Point of Law: As per the newly inserted Rule 17 of the KER, any pecuniary loss caused to the Government on account of the creation on holding of such posts is to be recovered from the teacher in charge of the class, HM/ Vice-Principal as the case may be and the Manager or the Educational Officer concerned.

JUDGMENT :

These writ petitions have been filed by Managers of a few Aided Schools and some aided school teachers challenging SRO No.375/2022 dated 18.4.22 as per which, the Government of Kerala, in the exercise of powers conferred by Section 36 of the Kerala Education Act, 1958 (Act 6 of 1959), framed Rules to amend the Kerala Education Rules, 1959 as Kerala Education (Amendment) Rules, 2022. The petitioners have mounted the challenge on the ground that the provisions are inconsistent with the Right of Children to Free and Compulsory Education Act, 2009 (“Act 35 of 2009”) for the sake of brevity) and the Rules framed thereunder and also the various provisions of Act 6 of 1959, and the Rules framed thereunder.

2. The contentions raised by the petitioners in these writ petitions can be briefly summarized as under:

(a) Chapter VI of the Kerala Education Rules, 1959 deals with admission, transfer, and removal of pupils. Rule 15 provides the circumstances under which pupils can be removed from the rolls. Rule 15(iii) in essence says that a pupil can be removed from the rolls if he has been absent without leave for 15 working days consecutively or has been continuously absent for 5 working days from the reopening date. After Rule 15(iii), a Note has been inserted as Rule 2(2)(a)(i) of the Amendment Rules, 2022 which reads as follows:

“Note:- The teacher in charge of a class in Standard IX and X shall report the details of such absentees to the Headmaster or Headmistress or Vice-Principal, as the case may be, so as to remove them from the rolls under these rules.”

In addition, Rule 15A has been inserted after Rule 15, which reads as follows:

15A. The teacher in charge of a class in standard I to VIII shall report the details of pupils who has been absent without leave for fifteen working days consecutively or who has been continuously absent for five working days from the reopening day to the Headmaster or Headmistress or Vice-Principals, as the case may be. The Headmaster or Headmistress or Vice-Principal, as the case may be, shall take immediate follow-up actions in consultation with the local authority in terms of Section 9 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act 35 of 2009).”

According to the petitioners, the Headmaster/Vice-Principal is the custodian of the Attendance Register and in that view of the matter, there is no justification in asking the teacher to report the details of absentees to the Headmaster. It is also not mentioned how and the manner in which the report had to be submitted. It is further stated that in terms of Rule 9(e) of Act 35 of 2009, it is the duty and responsibility of the local authority to ensure and monitor admission, attendance and completion of elementary education by every child residing within its jurisdiction and in that view of the matter, fastening responsibility on the Headmaster would amount to infringement of the provisions of the Central Act.

(b) Chapter VII of the KER, 1959 deals with Attendance, Holidays, and Vacation. Rule 6(1) provides for the maintenance of an Attendance Register in Form 6 for each division of every standard. The petitioners assert that a Note has been inserted as per Rule 2(3) of the Amendment Rules, which reads as follows:

“Note:- The teacher in charge of a class shall mark the attendance of the physically present pupils properly. If forged attendance is detected, the teacher in charge of that class shall be held personally responsible.”

It is contended that imposing a personal responsibility on the teacher in charge of a class without notification in terms of Act 35 of 2009 and the Rules framed thereunder cannot be sustained.

(c) Chapter XIVA of the KER, 1959 deals with Conditions of Service of Aided School teachers. Rule 1 provides that the Managers of private schools shall appoint only candidates who possess the prescribed qualification. As far as High School classes are concerned, the appointment has to be made with due regard to th