SHINY ANTONY A Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 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 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.