Kerala High Court
Against The Judgment Dated ... vs By Government Pleader on 25 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942
WA.No.1486 OF 2020
AGAINST THE JUDGMENT DATED 11.12.2019 IN WP(C) 31546/2014 OF HIGH
COURT OF KERALA
APPELLANTS/RESPONDENTS IN WP(C)
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL
EDUCATION (T) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM.
2 THE SPECIAL SECRETARY TO GOVERNMENT,
GENERAL EDUCATION (T) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM.
3 THE DIRECTOR,
HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING,
SANTHI NAGAR, THIRUVANANTHAPURAM.
4 THE REGIONAL DEPUTY DIRECTOR,
HIGHER SECONDARY EDUCATION, REGIONAL OFFICE,
ERNAKULAM.
BY GOVERNMENT PLEADER
RESPONDENTS/PETITIONER IN WP(C):
1 THE MANAGER, KSHETHRA PRAVESANA MEMORIAL HIGHER
SECONDARY SCHOOL,
POOTHOTTA, POOTHOTTA P.O, KOCHI-682 307
2 ABHILASH T.P.,
HSST (JUNIOR), HINDI, KSHETHRA PRAVESANA MEMORIAL
HIGHER SECONDARY SCHOOL, POOTHOTTA, POOTHOTTA P.O,
KOCHI-682 307
R1 BY ADV. SRI.S.SUJIN
SRI. A.J. VARGHESE-SR. G.P.,,
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.01.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.1486 OF 2020 2
JUDGMENT
Dated this the 25th day of January, 2021
A.M.Shaffique,J.
This appeal is filed by the State and its officers challenging
judgment dated 11.12.2019 in W.P.(C).No.31546/2014. The writ
petitioners had approached this Court challenging Ext.P13 order
by which the appointment of the second petitioner to the post of
HSST Junior Hindi in Kshethra Pravesana Memorial Higher
Secondary School, Poothotta, was approved with prospective
effect from 22.05.2014. The 2nd petitioner in the writ petition
contended that he was appointed to the post of HSST Junior
from 01.09.2006 and therefore the post is to be created from
01.09.2006 itself.
2. The contention raised by the 2nd respondent/2nd
petitioner was that right from the date of his appointment, there
was sufficient student strength to create the post of HSST Junior,
but for one reason or other, the post has not been created and
as such he was not being disbursed the salary and other
benefits. Finally, Ext.P13 order had been issued, but limiting his
service benefits only from the date of order.
3. The learned Single Judge observed that even
according to the Government, there was sufficient teacher -
student ratio in the school for an additional vacancy of HSST
Junior, right from the date when the 2nd respondent/2nd petitioner
was appointed. However, the Government's approach in limiting
the sanctioning of the post only from the date of Ext.P13, was
found to be arbitrary, and accordingly, Ext.P13 was set aside to
that extent and directions have been issued to regularize the
service of the 2nd respondent/2nd petitioner from 01.09.2006 and
to disburse all attendant benefits accruing to him from the said
date.
4. The learned Senior Government Pleader, while
impugning the aforesaid judgment would submit that, in Ext.P4
Government Order dated 29.05.2007, it was specifically stated
that, the post of HSST Junior from 2002-03 has to be created by
the Government, and it was indicated that the approval of
appointment on such post shall be done only on production of
Government Order creating the said post. He argued that, in so
far as the post had not been created, there is no obligation on
the part of Government in giving any benefits to any teachers
who had been employed without the creation of the post. It is
pointed out that as per Ext.P11 Government Order dated
14.02.2012, the Government had rejected the aforesaid proposal
on the basis of a report dated 19.07.2011 from the Director of
Higher Secondary Education, indicating that there is a decline in
the number of students for studying Hindi as second language in
the said school from 2005-06, and therefore, there is no need to
create a post of HSST Junior in Hindi. However, when Ext.P11
was challenged by the Manager in W.P.(C).No.1019/2013, a
submission was made by the learned Government Pleader
stating that the Government has reviewed the issue in
consultation with the Finance Department. Accordingly, the writ
petition was disposed of directing the Government to consider
the representation of the Manager, which resulted in Ext.P13
order. It is pointed out that, once there is substantial financial
implication in creation of a post, there is justification on the part
of the Government in limiting the creation of post from the date
of Ext.P13 order dated 22.05.2014. It is therefore, submitted
that the learned Single Judge had committed a serious error in
allowing the writ petition.
5. On the other hand, the learned Senior Counsel
Sri.N.N.Sugunapalan, appearing on behalf of respondents would
submit that all along from the date of appointment of the 2 nd
respondent/2nd petitioner, there was sufficient student strength
as evident from Ext.P4, as well as from Ext.P9.
6. Perusal of Exts.P4 and P9 would indicate that the
student strength as far as the language Hindi is concerned, did
not have considerable difference and therefore, the contention
that, there was decline of student strength from 2002-03 cannot
be accepted. Even otherwise, in Ext.P13 order, it is clearly stated
that the letter of the Director of Higher Secondary Education
dated 30.12.2011, indicates that there were sufficient number of
students for Hindi so as to create a post of HSST Junior in the
subject from 2002-03 onwards, based on the staff fixation done
by the Regional Deputy Director, Higher Secondary Education.
Such being the facts, when there was sufficient student strength
to accommodate a teacher, merely for the reason that the
Government had some financial difficulties during the relevant
time, cannot be a reason for not sanctioning the post. When
sufficient student strength is available, it is incumbent on the
part of the Government to sanction the post, unless there are
other reasons for not doing so. When a teacher has been
appointed in the year 2006, when there was sufficient student
strength as evident from Ext.P4, within a short time, the
Government should have take a decision.
7. This is a case in which as per Ext.P11 order dated
14.02.2012, the sanctioning of the post was declined. In fact, for
the subject Malayalam, the student strength was less and an
additional Malayalam Teacher post was sanctioned in 2011 as per
order dated 26.02.2011.
In such instances of sanctioning of posts, the Government
is bound to pass appropriate orders within a short time either by
creating the post or rejecting the same. When there is
substantial delay on the part of the Government in passing an
order with reference to creation of post, it will do injustice to the
Manager of the school as well as to the teacher concerned. The
2nd respondent had all along been working in the said school and
there is no dispute about the said fact. Under such
circumstances, we are of the view that there is justification on
the part of the learned Single Judge to have arrived at a
conclusion that the denial of sanctioning of post from 01.09.2006
was bad in law. Accordingly, we do not find any ground to
interfere with the judgment passed by the learned Single Judge.
Hence this writ appeal is dismissed.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
GOPINATH P.
JUDGE
VPK
