IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE8H DAYOF APRIL201518TH CHAITHRA, 1937 WA.No. 523 of 2011 ( ) IN WP(C).5070/2010 ------------------------------------------- AGAINST THE
JUDGMENTIN WP(C) 5070/2010 of HIGH COURT OF KERALA DATED1603-2011 APPELLANT/PETITIONER: ----------------------------------- NAIR SERVICE SOCIETY REPRESENTED BY ITS GENERAL SECRETARY, PERUNNA KOTTAYAM DISTRICT. BY ADVS.SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. GOVERNMENT OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695 001. BY SPL.GOVERNMENT PLEADER SRI T.T.MUHAMOOD THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON1803.2015 ALONG WITH WA.594/2011,AND CON.CASES, THE COURT ON0804-2015, DELIVERED THE FOLLOWING: "CR" ANTONY DOMINIC & ANIL K.NARENDRAN, JJ.
----------------------------------------------------------- W.A.Nos.523, 594, 598, 599, 600, 633, 634, 640, 643, 650, 651, 685, 705, 713,715, 718, 719, 721, 723,726, 752, 753,754, 770, 773, 776, 779, 782,789, 800, 801, 802, 808, 838, 840, 841, 851, 872, 880, 885, 888, 893, 895,903, 932,934, 935, 941, 942, 944, 946, 954, 1010, 1011, 1012, 1013, 1021, 1022, 1027, 1035, 1038, 1039,1042, 1045,1046, 1048,1049,1059,1067,1079, 1084, 1093, 1100, 1105,1114,1116,1130,1134,1135,1150,1151,1152,11 54,1236,1257,1258,1262, 1286, 1313, 1343, 1345, 1394, 1477, 1478 & 1481 OF2011& 112 OF2012------------------------------------------------------------ DATED THIS THE8h DAY OF APRIL, 2015
JUDGMENTANIL K.NARENDRAN, J.
This batch of Writ Appeals arises out of the judgment of the learned Single Judge dated 16/3/2011 in W.P.(C)Nos. 5370 of 2010 and connected cases. The main challenge in those Writ Petitions was against the validity of clauses (v) and (vi) of G.O.(P). No.10/10/G.Edn. dated 12/1/2010. The learned Single Judge by judgment dated 16/3/2011 repelled the challenge against clauses (v) and (vi) of G.O. dated 12/1/2010 and held that the said Government Order required to be implemented. It is aggrieved by the judgment of the learned Single Judge, the appellants are before us in these Writ Appeals. W.A.No.523/11 & con.cases -2- 2. We heard arguments of the learned Senior Counsel/learned counsel for the appellants in these Writ Appeals, the learned Special Government Pleader for the official respondents and also the learned counsel for the party respondents.
3. Background of the Writ Appeals:- 3.1. The following Writ Appeals arise out of Writ Petitions filed seeking mainly a writ of certiorari to quash Clause (vi) of G.O.(P) No.10/10/G.Edn. dated 12/1/2010, which requires the Managers/ Educational Agencies to fill up the vacancies that arise as additional division vacancies in their schools from 2010-11 onwards from among protected teachers and by open recruitment in the ratio of 1:1 and for a declaration that the aforesaid Government Order is ultra vires the powers of the State Government under Section 15 of the Kerala Education Act, 1958:- W.A.No.523/11 filed by the Nair Service Society represented by its General Secretary, arises out of W.P. (C)No.5070/11; W.A.No.650/2011 filed by the Manager of Aided Lower Primary School, Vilayur, arises out of W.A.No.523/11 & con.cases -3- W.P.(C)No.27611/2010; W.A.No.651/2011 filed by the Manager of A.K.N.M.M.A. Memorial High School, Kattukulam, along with the Managers of two other aided schools in Palakkad District, arises out of W.P.(C) No.2348/2010; W.A.No.705/2011 filed by the Manager of A.M.U.P. School, Chungad, along with the Managers of 266 other aided schools in Palakkad District, arises out of W.P.(C)No.9477/2010; W.A.No.753/2011 filed by the Manager of P.M.S.A.P.T.S.Vocational Higher Secondary School, Kaikotukadavu in Kasaragod District, along with the Managers of 11 other aided schools, arises out of W.P.(C)No.15563/2011; W.A.No.872/2011 filed by the Corporate Manager of the Educational Agency of the Diocese of Irinjalakuda, along with 14 other Corporate Managers of aided schools claiming minority status under Article 30(1) of the Constitution of India, arises out of W.P.(C)No.6834/2010; W.A.No.880/2011 filed by the Corporate Manager of St.Joseph's High School, Poovathussery, an aided school claiming minority status under Article 30(1) of the Constitution of India, arises out of W.P.(C)No.15225/2010; W.A.No.893/2011 filed by the Manager of Ramaraja Memorial U.P. School, Punnayurkulam, along with 2 other Managers of aided schools, arises out of W.P.(C)No.10668/2010; W.A.No.895/2011 filed by the Manager of V.R.A.M.M. W.A.No.523/11 & con.cases -4- High School and A.L.P. School, Thaikkad South, along with 9 other Managers of aided schools, arises out of W.P.(C)No.6039/2010; W.A.No.1027/2011 filed by the Manager of K.S.M. Vocational Higher Secondary School, Edavatom, and the Manager of another aided school, arises out of W.P.(C)No.4158/2010 (in which a declaration was also sought for to the effect that, Rule 14 of Chapter XXIII Kerala Education Rules is unconstitutional and opposed to Rule 12 of Chapter XXIII and Rule 23 of Chapter VI of the said Rules); W.A.No.1035/2011 filed by the Manager of P.S.P.T.M. Lower Primary School, Sooranadu North, Kollam District, arises out of W.P.(C)No.4297/2010 (in which a declaration similar to that sought in W.P.(C) No.4158/2010 was sought for); W.A.No.1039/2011 filed by the Manager of Mannarasala U.P. School, Mannarasala, arises out of W.P.(C)No.19698/2010 (in which a declaration similar to that sought in W.P.(C) No.4158/2010 was sought for); W.A.No.1049/2011 filed by the Corporate Manager of Catholic Schools, Kollam, having aided schools claiming minority status under Article 30(1) of the Constitution of India, arises out of W.P.(C)No.7958/2010 (in which a declaration similar to that sought in W.P.(C)No.4158/2010 was sought for); W.A.No.1059/2011 filed by the Manager of K.R.K.P.M.V. W.A.No.523/11 & con.cases -5- High School and Vocational Higher Secondary School, Kadampanad, arises out of W.P.(C)No.4757/2010 (in which a declaration similar to that sought in W.P.(C) No.4158/2010 was sought for); W.A.No.1067/2011 filed by the Manager of N.S.N.S.P.M. Upper Primary School, Patharam, Kollam District, arises out of W.P.(C) No.6832/2010 (in which a declaration similar to that sought in W.P.(C)No.4158/2010 was sought for); W.A.No.1084/2011 filed by the Manager of S.E.D. Upper Primary School, Kottakmara, Kundara, arises out of W.P. (C)No.5174/2011 (in which a declaration similar to that sought in W.P.(C)No.4158/2010 was sought for); W.A.No.1134/2011 filed by the Manager of Vocational Higher Secondary School, Poredom, Chadayamangalam, Kollam District, arises out of W.P.(C)No.4481/2010 (in which a declaration similar to that sought in W.P.(C) No.4158/2010 was sought for); W.A.No.1262/2011 filed by the Manager of S.V.M.M. Higher Secondary School and Vocational Higher Secondary School, Vendar, Kottarakkara, arises out of W.P.(C)No.4187/2010 (in which a declaration similar to that sought in W.P.(C) No.4158/2010 was sought for); and W.A.No.1345/2011 filed by the Manager of T.D. Schools, Thuravoor, an aided school claiming minority status under Article 30(1) of the Constitution of India, arises out of W.P.(C) W.A.No.523/11 & con.cases -6- No.4067/2010. 3.2. The following Writ Appeals arise out of Writ Petitions filed seeking mainly a writ of certiorari to quash Clauses (v) and (vi) of G.O.(P) No.10/10/G.Edn. dated 12/1/2010 and also a writ of mandamus commanding the official respondents to approve all the appointments made by the managements during 2006-07 to 2009-10, without insisting on Clause (v) and (vi) referred to above. Clause (v) of the said G.O. requires the Managers/Educational Agencies to execute and submit an agreement to the Educational Officers concerned to the effect that they will appoint protected teachers/non-teaching staff, equal to the appointments made in their aided schools in the additional divisions during the period from 2006-07 to 2009-10, in all arising vacancies in their schools from 2010-11 onwards, for approving such appointments made in the additional divisions during the period from 2006-07 to 2009-10. Similarly, Clause (vi) of the aforesaid G.O. requires the Managers/Educational Agencies to fill up the vacancies that arises as additional division vacancies in their schools from 2010-11 onwards in the order of protected W.A.No.523/11 & con.cases -7- teacher and open recruit in the ratio of 1:1. A declaration was also sought for to the effect that, the aforesaid G.O. is ultra vires the powers of the State Government under Section 15 of the Kerala Education Act, 1958:- W.A.No.594/2011 filed by the Manager of Vaikkalasseri U.P.School, Kozhikode District, along with the Managers of 4 other aided schools, arises out of W.P.(C)No. 3023/2010; W.A.No.598/2011 filed by the Manager of S.V.High School, Kayamkulam, arises out of W.P.(C)No.8012/2010; W.A.No.599/2011 filed by the Manager of A.M.U.P. School, Jhanaprabha, along with an Upper Primary School Assistant of that school, arises out of W.P.(C)No.36337/2010; W.A.No.600/2011 filed by the Manager of Nirmala L.P. School, Malamuri, arises out of W.P.(C)No.39196/2010; W.A.No.633/2011 filed by the Manager of S.N.M. Higher Secondary School, Parappanangadi, arises out of W.P.(C) No.31920/2010; W.A.No.634/2011 filed by the Manager of Koolipuzhi Aided Mappila U.P. School, Kaipamangalam, arises out of W.P.(C)No.5844/2010; W.A.No.640/2011 filed by the Manager of T.K.M.R.M. Vocational Higher Secondary School, Vellana, arises out of W.P.(C)No.15355/2010; W.A.No.643/2011 filed by the Manager of Changampalli A.M.L.P. School, Edakkulam, arises out of W.P.(C) No.26459/2010; W.A.No.685/2011 filed by the Manager of K.N.M.A.M.U.P. School, Vazhakkad, arises out of W.P.(C) No.3927/2011; W.A.No.713/2011 filed by the Corporate W.A.No.523/11 & con.cases -8- Manager of the Corporate Educational Agency of the Diocese of Alleppey, along with 17 other Corporate Managers, arises out of W.P.(C)No.3169/2010; W.A.No.715/2011 filed by the Manager of New U.P. School, Santhivila, Nemom, arises out of W.P.(C)No.32613/2010; W.A.No.718/2011 filed by the Manager of M.M.O.B.H. School, Panayappally, arises out of W.P.(C)No.22551/2010; W.A.No.719/2011 filed by the Manager St.Little Teresas Girls Higher Secondary School, Vaikom, arises out of W.P.(C)No.23157/2010; W.A.No.721/11 filed by the Manager of Kuthuparamba High School, Thokkilangadi, arises out of W.P.(C)No.6793/2010; W.A.No.723/2011 filed by the Manager of K.T.C. Higher Secondary School, Pattannur, arises out of W.P.(C) No.27445/2010; W.A.No.726/2011 filed by the Manager of Midayikkunnam L.P. School, Thalayolaparambu, arises out of W.P.(C)No.16961/2010; W.A.No.752/2011 filed by the Manager of Sree Narayana Higher Secondary School, Okkal, arises out of W.P.(C)No.36484/2010; W.A.No.754/2011 filed by the Manager of B.P.A.U.P. School, Vilayil, Malappuram District, arises out of W.P.(C)No.4510/2011; W.A.No.770/2011 filed by the Manager of Desabandhu High School, Thachampara, arises out of W.P.(C)No.30194/2010; W.A.No.773/2011 filed by the Manager of the Corporate Educational Agency of Mannar Nair Samajam School, arises out of W.P.(C)No.6955/2011; W.A.No.776/2011 filed by the Manager of S.N.V. High School, Panayara, arises out of W.P. (C)No.6001/2011; W.A.No.779/2011 filed by the Manager of S.K.V.L.P. School, Parapparamukkal, Vamanapuram, W.A.No.523/11 & con.cases -9- arises out of W.P.(C)No.6426/2011; W.A.No.782/2011 filed by the Manager of Vocational Higher Secondary School, Karalam, Thrissur, along with 6 other Managers of aided schools, arises out of W.P.(C)No.8988/2010; W.A.No.789/2011 filed by the Manager of Mukkom Muslim Orphanage Committee, a Corporate Educational Agency having 10 aided schools in Kozhikode District, claiming minority status under Article 30(1) of the Constitution of India, arises out of W.P.(C)No.30876/2010; W.A.No.800/2011 filed by the Manager of M.M.U.P. School, Peroor, arises out of W.P.(C)No.3828/2010; W.A.No.801/2011 filed by the Corporate Manager of the Diocese of Muvattupuzha, having aided schools claiming minority status under Article 30(1) of the Constitution of India, arises out of W.P.(C)No.3905/2010; W.A.No.802/2011 filed by the Manager of N.S.S. High School, Madavur, arises out of W.P.(C)No.5286/2010; W.A.No.808/2011 filed by the Manager of Republican Vocational Higher Secondary School, Konni, along with the Manager of another aided school, arises out of W.P.(C) No.36943/2010; W.A.No.838/2011 filed by the Manager of K.N.N.M. Vocational Higher Secondary School, Pavithreswaram, Kottarakkara, arises out of W.P.(C) No.6603/2010; W.A.No.840/2011 filed by the Manager of Kunnamangalam Higher Secondary School, Kunnamangalam, along with Managers of 16 other aided schools, arises out of W.P.(C)No.3023/2010; W.A.No.841/2011 filed by the Manager of M.K.M. Higher W.A.No.523/11 & con.cases -10- Secondary School, Piravom, arises out of W.P.(C) No.2822/2010; W.A.No.851/2011 filed by the Corporate Educational Agency of Diocese of Idukki, along with 11 other Managements of aided schools, having aided schools claiming minority status under Article 30(1) of the Constitution of India, arises out of W.P.(C)No.4260 of 2010; W.A.No.885/2011 filed by the Manager of Thachingadan High School, Malappuram District, arises out of W.P.(C) No.18657/2010; W.A.No.888/2011 filed by the Manager of Mar Kauma Higher Secondary School, Vengoor, along with 5 other Managers of aided schools claiming minority status under Article 30(1) of the Constitution of India, arises out of W.P.(C)No.10549/2010; W.A.No.903/2011 filed by the Manager of Viswabharathi S.N. Higher Secondary School, Njeezhoor, arises out of W.P.(C)No.17851/2010; W.A.No.932/2011 filed by the Manager of St.John's Higher Secondary School, Eraviperoor, arises out of W.P.(C) No.19728/2010; W.A.No.934/2011 filed by the Manager of S.N.V. Sanskrit High School, Thirumoolapuram, arises out of W.P.(C)No.18667/2010; W.A.No.935/2011 filed by the Manager of Pothiyil L.P. School, Pallippuram, along with Managers of 2 other aided schools, arises out of W.P.(C) No.18714/2010; W.A.No.941/2011 filed by the Manager of C.M.A.L.P. School, Pandikkad, arises out of W.P.(C) No.4935/2011; W.A.No.942/2011 filed by the Manager of B.N.N.A.U.P. School, Edayattur, arises out of W.P.(C) No.4806/2011; W.A.No.944/2011 filed by the Manager of V.P.K.M.M. Higher Secondary School, Puthur, in Malappuram W.A.No.523/11 & con.cases -11- District, arises out of W.P.(C)No.2402/2011; W.A.No.946/2011 filed by the Manager of St.Joseph High School, Mathilakam, arises out of W.P.(C)No.7036/2010; W.A.No.954/2011 filed by the Manager of Vocational Higher Secondary School, Karavaram, in Thiruvananthapuram District, arises out of W.P.(C)No.20151/2010; W.A.No.1010/2011 filed by the Manager of S.N. Vocational Higher Secondary School for Girls, Paravur, in Kollam District, arises out of W.P.(C)No. 25062/2010; W.A.No.1011/2011 filed by the Manager of Lakshmi Vilasam High School, Pothencaud, Thiruvananthapuram District, along with the Managers of 2 other aided schools, arises out of W.P.(C)No.12284/2010; W.A.No.1012/2011 filed by the Manager of A.R. Nagar High School, Chandappuray, in Malappuram District, arises out of W.P.(C)No.18704/2010; W.A.No.1013/2011 filed by the Manager of Mannarasala U.P. School, Mannarasala, arises out of W.P.(C) No.30462/2010; W.A.No.1021/2011 filed by the Corporate Manager of C.M.S. Schools, Melukavumattom, Kottayam District, having aided schools claiming minority status under Article 30(1) of the Constitution of India, arises out of W.P. (C)No.10596/2010; W.A.No.1022/2011 filed by the Manager of St.Joseph's Higher Secondary School, Pyngottoor, Kothamangalam, an aided school claiming minority status under Article 30(1) of the Constitution of India, arises out of W.P.(C)No.10597/2010; W.A.No.1038/2011 filed by the Manager of Mannarasala U.P.School, Mannarasala, arises out of W.P.(C)No. 30461/2010 filed seeking approval for the W.A.No.523/11 & con.cases -12- appointments of UPSA/LPSA made in the said school during the academic year 2006-07. W.A.No.1042/2011 filed by the Manager of A.U.P. School, Pathiakkara in Malappuram District, arises out of W.P.(C)No.22892/2010; W.A.No.1045/2011 filed by the Manager of A.U.P. School, Vaikathur, arises out of W.P.(C)No.10909/2010; W.A.No.1046/2011 filed by the Manager of St.Josephs' U.P.School, Chunangamvely, along with the Manager of another aided school, claiming minority status under Article 30(1) of the Constitution of India, arises out of W.P.(C) No.10557/2010; W.A.No.1048/2011 filed by the Manager of Mannarasala U.P. School, Mannarasala, arises out of W.P.(C) No.30411/2010 filed seeking approval of the appointments of LPSA/UPSA made in the said school during the academic year 2008-09 and 2009-10; W.A.No.1079/2011 filed by the Manager of Sreekrishna High School, Anandapuram, in Thrissur District, along with the Managers of 2 other aided schools, arises out of W.P.(C)No.5545/2010; W.A.No.1093/2011 filed by the Corporate Manager of Pavanatma Corporate Educational Agency, Kothamangalam, of the Diocese of Idukki, having aided schools claiming minority status under Article 30(1) of the Constitution of India, arises out of W.P.(C)No.19914/2010; W.A.No.1100/2011 filed by the Manager of Ebenazar High School, Vettoor, arises out of W.P.(C)No.3067/2010; W.A.No.1105/2011 filed by the Manager of A.B. Vilasam Higher Secondary School, Muhamma, Alappuzha, arises out of W.P.(C)No.38149/2010; W.A.No.1114/2011 filed by the W.A.No.523/11 & con.cases -13- Manager of Koyippallikaranma High School, Olakettiyamblam, in Alappuzha District, arises out of W.P. (C)No.12937/2010; W.A.No.1116/2011 filed by the Manager of Puliyaparamba Higher Secondary School, Kodunthirapully, in Palakkad District, arises out of W.P.(C)No.19718/2010; W.A.No.1130/2011 filed by the Manager of S.G.N.M.L.P. School, Marthandeswaram, in Thiruvananthapuram District, along with the Managers of 2 other aided school, arises out of W.P.(C)No.9818/2010; W.A.No.1135/2011 filed by the Manager of St.Joseph's Boys Higher Secondary School, Kozhikode, an aided school claiming minority status under Article 30(1) of the Constitution of India, arises out of W.P. (C)No.10810/2010; W.A.No.1150/2011 filed by the Manager of A.M.U.P. School, Pallikkal, in Malappuram District, arises out of W.P.(C)No.1318/2011; W.A.No.1151/2011 filed by the Manager of A.L.P. School, Iringallur, in Malappuram District, arises out of W.P.(C)No.2232/2011; W.A.No.1152/2011 filed by the Manager of K.K.M.L.P. School, Vandithavalam, in Palakkad District, arises out of W.P.(C)No.26413/2010; W.A.No.1154/2011 filed by the Manager of A.M.L.P. School, Perumanna, in Malappuram District, arises out of W.P.(C)No.2345/2011; W.A.No.1236/2011 filed by the Manager of Union Higher Secondary School, Manthra, in Thrissur District, arises out of W.P.(C)No. 10831/2011; W.A.No.1257/2011 filed by the Manager of St.Augustine's Corporate Educational Agency, along with the Managers of 10 other Managers having aided schools claiming minority status under Article 30(1) of the W.A.No.523/11 & con.cases -14- Constitution of India, arises out of W.P.(C)No.10855/2010; W.A.No.1258/2011 filed by the Corporate Manager of Ursuline Educational Agency, Payyambalam, an aided school claiming minority status under Article 30(1) of the Constitution of India, arises out of W.P.(C)No.10575/2010; W.A.No.1286/2011 filed by the Manager of M.V. Higher Secondary School, Arumanoor, arises out of W.P.(C) No.8574/2010; W.A.No.1313/2011 filed by the Manager of Higher Secondary School, Kandamangalam, in Alappuzha District, arises out of W.P.(C)No.10853/2010; W.A.No.1343/2011 filed by the Manager of A.U.P. School, Trippanchi, in Malappuram District, along with the Managers of 38 other aided schools in Malappuram District, arises out of W.P.(C)No.9434/2010; W.A.No.1394/2011 filed by the Manager of A.M.L.P. School, Kuttur South, in Malappuram District, along with the Managers of 13 other aided schools, arises out of W.P.(C)No.10654/2010; W.A.No.1477/2011 filed by the Manager of M.M.M. Higher Secondary School, Kuttayi, in Malappuram District, arises out of W.P.(C) No.38218/2010; W.A.No.1478/2011 filed by the Manager of A.M.L.P. School, Biyyam, Ponnani, arises out of W.P.(C) No.1008/2011; W.A.No.1481/2011 filed by the Manager of A.M.L.P. School, Kundilparamba in Malappuram District, arises out of W.P.(C)No.26097/2010; and W.A.No.112/2012 filed by the Manager of S.N.M. Higher Secondary School, Parappanangadi, arises out of W.P.(C)No.32589/2010.
4. G.O.(P)No.10/10/G.Edn. dated 12/1/2010:- W.A.No.523/11 & con.cases -15- 4.1. G.O.(P)No.10/10/G.Edn. dated 12/1/2010 (hereinafter referred to as 'G.O. dated 12/1/2010') has been issued by the Government of Kerala, for lifting the ban imposed on appointment of teachers in additional division vacancies in Government/Aided schools in the State, from the academic year 2006-07 onwards. G.O. dated 12/1/2010 states that, by G.O.(P) No.817/01/Fin. dated 11/6/2001, the Government ordered that no new posts will be created in the Government/aided schools and Colleges. But considering the practical difficulties, due to non-sanctioning of posts in schools, the General Education Department has relaxed the economy orders by Government orders referred to as (2) to (6) dated 5/10/2001, 28/12/2001, 27/4/2002, 15/6/2004 and 17/8/2005 in G.O. dated 12/1/2010. By Government order referred to as (6) above dated 17/8/2005, it was, inter alia, ordered that, the restriction on appointment on additional vacancies will continue with effect from the academic year 2006-07 onwards. But the Government noticed that, in spite of the above Government orders, several Managers had appointed teachers and non-teaching staff in additional division W.A.No.523/11 & con.cases -16- vacancies and the Government have not approved such appointments. Considering the request from various quarters, the Government have examined the matter in detail and have decided in G.O. dated 12/1/2010 to lift the restriction imposed on appointment with effect from the academic year 2006-07 subject to the conditions enumerated in Clauses (i) to (vii) of Para.1 of G.O. dated 12/1/2010. Clauses (i) to (vii) of Para.1 of G.O. dated 12/1/2010 read thus; i) The appointments made against additional division vacancies in Government/Aided schools from 2006-07 can be approved as per the provisions in KER. ii) The salary and allowance of the teachers and other staff so approved will be credited to the Provident Fund Accounts as and when it begins. No withdrawal from such Provident Fund Accounts will be allowed till 31/3/2015. iii) The concerned Educational Officers will revise the staff fixation orders, for the academic years 2006-07, 2007-08, 2008-09 and 2009-10 and sanction the posts that can be allowed. While sanctioning such posts, the concerned Educational Officers will take necessary steps to ensure the students' strength in each year and the Deputy Directors of Education should ensure its accuracy. iv) Before approving each appointments the concerned Educational Officers should ensure that vacancies are W.A.No.523/11 & con.cases -17- available and the appointees are possessing the required qualifications. v) For approving the appointments made in the additional divisions during the period from 2006-07 to 2009-10 in the aided schools, the Managers should execute an agreement in the stamp paper worth Rs.50/- duly witnessed by Notary to the concerned Educational Officers to the effect that they will appoint protected teachers/non-teaching staff equal to such appointees in all the arising vacancies in the schools from 2010-11 onwards. The Educational Officers should submit a consolidated statement of such agreements to Government. vi) After appointing protected teachers/non-teaching staff equal to the appointees in additional division vacancies during 2006-07 to 2009-2010, the vacancies that arise as additional division vacancies in future should be filled up in the order of protected teacher and open recruit in the ratio of 1:1. vii) With regard to the appointment of protected teachers in 'new schools', i.e., 'the schools started/upgraded after 1979', the orders relating to the appointment of protected teachers will be governed by the conditions in G.O.(P) No.178/2002/G.Edn. dated 28/6/2002 and G.O.(P) No.46/2006/G.Edn. dated 1/2/2006. 4.2. Going by G.O. dated 12/1/2010, the appointments made against additional division vacancies in Government/Aided W.A.No.523/11 & con.cases -18- schools from 2006-07 can be approved as per the provisions in the Kerala Education Rules. The Educational Officers concerned shall revise the staff fixation orders for the academic years 2006- 07, 2007-08, 2008-09 and 2009-10 and sanction posts that can be allowed. Before approving each appointment, the Educational Officers concerned should ensure that vacancies are available and the appointees are possessing the required qualifications. Clause (v) of G.O. dated 12/1/2010 provides that, for approving appointments made in the additional divisions during the period from 2006-07 to 2009-10 in the aided schools, the Managers should execute an agreement in stamp paper of Rs.50/- duly witnessed by Notary to the Educational Officers concerned to the effect that they will appoint protected teaches/non-teaching staff equal to such appointees in all the arising vacancies in the schools from 2010-11 onwards. Clause (vi) of G.O. dated 12/1/2010 provides that, after appointing protected teachers/ non-teaching staff equal to the appointees in additional division vacancies during 2006-07 to 2009-10, the vacancies that arise as additional division vacancies in future should be filled up in the W.A.No.523/11 & con.cases -19- order of protected teacher and open recruit in the ratio of 1:1. Further, Clause (vii) of G.O. dated 12/1/2010 provides that, with regard to the appointment of protected teachers in the new schools, i.e., the schools started/upgraded after 1979, the orders relating to the appointment of protected teachers will be governed by the conditions in Government orders dated 28/6/2002 and 1/2/2006. By G.O. dated 12/1/2010, the Educational Officers concerned and ordered to verify and approve the appointments made during 2006-07 onwards in the additional division vacancies subject to the above conditions, without waiting for the appellate orders/revisions.
5. The main contention raised in these Writ Appeals is that, Clauses (v) and (vi) of G.O. dated 12/1/2010 are contrary to the provisions under the Kerala Education Act, 1958 and the provisions of the Kerala Education Rules, 1959, (hereinafter referred to as 'KER'). In the Writ Appeals arising out of the Writ Petitions filed by the Managers/Educational Agencies of aided schools claiming minority status under Article 30(1) of the Constitution of India, it is contended that, Clauses (v) and (vi) of W.A.No.523/11 & con.cases -20- G.O. dated 12/1/2010 are against the constitutional guarantee enshrined under Article 30(1) of the Constitution of India. In W.A.No.1027/2011 arising out of W.P.(C)No.4158/2010 and also in few other Writ Appeals, it is contended that Rule 14 of Chapter XXIII KER is unconstitutional and opposed to Rule 12 of Chapter XXIII and Rule 23 of Chapter VI of the said Rules.
6. The Kerala Education Act, 1958:- 6.1. The Kerala Education Act, 1958 was enacted to provide for the better organisation and development of educational institutions in the State of Kerala, providing a varied and comprehensive educational service throughout the State. The Kerala Education Bill, 1958 received the assent of the President of India on 19/2/1959, which was given on the basis of the decision of the Apex Court in re-Kerala Education Bill (AIR1958SC956. Sub-section (1) of Section 2 of the Kerala Education Act, 1958 (hereinafter referred to as 'the Act') define 'aided school' to mean a private school which is recognised by and is receiving aid from the Government, but shall not include educational institutions, entitled to receive grants under Article W.A.No.523/11 & con.cases -21- 337 of the Constitution of India, except in so far as they are receiving aid in excess of the grants to which they are so entitled. Sub-section (2) of Section 2 defines 'educational agency' to mean any person or body of persons permitted to establish and maintain any private school under the Act. Sub-section (5) of Section 2 defines 'minority schools' to mean schools of their choice established and administered, or administered, by such minorities as have the right to do so under Clause (1) of Article 30 of the Constitution. Sub-section (7) of Section 2 defines 'private schools' to mean an aided or recognised school and Sub- section (8) defines 'recognised school' to mean a private school recognised by the Government under the Act. 6.2. Section 3 of the Act deals with establishment and recognition of schools. Sub-section (1) of Section 3 empowers the Government to regulate the primary and other stages of education and courses of instructions in Government and Private Schools. Going by Sub-section (2), the Government shall take, from time to time, such steps as they may consider necessary or expedient, for the purpose of providing facilities for general W.A.No.523/11 & con.cases -22- education, special education and for the training of teachers. As per Sub-section (3), the Government may, for the purpose of providing such facilities, establish and maintain schools; or permit any person or body of persons to establish and maintain aided schools; or recognise any school established and managed by any person or body of persons. Sub-section (5) states that, after the commencement of the Act, the establishment of a new school or the opening of a higher class in any private school shall be subject to the provisions of the Act and the Rules made thereunder and the school or higher class established or opened otherwise than in accordance with such provisions, shall not be entitled to be recognised by Government. 6.3. Section 7 of the Act deals with Managers of schools. Going by Sub-section (1), any educational agency may appoint any person to be the Manager of an aided school under the Act, subject to the approval of the officer as may be authorised by the Government in this behalf. Going by Sub-section (2), the Manager shall be responsible for the conduct of the school in accordance with the provisions of the Act and the Rules made W.A.No.523/11 & con.cases -23- thereunder. Section 9 of the Act deals with salary of teachers, non-teaching staff, etc. of aided schools and also grants to such schools. Going by Sub-section (1), the Government shall pay the salary of all teachers in aided schools directly or through the Headmaster of the school. Sub-section (2) deals with payment of salary of non-teaching staff. Section 10 of the Act empowers the Government to prescribe the qualifications to be possessed by persons for appointment as teachers in Government and private schools. Going by Section 11 of the Act, which was substituted by Amendment Act 35 of 1960, subject to the rules and conditions laid down by the Government, teachers of aided schools shall be appointed by the Managers of such schools from among persons who possess the qualifications prescribed under Section 10. It is pertinent to note that, Section 11 of the Act, prior to its substitution by Amendment Act 35 of 1960 empowered the Public Service Commission to select candidates for appointment as teachers in Government and aided schools and teachers of aided schools shall be appointed by the Manager only from the candidates so selected for the district in which the school is W.A.No.523/11 & con.cases -24- located, provided that the Manager may, for sufficient reason, with the permission of the Public Service Commission appoint teachers selected for any other district. But, the operation of Section 11 was suspended by Ordinance No.2 of 1960 and then amended by Act 35 of 1960 empowering the Managers of aided schools to make appointment of teachers from among persons who possess the qualifications prescribed under Section 10 of the Act. Section 13 of the Act deals with absorption of teachers on retrenchment. Section 13 states that, where any retrenchment of teachers in any aided school is rendered necessary consequent on orders of the Government relating to the course of studies or scheme of teaching or of such other matters, it shall be competent for the Government or the Manager of an aided school to appoint such teachers in any Government school or aided school, as the case may be.
7. The Kerala Education Rules, 1959:- 7.1. The Kerala Education Rules, 1959 made by the Government of Kerala, in exercise of the rule making power conferred under Section 36 of the Act, came into force from W.A.No.523/11 & con.cases -25- 1/6/1959. Chapter III of KER deals with management of private schools, which are classified under Rule 1 as (i) Individual Educational Agency and (ii) Corporate Educational Agency. Rule 9 of Chapter III of KER deals with duties and powers of the Managers of aided schools. Going by Sub-rule (1) of Rule 9, the Manager shall be responsible for the conduct of the school strictly in accordance with the provisions of the Kerala Education Act and the Rules issued thereunder. Sub-rule (1) mandates that, the Manager shall also abide by the orders that may be issued from time to time by the Government and the Department in conformity with the provisions of the Act and the Rules issued thereunder. Chapter V of KER deals with opening and recognition of schools. Rule 6 of Chapter V of KER deals with the documents, etc., to accompany the application for opening and recognition of schools. Going by Clause (viii) of Rule 6, as it stood prior to its substitution by Kerala Education (Amendment) Rules, 2010, every application shall be accompanied by an agreement duly executed by the applicant to the effect that he is prepared to absorb qualified teachers/non-teaching staff who, after putting in W.A.No.523/11 & con.cases -26- service of two years and drawing two vacation salaries, have been retrenched from any of the aided schools in the Education District or aided primary schools in the Education Sub-district in which the applicant proposes to open/upgrade the school. Going by Clause (viii) of Rule 6 Chapter V of KER, after its substitution by the aforesaid Amendment Rules of 2010, every application shall be accompanied by an agreement duly executed by the applicant to the effect that he is prepared to absorb qualified teachers/non-teaching staff who are eligible for protection as per orders issued by the Government from time to time and that any such orders shall form part and parcel of the agreement as if they were incorporated in the agreement. Rule 22 of Chapter V of KER deals with withdrawal of recognition. Going by Sub-clause (ii) of Clause (a) of Rule 22, the recognition granted to a school or standard may be withdrawn, if it commits any breach of the provisions of the Act and the Rules; and Departmental Rules and directions issued in conformity with the provisions of the Act and the Rules issued thereunder. 7.2. Chapter XIVA of KER deals with conditions of service of W.A.No.523/11 & con.cases -27- aided school teachers. Going by Sub-rule (1) of Rule 1 of Chapter XIVA of KER, the Managers of private schools shall appoint only candidates who possess the prescribed qualifications. As far as the High School classes are concerned, the appointment shall be made with due regard to the requirement of subjects as determined by Director of Public Instructions with reference to the curricula of studies. Whenever vacancy occurs, the Manager shall follow the directions issued by the Government from time to time, for ascertaining the availability of qualified hand and also for filling up vacancy. Sub-rule (4) of Rule 1 provides that, in determining the requirement of subjects, the Director of Public Instruction shall also issue such instructions as may deem necessary for giving protection to teachers, who are in service and would have continued in service; and who stand relieved as per Rule 49 or 52 or on account of termination of vacancies and who would have been eligible for reappointment under Rule 51A had there been no change in the requirement of subjects. As per Rule 5A of Chapter XIVA of KER, qualified teachers who are retrenched by the opening of new schools or consequent on W.A.No.523/11 & con.cases -28- orders of Government relating to the course of studies or scheme of teaching or due to withdrawal of recognition of the school for any of the reasons specified in Rules 22, 22A or 23 in Chapter V and consequent closure of the school shall be given preference for appointment to future vacancies in schools under the same educational agency or under other educational agencies. 7.3. Going by Rule 6(a) of Chapter XIVA of KER, the teachers appointed under Rule 3 shall be on probation for a total period of one year on duty within a continuous period of 2 years. Qualified teachers in the lower grade promoted to the higher grade under Rule 43 before completing their probation shall be on probation in the higher grade as if appointed under Rule 3 in that category. At the end of the period of probation the Manager may issue an order declaring him to have satisfactorily completed his probation. Rule 6(b) empowers the Manager to extend the period of probation of a teacher, with the approval of the Educational Officer, at any time before the expiry of the period of probation, for a further period not exceeding one year, if the work of the probationer is found to be unsatisfactory. Further, W.A.No.523/11 & con.cases -29- under Rule 6(c), if the work of probationer is found to be unsatisfactory at any time before the expiry of the period of probation or where such period of probation is extended, the Manager may, with the approval of the Educational Officer, by order either terminate the probation and discharge the probationer from service or in case probation has not been extended, extend the period of probation after giving him a reasonable opportunity of showing cause against the action proposed to be taken against him. 7.4. Going by Rule 7 of Chapter XIVA of KER, as soon as a teacher is appointed in a school, the Manager shall immediately issue an appointment order to the teacher in 'Form 27' and the appointment shall be effective from the date on which the teacher is admitted to duty, provided the appointment is duly approved. It has been explicitly stated in 'Form 27', which is the statutory form of the order of appointment issued to a teacher, that the appointment is subject to the provisions of the Kerala Education Act and the Rules thereunder and such other rules or orders issued from time to time by the Government or other W.A.No.523/11 & con.cases -30- competent authority. Further, while approving the appointment, the Educational Officer concerned has to certify that, the appointment in question has been made after satisfying that no qualified person retrenched from any of the aided high schools in the Education District or aided primary schools in the Education Sub Districts after putting in two years of service and drawing two vacation salaries is available for absorption to the post in the school. Sub-rules (2) and (3) of Rule 7A mandate that, posts that may fall vacant on the closing date shall not be filled up till the re-opening date except in the case of posts of non-vacation staff and that vacancies, the duration of which is less than one academic year, shall not be filled up. As per Sub-rule (2) of Rule 8, the Educational Officer on receipt of the appointment order and other records mentioned in Sub-rule (1) may approve the appointment if it is in accordance with the provisions of the Act, the Rules and the orders issued by the Government or the Director from time to time. Sub-rule (8) makes it clear that, any violation of the provisions contained in Rule 8 of Chapter XIVA of KER will be one of the grounds for withdrawal of recognition W.A.No.523/11 & con.cases -31- under Rule 23 of Chapter V and action under Rule 7 of Chapter III of KER. 7.5. Going by Rule 43 of Chapter XIVA of KER, subject to Rules 44, 45 and 51A and consideration of efficiency and any general order that may be issued by the Government, the vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available. Rule 51 provides that, when a vacancy in any category of post terminates necessitating the relief of a teacher, senior hands shall ordinarily be retained in preference to junior hands with due regard to requirement of subjects determined by the Director under Sub-rule (1) of Rule 1 and to the instructions issued by him under Sub-rule (4) of that Rule. As per Rule 51A of Chapter XIVA of KER, as it stood prior to the insertion of the words "if there is no claimant under Rule 43 in the lower category" by the Kerala Education (Amendment) Rules, 2012, qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in the same or W.A.No.523/11 & con.cases -32- higher or lower category of teaching posts, for which he is qualified that may arise in the school under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided that they have not been appointed in permanent vacancies in schools under any other Educational Agency. Going by the second proviso to Rule 51A, the first preference under this Rule shall be given to protected teachers belonging to the same Educational Agency. By Note 1A, added by the Kerala Education (Amendment) Rules, 2005, it is made clear that fresh appointments to vacancies arising in the same or higher or lower category of teaching post under the Educational Agency shall be made only after providing re- appointment to such teachers thrown out from service and protected teachers available under the Educational Agency. Going by the explanation, for the purpose of this Clause, 'protected teacher' means a teacher who has been retrenched for want of vacancy after putting such length of regular service that may be specified by the Government or who is eligible for such protection as per G.O.(Ms.)No.104/69/Edn. dated 6/3/1969 or W.A.No.523/11 & con.cases -33- G.O.(Ms.)No.231/84/ G.Edn. dated 27/10/1984 or any other orders issued by the Government from time to time. Rule 51B of Chapter XIVA KER mandates that, the Manager shall give employment to any dependent of an aided school teacher dying- in-harness and that, Government orders relating to employment assistance to the dependents of Government servants dying-in- harness shall mutatis mutandis apply in the matter of such appointments. 7.6. Chapter XXIII of KER deals with fixation of strength of teachers in departmental and aided schools. Going by Rule 1 of Chapter XXIII of KER, the strength of teaching staff of Lower Primary schools shall be fixed in accordance with the principles enumerated in Clauses (a) to (c) to Rule 1. Similarly, Rule 3 deals with strength of teaching staff in Upper Primary and Secondary Schools and the fixation staff strength under Rule 3 shall be on the basis of the number of recognised class divisions and periods of work. Going by Rule 4, in every High School, there may be one post of Headmaster; as many posts of High School Assistants as there are divisions and periods of work in the High W.A.No.523/11 & con.cases -34- School classes; and as many posts Lower and Upper Primary School Assistants as there are divisions in the Lower and Upper Primary School classes. Similarly, going by Rule 5, in every Upper Primary School, there may be one post of Headmaster; as many posts of Upper Primary School Assistants as the number of class divisions, reduced by one; and as many posts of Lower Primary School Assistants, as there are divisions in the Lower Primary School classes. 7.7. Going by Rule 12 of Chapter XXIII of KER, subject to the availability of accommodation the strength of teaching staff in each school be fixed by the Educational Officer in accordance with the general provisions contained in Chapter XXIII as above, once a year, after finalising the number of divisions based on the effective strength of class as on the sixth working day from the re-opening day in June. As per Rule 12B, the orders of staff fixation shall take effect on 15th of July every year. If any additional posts are sanctioned, against which appointments are made, in anticipation of sanctioning of such post or posts, according to Rules, such post or posts shall be deemed to have W.A.No.523/11 & con.cases -35- been created from the date of appointments. Rule 14 of Chapter XXIII of KER, which begins with a non-obstante clause, empowers the Government, by orders, to extend any ban on the creation of posts, retrenchment of staff, etc., effected by them in Government schools to aided schools. Rule 14 of Chapter XXIII of KER, added by the Kerala Education (Amendment) Rules, 1969 reads thus;
"4. Notwithstanding anything contained in these rules, if it is found necessary, the Government may by orders, extent any ban on the creation of posts, retrenchment of staff, etc. effected by them in Government schools to aided schools." 8. The Government orders on protection to teachers:- 8.1. Protection to qualified retrenched aided school teachers in the State of Kerala is governed by various Government orders, the first of which is G.O.(Ms.) No.104/69/Edn. dated 6/3/1969. Going by the said G.O., qualified teachers appointed in regular division vacancies and who have two years or more of continuous service on the date of retrenchment may be posted on a purely working arrangement in the next available vacancies of similar categories arising in W.A.No.523/11 & con.cases -36- Government Schools in the same educational district. But, before posting them on temporary basis in Government schools, the Controlling Officers will ensure that there are no vacancies in the same or other schools belonging to the Management under which the teacher was working at the time of retrenchment. In the case of Corporate Management, which has schools in a region or covering the entire State, the Controlling Officers should satisfy themselves that there are no vacancies under the Corporate Managements as a whole to absorb these teachers. The retrenched teachers will be absorbed in the next vacancy arising in any of the aided schools under the Management by whom he was appointed. The Controlling Officers will not approve any new appointments in the schools under these Managements until and unless the retrenched hands are absorbed first. Later, by G.O. (Ms.)No.175/70/Edn. dated 15/4/1970, the benefit of protection granted to the teaching staff in aided school was extended to non-teaching staff as well. Later by G.O.(Ms.)No.231/84/G.Edn. dated 27/10/1984, it was ordered that all those teachers who enjoy the protection as on date or become eligible for protection W.A.No.523/11 & con.cases -37- till 15/7/1986 as per G.O.(Ms.)No.104/69/Edn. dated 6/3/1969 will be given protection, which was not subject to the condition that protection will be given only if vacancies are available in Government schools as stated in the aforesaid G.O. dated 6/3/1969. Going by G.O. dated 27/10/1984, certain categories of teachers and non-teaching staff enumerated in Clauses (i) to (v) will be retained in their parent schools. 8.2. By G.O.(Ms.)No.83/88/G.Edn. dated 18/4/1988, the Government have issued revised orders regarding protection to qualified teachers and non-teaching staff. The said G.O. states that, there are about 5000 protected teachers in the State. The protection though started as a concession, affecting a small section of teachers, has by that time assumed wider ramifications considerably affecting the finances of the State. Therefore, the Government have reviewed the matter and ordered among other things that, the protected teachers will be deployed by the Educational Officers to any Government schools/aided schools against any open/arising vacancies and the Director of Public Instruction will oversee the deployment operations and give W.A.No.523/11 & con.cases -38- detailed instructions. Clause (v) to Para.2 of the said G.O. makes it obligatory on the part of the Managers of newly opened/upgraded schools to appoint protected teachers from the list of protected teachers to be obtained from the Educational Officer concerned and that, the protected teachers need not necessarily belong to the same Educational Sub-District/District. 8.3. By G.O.(Ms.)No.60/96/G.Edn. dated 15/2/1996, the Government ordered that, protection will be given to those aided school teachers who are retrenched due to division fall after completing 7 years of service on or before 15/7/1995. The protected teachers will be deployed as teachers in Government schools purely on working arrangement against existing vacancies or absorbed in newly opened aided schools; as Co- ordinators in Saksharatha Samithies; and to the office of the Deputy Directors of Education to attend the Provident Fund works of aided school teachers. Later by G.O.(Ms.)No.377/96/G.Edn. dated 8/11/1996, it was ordered that, all aided school teachers rendered surplus consequent on the division fall and reduction of post during the staff fixation of the academic year 1996-97 will W.A.No.523/11 & con.cases -39- be retained as such in service provisionally and status quo as on 14/7/1996 will be maintained for all purposes till the end of the academic year 1996-97. The Government by G.O.(P) No.219/97/G.Edn. dated 20/6/1997 ordered that, the teacher student ratio will be revised from 1:45 to 1:40 in the schools affected by the specific problem of division fall during the staff fixation of the academic year 1997-98 for the limited purpose of accommodating the teachers rendered surplus, subject to the condition that no post will be created on this account. Later, the Government have clarified by G.O.(Ms.)No.412/97/G.Edn. dated 16/10/1997 that, protection will be given to those regular aided school teachers who are retrenched due to division fall after completing 7 years of service on or before 15.7.1995. Those aided school teachers who had put in service of not less than 8 months in a division vacancy in 7 academic years on or before 15/7/1995 and had drawn vacation salary for 7 years will also be eligible for protection. Still later, the Government by G.O.(P) No.175/99/G.Edn. dated 26/7/1999 ordered that, all aided school teachers who were in service as on 14/7/1996 will be given W.A.No.523/11 & con.cases -40- protection by retaining them in the respective schools subject to the conditions that, the teachers to whom this benefit of protection is granted will be absorbed in the future vacancies arising under the respective Management; no substitute will be posted in the case of retirement, resignation, death, leave or voluntary retirement, etc. of the incumbent, if retained by way of protection; and the protection will not be granted to teachers appointed during 1997-98 and thereafter. The Government further ordered that the teacher student ratio will be revised from 1:45 to 1:40 in the schools affected by the specific problem of division fall, for the limited purpose of accommodating the teachers rendered surplus, subject to the condition that no post will be created on this account. Subsequently, the Government by G.O.(Ms.)No.240/2000/G.Edn. dated 24/7/2000 clarified that, by virtue of the orders in G.O. dated 26/7/1999, all aided school teachers who were appointed against regular vacancies during 1996-97 up to 14/7/1997 will also be given protection. 8.4. The Government by G.O.(P)No.178/2002/G.Edn. dated 28/6/2002 issued guidelines regarding redeployment of protected W.A.No.523/11 & con.cases -41- teachers, by which the management of newly opened/upgraded schools shall fill up all the existing/arising vacancies in their schools, by appointing protected teachers. The Deputy Director of Education concerned shall make available district-wise and category-wise list of protected teachers on the basis of total length of service to be so appointed by the Managers. Protected teachers under various managements shall be appointed in the schools under the respective managements against the existing/arising vacancies in the category of HSA/UPSA/LPSA/ Language Teacher by protecting their salary in the original post. They shall be absorbed in a regular post as and when vacancies arise in those categories. In respect of schools where there are protected teachers, all of them should be absorbed in the existing/arising vacancies as provided above. The remaining vacancies shall be filled up in the ratio 1:1 between protected teachers and appointments in accordance with the KER. In schools where there are no protected teachers, the existing/arising vacancies shall be filled up in the ratio 1:1 between protected teachers and appointments in accordance with W.A.No.523/11 & con.cases -42- the KER, first priority being given to appointment of protected teachers. Based on various Government orders, the Government extended the benefit of teacher student ratio of 1:40 for the subsequent academic years, for the limited purpose of retaining teachers who were enjoying the same benefit during the previous years.
9. The Government orders on ban on creation of posts:- 9.1. The Government have been issuing economy orders from time to time to minimise non-development expenditure as a part of effective control of expenditure. In view of the continuing financial constraints, the Government ordered by G.O.(P) No.2278/99/Fin. dated 17/11/1999, certain economy measures with immediate effect, in addition to the existing orders, i.e., G.O.(P)No.1379/98/Fin. dated 18/4/1998 and G.O.(P) No.1589/98/Fin. dated 15/6/1998. Going by Clause (b) of G.O. dated 17/11/1999, no new posts in Government and Government aided schools and Colleges should be created. Later by G.O.(P) No.817/2001/Fin. dated 11/6/2001, the Government ordered that, no new posts shall be created in Government or W.A.No.523/11 & con.cases -43- Government aided schools/colleges and that this ban will be in effect till further orders. This was followed by G.O.(P) No.303/01/G.Edn. dated 5/10/2001, in which the Government on a review of the issue ordered that, all appointments of teachers in Government/aided schools up to 14/7/2001 will be approved, if those are in accordance with the statutory provisions of KER. Para. 3 of the said order mandates that, in future no new appointment will be made in the schools, without the prior approval of the Government. 9.2. When it was brought to the notice of the Government that, the aforesaid G.O. dated 5/10/2001 could not be implemented for want of some clarifications, the Government by G.O.(P)No.377/2001/G.1.Edn. dated 28/12/2001 clarified among other things that, the condition regarding prior approval of Government for making appointments shall be applicable only to appointments against new division vacancies. The vacancies against existing posts, caused due to retirement, promotion, leave, death, resignation, etc. can be filled up in accordance with the provisions of the KER without prior sanction of Government. W.A.No.523/11 & con.cases -44- Later, by G.O.(P)No.80/02/G.Edn. dated 27/4/2002, the Government further ordered that, all appointments of teachers in Government/aided schools up to 29/10/2001 made in accordance with the provisions of the KER shall also be approved. The said G.O. made it abundantly clear that, hereafter no new vacancies consequent on staff fixation shall be filled up without the prior approval of Government. 9.3. Later, by G.O.(P)No.328/03/Fin. dated 19/6/2003, the Government introduced certain additional economy measures to overcome the financial crisis of the State and Clause (d) to Para.2 of the said G.O. provides that, the cut off date meant for protection of the protected teachers in schools is to be kept as 14/7/1997 and salary shall be continued to be paid to them. Such protected teachers shall be appointed in the arising vacancies in future. Still later, by G.O.(P)No.317/2005/G.Edn. dated 17/8/2005, the Government ordered that, the Assistant Educational Officers/District Educational Officers concerned will sanction additional divisions in Government/aided schools, eligible as per the provisions in the KER, for the year 2005-06 W.A.No.523/11 & con.cases -45- and approve the appointments against those vacancies, if they are otherwise in order. All appointments of Government/aided school teachers made against regular additional division vacancies 2004-05 will also be approved, if otherwise eligible as per the provision in the KER. All appointments of non-teaching staff made in Government/aided schools during 2004-05 will also be approved, if otherwise eligible as per the provisions in the KER. It was further ordered that, the restriction imposed on appointment of teachers and non-teaching staff consequent on additional division vacancies shall continue from the academic year 2006-07 onwards. This Government order was followed by G.O.(P)No.10/10/G.Edn. dated 12/1/2010, which was under challenge in the Writ Petitions.
10. The provisions of the Kerala Education Act and the KER, which we have already dealt with in detail hereinbefore, make it explicit that, the right of the Manager of an aided school to appoint teachers from among persons who possess the prescribed qualification is made subject, not only to the provisions of the said Act and the KER, but also to the executive W.A.No.523/11 & con.cases -46- orders issued from time to time by the Government as well as the Director of Public Instruction. Going by Section 11 of the Act, any appointment of teachers in aided schools from among persons who possess the qualifications prescribed under Section 10, can only be made subject to the rules and conditions laid down by the Government. Sub-rule (1) of Rule 9 of Chapter III of KER mandates that, the Manager of an aided school shall abide by the orders that may be issued from time to time by the Government and the Department in conformity with the provisions of the Act and the rules issued thereunder. Further, going by Sub-clause (ii) of Clause (a) of Rule 22 of Chapter V of KER, the recognition granted to a school or standard may be withdrawn, if there is any breach of the provisions of the Act and the Rules; and the departmental rules and directions issued in conformity with the provisions of the Act and the rules issued thereunder. Sub-rule (1) of Rule 1 of Chapter XIVA of KER provides that, whenever vacancy of teacher occurs, the Manager of an aided school shall follow the directions issued by the Government from time to time, for ascertaining the availability of qualified hand and also W.A.No.523/11 & con.cases -47- for filling up vacancy. Sub-rule (4) of Rule 1 provides further that, in determining the requirement of subjects, the Director of Public Instruction shall also issue such instructions as he may deem necessary for giving protection to those teachers enumerated in Clause 1 and 2 of Sub-rule (4). Further, 'Form 27', which is the statutory form of 'Appointment Order', makes it explicitly clear that the appointment of a teacher is subject to the provisions of the Kerala Education Act and the Rules thereunder and such other rules or orders issued from time to time by the Government or other competent authority. Still further, Sub-rule (2) of Rule 8 of Chapter XIVA of KER empowers the Educational Officer to approve the appointment made by the Manager only if it is in accordance with the provisions of the Act, the Rules and orders issued by the Government or the Director of Public Instruction from time to time. Going by Rule 43 of Chapter XIVA of KER, the filling up of the vacancies in any higher grade of pay by promotion of qualified hands in the lower grade according to seniority is made subject to consideration of efficiency and any general order that may be issued by the Government. Similarly, W.A.No.523/11 & con.cases -48- the retrenchment of junior hands under Rule 51 of Chapter XIVA of KER is made subject to the requirement of subjects determined by the Director of Public Instruction and also the instructions issued by him under under Sub-rule (4) of that Rule. Though, under Rule 12 of Chapter XXIII of KER, the Educational Officer shall fix the strength of teaching staff in each school, in accordance with the general provisions contained in Chapter XXIII, after finalising the number of divisions based on the effective strength of class as on the sixth working day from the re-opening day in June, subject to the availability of accommodation, Rule 14 of Chapter XXIII of KER, which begins with a non-obstante clause, empowers the Government, by orders, to extend any ban on the creation of posts, retrenchment of staff, etc., effected by them in Government schools to aided schools. Therefore, the conclusion is irresistible that, the right of the Manager of an aided school to make appointment of teachers is not an absolute or unbridled right and the exercise of such right is regulated/restricted not only by the provisions of the Act and the KER, but also by the executive orders issued from time to W.A.No.523/11 & con.cases -49- time by the Government as well as the instructions issued by the Director of Public Instruction.
11. In M. P. Lakshmi v. Assistant Educational Officer (1966 KLT1042, a decision cited by Sri.Muhamood T.T., the learned Special Government Pleader appearing for the official respondents, this Court had occasion to consider Section 11 of the Kerala Education Act, which states that that, the teachers of aided schools shall be appointed by the Managers from among persons who possess the qualifications prescribed under Section 10 of the said Act. Section 10 of the Act provides that, the Government shall prescribe the qualifications to be possessed by persons for appointment as teachers in Government and private schools. Section 2(6) of the Act define the term 'prescribed' to mean as prescribed by rules made under the Act. Noticing the use of the word 'prescribe' in Section 10 of the Act and 'prescribed' in Section 11 of the Act and the absence of the word only or the absence of any indication in Section 11 to show that the legislature intended in the context to give a narrow meaning to the word 'prescribed', this Court held that Government was W.A.No.523/11 & con.cases -50- competent to lay down qualifications by executive orders and teachers are required to possess such qualifications. The relevant portion of the judgment reads thus; "I am not able to accept the interpretation suggested by counsel because S.11 only says "prescribed under S.10", which might mean prescribed by rules or executive orders. The use of the expression "prescribed under S.10" in S.11 does not inevitably lead to the conclusion that the expression 'prescribe' as used in S.10 is intended to have the meaning ascribed to the word 'prescribed' in the definition clause. S.2 of the Act begins by saying that in this Act, unless the context otherwise requires, the meaning given in the definition clauses to the words defined must be ascribed to them, wherever they occur. In the context in which the word 'prescribed' is used in S.11 it can only mean as prescribed by rules or executive orders, if the word 'prescribe' in S.10 means that. So we return to the question as to what is the meaning of the word 'prescribe' in S.10. The word 'prescribe' is defined in the Shorter Oxford English Dictionary as: "I. To write first or beforehand: also, to describe beforehand.
2. To write or lay down as a rule or direction to be followed; to appoint, ordain, direct, enjoin. To lay down a rule; to dictate, appoint, direct. Of a law or custom: To be of force.
3. To advise or order the use of (a W.A.No.523/11 & con.cases -51- medicine etc) with directions for the manner of using it. To limit; to confine within bounds." II. Law. To make a claim by prescription; to assert a prescriptive right or claim (to or for something;) 2. To plead prescription of time against an action, statute, or penalty; to cease to be liable on account of the lapse of the prescribed time." On the consideration of the matter, I am not inclined to think that S.10 postulates that the qualifications for appointment as teachers can be laid down only by rules framed by Government under S.36 of the Act. It was argued for the petitioner that the presupposition of the Legislature when passing the Act was that Government would frame rules prescribing the qualifications of the teachers to be appointed and relied upon the following passage in In re The Kerala Education Bill, AIR1958Supreme Court 956 at page 975: xxx xxx xxx The passage would not show that the expression as used in the S.10 indicates that the prescription of the qualification of teachers can only be by rules framed under S.36 of the Act. I would hold that Government was competent to lay down the qualifications of the teachers to be appointed in aided schools by executive orders. If that be so, Ext.P-3 order is not open to challenge, and in view of R.10 of Chap.25, petitioner was not qualified to be selected for the T.T.C. Course." W.A.No.523/11 & con.cases -52- 12. In Radha v. District Educational Officer, Badagara and others (1975 KLT617, another decision cited by the learned Special Government Pleader appearing for the official respondents, a Division Bench of this Court repelled the contention that, the expression 'prescribed' occurring in Note (1) (i) to Rule 43 of Chapter XIVA KER must be understood only as 'prescribed' under the Kerala Education Act as defined in the said Act and held that, the prescription in the general sense of the word by an executive order would be sufficient. The relevant portion of Para 5 of the judgment reads thus; "5. It was doubted at one time whether qualifications bad been prescribed at that time by the State Government. In this connection again counsel for the 4th respondent raised two arguments. He contended that the expression "prescribed" occurring in Note (i) to Rule 43 must be understood only as 'prescribed' under the Act as defined in the Act. He brought to our notice the fact that the rules prescribing qualifications as embodied in Chapter XXXI of the Kerala Education Rules came into force only long after the vacancy had occurred. He doubted whether there were any Government orders providing for qualifications. On this latter point we may state that Government had passed orders indicating qualifications necessary for the post of an W.A.No.523/11 & con.cases -53- High School Assistant and this is seen from the 1966 Edition of the Commentaries to the Kerala Education Act by K.K.Narendran at page 10. It has been held in M. P. Lakshmi v. Assistant Educational Officer 1966 KLT1042that apart from prescribing by rules under the Act in a formal manner it was open to the Government by an executive order to lay down the required qualifications. 'Prescribed' has been defined in Section 2(6) of the Kerala Education Act as meaning prescribed by rules under the Act. But Section 2 itself states that the definition therein contained will apply only "unless the context otherwise requires". We do not think that we must understand the word prescribed in Note (i) to Rule 43 in Chapter XIVA as meaning that only prescribed by rules under the Act. The prescription in the general sense of the word by an executive order would be sufficient. We therefore reject this argument. .........
"13. In the judgments referred to above, on interpreting the expression "qualifications prescribed under Section 10" occuring in Section 11 of the Kerala Education Act and the expression "prescribed qualifications" occuring in Note (1)(i) to Rule 43 of Chapter XIVA of KER, this Court held that, the prescription in the general sense of the word by an executive order would be sufficient. On the very same analogy, it can be safely concluded that, the expression "conditions laid down by W.A.No.523/11 & con.cases -54- the Government" occuring in Section 11 of the said Act would indicate that 'conditions' could be laid down even by executive orders. Therefore, the right of the Manager of an aided school to make appointment of teachers is regulated not only by the provisions the Act and the KER, but also by the executive orders issued from time to time by the Government as well as the competent authorities.
14. Sri.Kurian George Kannanthanam, the learned Senior Counsel for the appellants in W.A.Nos.594/2011, 801/2011, 840/2011, 84/2011 and 1100/2011, contended that, the right of the Manager/Educational Agency to make appointment is regulated by the provisions of the Kerala Education Act and the KER and any executive orders issued by the Government cannot override the statutory provisions under the said Act and the Rules. To buttress the arguments in this regard, the learned Senior Counsel cited the decisions reported in 2009 (2) KLT604 2012 (1) KLT867 2013 (1) KLT755and 2013 (5) SCC427 15. In Ciji P. Jose V. State of Kerala and others (2012 (1) KLT867 the question that came up for consideration before W.A.No.523/11 & con.cases -55- this Court was as to whether the claim of the petitioner in that Writ Petition, who was a claimant under Rule 51A of Chapter XIVA of KER, could be subjected to Para. (4) of Circular No.4545/J2/2007/G.Edn. dated 18/5/2007, which provides that, the claimants under Rules 43, 51A and 51B of Chapter XIVA and Rule 9A of Chapter XXIV KER need not be considered for appointment in uneconomic schools in vacancies which are arising after 12/10/2006. The said Circular dated 18/5/2007 was issued in order to clarify G.O.(P)No.259/2006/G.Edn. dated 12/10/2006, in which it was ordered that all future vacancies in uneconomic schools in the State shall be filled up only by deployment of the protected teachers. This Court held that, in the light of the specific provisions of Chapter XIVA KER, especially Rule 51A, preference cannot be given by a circular issued by the Government. Para. 4 and 6 of the judgment reads thus; "4. It is well settled that the benefit granted to a teacher under R.51A has to be extended by the Manager. Herein, the question is whether a protected hand who is available and who is liable to be deployed under various executive orders, should be absorbed as against a claimant under R.51A. Obviously, the statutory rules will prevail over W.A.No.523/11 & con.cases -56- executive orders. R.51A or any other provisions have not been amended for incorporating the provisions of the circular. Therefore, para.4 of Ext.P10 cannot operate against the provisions of R.51A of Chapter XIVA KER. xxx xxx xxx 6. All these matters cannot be given a preference by a circular issued by the Government, in the light of the specific provisions of Chapter XIVA KER, especially R.51A. The amendment made to R.51A by including the second proviso and the explanation therein protects only the right of a protected teacher under the same educational agency. Herein, there is no plea that a protected hand is available under the same educational agency. Therefore, the said amendment cannot also defeat the right of the petitioner and the rejection of approval of appointment of the petitioner cannot thus be supported." 16. In Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Co-operative Housing Society, Jaipur and others (2013 (5) SCC427 the question that came up for consideration before the Apex Court was the validity of the circulars issued by the Government of Rajasthan, providing for release of land of group housing societies, which is under acquisition. The Apex Court found that, the circulars issued by the Government is inconsistent with the W.A.No.523/11 & con.cases -57- provisions of the Land Acquisition Act, 1894, as per which abandonment of the land acquisition proceedings is permissible only prior to taking possession of the land and once the land is vested in the State free from all encumbrances it cannot be divested. Para.27 and 47.13 of the judgment read thus;
"7. Executive instructions which have no statutory force, cannot override the law. Therefore, any notice, circular, guidelines etc. which run contrary to statutory laws cannot be enforced. (Vide: B. N. Nagarajan and Others, etc. v. State of Mysore and Others etc., AIR1966SC1942 Sant Ram Sharma v. State of Rajasthan and Others, AIR1967SC1910 Secretary, State of Karnataka and Others v. Umadevi and Others, AIR2006SC1809 and Mahadeo Bhau Khilare (Mane) and Others v. State of Maharashtra and Others, 2007 (5) SCC524. xxx xxx xxx 47.13 The circulars issued by the State Government, being inconsistent with the policy and the law regarding acquisition, cannot be taken note of. Issuance of such circulars amounts to committing fraud upon statutes, and further, tantamounts to colourable exercise of power. The State in exercise of eminent domain acquires the land. Thus, before completing the acquisition proceedings, it should not release the land in favour of some other person who could not have acquired title over it at any point of W.A.No.523/11 & con.cases -58- time." 17. In Unni Narayanan K. and others v. State of Kerala and others (2009 (2) KLT604 the challenge before this Court was against G.O.(P)No.104/2008/G.Edn. dated 10/6/2008 to the extent it directs that, if the period of appointment of a teacher in an aided school does not cover one academic year (i.e., from the reopening day of the school after summer vacation to the closing day for summer vacation) the appointment shall be made only on daily wages, even if the duration of the vacancy in which he/she is appointed is one academic year or more. A Division Bench of this Court held that, in certain circumstances, the Government may be able to issue executive instructions, but they cannot override the statutory provisions. The Division Bench agreed with the contentions of the writ petitioners that the offending conditions in Government order dated 10/6/2008 cannot stand with the statutory rules and that, for enforcing them, the relevant rules require amendment. As long as the rules are not amended, Government order dated 10/6/2008 cannot be pressed into service by the Government. W.A.No.523/11 & con.cases -59- "7. In certain circumstances, the Government may be able to issue executive instructions, but they have no efficacy to override the statutory provisions. We agree with the contentions of the writ petitioners that the offending conditions in Ext.P2 Government Order cannot stand with the statutory rules. Therefore, for enforcing them, the relevant rules require amendment. As long as the rules are not amended, Ext.P2 cannot be pressed into service by the Government. In this context, we notice Rule 7A of Chapter XIVA of the KER, which reads as follows: '7A. (1) xxx xxx xxx (2) Posts that may fall vacant on the closing date shall not be filled up till the reopening date except in the case of posts of non vacation staff. (3) Vacancies, the duration of which is less than one academic year, shall not be filled up.' 8. We notice that sub-rule (3) of Rule 7A speaks of vacancies, the duration of which is less than one academic year. In other words, if the vacancy is having a duration of one academic year or more, appointment can be made to fill up the same. The term of appointment need not be coterminous with the term of the vacancy. If, in fact, the vacancy is having a duration of one academic year or more, even if, there is some delay in making the appointment, such appointment will have to be approved. The reason is that Rule 7A speaks of duration of vacancy and not duration of appointment. So, we are of the view that if appointments are made to vacancies, having duration of one academic W.A.No.523/11 & con.cases -60- year or more, they are liable to be approved.
9. In this writ petition and connected writ petitions, we notice that the vacancies available arose as a result of retirement or long term leave, which extended to more than one academic year. Therefore, the delay, if any, in making the appointments in these cases, is not of any consequence. If the duration of the vacancy is only one academic year and there is considerable delay in making the appointment, in such cases, what should be done is kept open. In the cases before us, there is no such contingency. In the present writ petition, though the vacancy arose in June, the appointment was made in October. The vacancy has got a duration of five years and therefore, the delay is negligible. So, there is no reason for not approving it in the time scale of pay, from the date of appointment.
10. As noticed earlier, in the case of leave vacancies involved in the connected cases, their duration is more than one year. So, the initial delay is only negligible. In the result, we uphold the contention raised by the writ petitioners that Ext.P2 cannot be pressed into service, without amending the Rules. The contention of the Government to the contrary is devoid of any merit." 18. But, the judgment of this Court in Unni Narayanan's case (supra) was reversed by the Apex Court in State of Kerala and others v. Sneha Cheriyan and another (2013 (1) KLT755:
2013. (5) SCC160. A reading of para. 8 and 11 of the W.A.No.523/11 & con.cases -61- judgment of the Apex Court make it explicitly clear that, the main contention raised by the learned counsel appearing for the respondents (the Managers/teachers, who were the appellants before this Court) was with regard to the validity of clause 5(i) and (ii) of Government order dated 10/6/2008, which according to the said respondents go contrary to Sub-rule (3) of Rule 7A of Chapter XIVA of KER and hence ultra vires and unenforceable and that, the Government order dated 10/6/2008, which is contrary to Sub-rule (3) of Rule 7A of the KER, has rightly been declared so by the High Court, which calls for no interference by the Apex Court. Up holding the validity of Government order dated 10/6/2008, the Apex Court held that, the expression 'vacancy' used in sub-rule (3) to Rule 7A has to be read along with the expression 'academic year' so as to achieve the object and purpose of the amended sub-rule (3) to Rule 7A so as to remedy the mischief. The evil, which was sought to be remedied was the one resulting from wide spread unethical and unhealthy practices followed by certain aided school managers in creating short term vacancies during the academic year. The Apex Court made it W.A.No.523/11 & con.cases -62- clear that, it is adopting such a course, not because there is an ambiguity in the statutory provision but to reaffirm the object and purpose of sub-rule (3) to Rule 7A read with proviso to Rule 51A and the Government order dated 10/6/2008. Para. 16 to 23 of the judgment reads thus;
"6. We may before examining the scope of sub-r.(3) of R.7A and the proviso to R.51A read with the Government Order dated 10/6/2008 examine the scheme of the Act and the KER and the object and purpose of sub-r.(3) of R.7A as well as the impugned order dated 10/6/2008. We have already indicated that as per the Kerala Education Act and the KER, the Manager of the aided School is free to make appointment of teachers in their respective schools who are qualified according to the Rules and the entire salary and other allowances have to be borne by the State Government.
17. R.51A of the Chapter XIVA of the KER states qualified teachers in aided schools who are relieved on account of termination of vacancies shall have preference for re- appointment in future vacancies in the aided schools. R.43, Chapter XIVA of the KER states that the vacancies in any higher grade of pay shall be filled up by promotion in the lower grade according to the seniority.
18. We cannot read sub-r.(3) of R.7A in isolation, it has to be read in the light of the proviso to R.51A, they have to be W.A.No.523/11 & con.cases -63- read as parts of an integral whole and as being interdependent. Legislature has recognised that interdependency since both sub-r.(3) of R.7A and the proviso to R.51A were inserted by the same amendment in the year 2005.
19. The expression 'vacancies' used in sub-r.(3) to R.7A means 'posts which remain unoccupied'. Rule does not say that the duration of vacancy is to be determined from the time when the vacancy occurs to the time when it expires. Duration means the time during which something continues, i.e., the continuance of the incumbent. As stated in the Notification dated 15/6/2004 the vacancies having a duration of less than one academic year can be filled up on daily wage basis. Sub-r.(3) to R.7A uses the expression 'academic year'. R.2A of Chapter VII of the KER refers to the academic year, which reads as follows: '2A. Academic year shall be deemed to commence on the re-opening day and terminate on the last day before the summer vacation.' 20. Rule 1 of Chapter VII says 'all schools shall be closed for the summer vacation every year on the first working day on March and re-opened on the first working day of June unless otherwise notified by the Director.' The Notification dated 10/6/2008 only says if the period of appointment does not cover one academic year, i.e., the re-opening of the school after summer vacation to the closing day for summer vacation, the appointment shall be made only on daily wage basis. So also if the period commences after the W.A.No.523/11 & con.cases -64- beginning of the re-opening day, but extends either next academic year/years the period upto the first vacation shall be approved on daily wages only which does not take away the right of the managers of the aided schools to appoint teachers in vacancies that may arise by way of promotion, death, resignation etc. Restriction is only with respect to the minimum tenure/period for a new appointee to become a 51A claimant, that is the object and purpose of sub-r.(3) to R.7A read with proviso to R.51A of Chapter XIVA of the KER.
21. The object and purpose of the Notification dated 16/4/2005 issued by the Government in exercise of the powers conferred under S.36 of the Kerala Education Act is to curb the unhealthy practices adopted by certain managers of aided schools by creating short-term vacancies or appointing several persons in a relatively long leave vacancies itself thereby making several 51A claimants against one and the same vacancy. The object and purpose of the above-mentioned notification is also to end the practice of creation of multiple claimants in anticipatory vacancies creating more 51A claimants imposing huge financial commitment to the Government.
22. Sub-r.(3) to R.7 does not restrict the right of the managers of various schools in making the regular appointments in the established vacancies, what it does is to prevent the misuse of that provision and to prevent the aided school managers in creating short-term vacancies and appointing several persons in those vacancies so as to make them claimants under R.51A. Looking to the mischief or evil W.A.No.523/11 & con.cases -65- sought to be remedied, we have to adopt a purposive construction of sub-r.(3) of R.7A read with proviso to R.51A of Chapter XIVA of the KER.
23. We are inclined to adopt such a construction since the stand of the respondents is that R.7A speaks of 'duration of vacancies' and not 'duration of appointment'. The expression 'vacancy' used in sub-r.(3) to R.7A has to be read along with the expression 'academic year' so as to achieve the object and purpose of the amended sub-r.(3) to R.7A so as to remedy the mischief. Evil, which was sought to be remedied was the one resulting from wide spread unethical and unhealthy practices followed by certain aided school managers in creating short term vacancies during the academic year. We are adopting such a course, not because there is an ambiguity in the statutory provision but to reaffirm the object and purpose of sub-r.(3) to R.7A read with proviso to R.51A and the Government Order dated 10/6/2008." 19. The provisions of the Kerala Education Act and the KER confer no absolute or unbridled right on the Manager of an aided school to make appointment of teachers and such power is regulated not only by the provisions the said Act and the Rules, but also by the executive orders issued from time to time by the Government and the competent authority. As we have already noticed, going by Section 11 of the Act, any appointment of W.A.No.523/11 & con.cases -66- teachers in aided schools from among persons who possess the qualifications prescribed under Section 10, can only be made subject to the rules and conditions laid down by the Government. Sub-rule (1) of Rule 1 of Chapter XIVA of KER provides that, whenever vacancy of teacher occurs, for ascertaining the availability of qualified hand and also for filling up vacancy the Manager shall follow the directions issued by the Government from time to time. Sub-rule (4) of Rule 1 provides further that, in determining the requirement of subjects, the Director of Public Instruction shall also issue such instructions as he may deem necessary for giving protection to those teachers enumerated in Clause 1 and 2 of the said Sub-rule. Going by Rule 43 of Chapter XIVA of KER, promotion according to seniority to any higher grade of pay is made subject to consideration of efficiency and any general order that may be issued by the Government. Similarly, the retrenchment of junior hands under Rule 51 of Chapter XIVA of KER is made subject to the requirement of subjects determined by the Director of Public Instruction and also the instructions issued by him under under Sub-rule (4) of that W.A.No.523/11 & con.cases -67- Rule. Further, Rule 14 of Chapter XXIII of KER, which begins with a non-obstante clause, empowers the Government, by orders, to extend any ban on the creation of posts, retrenchment of staff, etc., effected by them in Government schools to aided schools. Therefore, any executive orders issued by the Government laying down the conditions in the matter of appointment of teachers in aided schools; the method for ascertaining the availability of qualified hand and also for filling up vacancy; general orders on promotion to any higher grade of pay; extending any ban on the creation of posts, retrenchment of staff, etc., effected in Government schools to aided schools; etc., in order to regulate the right on the Manager of an aided school to make appointment of teachers, cannot be termed as executive orders which override the statutory provisions under the Kerala Education Act and the KER. Similarly, the instructions issued by the Director of Public Instruction to determine the subject requirement, etc. cannot be termed as instructions contrary to the statutory provisions under the said Act and the Rules. Therefore, the contentions raised on behalf of the appellants that, the Government have no authority W.A.No.523/11 & con.cases -68- to issue executive orders regulating the right of the Manager of an aided school to make appointment of teachers, without making appropriate amendments to Section 11 of the Kerala Education Act and also to the relevant provisions under the KER can only be rejected and we do so.
20. Sri.John Joseph Vettikad, the learned Counsel for the appellants in W.A.Nos.1027/2011, 1035/2011, 1039/2011, 1049/2011, 1059/2011, 1067/2011, 1084/2011, 1134/2011 and 1262/2011 contended that, Rule 14 of Chapter XXIII of KER is unconstitutional and opposed to Rule 23 of Chapter VI and Rule 12 of Chapter XXIII of KER. Rule 23 of Chapter VI of KER deals with maximum strength of a class division. As per Rule 23, the maximum strength of a class division shall be 45, but excess admission upto 50 will be allowed. When there are more than 50 students a second division may be opened, when the strength exceeds 95 a third division, and so on. Going by the proviso to Rule 23, the Educational Officer may, for sufficient reasons allow retention of excess strength over 50 in a class division. Similarly, going by Rule 12 of Chapter XXIII of KER, subject to the W.A.No.523/11 & con.cases -69- availability of accommodation the strength of teaching staff in each school be fixed by the Educational Officer in accordance with the general provisions contained in Chapter XXIII as above, once a year, after finalising the number of divisions based on the effective strength of class as on the sixth working day from the re-opening day in June.
21. As we have already noticed, Rule 14 of Chapter XXIII of KER, which was added by the Kerala Education (Amendment) Rules, 1969, begins with a non-obstante clause, namely, "notwithstanding anything contained in these rules". Going by Rule 14, notwithstanding anything contained in the KER, if it is found necessary, the Government may by orders, extend any ban on the creation of posts, retrenchment of staff, etc. effected by them in Government schools to aided schools. In addition to Rule 14, Rules 2, 6(4), 6B, 10, 12(4), 12F, 15 and 16 of Chapter XXIII of KER begins with a non-obstante clause. Rule 2 begins with a non-obstante clause, namely, "notwithstanding anything contained in any other rule in this Chapter"; Sub-rule (4) of Rule 6 begins with "notwithstanding anything contained in rule 7"; W.A.No.523/11 & con.cases -70- Rule 6B begins with "notwithstanding anything contained in any other rule in this Chapter except Sub-rule (2) hereunder"; Rule 10 begins with "notwithstanding anything contained in the preceding rules"; Sub-rule (4) of Rule 12, Rule 15 and Rule 16 begin with "notwithstanding anything contained in these rules"; and Rule 12F begins with "notwithstanding anything contained in this chapter".
22. The interpretation of non-obstante clause has come up for consideration before the Apex Court in umpteen number of cases. In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram (1986 (4) SCC447 the Apex Court held as follows;
"7. A clause beginning with the expression "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non obstante clause. It is equivalent to saying that in spite of the provisions of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions W.A.No.523/11 & con.cases -71- embraced in the non obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this court in South India Corpn. (P) Ltd. v. Secretary, Board of Revenue, Trivandrum, (AIR1964SC207at p. 215 :
1964. (4) SCR280.
68. It is well settled that the expression "notwithstanding" is in contradistinction to the phrase "subject to", the latter conveying the idea of a provision yielding place to another provision or other provisions to which it is made subject. ...." 23. In A.G. Varadarajulu v. State of Tamil Nadu (1998 (4) SCC231 the Apex Court held as follows;
"6. It is well settled that while dealing with a non obstane clause under which the legislature wants to give overriding effect to a section, the Court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar v. Arbinda Bose, (AIR1952SC369:
1953. SCR1. Patanjali Sastri, J.
observed; "The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously". In Madhav Rao Scindia v. Union of India, (1971 (1) SCC85 (at P.139) Hidayatullah, C.J.
observed that the non obstante clause is no doubt a very potent clause intended to exclude W.A.No.523/11 & con.cases -72- every consideration arising from other provisions of the same statute or other statute but "for that reason alone we must determine the scope" of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. "A search has, therefore, to be made with a view to determining which provision answers the description and which does not".
24. In ICICI Bank Ltd. v. SIDCO Leathers Ltd. (2006 (10) SCC452 the Apex Court held as follows;
"6. The non obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy. ........
37. A non obstante clause must be given effect to, to the extent the Parliament intended and not beyond the same." 25. In Central Bank of India v. State of Kerala (2009 (4) SCC94 the Apex Court reiterated as follows;
"03. A non obstante clause is generally incorporated in a statute to give overriding effect to a particular section or the statute as a whole. While interpreting non obstante clause, the Court is required to find out the extent to which the legislature intended to do so and the context in which the non obstante clause is used. This rule of interpretation W.A.No.523/11 & con.cases -73- has been applied in several decisions.
104. In State of West Bengal v. Union of India (AIR1963SC1241: (1964) 1 SCR371 it was observed that: (AIR P. 1265, Para 68)
"8. The Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs." 26. In State (NCT Delhi) v. Sanjay (2014 (9) SCC772 the Apex Court reiterated as follows;
"3. It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions." 27. On an overall evaluation of the above authorities, it emerges that, the non-obstante clause is incorporated in a provision with a view to give the enacting part of the provision an overriding effect in the case of conflict and that while interpreting a non-obstante clause under which the legislature wants to give overriding effect to a provision, the Court must try to find out the W.A.No.523/11 & con.cases -74- extent to which the legislature have intended to give one provision overriding effect over another provision. In the case on hand, the non-obstante clause contained in Sub-rule (4) of Rule 12 have a limited operation to enable the Government to direct the Educational Officer to conduct revisit and refix the strength of teaching staff and non-teaching staff of any school or schools generally, from which substantial number of pupils have obtained transfer certificates and left the school. On the other hand, the non-obstante clause contained in Rule 14 of Chapter XXIII KER which empower the Government to extent any ban on the creation of posts, retrenchment of staff, etc., effected by them in Government schools to aided schools has overriding effect over the contrary provisions contained in the KER as a whole. It is pertinent to note that, as per Sub-section (1) of Section 9 of the Act the liability to pay the salary on all teachers in aided schools is on the Government, though such teachers are being appointed by Managers of aided schools. It was in such circumstances, the Government thought it fit to incorporate Rule 14 in Chapter XXIII KER, by the Kerala Education (Amendment) Rules 1969, with an W.A.No.523/11 & con.cases -75- intention to extent any ban on the creation of posts, retrenchment of staff, etc., effected by them in Government schools to aided schools. Therefore, the legislative intent can only to give overriding effect to Rule 14 in Chapter XXIII KER over the contrary provisions contained in the KER as a whole. Any interpretation to the contra shall make Rule 14 redundant and otiose.
28. In Sajeevayya v. Election Tribunal (AIR1967SC1211 the Apex Court held as follows; "4. .... It is well-settled rule of interpretation that the provisions of a statute should be so read as to harmonise with one another and the provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. The principle stated in Crawford's Statutory Construction at p. 260 is as follow : "Hence, the Court should, when it seeks the legislative intent, construe all of the constituent parts of the statute together, and seek to ascertain the legislative intention from the whole Act, considering every provision thereof in the light of the general purpose and object of the Act itself, and endeavouring to make every part effective, harmonious, and sensible. This means, of course, that the Court should attempt to avoid W.A.No.523/11 & con.cases -76- absurd consequences in any part of the statute and refuse to regard any word, phrase, clause or sentence superfluous, unless such a result in clearly unavoidable." 29. In the case on hand, going by Rule 23 of Chapter VI read with Rule 12 of Chapter XXIII of KER fixation of the strength of teaching staff in an aided school is based on the effective strength of class as on the sixth working day from the re-opening day in June. However, going by Rule 14 of Chapter XXIII of KER, notwithstanding anything contained in the KER, the Government is empowered to extent any ban on the creation of posts, retrenchment of staff, etc. effected by them in Government schools to aided schools. Since any reconciliation between these provisions would render the provisions of Rule 14 of Chapter XXIII of KER redundant and otiose. For all these reasons, the contention of the learned counsel for the appellants in W.A.Nos.1027/2011 and connected cases that, Rule 14 of Chapter XXIII of KER is unconstitutional and opposed to Rule 23 of Chapter VI of KER and Rule 12 of Chapter XXIII of KER can only be rejected and we do so. W.A.No.523/11 & con.cases -77- 30. Sri.S.Subash Chand, the learned counsel for the appellant in W.A.No.773/2011, contended that there was no ban on appointment of teachers in the aided schools and the Government orders referred to hereinbefore introduced certain restrictions on the right of the Managers to make appointment of teachers. Sri.Vinod Madhavan, the learned counsel for the appellant in W.A.No.1286/2011, contended that the ban introduced by those Government orders was on appointment of teachers and not on creation of posts. Therefore, it was not a ban on creation of posts in terms of Rule 14 of Chapter XXIII of KER and the only restriction was on making appointment without prior permission of the Government. According to the learned counsel, when there is a post in terms of the students strength, the right of the Manager of an aided school to make appointment cannot be curtailed by the Government and the Government is bound to approve any appointment made by the Manager. Sri. M.Sajjad, the learned counsel for the appellant in W.A.No.600/2011, Sri.M.R.Anision, the learned counsel for the appellants in W.A.Nos.752/2011, 789/2011, 782/2011, 808/2011 and W.A.No.523/11 & con.cases -78- 1481/2011, and Sri.S.P.Aravindakshan Pillay, the learned counsel for the appellant in W.A.No.838/2011, also advanced the very same contentions.
31. The Government orders issued on effective control of non-development expenditure, which we have already dealt with in detail hereinbefore, shows that by G.O. dated 17/11/1999 the Government imposed a ban on creation of new posts in the Government and Government aided schools and colleges in the State. Later, by G.O. dated 11/6/2001 it was ordered that the said ban will be in effect till further orders. Still later, by G.O. dated 5/10/2001 the Government ordered that all appointments of teachers in Government/aided schools made up to 14/4/2001 will be approved, if those appointments are in accordance with KER, and that, in future no new appointment will be made in schools, without the prior approval of the Government. By G.O. dated 28/12/2001 the Government clarified that, the condition regarding prior approval of Government shall be applicable only to appointments against new division vacancies. Later, by G.O. dated 27/4/2002 the Government ordered that, all appointments W.A.No.523/11 & con.cases -79- of teachers in Government/aided schools up to 29/10/2001, made in accordance with the provisions of the KER, shall also be approved and that, thereafter no new vacancies consequent on staff fixation shall be filled up without the prior approval of Government. Still later, by G.O. dated 17/8/2005 the Government ordered that, the Educational Officers concerned will sanction additional divisions in Government/aided schools, eligible as per the provisions in the KER, for the year 2005-06 and approve the appointments against those vacancies, if they are otherwise in order, and that, the restriction imposed on appointment of teachers and non-teaching staff consequent on additional division vacancies shall continue from the academic year 2006-07 onwards. This was followed by G.O. dated 12/1/2010, which is under challenge in these Writ Appeals.
32. It is pertinent to note that, the validity of Clause (vi) of G.O. dated 17/8/2005, which states that the restriction imposed on appointment of teachers and non-teaching staff consequent to additional division vacancies shall continue from the academic year 2006-07 onwards, was under challenge in W.A.No.523/11 & con.cases -80- W.P.(C)No.273/2007 and connected cases filed by the Managers of various aided schools in the State. In those writ petitions, it was contended that the aforesaid clause of G.O. dated 17/8/2005, is contrary to Rule 23 of Chapter VI of KER read with Rules 3 and 4 of Chapter XXIII. It was also contended that the aforesaid clause is also against the statutory provisions contained in Rule 12 of Chapter XXIII of KER, which provides for fixation of staff strength. The said contentions were repelled and the Writ Petitions were dismissed by one among us (Antony Dominic, J.) by judgment dated 15/9/2009. In the absence of any challenge, the said judgment attained finality. Paragraphs 14, 16 and 17 of the said judgment read thus;
"4. A survey of the aforesaid Government orders show that ban on appointments after 29.10.2001 in both Government and Aided Schools was in force by virtue of GO (P) No.80/02 dated 27/4/2002 and that the ban on appointments in aided schools alone was lifted by GO(P) No.169/04. Thus, even after the issue of GO(P) No.80/02, the ban in the Government Schools continued as before. While the position continued as such, by issuing Ext.P2 GO (P) No.317/05/G.Edn. dated 17/8/05, which is made applicable to both the Government/Aided Schools, it is W.A.No.523/11 & con.cases -81- ordered that the ban on appointment to additional division vacancies shall continue from the academic year 2006-07. This means that the ban of appointment in Government sector, which was already in force is extended to aided schools also from the academic year 2006-07 onwards. In view of the provisions contained in Rule 14 of Chapter XXIII KER, it has to be held that Clause (vi) of Ext.P2 Government Order is perfectly valid. If that be so, the ban imposed by the Government from the academic year 2006-07 is a valid one. xxx xxx xxx 16. It was contended that by virtue of the provisions contained in Rule 23 of Chapter VI read with Rules 3, 4 and 12 of Chapter XXIII KER, for each additional divisions, the petitioner is entitled to appoint additional teachers and therefore, the ban is illegal. The appointment of teaching staff in aided schools is governed by the provisions contained in Chapter XXIII KER. Rule 14, incorporated in Chapter XXIII starts with a non obstante clause and therefore, the aforesaid rule will prevail over all other rules in the Chapter. If that be so, the fact that the management is entitled to make appointments by virtue of the provisions in Chapter XXIII will always stand superseded by any ban extended to aided schools as per Rule 14 of Chapter XXIII KER itself.
17. It was further contended that with the issuance of GO (P) No.169/04/G.Edn. dated 15/6/04, ban in respect of Aided schools having been lifted fully, unless a fresh order W.A.No.523/11 & con.cases -82- extending the ban effected in the Government schools is issued, there cannot be any ban on creation of posts in the Aided Schools. As already seen, prior to the issuance of GO (P) NO.169/2004/G.Edn., both in respect of Government and Aided Schools, ban on appointments against vacancies arising after 29/10/2001 was in force. It is this ban which has been again extended to the aided schools also as per Clause (vi) of Ext.P2, GO(P) No.317/05/G.Edn. dated 17/8/05. The judgment in State of Kerala v. Jayan (2009 (3) KLT857 referred to by the counsel for the petitioner was rendered in the context of Rule 9 of Chapter XXIV KER, which is similar to Rule 14 of Chapter XXIII. All that the judgment lays down is that to extend the ban in Government Schools to Aided Schools, there should be a separate order issued by the Government. In this case, Ext.P2 is a separate order issued by the Government and therefore, I do not find anything objectionable in Ext.P2. Therefore, there is no substance in the contention that the Government should have issued a separate order extending ban in Government schools to Aided Schools." 33. Sri.John Joseph Vettikad, the learned Counsel for the appellants in W.A.Nos.1027/2011 pointed out that, the validity of Rule 14 of Chapter XXIII of KER was not under challenge in those Writ Petitions. Since we have already repelled the challenge made in W.A.Nos.1027/2011 and connected cases against Rule W.A.No.523/11 & con.cases -83- 14 of Chapter XXIII of KER the fact that the validity of the said Rule was not under challenge in those Writ Petitions is immaterial.
34. We also notice the submission of the learned Special Government Pleader that, the Managers never challenged the orders issued by the Government during the period 1999-2005, by which the Government had imposed ban on creation of the posts of teaching/non-teaching staff in the aided schools. Similarly, they never challenged the orders issued by the Government during the aforesaid period, by which the Government lifted the ban on creation of posts after imposing various conditions, including absorption of protected hands. Based on the aforesaid orders, the irregular appointments made by the Managers during the period of ban were regularised and the Managers who honoured the ban were permitted to make appointment to the vacancies which have arisen during the aforesaid period. Though the validity of Clause (vi) of G.O. dated 17/8/2005 was under challenge in W.P.(C)No.273/2007 and connected cases, those Writ Petitions ended in dismissal by W.A.No.523/11 & con.cases -84- judgment dated 15/9/2009.
35. The Government orders which we have already referred to make it explicit that, the ban introduced by G.O. dated 17/11/1999 and modified by the subsequent Government orders until G.O. dated 12/1/2010 was a ban on creation of posts, falling under Rule 14 of Chapter XXIII of KER. A reading of G.O. dated 12/1/2010 makes it clear that, in spite of the Government orders, several Managers had appointed teachers and non-teaching staff in additional division vacancies during the period of ban. Still, as a concession, the Government by G.O.s. dated 5/10/2001, 27/4/2002 and 17/8/2005 ordered that all such illegal/irregular appointments shall be approved on certain conditions. By G.O. dated 17/8/2005 it was ordered that the ban on appointment to additional division vacancies shall continue from the academic year 2006-07. The said ban continued till the issuance of G.O. dated 12/1/2010. Therefore, the contention that, there was no ban on creation of posts from the academic year 2006-07, in terms of Rule 14 of Chapter XXIII of KER, instead, it was only a restriction on making appointment without W.A.No.523/11 & con.cases -85- prior permission of the Government, is absolutely untenable and we hold so.
36. The learned Special Government Pleader pointed out that, the financial burden on State exchequer on account of payment of salary to teachers of aided schools is on a higher side and that 56% of the revenue expenditure of the State on Secondary Education is towards assistance to private secondary schools. Similarly, during the year 2008-09, one-third of the total expenditure on State exchequer towards salary was spent for meeting the expenditure on payment of salary in the aided schools. It was also pointed out that, the preference for appointment to future vacancies contemplated under Rule 5A of Chapter XIVA of KER is not confined to such vacancies in the very same Educational Agency and that, unlike in Rule 51A of Chapter XIVA KER, such thrown out teachers are entitled to claim preferential appointment to future vacancies in schools under other Educational Agencies as well.
37. As we have already noticed, as per Section 13 of the Act, which deals with absorption of retrenched teachers, where W.A.No.523/11 & con.cases -86- any retrenchment of teachers in any aided school is rendered necessary consequent on orders of the Government relating to the course of studies or scheme of teaching or of such other matters, it shall be competent for the Government or the Manager of an aided school to appoint such teachers in any Government school or aided school, as the case may be. Rule 2A of Chapter V of KER provides for an application in Form 1 for opening of new schools and for upgradation of existing schools, in which the applicant has to state as to whether he is prepared to absorb qualified teachers/non-teaching staff who after putting in service of two years and drawing two vacation salaries had been retrenched from any of the aided schools in the Education District or aided primary schools in the Education Sub-district in which the applicant proposes to open/upgrade the school and if so, whether an agreement to that effect has been furnished.
38. Clause (viii) of Rule 6 of Chapter V KER, which was originally added by the Kerala Education (Amendment) Rules, 1979 provides that, every application in Form 1 shall be accompanied by an agreement executed by the applicant to the W.A.No.523/11 & con.cases -87- effect that he is prepared to absorb qualified teachers/non- teaching staff who, after putting in service of two years and drawing two vacation salaries, have been retrenched from any of the aided schools in the Education District in which the applicant proposes to open/upgrade the school. The explanatory note to G.O(P)No.70/79/G.Edn. dated 2/5/1979 makes it explicitly clear that, the said clause was added as the Government have decided that, in giving sanction for opening or upgrading of aided schools in the State, the Managements should be required to absorb such of the teachers and members of non-teaching staff, who are retrenched from aided schools after putting in two years of service and drawing two vacation salaries and that appointment of fresh hands will be permitted only after absorbing the above category of retrenched staff. The words "from any of the aided schools in the Education District" in Clause (viii) was later amended as "from any of the aided high schools in the Education District or aided primary school in the Education Sub-district". Still later, Clause (viii) was substituted by the Kerala Education (Amendment) Rules, 2010, and after such substitution the said W.A.No.523/11 & con.cases -88- clause provides that, the orders issued by the Government from time to time on absorption of qualified teachers/non-teaching staff who are eligible for protection shall form part and parcel of such agreement as if they were incorporated in that agreement. It is pertinent to note that, by Kerala Education (Amendment) Rules, 1979, in Form 27, after the sentence "The appointment is approved", the following sentence was added, namely, "Certified that the above appointment has been made after satisfying that no qualified person retrenched from any of the aided schools in the Education District after putting in two years of service and drawing two vacation salaries is available for absorption to the post in the school." 39. Sub-rule (1) of Rule 1 of Chapter XIVA of KER provides that, whenever vacancy of teacher occurs, for ascertaining the availability of qualified hands and also for filling up vacancy the Manager shall follow the directions issued by the Government from time to time. Further, Rule 5A of Chapter XIVA of KER, gives preference to qualified teachers who are retrenched due to opening of new schools or consequent on orders of W.A.No.523/11 & con.cases -89- Government relating to the course of studies or scheme of teaching or due to withdrawal of recognition of the school for any of the reasons specified in Rules 22, 22A or 23 in Chapter V and consequent closure of the school, for appointment to future vacancies in schools under the same educational agency or under other educational agencies. Still further, going by Form 27, which is the statutory form of the order of appointment prescribed under Rule 7 of Chapter XIVA of KER, any appointment made will be subject to the provisions of the Kerala Education Act and the Rules thereunder and such other rules or orders issued from time to time by the Government or other competent authority and while approving the appointment, the Educational Officer concerned has to certify that, the appointment in question has been made after satisfying that no qualified person retrenched from any of the aided high schools in the Education District or aided primary schools in the Education Sub-districts after putting in two years of service and drawing two vacation salaries is available for absorption to the post in the school. Going by Rule 43 of Chapter XIVA of KER, promotion according to seniority to W.A.No.523/11 & con.cases -90- any higher grade of pay is made subject to consideration of efficiency and any general order that may be issued by the Government. Further, the second proviso to Rule 51A of Chapter XIVA KER provides that the first preference for preferential appointment under Rule 51A shall be given to protected teachers. Going by the Explanation to Note 1A of Rule 51A, 'protected teacher' means a teacher who has been retrenched for want of vacancy after putting such length of regular service that may be specified by the Government or who is eligible for such protection as per G.O.(Ms.)No.104/69/Edn. dated 6/3/1969 or G.O.(Ms.)No.231/84/ G.Edn. dated 27/10/1984 or any other orders issued by the Government from time to time.
40. The provisions of the Act and the KER, which we have referred to above, casts a statutory obligation on the Manager of an aided school to absorb protected teachers, in terms of these statutory provisions, while filling up the vacancies of teaching/non-teaching staff. Clause (viii) of Rule 6 of Chapter V KER mandates that, every application for opening of new schools and for upgradation of existing schools, the application in Form 1 W.A.No.523/11 & con.cases -91- shall be accompanied by an agreement executed by the applicant to the effect that he is prepared to absorb qualified teachers/non- teaching staff from any of the aided high schools in the Education District or aided primary school in the Education Sub-district. Sub-rule (1) of Rule 1 of Chapter XIVA of KER mandates the Manager of an aided school, whenever vacancy of teacher occurs, to scrupulously follow the directions issued by the Government from time to time, for ascertaining the availability of qualified hand and also for filling up vacancy. Further, the preference for appointment to future vacancies contemplated under Rule 5A of Chapter XIVA of KER not confined to such vacancies in the very same Educational Agency and such thrown out teachers are entitled to claim preferential appointment to future vacancies in schools under other Educational Agencies as well. Added to these provisions under the KER, Section 13 of the Act provides for absorption of teachers on retrenchment, where any retrenchment of teachers in any aided school is rendered necessary consequent on orders of the Government relating to the course of studies or scheme of teaching or of such other matters. None of the above W.A.No.523/11 & con.cases -92- provisions in the Act and the KER are under challenge in any of the Writ Petitions from which the present Writ Appeals arise. Further, the Managers never challenged the orders issued by the Government during the period 1999-2005, by which the Government lifted the ban on creation of posts, after imposing various conditions, including absorption of protected hands, based on which the irregular appointments made by the Managers during the period of ban were regularised and the Managers who honoured the ban were permitted to make appointment to the vacancies which have arisen during the aforesaid period. In the absence of any challenge to such Government orders and also the provisions in the Act and the KER referred to above, the challenge made against clauses (v) and (vi) of G.O. dated 12/1/2010 cannot be sustained.
41. As we have already noticed, every application for opening of new schools and for upgradation of existing schools should be accompanied by an agreement executed by the applicant, in terms of Clause (viii) of Rule 6 of Chapter V of KER, to the effect that he is prepared to absorb qualified teachers/non- W.A.No.523/11 & con.cases -93- teaching staff from any of the aided high schools in the Education District or aided primary school in the Education Sub-district. In Rev. Kuriakose and others v. State of Kerala and others (1980 KLN443:
1981. KLT SN183 a Division Bench of this Court held that, the applicants having executed agreements in terms of Clause (viii) of Rule 6 of Chapter V KER, undertaking to absorb protected teachers and non-teaching staff and gained the advantage of their applications being sanctioned, cannot escape from the obligations undertaken by them in the agreement, on the plea of violation of their fundamental rights under Article 30 (1) of the Constitution of India. Paragraph 22 of the said judgment reads thus;
"2. In this background let us consider the facts of the case before us. In the Form of application for opening/upgrading schools the applicant answered item 14 consenting to absorb protected teachers and protected non teaching staff. It must be remembered that the form of application is common to minorities and non minorities and there can be no case at all that in the case of non minorities this would, in any way, be objectionable. If this did not apply to minorities or the minorities were not willing to absorb the protected teachers and they were not W.A.No.523/11 & con.cases -94- obliged to do so they could have very well stated so. It cannot be said that they answered this unsuspectingly in ignorance of their fundamental right under Art.30(1) assuming that such fundamental right would entitle them to obtain sanction for upgrading/opening schools without agreeing to absorb protected teachers and non teaching staff. As we have already painted out in this State there has been keen awareness of the rights of the minorities and the minorities have been approaching this Court whenever there has been a threat or invasion to their fundamental right. The applicants executed agreements undertaking to absorb protected teachers and non teaching staff. By this they gained an advantage in that their applications were sanctioned. Perhaps their applications might have been sanctioned even otherwise because of the need for opening or upgrading schools in that area. It is equally possible that the State might have opened schools in that area or the petitioners might not have received preference in the matter of opening schools in that area. By reason of the order of the Government the petitioners obtained the advantage of getting sanction for opening/upgrading schools. That advantage they are seeking to retain while they are seeking to escape from the obligations undertaken by them in the agreement. It is a situation where third party interests are affected. Teachers and non teaching staff thrown out after a fairly reasonable period of service could be protected by the State opening new schools which would not be W.A.No.523/11 & con.cases -95- objectionable if there is justification for opening such schools in that area. It may be that non minorities with equal claim might have been preferred had it not been for this condition. It is sufficient to say that having obtained advantage by reason of consenting to absorb the protected teachers and non teaching staff it may not now be fair to seek relief from this Court to avoid the consequences of the agreement entered into by the petitioners on the plea of violation of the minority rights under Art.30(1) of the Constitution of India.
42. In Balan v. State of Kerala and others (1981 KLT242, this Court held that, the provisions of Rules 6 and 9 of Chapter V of KER are mandatory in nature and are meant to be complied with by the applicants and that, the Government should consider only applications submitted in accordance with Rule 6 of Chapter V of KER and give the sanction only strictly in accordance with Rule 9. This Court made it clear that, as long as Rules 6 and 9 are there, the Government have no power to consider an application which is not submitted in accordance with Rule 6 of Chapter V of KER. Paragraph 6 of the judgment reads thus; "6. A contention has been taken by the 1st respondent State that the rules governing the sanction of new schools and upgradation of existing schools are only regulatory and W.A.No.523/11 & con.cases -96- hence the violation of any of those rules cannot vitiate the sanction. R.6 of Chap.5 of the K.E.R. begins with the words "Every application shall be accompanied by". One of the documents that should be submitted along with the application is that which shows the applicant's absolute ownership or his right to be in exclusive possession for a period of not less than six years of the site of the proposed school. It is further provided in R.9 of Chap. 5 that no permission to open a new school shall be granted if the applicant does not have the site. By no stretch of imagination it can be said that provisions of R.6 and 9 of Chap.5 are only regulatory. R.6 and 9 are there for a specific purpose. The purpose is that the new school sanctioned or existing school upgraded should have the minimum facilities that should be there for a school. Can an applicant insist that he should get the sanction for a school without even the site for the same. Can a picture be drawn without the wall? The provisions of R.6 and 9 of Chap.5 of the K.E.R. are mandatory and are meant to be complied with by the applicants. What is seen from this and the similar original petitions filed before this Court is that the conditions insisted by R.6 and 9 are observed more in their breach. There should be an end for this. The Government should consider only applications submitted in accordance with R.6 of Chap.5 and give the sanction only strictly in accordance with R.9. As long as R.6 and 9 are there, the Government have no power to consider an application which is not submitted in accordance with R.6 of Chap.5. The word W.A.No.523/11 & con.cases -97- 'regulate' that appears in S.3 of the Education Act, 1958 cannot and will not confer any such power on the Government." 43. Relying on the judgments in Rev. Kuriakose's case (supra) and Balan's case (supra), this Court held in Rajan Pillai v. State of Kerala (1990 (1) KLT544 that, the Manager is bound by the terms of the agreement, which he executed under Clause (viii) of Rule 6 of Chapter V of KER, to appoint protected teacher and that he is not entitled to seek assistance of this Court to wriggle out of the terms of that agreement. After referring to Section 13 of the Act and also Clause (iii) of Rule 17 of Chapter V of KER, this Court held further that, the Manager is obliged by reason of Clause (iii) of Rule 17 to comply with the direction to appoint retrenched teachers of any aided school or Government School in his School. Paragraphs 8 and 9 of the judgment read thus; "8. Petitioner may not be entitled to any relief if any one of these submissions is accepted. It appears to me, that the petitioner is not entitled to require this court to assist him to wriggle out of the terms of the agreement which he entered into under R.6(viii) of Chap.5 of the Rules. That agreement W.A.No.523/11 & con.cases -98- is not before me. If it is in terms of the rule, as it should be, petitioner must have undertaken to "absorb qualified teachers", who have been retrenched from any of the aided High Schools in the Educational District in which the applicant proposed to open the school. Willingness to absorb qualified teachers cannot be confined to one teacher alone. It can be more than one. The fact that at the initial stages the respondents required the petitioner to appoint only one teacher does not mean either that the respondents have exhausted their power or that they cannot require the Manager to appoint more than one teacher. I am also of the opinion that the petitioner, having obtained advantage by reason of consenting to absorb protected teachers, is not entitled to seek the assistance of this court to avoid the consequences of the agreement. This position is fairly clear from the decisions of this court in Balan v. State of Kerala, 1981 KLT242and Rev. Kuriakose v. State of Kerala, 1981 KLT (SN) 103.
9. Counsel for the petitioner urged, that after passing Ext. P1 order, the only manner in which recognition could be withheld is by withdrawal under R.22, 22A or 23 of the Rules, after due compliance with the requirements of those rules. But R.17 provides for conditions to be satisfied for grant of recognition. Sub-rule (iii) thereof requires, that teachers must have been appointed in accordance with the relevant provisions in the Kerala Education Act and the Rules thereunder. S.13 of the Kerala Education Act provides, that:- W.A.No.523/11 & con.cases -99- "Where any retrenchment of teachers in any aided school is rendered necessary consequent on orders of the Government relating to the course of studies or scheme of teaching or of such other matters, it shall be competent for the Government or the manager of an aided school to appoint such teachers in any Government school or aided school, as the case may be". The Manager is obliged by reason of R.17(iii), which I have referred to above, to comply with the direction to appoint retrenched teachers of any aided school or Government School in his School. As long as the petitioner does not comply with that condition, he cannot insist upon grant of recognition." 44. There is total lack of pleadings in the Writ Petitions, from which the present Writ Appeals arise, in order to arrive at a conclusion that the educational institutions concerned were established and upgraded prior to the introduction of Clause (viii) of Rule 6 of Chapter V of KER. Even otherwise, the mere absence of an agreement in terms of Clause (viii) of Rule 6 of Chapter V of KER, agreeing to absorb qualified teachers/non-teaching staff from any of the aided high schools in the Education District or aided primary school in the Education Sub-district, will not in any manner absolve the Managers of the aided schools from the W.A.No.523/11 & con.cases -100- statutory obligation to absorb such protected hands, in view of the mandate of Section 13 of the Act, read with Sub-rule (1) of Rule 1 and Rule 5A of Chapter XIVA of KER. On this ground as well, the the challenge made against clauses (v) and (vi) of G.O. dated 12/1/2010 cannot be sustained.
45. Sri.Kurian George Kannanthanam, the learned Senior Counsel then contended that, if the Managers of aided schools are compelled to appoint protected teachers from outside it will take away the right available to the Manager under Rule 3 of Chapter XIVA of KER to keep the such appointees on probation and also the consequential rights of the Manager under Rule 6 to declare satisfactory completion of probation, to extend the period of probation, or to terminate the probation and discharge the probationer from service. Rules 3 and 6(a) of Chapter XIVA of KER read thus; "3. Initial appointment of qualified teachers shall be on probation. Provided that for the purpose of this Rule qualified teachers in service on the date on which this Rule comes into force and who have a satisfactory continuous service of not less than one year, shall be deemed to have completed their W.A.No.523/11 & con.cases -101- probation. xxx xxx xxx 6(a) Teachers appointed under Rule 3 shall be on probation for a total period of one year on duty within a continuous period of two years. Qualified teachers in the lower grade promoted to the higher grade under Rule 43 before completing their probation shall be on probation in the higher grade as if appointed under Rule 3 in that category. At the end of the period of probation the Manger may issue an order declaring him to have satisfactorily completed his probation; Explanation:- Broken periods of duty within a continuous period of two years can be reckoned for calculating the one year duty period. In such cases satisfactory completion of probation of the teacher concerned shall be declared by the Manager with retrospective effect from the date on which he is found eligible/suitable for such declaration of completion of probation." 46. A combined reading of Rules 3 and 6(a) of Chapter XIVA of KER makes it explicitly clear that, the said provisions have no application on the preferential appointment of a protected hand made under Section 13 of the Act, read with Rule 5A of Chapter XIVA of KER and also the executive orders governing the field. Rule 6 takes within its sweep the initial appointment of qualified teachers into service under Rule 3 and W.A.No.523/11 & con.cases -102- also their promotion to the higher grade under Rule 43 before completion of their probation in the lower grade. Protected teachers are teachers having more than two years service, who have satisfactorily completed their period of probation in their parent school. Such teachers, on getting preferential appointment in future vacancies in schools under the same Educational Agency or under other Educational Agencies, cannot be placed on probation by treating such appointments as initial appointments made under Rule 3 of Chapter XIVA of KER. Therefore, the contention of the learned Senior Counsel that, any appointment of protected teachers from outside will take away the right available to the Manager under Rules 3 and 6 of Chapter XIVA of KER can only be rejected and we do so.
47. Sri.Kurian George Kannanthanam, the learned Senior Counsel then contended that, Clauses (v) and (vi) of G.O. dated 12/1/2010 take away the freedom of the Manager to choose a candidate of his choice for appointment as teacher in the aided school. It was also contended that, aforesaid clauses are in conflict with the Rules 43 and 51A of Chapter XIVA of KER. As we W.A.No.523/11 & con.cases -103- have already noticed, the right of the Manager of an aided school to make appointment of teachers is not an absolute or unbridled right and the exercise of such right is regulated/restricted not only by the provisions of the Act and the KER, but also by the executive orders issued from time to time by the Government as well as the instructions issued by the Director of Public Instruction. Further, the non-obstante clause contained in Rule 14 of Chapter XXIII KER which empower the Government to extent any ban on the creation of posts, retrenchment of staff, etc., effected by them in Government schools to aided schools has overriding effect over the contrary provisions contained in the KER as a whole. The power of the Government under Rule 14 to impose ban on the creation of posts in aided schools takes within its sweep the power to impose conditions for lifting such ban. Therefore, the Government is well within its powers in insisting in G.O. dated 12/1/2010 that, the Managers/Educational Agencies of aided schools should fill up certain additional division vacancies by protected teachers. The remaining vacancies are available for promotion under Rule 43 and for preferential W.A.No.523/11 & con.cases -104- claimants under Rule 51A of Chapter XIVA of KER and also for open recruitment. Further, as rightly contended by the learned Special Government Pleader, the preferential claim under Rule 51A is subject to the claim for promotion under Rule 43, which is made subject to any general orders that may be issued by the Government. In such circumstances, we find absolutely no merit in the contention that, Clauses (v) and (vi) of G.O. dated 12/1/2010 take away the freedom of the Manager to choose a candidate of his choice and that, the aforesaid clauses are in conflict with Rules 43 and 51A of Chapter XIVA of KER.
48. Sri.Kurian George Kannanthanam, the learned Senior Counsel and Sri.R.T.Pradeep, the learned counsel for the appellant in W.A.No.523/2011 contended that, Clauses (v) and (vi) of G.O. dated 12.1.2010 will put the Managers who have honoured the ban imposed by G.O. dated 17.8.2005 in a more disadvantageous position than those Managers who have violated the ban by making appointments of teaching staff in the additional division vacancies during the period of ban. According to the learned counsel, treating those who have violated the ban W.A.No.523/11 & con.cases -105- and those who have honoured the ban alike, would amount to unequals being treated equals, thereby offending Article 14 of the Constitution of India. We are unable to agree. Going by Clause (v) of G.O. dated 12/1/2010, in the case of Managers who have made appointments in the additional division vacancies during the period of ban from 2006-07 to 2009-10, such irregular appointments will be approved on such Managers executing an agreement to the effect that they will appoint protected teachers/non-teaching staff equal to such appointees in all the arising vacancies in the schools from 2010-11 onwards. On the other hand, in the case of Managers who have honoured the ban, Clause (vi) of G.O. dated 12/1/2010 provides that, after appointing protected teachers/non-teaching staff equal to the appointees in additional division vacancies during 2006-07 to 2009-10, the vacancies that arise as additional division vacancies in future should be filled up in the order of protected teacher and open recruit in the ratio of 1:1. Therefore, in the case of Managers who have violated the ban, open recruitment is permitted only after such Managers appointing protected hands in W.A.No.523/11 & con.cases -106- all the arising vacancies from 2010-11 onwards, equal to the appointments made in the additional division vacancies during 2006-07 to 2009-10. The Managers who have honoured the ban, by keeping vacant the additional division vacancies during 2006- 07 to 2009-10, are permitted to fill up such vacancies as well as the vacancies that arise as additional division vacancies in future in the order of protected teacher and open recruit in the ratio of 1:1. As rightly noticed by the learned Single Judge, those Managers who honoured the ban and those who did not honour the ban are thus placed almost in the same level by such a balancing process. The said clauses are neither violative of Article 14 of the Constitution of India nor does it put the Managers who have honoured the ban in a more disadvantageous position than those Managers who have violated the ban.
49. Sri.Kurian George Kannanthanam, the learned Senior Counsel, relying on the Malayalam version of G.O. dated 12/1/2010 contended that, the term 'all aided schools' in Clause (vi) of the said G.O. means those aided schools in which irregular appointments were made in the additional division vacancies W.A.No.523/11 & con.cases -107- during 2006-07 to 2009-10 and not those aided schools which have honoured the ban and kept all such vacancies unfilled. For more than one reason, we are unable to agree with the above argument. It is not in dispute that, G.O. dated 12/1/2010 deals with two categories of aided schools, i.e., (i) aided schools in which appointments were made in the additional division vacancies during the period of ban and (ii) aided schools which have honoured the ban and kept all such vacancies unfilled. It is also not in dispute that, Clause (v) as well as Clause (vi) of the said G.O. take within its sweep the additional division vacancies which had arisen during the period of ban, i.e., during 2006-07 to 2009-10 as well as those additional division vacancies which may arise in future, i.e., from 2010-11 onwards. Therefore, the conclusion is irresistible that, when Clause (v) deals with aided schools which have violated the ban, Clause (vi) deals with aided schools which have honoured the said ban.
50. Article 348 of the Constitution of India deals with the language to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc. Article 348 of the Constitution of India W.A.No.523/11 & con.cases -108- reads thus;
"48. Language to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc. :- (1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides- (a) all proceedings in the Supreme Court and in every High Court, (b) the authoritative texts- (i) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State, (ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State, and (iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or the Legislature of a State, shall be in the English language. (2) Notwithstanding anything in sub-clause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State: Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High W.A.No.523/11 & con.cases -109- Court. (3) Notwithstanding anything in sub-clause (b) of clause (1), where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the Governor of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor of the State in the Official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article." 51. In Nityanand Sharma and another v. State of Bihar and others (1996 (3) SCC576 the Apex Court held that, by operation of Sub-clause (3) of Article 348 with a non- obstante clause, where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the Governor of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of Sub-clause (1) of Article 348, a translation of the same in the English language published under the authority of the Governor of the State in the Official Gazette of that State shall be deemed W.A.No.523/11 & con.cases -110- to be the authoritative text thereof in the English language under this article. The relevant portion of paragraph 19 of the judgment reads thus;
"9. Article 348(1)(b) of the Constitution provides that notwithstanding anything in Part II (in Chapter II Articles 346 and 347 relate to regional languages) the authoritative text of all bills to be introduced and amendments thereto to be moved in either House of Parliament ..... of all ordinances promulgated by the President ..... and all orders, rules, regulations and bye-laws issued under the Constitution or under any law made by the Parliament, shall be in the English language. By operation of sub-article (3) thereof with a non obstante clause, where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the Governor of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor of the State in the Official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article. ......
"52. Following the principle laid down by the Apex Court in Nityanand Sharma's case (supra), this Court in Mercy W.A.No.523/11 & con.cases -111- George v. Kerala State Election Commission and others (2009 (3) KLT405 has held that, "the law laid down in Nityanand Sharma's case (supra) is that the official English translation published under the authority of the Governor shall be taken to be the authoritative text thereof in the English Language and to treat it as the authoritative text. Insofar as the State of Kerala is concerned, the language to be used shall be Malayalam or English as per the Official Languages Act. Therefore, following Nityanand Sharma (supra) or even otherwise, the authoritative text of the instruments of the State of Kerala falling in Article 348 of the Constitution shall be those in the English language." In such circumstances the contention raised by the learned Senior Counsel relying on the Malayalam version of G.O. dated 12/1/2010 can only be rejected and we do so.
53. Sri.Kurian George Kannanthanam, the learned Senior Counsel, then contended that, Clauses (v) and (vi) of G.O. dated 12/1/2010 violate the fundamental right guaranteed to the Managers of aided schools under Article 19(1)(g) of the Constitution of India, in as much as it compel the Managers of W.A.No.523/11 & con.cases -112- aided schools to appoint protected teachers in certain number of additional division vacancies, from the year 2006-07 onwards. As we have already noticed, Section 13 of the Act and the provisions in the KER, which we have already referred to, provides for absorption of retrenched teachers. None of these provisions are under challenge in any of the Writ Petitions from which the present Writ Appeals arise. The Managers of the aided schools have also not chosen to challenge the orders issued by the Government during the period 1999-2005, by which the Government lifted the ban on creation of posts, after imposing various conditions, including absorption of protected hands.
54. The learned Special Government Pleader, with reference to the counter affidavit filed in the Writ Petitions, submitted that the payment of salary of all teachers and non- teaching staff in the aided schools are being made by the Government, in terms of Section 9 of the Act. The Government offer financial assistance to the aided schools by way of direct payment of salaries and pensions to teaching and non-teaching staff. Grants are also given for the maintenance and for meeting W.A.No.523/11 & con.cases -113- some of the non-salary revenue expenditure. 56% of the revenue expenditure of the State on Secondary Education is towards assistance to aided schools and that, during the year 2008-2009, one third of the total expenditure of the State towards salary was spent for meeting the salary expenditure of aided schools. We notice that, none of the writ petitioners have disputed the above factual aspects of the matter. From the year 1969 onwards, the Government is offering protection to the retrenched teachers, by issuing various executive orders. As rightly contended by the learned Special Government Pleader, the provisions under the KER mandate the Managers of aided schools to accommodate these retrenched teachers, irrespective of the fact whether such teachers belong to the same educational agency or not. The statutory mandate of Section 13 of the Act and Clause (viii) of Rule 6 of Chapter V and Rule 5A of Chapter XIVA of KER is more rigorous than the Government orders issued on protection of retrenched teachers. To put it in other words, the Manager of an aided school cannot make appointment against all the vacancies that may arise in his school at his sweet will and pleasure; but he W.A.No.523/11 & con.cases -114- has to abide by the statutory mandate and honour the claim put forward by the rightful claimants under the KER. The provisions of the KER referred to above empower the Government to insist absorption of protected teachers and in such circumstances, the only inference that can be drawn is that, Clauses (v) and (vi) of G.O. dated 12/1/2010 have strong statutory backing.
55. The learned Special Government Pleader, with reference to the counter affidavit filed in the Writ Petitions, submitted that the total number of protected teachers available in the State during 2008-09 was 3083, out of which 987 teachers are retained in parent schools on account of various concessions granted, 1456 teachers are deployed in Government schools, 339 teachers are deployed in other aided schools and 301 teachers remaining unemployed. The statement regarding the status of deployment of protected teachers as on 2008-09 is not seriously disputed by the learned counsel for the appellants. Therefore, the fact remains that, as on 2008-09, out of the total number of 3083 protected teachers a major portion of protected teachers are either retained in their parent school on account of various W.A.No.523/11 & con.cases -115- concessions granted by the Government or deployed in the Government schools against vacancies earmarked for candidates advised by the Public Service Commission or by promotion of qualified hands in the lower categories. Further, 301 protected teachers remain unemployed and they are drawing salary without doing any work. In such circumstances, the Government cannot be found fault with for insisting on the absorption of protected teachers and Clauses (v) and (vi) of G.O. dated 12/1/2010, which have strong statutory backing, do not in any manner violate the fundamental right guaranteed to the Managers of aided schools under Article 19(1)(g) of the Constitution of India. We accordingly hold that, none of the rights of the Managers of the aided schools under Article 19(1)(g) of the Constitution has been abrogated by Clauses (v) and (vi) of G.O. dated 12/1/2010.
56. Sri.Kurian George Kannanthanam, the learned Senior Counsel; Sri.S.Muhammed Haneef, the learned counsel for the appellant in W.A.No.872/2011; Sri.M.R.Anison, the learned counsel for the appellant in W.A.No.808/2011; Sri.K.T.Thomas, learned counsel for the appellants in W.A.Nos.851/2011, W.A.No.523/11 & con.cases -116- 880/2011, 1021/2011, 1022/2011, 1093/2011, 1135/2011, 1257/2011 and 1258/2011 and Sri John Joseph Vettikkad, learned counsel for the appellant in W.A.No.1049/2011; representing the Managers/ Educational Agencies of aided schools claiming minority status under Article 30(1) of the Constitution of India, contended that, Clauses (v) and (vi) of G.O. dated 12/1/2010 are against the constitutional guarantee enshrined under Article 30(1) of the Constitution of India. As we have already noticed, the right of the Manager of an aided school to make appointment of teachers is not an absolute or unbridled right and the exercise of such right is regulated not only by the provisions of the Act and the KER, but also by the executive orders issued from time to time by the Government. Section 13 of the Act, which provides for absorption of teachers on retrenchment; Sub-rule (1) of Rule 1 of Chapter XIVA of KER, which mandates the Manager of an aided school to scrupulously follow the directions issued by the Government from time to time, for ascertaining the availability of qualified hand and also for filling up vacancy; and Rule 5A of Chapter XIVA of KER, which W.A.No.523/11 & con.cases -117- provides for preference to thrown out teachers for appointment to future vacancies in the very same Educational Agency as well as under other Educational Agencies, do not make any distinction between non-minority institutions and minority institutions, and apply with equal force to minority institutions claiming protection under Article 30(1) of the Constitution of India. Similarly, Clause (viii) of Rule 6 of Chapter V of KER, which mandates absorption of protected hands from any aided high schools in the Education District or aided primary school in the Education Sub-district, for opening of new schools and for upgradation of existing schools, and also Clause (vii) of G.O. dated 12/1/2010, which provides for absorption of protected hands to such schools, do not make any distinction between non-minority institutions and minority institutions, and apply with equal force in minority institutions claiming protection under Article 30(1) of the Constitution of India. None of the above provisions are under challenge in any of the Writ Petitions filed by the Managers/Educational Agencies of the aided schools claiming minority status under Article 30(1) of the Constitution of India, from which the present Writ Appeals W.A.No.523/11 & con.cases -118- arise. They have also not sought for a declaration that, the aforesaid provisions of the Act and the KER are violative of Articles 30(1) of the Constitution of India and therefore, they can have no application to aided schools established and administered by religious or linguistic minorities. In the absence of any such challenge, the challenge made against Clauses (v) and (vi) of G.O. dated 12/1/2010, which form part of an executive order issued in exercise of the powers conferred under aforesaid provisions of the Act and the KER, cannot be sustained.
57. Relying on the judgment of a Nine Judge Bench of the Apex Court in Ahmedabad St. Xavier College Society and others v. State of Gujarat and another (1974 (1) SCC717, the learned Senior Counsel would contend that, the right of the religious and linguistic minorities to administer their educational institutions includes the right to choose its teachers and therefore, Clause (vi) of G.O. dated 12/1/2010 infringes the fundamental right guaranteed to such institutions under Article 30(1) of the Constitution of India.
58. In St. Xavier College's case (supra) three sets of W.A.No.523/11 & con.cases -119- regulations were impeached as violative of Article 30(1) of the Constitution of India. The first set consists of Sections 40 and 41 of the Gujarat University Act, 1949. The second set consists of Section 33A(1)(a) of the said Act. The third set consists of Sections 51A and 52A of the said Act. Going by Section 40 of the said Act, all instructions, teaching and training in courses of studies in respect of which the University is competent to hold examinations shall within the University Area be conducted by the University and shall be imparted by the teachers of the University. Sub-section (1) of Section 41 states that, all colleges within the University Area which are admitted to the privileges of the University under Sub-section (3) of Section 5 of the Act and all colleges which may hereafter be affiliated to the University shall be constituent colleges of the University. Therefore, the real implication of Sections 40 and 41 of the said Act was that, the University takes over teaching of undergraduate classes and once the power under Section 40 is exercised in relation to minority institutions, such institutions will immediately become constituent colleges. Section 33A(1)(a) of the said Act states that, every W.A.No.523/11 & con.cases -120- college shall be under the management of a Governing Body which shall include amongst its members, a representative of the University nominated by the Vice-Chancellor and representative of teachers, non-teaching staff and students of the college. The provisions of Section 33A were challenged as violative of the fundamental right guaranteed to the religious and linguistic minorities to administer their educational institutions. Similarly, Section 51A(1)(b) of the said Act states that, no member of the teaching, other academic and non teaching staff of an affiliated college shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard and until the penalty to be inflicted on him is approved by the Vice-Chancellor or any other officer of the University authorised by the Vice- Chancellor in this behalf. It was contended that, the said provision confers arbitrary power on the Vice-Chancellor and takes away the right guaranteed under Article 30(1) to administer educational institutions. Section 52A of the said Act contemplates a Tribunal of Arbitration consisting of one member W.A.No.523/11 & con.cases -121- nominated by the Governing Body of the college, one member nominated by the member concerned and an Umpire appointed by the Vice-Chancellor, for reference of disputes between the Governing Body and any member of the teaching, other academic and non teaching staff of an affiliated college or recognised or approved institution. It was contended that, the provisions contained in Section 52A cannot apply to minority institutions.
59. The Apex Court held that, Section 33A of the said Act, which provides for a new Governing Body for the management of the college and also for selection committees as well as the constitution thereof, would consequently have to be quashed so far as the minority educational institutions are concerned because of the contravention of Article 30(1) of the Constitution of India. The provisions contained in Sections 40 and 41, which make it imperative that teaching in under graduate courses can be conducted only by the University and can be imparted only by the teachers of the University plainly violates the rights of minorities to establish and administer their educational institutions. Therefore, Sections 40 and 41 were declared void in respect of W.A.No.523/11 & con.cases -122- minority educational institutions. The Apex Court held further that, Section 51A(1)(b) which gives a power to the Vice- Chancellor and officer of the University authorised by him to veto the action of the Managing Body of an educational institution in awarding punishment to a member of the staff, interferes with the disciplinary control of the Managing Body of minority institutions over its teachers and is violative of Article 30(1) of the Constitution of India. The objectionable part of Section 52A was the giving of the power to the Vice-Chancellor to nominate the Umpire of the Tribunal of Arbitration. The Apex Court opined that, normally in such dispute there would be hardly any agreement between the arbitrator nominated by the Governing Body of the institution and the one nominated by the concerned member of the staff. The result would be that the power would vest for all intents and purposes in the nominee of the Vice- Chancellor to decide all disputes between the Governing Body and the member of the staff connected with the latter's conditions of service. The Governing Body would thus be hardly in a position to take any effective disciplinary action against a W.A.No.523/11 & con.cases -123- member of the staff. Therefore, the Apex Court held that, Section 52A must cause an inroad in the right of the Governing Body to administer the institution and hence violative of Article 30(1) of the Constitution of India, so far as minority educational institutions are concerned.
60. We also notice that, the Apex Court in St. Xavier College's case (supra) held that, all institutions of general secular education whether established by the minorities or the non minorities must impart to the students education not only for their intellectual attainment but also for pursuit of careers. The measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities for libraries and laboratories are all comprised in matters germane to affiliation of minority institutions. These regulatory measures for affiliation are for uniformity, efficiency and excellence in educational courses and do not violate any fundamental right of the minority institutions under Article 30 of the Constitution of India. Paragraphs 18 to 20 of the judgment W.A.No.523/11 & con.cases -124- read thus;
"8. This Court in State of Kerala v. Very Rev. Mother Provincial, etc., (1971 (1) SCR734: AIR1970SC2079 explained the necessity and importance of regulatory measures of system and standard of education in the interest of the country and the people. When a minority institution applies for affiliation, it agrees to follow the uniform courses of study. Affiliation is regulating the educational character and content of the minority institutions. These regulations are not only reasonable in the interest of general secular education but also conduce to the improvement in the stature and strength of the minority institutions. All institutions of general secular education whether established by the minorities or the non minorities must impart to the students education not only for their intellectual attainment but also for pursuit of careers. Affiliation of minority institutions is intended to ensure the growth and excellence of their children and other students in the academic field. Affiliation mainly pertains to the academic and educational character of the institution. Therefore, measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities for libraries and laboratories are all comprised in matters germane to affiliation of minority institutions. These regulatory measures for affiliation are for uniformity, efficiency and excellence in W.A.No.523/11 & con.cases -125- educational courses and do not violate any fundamental right of the minority institutions under Art.30.
19. The entire controversy centres round the extent of the right of the religious and linguistic minorities to administer their educational institutions. The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons selected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.
20. The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions similarly regulatory measures are necessary for ensuring orderly, efficiency and sound administration. Das, C.J., in the Kerala Education Bill case, 1959 SCR995: AIR1958SC956(supra) summed up in one sentence the true meaning of the right to administer by W.A.No.523/11 & con.cases -126- saying that the right to administer is not the right to maladminister." 61. The learned Senior Counsel then relied on paragraphs 50, 53 and 54 of the judgment an Eleven Judge Bench of the Apex Court in T.M.A.Pai Foundation v. State of Karnataka (2002 (8) SCC481 to buttress the argument that, the right to establish and administer conferred under Article 30(1) comprises among other rights, the right to appoint teaching and non- teaching staff and that compulsory nomination of the teachers and staff for appointment would be an unacceptable restriction. As rightly pointed out by the learned Special Government Pleader, in the paragraphs referred to above, the Apex Court was dealing with the case of private unaided non-minority educational institutions. In paragraphs 107 and 135 of the judgment in T.M.A.Pai Foundation's case (supra), the Apex Court held that, the right under Article 30(1) of the Constitution of India is not so absolute as to prevent the Government from making any regulation whatsoever. The right under Article 30(1) of the Constitution cannot be such as to override the national interest or W.A.No.523/11 & con.cases -127- to prevent the Government from framing regulations in that behalf. It is, of course, true that Government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion; but the right under Article 30 of the Constitution is not so absolute as to be above the law. The Apex Court held further that, the Constitution in Part III does not contain or give any absolute right. All rights conferred in Part III of the Constitution are subject to at least other provisions of the said Part. Therefore, it is difficult to comprehend that the framers of the Constitution would have given such an absolute right to the religious or linguistic minorities, which would enable them to establish and administer educational institutions in a manner so as to be in conflict with the other Parts of the Constitution.
62. The learned Senior Counsel then relied on the judgment of the Apex Court in Secretary, Malankara Syrian Catholic College v. T. Jose (2007 (1) SCC386 to buttress the argument that, the right to administer the educational institution includes the right to choose the person to be appointed W.A.No.523/11 & con.cases -128- as teacher and that receipt of the aid from the Government will not alter the nature or character of the minority institution. In Malankara Syrian Catholic College's case (supra) the Apex Court was dealing with the question as to whether Section 57(3) of the Kerala University Act, 1974, which provides that, the post of Principal when filled by promotion is to be made on seniority cum fitness basis, interferes with the right of the minority management to have a person of their choice as head of the institution. The Apex Court held that, having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The Apex Court reiterated that, the right conferred on minorities under Article 30 of the Constitution is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis a vis the majority. There is no reverse discrimination in favour of minorities. The right to establish and administer W.A.No.523/11 & con.cases -129- educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees, both teaching and non- teaching, regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1) of the Constitution. Similarly, in Kurian Lizy and others v. State of Kerala and others (2006 (4) KLT264, another judgment of this Court relied on by the learned Senior Counsel, the question that was referred for adjudication by a Full Bench of this Court was as to whether the right of the management of a religious minority educational institution to choose a qualified person as Headmaster of the School would come within the protective cover of Article 30(1) of the Constitution of India and if so, can it be W.A.No.523/11 & con.cases -130- regulated through a legislative act or an executive rule. In N. Ammad v. Manager, Emjay High School (1998 (6) SCC674 a decision referred to by the Full Bench, the Apex Court held that, "selection and appointment of Headmaster in a school (or Principal of a college) are of prime importance in administration of that educational institution. The Headmaster is the key post in the running of the school. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years." Relying on the above judgment of the Apex Court and also in the judgment in T.M.A. Pai Foundation's case (supra) the full Bench held that, the management of a minority educational institution would have freedom to appoint Headmaster or Principal.
63. In Rev. Kuriakose and others v. State of Kerala and others (1980 KLN443:
1981. KLT SN183, a decision which we have already referred to hereinbefore, the minority educational institutions challenged the validity of Clause (viii) of W.A.No.523/11 & con.cases -131- Rule 6 of Chapter V of KER. They contended that the agreements which they were compelled to execute were hit by Article 30(1) of the Constitution of India. The Division Bench repelled the contention of the managements and held that, the managements having executed agreements in terms of Clause (viii) of Rule 6 of Chapter V KER, undertaking to absorb protected teachers and non-teaching staff and gained the advantage of their applications being sanctioned, cannot escape from the obligations undertaken by them in the agreement, on the plea of violation of their fundamental rights under Article 30(1) of the Constitution of India.
64. In the case on hand, as we have already noticed, the provisions of the Kerala Education Act and the KER referred to hereinbefore, which empower the Government to insist absorption of protected teachers in aided schools, are neither under challenge nor a declaration sought for to the effect that, the aforesaid provisions of the Act and the KER are violative of Articles 30(1) of the Constitution of India and therefore, they can have no application to aided schools established and W.A.No.523/11 & con.cases -132- administered by religious or linguistic minorities. In such circumstances, the challenge made against Clauses (v) and (vi) of G.O. dated 12/1/2010, which form part of an executive order issued in exercise of the powers under aforesaid provisions of the Act and the KER, can only be rejected.
65. Sri.R.T.Pradeep, the learned counsel for the appellant in W.A.No.523/2011 contended that, the Nair Service Society which is running 32 higher secondary schools, 66 high schools, 20 upper primary schools, 12 lower primary schools and 4 teachers training institutions, represents a religious denomination which have freedom to establish and maintain institutions of religious and charitable purposes, under Article 26(a) of the Constitution of India. But we notice that, going by the averments in the Writ Petition, which has been reiterated in the memorandum of Writ Appeal, the Nair Service Society is a Company established under the provisions of the Travancore Companies Act, 1914. After the enactment of the Companies Act, 1958 it is deemed to be incorporated under the said enactment and that it is a Non-trading Company for the purpose of the W.A.No.523/11 & con.cases -133- Kerala Non-trading Companies Act, 1961.
66. Bramchari Sidheswar Shai and others v. State of W. B. (1995 (4) SCC646 the Apex Court held that, persons who claim to belong to religious denomination envisaged under Article 26 of the Constitution of India can succeed in such claim only when they fulfil or satisfy the following tests, i.e., (i) it should be a collection of individuals who have a system of beliefs with regard to their conducive spiritual well being; (ii) it should have a common organisation; and (iii) it should have a definite name. Paragraphs 45 to 49 of the judgment read thus;
"5. It is held by a constitution Bench of this Court in Shri Shirur Math's case (AIR1954SC282 (supra) that religious denomination is a collection of individuals classed together under the same religious sect or body having a common faith and organisation and designated by distinctive name, based on the meaning of that phrase found in Oxford Dictionary. It is also held therein that such a religious denomination falls under Art.26 of the Constitution of India. It is further held therein that the followers of Ramanuja, who are known by the name of Shrivaishnavas while constitute a religious denomination of their own, the followers of Madhavacharya and other religious teachers could be regarded as those belonging to their respective W.A.No.523/11 & con.cases -134- religious denominations.
46. Following the view taken as above as regards religious denominations, by the Constitution Bench of this Court in Sri Shirur Math's case (AIR1954SC282 (supra), a three Judge Bench of this Court in Acharya Jagadishwaranand Avaduta's case (AIR1984SC51 (supra) speaking through Ranganath Misra, J.
(as he then was) has held that Ananda Margis,' who are a collection of individuals, who have a system of beliefs with regard to their conducive spiritual well being, a common organisation, a definite name, could be regarded as a religious denomination within the Hindu religion, stating that the tests laid down by the Constitution Bench for regarding a denomination as a religious denomination were satisfied.
47. In view of the said pronouncements of this Court, persons who claim to belong to religious denomination envisaged under Art.26 of the Constitution can succeed in such claim only when they fulfil or satisfy the tests laid down therein, to wit : (i) a collection of individuals who have a system of beliefs with regard to their conducive spiritual well being; (ii) a common organisation; and (iii) a definite name.
48. A Division Bench of the High Court of Calcutta in its Judgment under appeal has held that Ramakrishna Mission is a religious denomination by stating thus : "The followers of Shri Ramakrishna have a common faith. They have common organisation W.A.No.523/11 & con.cases -135- and they are designated by a distinct name." 49. No good reason is shown to us for not accepting the view of the Division Bench of the point that Ramakrishna Mission or Ramakrishna Math is a religious denomination. It is not in dispute and cannot be disputed that Sri Ramakrishna could be regarded as religious teacher who expounded, practiced and preached the principles of Vedanta on which Hindu religion is founded, to meet the challenges posed to humanity in the changing world and made his disciples to spread the principles so expounded by him not only in India but all over the world as the basic principles of Hinduism. It cannot also be disputed that the disciples of Ramakrishna formed Ramakrishna Math and Ramakrishna Mission for propagation and promotion of the principles, so expounded, practiced and preached by Ramakrishna Parmahansa, by way of publications and building of temples, prayer halls and building of educational, cultural and charitable institutions as performance of sevas resulting in the coming up of organisations as Ramakrishna Maths and Ramakrishna Missions, all over the world. These Maths and Missions of Ramakrishna composed of the followers of principles of Hinduism as expounded, preached or practiced by Ramakrishna as his disciples or otherwise form a cult or sect of Hindu religion. They believe in the birth of sage Ramakrishna in Dakshineswar as an Avatar of Rama and Krishna and follow the principles of Hinduism discovered, expounded, preached and practiced by him as those conducive to their spiritual well being as the principles W.A.No.523/11 & con.cases -136- of highest Vedanta which surpassed the principles of Vedanta conceived and propagated by Sankaracharya, Madhavacharya and Ramanunjacharya, who were earlier exponents of Hinduism. Hence, as rightly held by the Division Bench of the High Court, followers of Ramakrishna, who are a collection of individuals, who adhere to a system of beliefs as conducive to their spiritual wellbeing, who have organised themselves collectively and who have an organisation of definite name as Ramakrishna Math or Ramakrishna Mission could, in our view, be regarded as a religious denomination within Hindu religion, inasmuch as they satisfy the tests laid down by this Court in Sri Shirur Math's case (AIR1954SC282 (supra) for regarding a denomination as a religious denomination." 67. In view of the above pronouncements of the Apex Court, the Nair Service Society, which is an organisation for upliftment and welfare of Nair Community is not a religious denomination, having the freedom to establish and maintain institutions of religious and charitable purposes, under Article 26 (a) of the Constitution of India. The contention to the contra can only be rejected and we do so.
68. Sri.Kurian George Kannanthanam, the learned Senior Counsel contended that, any ban on the appointment of teachers W.A.No.523/11 & con.cases -137- imposed by the Government, thereby preventing the Managers of aided schools from making appointments against the available vacancies of teaching staff as per the staff fixation order for the academic year concerned, would offend the provisions of the Right to Children to Free and Compulsory Education Act, 2009 and the Rules made thereunder. The very same contention was advanced by Sri.S.Subash Chand and Sri.R.T.Pradeep, the learned counsel for the appellants in other appeals. The learned counsel referred to Section 25 of the said Act, which deals with pupil-teacher ratio and also Section 26 which deals with filling up vacancies of teachers. We notice that, such a contention was never raised before the learned Single Judge. Moreover, the said Act came into force only on 1/4/2010 and the Kerala Right to Children to Free and Compulsory Education Rules, 2011 came into force only on 6.5.2011. Going by Section 25 of the Act, which came into force on 1.4.2010, within six months from that date, the appropriate Government and the local authority shall ensure that the pupil-teacher ratio as specified in the schedule to that Act is maintained in each school. The words "within six W.A.No.523/11 & con.cases -138- months" in Sub-section (1) of Section 25 of the Act was substituted by the words "within three years" by Amendment Act 30 of 2012. We also notice that, by the Kerala Education (Amendment) Rules 2014, Rule 12 of Chapter XXIII of KER was substituted and as per the amended provision, the strength of teaching staff in each school shall be fixed by the Educational Officer concerned as per the effective strength of pupils reckoned for the year 2010-11 and shall remain permanent unless and until the Government deems it fit to revise them based on the Unique Identification Number (UID) of students. As per the amended provision, additional posts over and above the strength of teaching staff fixed shall be created only subject to the availability of accommodation and by determining the actual number of pupils in each school using UID, as per the procedure contemplated in the Rules. Clauses (v) and (vi) of Government order dated 12.1.2010, which are under challenge in this batch of cases, only require the Managers/Educational Agencies of aided schools in the State to fill up the vacancies that arise as additional vacancies in their schools during the relevant period W.A.No.523/11 & con.cases -139- from among protected teachers and by open recruitment in the ratio 1:1. The said provision would not in any manner offend the provisions of the said Act and the Rules made thereunder. Therefore, the contention raised by the learned counsel for the appellants relying on the provisions of the Right to Children to Free and Compulsory Education Act, 2009 and the Rules made thereunder can only be rejected and we do so. For the reasons stated above, we find absolutely no grounds to interfere with the judgment of the learned Single Judge in dismissing the Writ Petitions filed by the appellants in these appeals. In the result, these Writ Appeals fail and they are dismissed. No order as to costs. ANTONY DOMINIC, JUDGE ANIL K.NARENDRAN, JUDGE dsn