Executive directions cannot override statutory provisions; the right to appoint teachers belongs to school managers under law.

JUDGMENT

Under challenge in these writ petitions filed by the Managers of various aided schools in the State ranging from L.P. Schools to High Schools (they include minority and non- minority institutions) are certain orders issued by the Government in relation to the appointment of teachers in the private aided schools.

2. The issue raised in these writ petitions is whether the said government orders are in tune with the provisions of the Kerala Education Act, 1958 (hereinafter referred to as the 'Act'), the Kerala Education Rules (hereinafter referred to as the 'Rules') and the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the 'Central Act').

& conn.cases 2

3. The controversial government orders are exhibited in these writ petitions in different chronological orders.

The orders challenged are the following:

a) G.O.(P) No.199/2011 dated 1.10.2011.

b) G.O.(P) No.313/2013 dated 29.11.2013.

c) G.O.(MS) No.154/2013/G.Edn. dated 3.5.2013.

d) G.O.(MS) No.172/2013/G.Edn. dated 20.5.2013.

e) G.O.(MS) No.3905/2013/G.Edn. dated 24.9.2013.

4. The main controversy in these writ petitions revolves around G.O.(P) No.199/2011 dated 1.10.2011 and G.O.(P) No.313/2013 dated 29.11.2013. There is yet another controversial order, viz., G.O.No.10/2010 dated 12.01.2010 which is the subject matter of few writ appeals now under consideration of a Division Bench of this Court.

5. In one of the writ petitions, i.e. in WPC No.31637 of

2013, G.O.(MS)No.3905/2013/G.Edn. dated 24.9.2013, by which the Government have brought private aided schools under the provisions of the Right to Information Act, 2005, is also challenged.

6. The Government by virtue of G.O.(P)No.199/2011 dated 1.10.2011 inter alia stipulated that the staff fixation & conn.cases 3 orders of 2010-2011 would be applicable for 2011-2012 and that no posts of additional division be filled up after 31.3.2011 except those posts which were vacant during 2010-2011. The further stipulation is that only those appointments made after 31.3.2011 in regular vacancies against promotion, death, retirement and resignation vacancies alone would be approved after 31.3.2011. The said order provided for filling up the vacancies of teachers by appointment from the teachers' bank. The said G.O. was not put to application except forming teachers bank as contemplated therein. However, later the Government issued G.O.(P) No.313/2013/Gen.Edn. dated 29.11.2013 practically in implementation of Ext.P1.

7. By G.O.(P) No.313/2013, the Government inter alia stipulated that staff fixation and fixation of division should be done notionally on the principles of the Central Act and that the additional vacancies should be filled up as provided under G.O.(P) No.199/2011 dated 1.10.2011.

8. The petitioners allege that the provision in the G.O.

(P) No.199/2011 dated 1.10.2011 providing the same staff & conn.cases 4 fixation pattern for the academic year 2010-2011, for the year 2011-2012, is against the provisions of Rule 12 of Chapter XXIII of the Rules which provides for fixation of staff strength every year depending upon the staff strength. According to the petitioners, the Government cannot, by way of an executive order in the aforesaid nature, prohibit appointment after 31.3.2011 which is directly in conflict with Section 11 of the Act empowering the managers to make appointment, subject to the rules and conditions laid down by the Government. They would also contend that the Government cannot insist the Managers to effect appointments from the teachers' bank as the same is against the right of the Manager to effect appointment as teachers under Section 11 of the Act and Rules.

9. In the counter affidavit filed by the State, they would contend that the source of power in issuing the impugned orders are to be traced to Section 13 of the Act and Rules 5A and 51A of Chapter XIV-A and Rule 6(viii) of Chapter V of the Rules. Another reason pointed out by the Government is that the Government had ordered a