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2022 Supreme(Ker) 832
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B. SURESH KUMAR, C.S. SUDHA, JJ.
The Manager, (T. K. Dasan), S/o. A. Kunhunni Nair & Ors. - Appellants
Versus
State of Kerala, Represented by Its Chief Secretary to Government, Government Secretariat & Ors. - Respondents
Writ Appeal Nos. 1433, 1510, 1511 and 1585 of 2022
Decided On : 08-11-2022
For the Appellant : M. Sajjad, V.A. Muhammed.
For the Respondent: Sri. B. Ramachandran, Central Government Counsel, Smt. Sabeena P. Ismail-Special Goverment Pleader.
Point of Law: Rule 12(8) apparently has been brought in with the intention of preventing drain of public money by retaining teacher(s) who are in excess of the pupil-teacher ratio required to be maintained by the Rules.
Headnote:
Kerala High Court Act, 1958 - Section 5, 36, Rule 43, 51A, 12(4) - Right of Children to Free and Compulsory Education Act, 2009 - Section 9 – Appeal - Fixation of staff strength - Consider an application to be excused from compliance - Provide for better organisation and development - Powers of a Bench of two Judges - Assigns duties to the local authority to ensure that it provides free and compulsory elementary education to every child, in a neighbourhood school - Whether subordinate legislation conforms to parent statute - Where a Rule is directly inconsistent with a mandatory provision of statute, then, of course, task of court is simple and easy - Court was justified in directing the Secretary, General Education Department of the State of Kerala to get the verification of the actual students' strength in all the aided schools in the State with the assistance of the police and to take appropriate action. (Para 6.2).
Finding of the Court: Court refer to Section 19 of RTE Act, which deals with norms and standards to be maintained by school - Sub-section (1) says that no school shall be established or recognized under Section 18, unless it fulfills norms and standards specified in schedule of Act - Serial number 2 in Schedule deals with norms required for building of a school - Therefore, schools can be established or recognized subject to compliance of norms and standards prescribed in Schedule - That being position there is no reason to interfere with Rule 12(1)(i) also - Excessive exercise of rule making powers is not pleaded or established -Impugned Rules are not established to be capricious or arbitrary, that no reasonably prudent person or institution bestowed with subordinate legislative power, particularly in terms of rule making power under KEA, would or ought to have ever made - In this view of matter, Court find no reasons to interfere with findings of the learned Single Judge upholding Ext.P1 -Court confirm them.
Result: Appeals dismissed
JUDGMENT :
C.S. Sudha, J.
These intra-court appeals under Section 5 of the Kerala High Court Act, 1958 have been filed by the petitioners in W.P.(C) No.17413, 17406, 18604 and 27124 of 2022, aggrieved by the dismissal of the petitions by common judgment dated 13/07/2022. The writ petitions have been filed by Managers and teachers of a few aided schools challenging Ext.P1 notification dated 18/04/2022, by which the Government of Kerala (GoK) has amended the Kerala Education Rules, 1959 (the KER), by inserting few new Rules. The parties and the documents will be referred to as described in W.P.(C) No.17413 of 2022 from which Writ Appeal No. 1585 of 2022 has been filed.
2. According to the petitioners, Ext.P1 notification is arbitrary, grossly illegal, inconsistent as well as offending the salient features of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) and the Rules made thereunder and also the various provisions of the Kerala Education Act, 1958 (KEA) and the Rules framed thereunder. The petitioners, therefore, sought a declaration that Ext.P1 is ultra vires, illegal and unconstitutional. The learned Single Judge by the impugned judgment dismissed the petitions. Aggrieved the petitioners have come up in appeal.
3. Heard both sides.
4. The Rule making power of the GoK is undoubtedly available in the light of Section 36 of the KEA. The rules made in exercise of such power being pieces of subordinate legislation, can be subject to judicial scrutiny only on the grounds available in that premise. As held by a Division Bench of this court in Suresh C. v. State of Kerala, 2009 (3) KHC 287, what is the principle or policy that would best serve the object and purpose of the Act is for the legislature or its delegate to decide. That is a well settled principle. The courts will not be justified in sitting in judgment over the wisdom of the policy maker and striking down a rule or regulation on the only ground that in the view of the court a provision is not reasonable. It is also a well settled position that the unreasonableness that invalidates a subordinate legislation is not the antonym of reasonableness as understood in common parlance. That unreasonableness which invalidates the subordinate legislation is manifest arbitrariness or injustice to the extent of holding inevitably that the legislature never intended to give authority to the rule maker to make such a rule. The court considering the validity of the subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether subordinate legislation conforms to the parent statute. Where a Rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or nonconformity of the Rule is not with reference to any specific provisions of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity.
4.1. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bupesh Kumar Sheth, AIR 1984 SC 1543, the Apex Court has held that, the Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The legislature and a delegate are the sole repositories of the power to decide what policy should be pursued in r
