The main legal point established in the judgment is that rules empowering departmental authorities to take disciplinary action and impose penalties on teachers in aided schools were repugnant to the provisions of the Kerala Education Act and therefore void.

1. On the writ petitions, O. P. Nos. 1688 and 1903 of 1965, disposed of by a common judgment, Mathew J. has held R.67(1) of the Kerala Education R.1959, "in so far it authorises the various educational authorities and the Government to suspend a teacher" of an aided school to be "repugnant to S.12(2)" of the Kerala Education Act, 1958; and that has been followed by the learned judge in O. P. No. 1461 of 1966. The State challenges those decisions in Writ Appeal Nos 206, 207 and 245 of 1966 and a Division Bench has referred them to a Full Bench. As the appeals awaited hearing, O. P. No. 1419 of 1967, in which a penalty of reduction-in-rank imposed by a Regional Deputy Director of Public Instruction on the headmaster of an aided school is challenged on ground of a like incomepetency, has also been posted to be heard along with them. It is clarified at the bar that the particular rules relevant to the O. P. are R.75 and 77 of the Kerala Education Rules. Thus, the question in these cases is the validity of the empowerment of departmental authorities to suspend and punish teachers of aided schools under R.67, 75 and 77 of the Kerala Education Rules, 1959.

2. The abovementioned rules have been made by the Government of Kerala as amendments to the original rules issued in 1959 and are published in the Kerala Gazette dated 2nd February 1965. The main controversy is about the rules being consistent with Ss 11 and 12 of the Kerala Education Act, 1958. The learned judge has observed that at the time the Act was passed, the Managers of aided schools had exclusive power of appointment, dismissal and suspension of teachers (inclusive of the headmaster) therein and that the policy of the Act is to affirm that pre-existing power of the Manager, subject to restrictions upon the exercise thereof mentioned in the Act. The learned Government Pleader, Shri Kuruvilla, urges that a consideration of conditions before the Act may not be of assistance in assessing the powers of Managers after the Act has come in force, as all the Managers are now statutory authorities "appointed under the Act" and therefore having powers and disabilities as provided in the Act only. We find force in that submission as the Explanation to S.7(1) of the Act provides:

"All the existing managers of aided schools shall be deemed to have been appointed under this Act".

If Managers are authorities appointed under the Act, their powers and disabilities must be only as mentioned in the Act.

3. S.11 and 12 of the Act read thus:

11. Appointment of teachers in aided schools: 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 S.10.

12. Conditions of service of aided school teachers: (1) The conditions of service of teachers in aided schools, including conditions relating to pay, pension, provident fund, insurance and age of retirement, shall be such as may be prescribed by the Government.

(2) No teacher of an aided school shall be dismissed, removed or reduced in rank by the manager without the previous sanction of the officer authorised by the Government in this behalf, or placed under suspension by the manager for a continuous period exceeding fifteen days without such previous sanction."

4. Obviously. S.11 concedes the power to appoint teachers to the Manager, to be exercised "subject to the rules and conditions laid down by the Government." The argument that, in laying down "rules and conditions" for the appointment, it is open to the Government to provide that the Manager can appoint only if the departmental authorities do not appoint one to fill the vacancy, does not commend to us. A like contention advanced before the Supreme Court has been repelled in the State of Punjab v. Hari Kishan Sharma AIR. 1966 SC. 1081 C. B. Gajendragadkar C. J., speaking for the Constitution Bench, observed thus:

"That takes us to S.5 which