.ANTONY'S HSS, MALA. BY ADV. SRI.BENOY THOMAS RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM. 3. REGIONAL DIRECTOR OF HIGHER SECONDARY EDUCATION, EDAPPALLY, ERNAKULAM. 4. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF IRINJALAKKUDA, IRINJALAKKUDA. GOVERNMENT PLEADER FOR R1-3 SMT. RANI DIOTHIMA SRI.S.MUHAMMED HANEEFF FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2011, ALONG WITH WPC NO. 18638 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC 17676/2009 EXT.P1-TRUE COPY OF APPOINTMENT ORDER OF THE PETITIONER EXT.P1(A)-TRUE COPY OF JOINING REPORT OF THE PETITIONER EXT.P2-TRUE COPY OF APPOINTMENT ORDER OF THE PETITIONER EXT.P2(A)-TRUE COPY OF ORDER OF R1 DT.10.12.2002 EXT.P2(B)-TRUE COPY OF CERTIFICATE DATED 29.9.2008 EXT.P2(C)-TRUE COPY OF LETTER DT.22.9.2008 EXT.P(D)-TRUE COPY OF ORDER DT.13.6.2007 EXT.P3-TRUE COPY OF STAFF FIXATION ORDER DT.17.8.2007 EXT.P3(A)-TRUE COPY OF DO. DO. EXT.P4-TRUE COPY OF REPRESENTATION DT.27.9.2007 EXT.P4(A)-TRUE COPY OF PROCEEDINGS OF RDD DATED 23.10.2007 EXT.P4(B)-TRUE COPY OF DO. OF DIRECTOR DT.26.5.2008 EXT.P5-TRUE COPY OF REPRESENTATION DT. 1.10.2008 EXT.P5(A)-TRUE COPY OF JUDGMENT DT.11.12.2008 IN WPC 30618/2008 EXT.P5(B)-TRUE COPY OF GO DATED 12.5.2009 EXT.P6- TRUE COPY OF GO DATED 13.5.1998 EXT.P6(A)-TRUE COPY OF GO DATED 11.6.1999 EXT.P6(B)-TRUE COPY OF GO DATED 28.6.2000 EXT.P7-TRUE COPY OF GO DATED 1.2.1991 EXT.P8-TRUE COPY OF GO DATED 19.5.2000 EXT.P9-TRUE COPY OF PROCEEDINGS DT.11.6.2008 EXT.P9(A)-TRUE COPY OF GO DATED 7.2.2007 EXT.P10-TRUE COPY OF CIRCULAR DT 25.11.2003 EXT.P11-TRUE COPY OF RELEVANT PAGES OF PROSPECTUS EXT.P12-TRUE COPY OF DO. // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 17676 /2009-D & 18638/2010-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of May, 2011. JUDGMENT Both these writ petitions concern a common issue and they have been filed by the teacher seeking approval and payment of salary and the Corporate Manager of the school. The issue pertains to the approval of appointment of the petitioner in W.P.(C) No.17676/2009 as HSST (Junior) Sanskrit in St. Antony's Higher Secondary School, Mala which is managed by the fourth respondent therein, who is the petitioner in W.P.(C) No.18638/2010. I may refer to the pleadings and exhibits in W.P.(C) No.17676/2009. 2. The petitioner was initially appointed as Junior Sanskrit Teacher (part time) in the U.P. Section of a school under the same management. She was appointed by transfer against 25% category as per Ext.P1 order, in the Higher Secondary division and she joined duty on 15.7.2004. Exts.P1 and P1(a) are the copies of those orders. The appointment of the petitioner as Junior Sanskrit Teacher (part time), has already been approved by Ext.P2 order and she was drawing salary in that post also. From the year 2003- 2004 onwards the management had opted Sanskrit as second language apart wpc 17676/2009 & 18638/2010 2 from Hindi and Malayalam and had been admitting students in St. Antony's Higher Secondary School, Mala. It appears that the staff fixation orders for the years 2003-2004, 2004-2005, 2005-2006 and 2006-2007 were issued only by Ext.P3 order dated 17.8.2007. In the said staff fixation order the Regional Deputy Director of Education has not sanctioned the post of Higher Secondary School Teacher (Junior) Sanskrit, for want of sanction from the Government. Ext.P3(a) is the staff fixation order for the year 2007-2008 wherein also the same position is reflected. Against the same, the management moved the Government by Ext.P4 (Ext.P4 in W.P.(C) No.18638/2010 also). The Regional Deputy Director forwarded Ext.P4, by Ext.P4(a) communication, to the Director of Higher Secondary Education for forwarding it to the Government. But the Director refused to forward it to the Government, by Ext.P4(b), against which the petitioner had filed a representation before the Government as per Ext.P5. The petitioner had moved this Court by filing W.P.(C) No.30618/2008 and pursuant to the direction issued to the Government, the Government heard the matter and rejected the claim of the petitioner, by Ext.P5(b) order, which is under challenge in this writ petition. 3. The whole question posed relates only to one aspect, viz. whether wpc 17676/2009 & 18638/2010 3 the school is required to obtain prior sanction for introducing Sanskrit also as a second language and in appointing staff for manning the course. 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 wpc 17676/2009 & 18638/2010 4 School and it was limited to four. The stipulation reads as follows: “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 wpc 17676/2009 & 18638/2010 5 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 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 wpc 17676/2009 & 18638/2010 6 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 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 wpc 17676/2009 & 18638/2010 7 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, 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 wpc 17676/2009 & 18638/2010 8 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. 9. One more thing to be noticed is the prospectus issued by the Director of Higher Secondary Education for admission to Plus Two courses for the year 2008-2009 onwards, viz. Exts.P11 and P12. In the said proceedings relating to Thrissur district, one of the second languages offered is Sanskrit, as evident from the respective column therein in respect of the school herein. This also supports the case of the petitioners. 10. Therefore, the writ petitions are allowed. Exts.P4(b) and P5(b) in W.P.(C) No.17676/2009 are quashed and Ext.P5 in W.P.(C) No.18638/2010 is also quashed. The Government will reconsider the matter in the light of the findings above and pass appropriate orders with regard to the sanction of the course and creation of post as HSST Junior Sanskrit to which the petitioner in W.P.(C) No.17676/2009 has been appointed, as requested for. Appropriate orders will be passed within two months from the date of receipt of a copy of this judgment, after hearing the petitioners. Consequent on the issuance of such orders, the staff fixation orders will be wpc 17676/2009 & 18638/2010 9 revised to include the post in Sanskrit and the monetary benefits also will be sanctioned to the petitioner in W.P.(C) No.17676/2009. No costs. (T.R. Ramachandran Nair, Judge.) kav/