State Of Kerala And Ors vs Manager, Kshethra Pravesana Memorial Higher Secondary School And Ors

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.

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.

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.

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.

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 2nd respondent/2nd petitioner, there was sufficient student strength as evident from Ext.P4, as well as from Ext.P9.

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.

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.