Government cannot deny post creation or appointment approval based on financial reasons when statutory provisions necessitate such positions in educational institutions.

JUDGMENT :

Viju Abraham, J.

Since common issue is involved in these writ petitions, they are heard and disposed of by a common judgment.

WP(C) No.4145 of 2022

2. The 1^st petitioner was appointed as a part-time menial from 02.12.2019 in the higher secondary section of SNV Higher Secondary School, Panayara, Varkala, as per Ext.P1. The approval of appointment was rejected by Ext.P2 by the 3rd respondent, the Regional Deputy Director of Higher Secondary Education, for the reason that there is no part-time menial post in the school. The 2nd petitioner was appointed as a part-time menial from 02.12.2019 as per Ext.P4 in the higher secondary section of the very same school, and the approval was rejected as per Ext.P5. Aggrieved by the rejection in the case of both the petitioners, a revision was filed by the Manager as Exts.P3 and P6. Petitioners would contend that the stand taken by the 3rd respondent in rejecting the request for approval of appointment is that there is no post of part-time menial sanctioned in the higher secondary section of the school by the Government. It is contended that the said reason stated by the authorities is without any basis inasmuch as Rule 4 of Chapter XXXII of the Kerala Education Rules provides staff pattern for Aided Higher Secondary Schools, providing for method of appointment, and it includes appointment of the part-time menial by way of direct recruitment. It is submitted that revision petitions were considered and were rejected as per Ext.P10 for the reason that no post of part- time menial has been created in the Higher Secondary School, as the Government has not taken any final decision based on the judgment of this Court in Vivek Nair v. State of Kerala [ 2021 (3) KLT 65 ] Petitioners relying on the judgment inState of Kerala & Another v. Saji T.M. & Another [ 2009 (3) KHC 610 ] submit that it is the exclusive discretion of the Director to sanction the post, having regard to the requirement, and the said power vested in the Director to sanction a post in the school is a power coupled with a duty. Petitioners would submit that the appeal filed challenging the judgment inSaji T.M.’s case cited supra was dismissed by the Apex Court by the order dated 30.07.2010. Petitioners also relies on Ext.P8 judgment in W.A. No.1465 of 2013, wherein it is held that sanctioning of a post of LD Clerk is the statutory function of the Director as provided in Rule 3 of Chapter XXXII KER , and that it is for the Director to sanction a post and for that matter, the Director need not await or obey the dictates of the Government. Petitioner also relies on Ext.P11 judgment in WA No.745 of 2018 and connected cases and submits that the said judgment has become final inasmuch as the appeal filed against the same has been dismissed by the Apex Court as per Ext.P12 order. Petitioners also rely on the judgment inVivek Nair v. State of Kerala [ 2021 (3) KLT 65] and contend that the Government is obliged to create the post, which has already been legally sanctioned as per the provisions of the statute itself, which was subsequently proposed and recommended by the Director of Higher Secondary Education.

WP(C) No.23221 of 2022

3. In this case, petitioners have approached this Court challenging Ext.P11 order, contending that the same has been issued contrary to the findings in Ext.P1(b) and P7 judgments. Petitioners would contend that they have entered aided school service as Librarians with effect from 09.01.2008, 16.07.2001, 13.07.2010, 01.01.2002, 08.10.2009, 07.09.2009, and 07.09.2009 respectively in the Higher Secondary School belonging to respondent Nos. 6 to 12. It is submitted that the petitioners are fully qualified for being appointed as Librarians. The request