High Court Kerala High Court

State Of Kerala vs Manager on 12 November, 2008

Kerala High Court
State Of Kerala vs Manager on 12 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 2142 of 2008()



1. STATE OF KERALA
                      ...  Petitioner

                        Vs

1. MANAGER, M.T.HIGHER SECODARY
                       ...       Respondent

                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  :SRI.KURIAN GEORGE KANNANTHANAM.

The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :12/11/2008

 O R D E R

J.B. Koshy & Thomas P.Joseph, JJ.

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W.A. No. 2142 of 2008

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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.

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W.A.No. 2142/2008

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Judgment

Date:12th November,2008