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
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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
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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