High Court of Kerala
ANTONY DOMINIC & ANIL K. NARENDRAN, JJ.
Nair Service Society represented by its General Secretary, Kottayam – Appellant
Versus
Government of Kerala represented by its Secretary Department of General Education, Thiruvananthapuram & Another – Respondent
W.A. Nos. 523, 594, 598-600, 633-634, 640, 643, 650-651, 685, 705, 713, 715, 718-719, 721, 723, 726, 752-54, 770, 773, 776, 779, 782, 789, 800-802, 808, 838, 840-841, 851, 872, 880, 885, 888, 893, 895, 903, 932-935, 941-942, 944, 946, 954, 1010-1013, 1021-1022, 1027, 1035, 1038, 1039, 1042, 1045-1046, 1048-1049, 1059, 1067, 1079, 1084, 1093, 1100, 1105, 1114, 1116, 1130, 1134-1135, 1150-1152, 1154, 1236, 1257-1258, 1262, 1286, 1313, 1343, 1345, 1394, 1477-1478, 1481 of 2011 & 112 of 2012
Decided On : 08-04-2015
Constitution of India,1950 - Article 226 - Kerala Education Act, 1958 - Sections 11 and 10 - Kerala Education Rules 1959 - Rule 1( 1) - Education Matter - Appointment of teachers in aided schools - Eligibility - Qualifications - Whether provisions of the Kerala Education Act and the K.E.R. confer absolute or bridled right on the Manager of an aided school to make appointment of teachers - Whether 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 etc. is valid - Challenge G.O. cannot be sustained - Whether 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 statutory obligation to absorb such protected hands - Whether 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. - Whether Nair Service Society is religious denomination having the freedom to establish and maintain institutions of religious and charitable purposes - Challenged -Held, The provisions of the Kerala Education Act and the K.E.R. 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 - 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 etc. - In order to regulate the right of 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 K.E.R - The legislative intent can only give overriding effect to Rule 14 in Chapter XXIII K.E.R. over the contrary provisions contained in the K.E.R. as a whole -Challenge against G.O. cannot be sustained - The mere absence of an agreement in terms of Clause (viii) of Rule 6 of Chapter V of K.E.R., 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 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 K.E.R - 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
Anil K. Narendran, J.
1. 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.
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.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. 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, Kolla
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M. P. Lakshmi v. Assistant Educational Officer (1966 KLT 1042)
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State (NCT Delhi) v. Sanjay (2014 (9) SCC 772)
State of Kerala v. Jayan (2009 (3) KLT 857)
Rajan Pillai v. State of Kerala (1990 (1) KLT 544)
Mercy George v. Kerala State Election Commission and others (2009 (3) KLT 405)
Sant Ram Sharma v. State of Rajasthan and Others
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Chandavarkar Sita Ratna Rao v. Ashalata S. Guram (1986 (4) SCC 447)
A.G. Varadarajulu v. State of Tamil Nadu (1998 (4) SCC 231)
Madhav Rao Scindia v. Union of India
State of West Bengal v. Union of India (AIR 1963 SC 1241 : (1964) 1 SCR 371)
Sajeevayya v. Election Tribunal (AIR 1967 SC 1211)
Nityanand Sharma and another v. State of Bihar and others (1996 (3) SCC 576)
M. P. Lakshmi v. Assistant Educational Officer 1966 KLT 1042
State of Kerala v. Very Rev. Mother Provincial, etc.
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Bramchari Sidheswar Shai and others v. State of W. B. (1995 (4) SCC 646)
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