Kerala High Court
The Manager vs The State Of Kerala on 15 December, 2015
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 11TH DAYOF OCTOBER 2017/19TH ASWINA, 1939
WP(C).No. 1356 of 2017 (T)
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PETITIONER(S) :
-------------------------
THE MANAGER,
A.M HIGHER SECONDARY SCHOOL, VENGOOR,
MALAPPURAM DISTRICT-679 325.
BY ADVS. SRI.V.A.MUHAMMED
SRI.V.RAJASEKHARAN NAIR
RESPONDENT(S) :
----------------------------
1. THE STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. THE SECRETARYTO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE,
THIRUVANANTHAPURAM-695 001.
3. THE DIRECTOR OF PUBIC INSTRUCTIONS,
JAGATHY, THIRUVANANTHAPURAM-695 014.
4. THE DEPUTY DIRECTOR OF EDUCATION,
DOWN HILL, MALAPPURAM-676 519.
5. THE DISTRICT EDUCATIONAL OFFICER,
WANDOOR, MALAPPURAM DISTRICT-679 328.
6. THE ASSISTANT EDUCATIONAL OFFICER,
MELATTUR, MALAPPURAM DISTRICT-679 326.
7. THE UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, HUMAN RESOURCES
DEPARTMENT, SASTRI BHAVAN, NEW DELHI-01.
R1 TO R6 BY SRI. C.P.SUDHAKARA PRASAD, ADVOCATE GENERAL
BY SR.GOVERNMENT PLEADER SMT. NISHA BOSE
R7 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
BY ADV. SRI.GIRISH KUMAR.V., CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 10-08-2017, ALONG WITH W.P(C).NO. 1432 OF 2017 AND CONNECTED
CASES, THE COURT ON 11-10-2017 DELIVERED THE FOLLOWING:
Msd.
WP(C).No. 1356 of 2017 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS :
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE ISSUED BY THE NATIONAL
COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS
DATED 15-12-2015 IN RESPECT OF THE PETITIONER'S SCHOOL.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN W.A.NO.812/2015
DATED 02-03-2016 (INTERNET COPY).
EXHIBIT P3 TRUE COPY OF THE G.O.(P)NO.29/2016/G.EDN. DATED 29-01-2016
OF THE GOVERNMENT.
EXHIBIT P4 TRUE COPY OF THE CIRCULAR NO.H2/25700/15/DPI
DATED 25-04-2016 OF THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE LETTER NO.H2/35985/2016/DPI
DATED 04-06-2016 OF THE 2ND RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE G.O.(P)NO.134/2016/G.EDN. DATED 05-08-2016
OF THE GOVERNMENT.
EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER IN W.P(C).NO. 31570/2016-U
DATED 28-09-2016.
EXHIBIT P8 TRUE COPY OF THE G.O.(P)NO.199/2016/G.EDN. DATED 03-12-2016
OF THE GOVERNMENT (GAZETTE PUBLICATION
DATED 14-12-2016).
EXHIBIT P9 TRUE COPY OF THE DETAILS OF DEPLOYMENT OF PROTECTED
TEACHERS AND NON-TEACHING STAFF.
EXHIBIT P10 TRUE COPY OF THE G.O.(MS.)NO.209/2016/G.EDN.
DATED 26-12-2016 OF THE GOVERNMENT.
EXHIBIT P11 TRUE COPY OF THE G.O.(RT.)NO.4331/2016/G.EDN.
DATED 22-12-2016 OF THE GOVERNMENT.
EXHIBIT P12 TRUE COPY OF THE G.O.(RT.)NO.4537/2013/G.EDN.
DATED 28-10-2013 OF THE GOVERNMENT.
EXHIBIT P13 TRUE COPY OF THE ORDER OF THE HON'BLE APEX COURT IN
SPECIAL LEAVE TO APPEAL(C)NO.15726/2016 DATED 29-08-2016.
RESPONDENT(S)' EXHIBITS :
EXHIBIT R2(A): TRUE COPY OF DISTRICT WISE NUMBER OF PROTECTED
TEACHERS AND NON TEACHING STAFF.
EXHIBIT R2(B): TRUE COPY OF THE LIST OF PROTECTED EMPLOYEES
IN MINORITY SCHOOL INCLUDED IN THE "TEACHERS
BANK".
//TRUE COPY//
P.S.TOJUDGE.
Msd.
P.V.ASHA, J.
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W.P(C) Nos.1356 of 2017-T, 1432/2017-D, 1489/2017-I, 1640/2017-D, 2664/2017-G,
2702/2017-K, 2705/2017-K, 2812/2017-B, 2848/2017-E, 2912/2017-L, 2943/2017-P,
2960/2017-T, 2961/2017-U, 2972/2017-V, 2990/2017-W, 2991/2017-Y, 2995/2017-Y,
2996/2017-Y, 3122/2017-M, 3127/2017-M, 3184/2017-W, 3186/2017-W, 3191/2017-Y,
3197/2017-Y,3220/2017-B, 3221/2017-C, 3227/2017-C, 3234/2017-D, 3242/2017-E,
3245/2017-E, 3247/2017-E, 3248/2017-E, 3263/2017-G, 3352/2017-T, 3355/2017-T,
3363/2017-U, 3371/2017-V, 3381/2017-W, 3388/2017-W, 3412/2017-B, 3427/2017-C,
3452/2017-F, 3459/2017-F, 3555/2017-T, 3557/2017-T, 3561/2017-U, 3626/2017-C,
3646/2017-E, 3660/2017-F, 3763/2017-U, 3823/2017-C, 3911/2017-L, 3920/2017-L,
3922/2017-M, 4200/2017-Y,4376/2017-V, 4396/2017-Y, 4459/2017-F, 4523/2017-M,
4574/2017-V,4632/2017-D, 4640/2017-D, 4674/2017-H, 4681/2017-I, 4688/2017-I,
4711/2017-L, 4725/2017-M, 4988/2017-W, 4997/2017-Y, 4999/2017-Y, 5042/2017-E,
5047/2017-E, 5077/2017-H, 5403/2017-A, 5450/2017-E, 5451/2017-F, 5471/2017-H,
5531/2017-N, 5688/2017-I, 5800/2017-Y, 5804/2017-A, 5805/2017-A, 5949/2017-P,
6050/2017-E, 6636/2017-D, 6834/2017-D, 6835/2017-D, 6873/2017-H, 6881/2017-I,
6885/2017-I, 7049/2017-E, 7075/2017-H, 7191/2017-Y, 7237/2017-D, 7241/2017-E,
7627/2017-C, 7794/2017-Y, 8190/2017-W, 8938/2017-N, 9041/2017-E, 9203/2017-A,
9347/2017-P, 10652/2017-F, 10877/2017-H, 11220/2017-B, 11430/2017-C, 11618/2017-
B, 12085/2017-I, 12874/2017-H, 13735/2017-N, 14478/2017-H, 14491/2017-J,
14494/2017-J, 14495/2017-J, 17152/2017-T, 17421/2017-C, 17422/2017-C, 17568/2017-
U, 17614/2017-B, 17764/2017-U, 17838/2017-D, 17921/2017-M, 18371/2017-V,
18452/2017-F, 18568/2017-U, 18728/2017-M, 18827/2017-C, 18828/2017-C,
19520/2017-L, 20249/2017-E, 20264/2017-G, 20460/2017-F, 20538/2017-N,
20581/2017-W, 20582/2017-W, 20603/2017-A, 20633/2017-D, 21509/2017-K,
22256/2017-F, 22681/2017-I, 22949/2017-P, 22950/2017-P, 22951/2017-T, 22983/2017-
W, 23202/2017-A, 23242/2017-E, 23410/2017-A, 23479/2017-H, 23687/2017-I,
23802/2017-A, 24046/2017-E, 24678/2017-H, 24743/2017-P, 24974/2017-V,
26091/2017-J, 26721/2017-M, 27595 of 2017-Y,
31765/2017-U, 31805/2017-A
and
W.P(c).No.31899 of 2017-J
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Dated this the 11th day of October,2017
J U D G M E N T
The amendment brought about to the Kerala Education Rules, 1958 ('KER' for short) by way of the Kerala Education (Amendment Rules), 2016 W.P(c).No.1356/2017 & C/cases 2 issued in G.O(P)No.199/2016/G.Edn. dated 3.12.2016 is under challenge in these writ petitions filed by Managers of various educational agencies. The amended rules came into force w.e.f 29.1.2016. Amendment has been made to the provisions contained in Chapter XXI of K.E.R, substituting Rule 7 and to Chapter XXIII K.E.R substituting some of the entries in Rule 1, inserting an entry in Rule 5 and inserting Rule 14 A. The explanatory note to the amendment states that it became necessary to impose a condition on the Managers of all aided schools, to appoint fully qualified teachers from among the list of protected teachers; it became necessary to extend the staff fixation for a particular year to the subsequent year. In order to meet those situations, necessary provisions are incorporated in the statute while insisting that the educational officers have to verify the strength of people based on UID verification. As the issue arising in all these cases is one and the same, all these cases were heard together and are being disposed of by this common judgment. The parties and documents referred to in this judgment are as described in W.P.(C).No.1356 of 2017, unless otherwise expressly specified.
2. The aided schools in the State of Kerala, are run with the aid of Government and are governed by the provisions contained in Kerala W.P(c).No.1356/2017 & C/cases 3 Education Act, 1958 (hereinafter referred to as 'the Act') and the Kerala Education Rules, 1959 ('the Rules'), framed under Section 36 of the Act. They are also governed by the provisions contained in the Right of Children to Free and Compulsory Education Act, 2009 ('RTE Act') and the Kerala Right of Children to Free and Compulsory Education Rules, 2011 (RTE Rules'). Under Section 9 of the Act, Government has to pay the salary of all the teaching and non-teaching staff of aided Schools. Section 11 of the Act, as it stood prior to amendment carried out in the year 1960, had provided that appointments of teachers should be made by district wise selection through Public Service Commission. Section 11, as amended in 1960, empowers the Managers to appoint teachers subject to the rules and conditions laid down by Government, from among persons who possess the qualifications prescribed under Section 10. Section 12 of the Act empowers Government to prescribe the conditions of service of teachers in aided Schools, including conditions relating to pay, pension, provident fund, age of retirement and restricts the power of Manager to impose penalties of dismissal, removal and reduction in rank on teachers by insisting prior approval of educational officers and insists approval for placing any teachers under suspension beyond 15 days. Section 13 provides that where W.P(c).No.1356/2017 & C/cases 4 any retrenchment of teachers in any aided School is rendered necessary consequent on orders of Government relating to the course of studies or scheme of teaching or of such other matters, it shall be competent for Government or the Manager of an aided School to appoint such teachers in any Government or aided School, as the case may be. Chapter III deals with the management of private schools. As per Rule 3 thereof the management of every aided School, whether it be of an individual educational agency or of a corporate educational agency, shall be vested in a Manager, who shall be responsible to the department for the management of the institution. Rule 9 provides for the duties and powers of Managers of aided Schools. Sub rule 1 provides that Managers shall be responsible for the conduct of the School strictly in accordance with the provisions of the Act and Rules made thereunder and shall also abide by the orders being issued by Government and the Department from time to time. Sub rule 3 provides among other things that the Manager shall provide staff as per rules issued under the Act and as per orders issued from time to time by the Government and the Department in conformity with the provisions in the Act and Rules issued thereunder. Sub rule 5 thereof provides that Managers shall verify the staff position of the school in conformity with the number of class divisions W.P(c).No.1356/2017 & C/cases 5 sanctioned by the department. The conditions of service of teachers are governed by the provisions contained in Section 12 of the Act and in the rules in Chapter XIVA of KER. Rule 1, provides that whenever vacancy occurs in a school, the Managers have to follow the directions issued by Government from time to time, for ascertaining the availability of qualified hand and for filling up the vacancies. It also provides that Managers are to appoint only those who are having the prescribed qualification. The power to determine the requirement of subjects and curricula of studies in High School classes is on the Director of Public Instructions. The Managers shall follow the directions issued by the Government relating to subject requirement and curricula of studies, while making appointment to High School classes. Rule 5A provides that qualified teachers who are retrenched by the opening of new Schools or consequent on orders of Government relating to the course of studies or scheme of teaching or due to withdrawal of recognition of schools for any of the reasons specified in Rules 22, 22A or 23 of Chapter V and consequent closure of the school shall be given preference for appointment to future vacancies in schools under the same or any educational agency. Under Rule 6(viii) of Chapter V of KER, the Managers of schools which were upgraded or newly opened subsequent to W.P(c).No.1356/2017 & C/cases 6 the year 1979, have to execute an agreement with Government in which they have to agree that they shall fill up the vacancies in their schools by appointing protected teachers who were retrenched due to division fall after enjoying two vacation salary. However most of the Managers consistently disobeyed this and they appointed fresh hands in their schools. The educational officers did not approve such illegal appointments made in disobedience of rules. It resulted in production of large number of teachers continuing in such schools for several years without salary. Seeing the heartburn of such teachers, the Government issued orders relaxing the provisions in the rules directing the Managers to appoint at least one protected teacher in such schools. The violation continued in several schools even after such relaxation, enhancing the number of unapproved teachers. G.O(P).No.317/2005/G.Edn dated 17.8.2005 was issued banning creation of additional divisions and filling up the vacancies in additional divisions from 2006-07 onwards. However, that ban was lifted issuing G.O (P).No.10/2010/G.Edn dt.12.1.2010, imposing a condition that the Managers shall execute a bond agreeing to appoint protected teachers equal in number of appointments already made in violation of the ban. It was also ordered that future vacancies shall be filled up in the ratio of 1:1 i.e, W.P(c).No.1356/2017 & C/cases 7 appointing a protected teacher in every alternate vacancy arising in future. Several of the Managers did not comply with the conditions and did not execute the bond. That Government order was upheld by this Court in the judgment dated 16.03.2011 in Manager, Eravannoor AUP School & others v. State of Kerala & others : ILR 2011(2) Ker 301 and in the Division Bench judgment in Nair Service Society v. Government of Kerala: 2015 (2) KHC 725 (hereinafter referred to as 'NSS case'). As at present the matter is pending before the Supreme Court and Ext.P13 interim order is passed staying the operation of the judgment of this Court in so far as it deals with clause v and vi of the impugned Government order dated 12.1.2010.
3. Even before the pronouncement of the judgment upholding the Government order dated 12.1.2010, Government issued another order G.O (P)199/2011/G.Edn dated 1.10.2011, introducing teachers' package in order to approve the appointments of teachers already made against the additional division vacancies for the period from August, 2005 onwards and accordingly a large number of teachers got their appointments approved w.e.f 1.6.2011. As per the teachers' package, the staff fixation for the year 2010-11 was to be followed for the year 2011-12 also. Appointments W.P(c).No.1356/2017 & C/cases 8 against additional division vacancies were permitted only on daily wages and its approval was to be considered in 2013-14. It provided for appointment of teachers from Teachers' bank. Orders relating to the staff fixation, filling up of vacancies by appointing protected teachers, covered by the teachers' package, etc. were issued in G.O(P) 313/2013/G.Edn. dated 29/11/2013 also. All those orders including the teachers' package were under challenge in a batch of writ petitions and this Court in a common judgment dated 15.01.2015 in W.P.(C).No.30107 of 2013 and connected cases allowed those writ petitions setting aside those orders including the teachers' package. This Court found that the orders extending the staff fixation to subsequent years were contrary to the statutory provisions contained in Rule 12 of Chapter XXIII of KER. The directions to appoint protected teachers were also found illegal, observing that it takes away the right of Managers to keep a teacher appointed on probation, the right of Managers to make their own choices in appointments conferred under the rules, apart from being violative of the right of Managers under Article 19 (1)(g) and 30(1) of the Act. Writ appeals filed against that was also withdrawn/dismissed.
4. Immediately thereafter the Division Bench pronounced the W.P(c).No.1356/2017 & C/cases 9 judgment in NSS case, upholding the judgment of another learned Single Judge in which the order issued on 12.01.2010, directing appointment of protected teachers, was upheld. In that judgment the contention regarding the interference on the right of Manager to appoint, in violation of their constitutional rights under Articles 19(1)(g) and Article 30 was repelled.
5. In the meanwhile, the Government had issued several orders relating to appointment of protected teachers, staff fixation pursuant to the implementation of RTE Act, 2009, etc. as per G.O.(Ms)No.154/2013/G.Edn. dated 03/05/2013; by G.O(P)No. 124/2014/G.Edn. dated 04/07/2014, Government sought to extend the staff fixation for the year 2010-11 to the year 2013-14. The Rules were also amended as per G.O.(P) No. 154/14/G.Edn dated 11.08.2014 (hereinafter referred to as '2014 amendment Rules'), published on 16.08.2014. These rules as well as certain circulars and orders issued thereafter were challenged in a batch of writ petitions which resulted in judgment dt.17.12.2015 in Kerala Aided L.P. And U.P School , Kollam v. State of Kerala & others : ILR 2016 (1) Ker.590; 2016 KHC 118. G.O(P) No.124/2014 and the order issued on 29.11.2013 in continuation and implementation of the teachers' package, staff fixation, etc. again by way of executive orders, were held to have the very same defects W.P(c).No.1356/2017 & C/cases 10 as found in the common judgment dated 15.01.2015 in W.P.(C).No.30107 of 2013 and hence it was set aside. Sub rule 6 was inserted in Chapter III KER, providing that Managers shall make appointment against vacancies as notified by Government. Rule 1 of Chapter XIVA was amended insisting for reporting of vacancies to Government for ascertaining availability of qualified hand and for filling up the vacancies only after the vacancies are notified by Government. Chapter XXI which, dealt with recruitment of teachers in aided Schools, was introduced with effect from 01.07.1961; but it was omitted in the year 1972. That Chapter was re-introduced with 7 rules. It provided for procedure for reporting the vacancies to the Government, for notification by Government. Rule 7 provided for filling up of vacancies arising out of exemption from class charges to head teachers and to short term vacancies from Teachers' bank, in which teachers would be included on the basis of the guidelines issued by Government from time to time. This Court found that the notification of vacancies did not serve any purpose, as the student strength was the basis for staff strength. It was found that prescription of notification of regular and anticipated vacancies provided for in Chapter XXI and amendment effected in Chapter III to Rule 9 and to Chapter XIVA in Rule 1 were unreasonable and arbitrary. All W.P(c).No.1356/2017 & C/cases 11 the rules in Chapter XXI except Rule 7 were held unsustainable. Chapter XXIII was also amended providing for sanctioning of posts of Headmaster; Rule 12 was amended providing for fixing the staff strength based on pupils strength of 2010-11 and to retain it till Government deemed fit to revise it based on UID of students; it also provided for the procedure for determining the number of pupils on the basis of UID. While upholding the procedure for staff fixation, the retention of staff fixation was held unreasonable. It was found that fixation of staff had to be done as on 15th July on the basis of PTR in accordance with the provisions in RTE Act and as RTE Act provides that not more 10% of the vacancies shall remain unfilled, retention of staff strength from 2010-11 onwards would run contrary to the Central Act. Rule 12 B which provided that appointments would take effect from the date of appointment was deleted. That deletion was upheld. It further provided that the teachers included in the teachers' package would stand approved from 01.06.2011 on condition that their prior service shall not be reckoned for any service benefits. 3rd proviso was inserted to Rule 51A providing for preference to teachers from Teachers' bank. It was found that the benefit of 51A was given to a category which is not included in the Rule 51A and such a preference is not envisaged under rules. It further provided W.P(c).No.1356/2017 & C/cases 12 for a teacher appraisal committee with the Deputy Director of Education, educational experts, etc. for assessing the performance of teachers. Though the power of Government to introduce such mechanism was upheld, it was found that it was vague as there were no guidelines for its implementation. Hence it was found unsustainable. The retrospectivity given to the rules from 01.10.2011 was also set aside. Circular issued by Government on 26/08/2014 regarding the higher level verification for staff fixation, deployment of teachers, approval of appointments, was set aside, as a new procedure was already prescribed for staff fixation based on UID in Rule 12 and a further higher level verification by way of executive order, cannot be sustained. G.O(P) No.213/2015/G.Edn. dated 06/08/2015, was issued for implementing the teachers' package, providing for the eligibility conditions for inclusion of teachers in it. It also provided for the procedure for sanctioning posts on the basis of UID on 6th working day, ratio between pupils and teachers (PTR), approval of appointments against additional posts, prior approval for appointment, etc. It was found that a package is envisaged in terms of Rule 7 for filling up of short term vacancies, observing the PTR in tune with RTE Act. However the provision regarding approval only after notification by Government was held unsustainable and W.P(c).No.1356/2017 & C/cases 13 it was sustained on condition that the PTR should be as per the RTE Act. Even for other vacancies it was permissible going by the NSS judgment. Those writ petitions were disposed of with the aforesaid declarations and directing the respondents to issue staff fixation orders for the period from 2011-12 onwards in accordance with the unamended Rule 12. The educational authorities were directed to determine the additional posts which arose in each year and to consider the question of approval on the appointments already intimated and sent for approval. It was also directed to consider approval on the basis of staff fixation orders to be issued for the period upto 2014-15 and issue the staff fixation as per the amended procedure from 2015-16 onwards. W.A.No.372/2015 filed against that judgment was also dismissed on 30.08.2016.
6. Even before the disposal of the Writ Appeal, Government had issued Ext.P3-G.O(P)No.29/2016/G.Edn. dt.29.1.2016, in implementation of the judgment dated 17.12.2015, providing for various parameters to be followed in approving appointments, filling up of vacancies, the nature of vacancies in which protected teachers were to be appointed, etc. Even though the DPI had issued instructions thereafter as per circular dt.4.6.2016 to the educational officers to fix the staff strength for the year 2016-17, the W.P(c).No.1356/2017 & C/cases 14 Government issued another order G.O.(P).No.134/2016/G.Edn dt.5.8.2016 providing that the staff fixation for the year 2015-16 can be applied in the year 2016-17 also. The Managers challenged both the orders. In W.P(c) No.3150/2016, the order to the extent it directs the staff fixation for the year 2015-16 to 2016-17 has already been stayed. The order issued on 29.01.2016, to the extent it directs appointment of protected teachers is stayed to the extent it affects the minority managements. Amendment has been effected thereafter on 03.12.2016, with retrospective effective from 29.01.2016, date of the order G.O(P).No.29/2016 w.e.f 29.1.2016.
7. Government has thereafter issued Ext.P8 amendment Rules, 2016, substituting Rule 7 of Chapter XXI of KER, introducing 10 sub rules to it and 3 notes below that. Amendments are effected substituting item (iii) to rule 1, inserting item (iv) in Rule 5; and Rule 14A and note below it in Chapter XXIII KER.
8. I shall deal with the provisions introduced by way of the amendment in detail later. By way of the amendment, the Managers are to fill up the vacancies in additional divisions arising out of exemption to Headmasters in LP and UP Schools, additional divisions arising in schools newly opened/upgraded after 1979, short term vacancies, etc. only by W.P(c).No.1356/2017 & C/cases 15 protected teachers from Teacher's bank. Moreover, protected teachers have to be appointed in every alternate vacancy arising otherwise. Rule 14A is inserted to enable extension of staff fixation for a particular year to subsequent year.
9. The petitioners are challenging Ext.P8 amendment rules, alleging that the respondents have unlawfully interfered with their right to appoint by insisting to fill up the vacancies by appointment of protected teachers. They seek a declaration that it is inconsistent with the Act and RTE Act, 2009, violative of their fundamental rights under Article 19(1)(g) of the Constitution of India. The Managers of educational agencies run by religious and linguistic minorities allege that the rules run contrary to the provisions under Articles 30(1) of the Constitution of India.
10. In the counter affidavit, Government, while refuting the averments in the writ petitions, explained the circumstances under which the rules were amended. With the support of the statutory provisions contained in Sections 9 and 10 to 13 of the Act and the provisions contained in the rules in Chapter III, V and XIVA, the agreement executed by them under Rule 6(viii) of Chapter V, the form 27 to be furnished by Managers along with proposal for appointment, it is stated that the power of Managers to W.P(c).No.1356/2017 & C/cases 16 appoint is subject to the orders and conditions issued and imposed by Government. Apart from that, Rules 43, 51A, 51B, etc. also restrict the right of Managers to appoint; going by Section 13, Rule 5A of the Chapter XIVA KER, the Managers are bound to appoint protected teachers even in the absence of Ext.P8 rules; the liability to execute agreement under Rule 6
(viii) of Chapter V for those who newly opened/upgraded Schools after 25.02.1979, and to appoint protected teachers are already upheld by this Court, without any distinction between minority and non-minority institutions; the G.O.(P)No.10/10/G.Edn dated 12.01.2010 insisting appointment of protected teachers in all schools also was upheld in NSS case. It is stated that the writ petitions are bad for non-joinder of necessary parties as the protected teachers, who are the beneficiaries of the amendment, are not made parties to the writ petitions. It is stated that the consistent violation of the directions issued by Government, including the orders of ban on appointment issued on 17.08.2005, and the conditions stipulated in the order issued on 12.01.2010, for lifting the ban, while making appointments by Managers in disregard of their statutory obligation to appoint retrenched teachers, under Section 13 of the Act and Rule 5A of Chapter XIVA of KER, enlarged the number of teachers working without W.P(c).No.1356/2017 & C/cases 17 approval and salary. The Teachers' package introduced for protecting such teachers as per G.O.(P)No.199/11/G.Edn dated 01.10.2011, which provided for approval of such teachers has also insisted appointment of protected teachers in the vacancies arising in the schools and extended staff fixation for 2010-11 to subsequent years, was set aside in the judgment dated 15.01.2015 in a batch of cases, observing that such modifications cannot be issued by executive orders. The legality of the orders issued thereafter and the amendment rules 2014 were considered in the judgment dated 15.12.2015 in Kerala Aided L. P. and U. P. School, Kollam with respect to the 2014 amendment Rules. In implementation of the direction in that judgment, to issue orders of staff fixation for the years 2011-12 onwards, Government issued Ext.P3 order, explaining the nature of vacancies, mode of filling up the vacancies, approval, staff fixation as per PTR, etc; as per para.III(2) of Ext.P3 order it was directed to appoint protected teachers for filling up (a) the vacancies generated by way of exempting Headmasters from class charge; b) all vacancies existing under the respective managements and (c) the first of every two vacancies arising in future. Despite this direction, the Managers filled up all the vacancies in violation of those orders. Ext.P3 order was followed by Ext.P6 order issued on W.P(c).No.1356/2017 & C/cases 18 05.08.2016, which is kept in abeyance to the extent it related to the extension of staff fixation orders of 2015-16 to 2016-17, in W.P.(C) No. 31570/2016 and connected matters, which is pending. That order lays down eligibility conditions for the deployment of surplus teachers and non teaching staff for protection. The issuance of the staff fixation orders for the years 2011-12 to 2015-16, issued in 2016, generated large number of protected teachers, which compelled Government to amend the rules. It is stated that the total number of protected teachers after retaining excess hands against possible additional posts is 3523 teachers and 85 non- teaching staff. It is further stated that as per circular no.951951/J2/2016/G.Edn dated 09.11.2016, Government directed that all appointments made in newly opened/upgraded schools from 2011-12 to 2015-16 would be approved without insisting for appointment of protected teachers on condition that vacancies arising from 2016-17 onwards shall be filled up by appointing protected teachers. Ext.P8 rules were issued with retrospective effect from 29/01/2016, the date on which Ext.P3 order was issued. The amendment rules Ext.P8 are issued in tune with the order dated 29.01.2016. According to respondents the provisions for appointment or absorption of protected teachers are available in Section 13 of the Act and W.P(c).No.1356/2017 & C/cases 19 Rule 5A in Chapter XIVA. Retrenchment is a condition of service which comes under Section 12 of the Act; Government is committed to the social obligation of protecting teachers who are thrown out due to reasons beyond their control. The orders for protection of such teachers are being issued right from 1969. By G.O(P)No. 178/2002/Gen.Edn dated 28-06-2002, Government directed the Managers of newly opened/upgraded schools to fill up all the existing/arising vacancies in their schools by appointing protected teachers only. In G.O(P)No.46/2006/Gen.Edn dated 01-02-2006, that condition was diluted directing to appoint at least one protected hand in the vacancies existing in such schools. By G.O(P)No. 259/2006/Gen.Edn dated 12-10-2006, the Managers of all "uneconomic schools" were directed to fill up all the existing/arising vacancies by appointing protected teachers only. Thereafter G.O (P) No. 10/10/Gen.Edn dated 12.01-2010, was issued for granting approval to all appointments made against additional posts for the period from 2006-07 to 2009-10, by obtaining an undertaking from the Managers agreeing to absorb equal number of protected teachers/non teaching staff in the vacancies arising in future and to appoint a protected teacher against the first of every two additional posts thereafter. These directions/relaxations were made as against the liability of W.P(c).No.1356/2017 & C/cases 20 the newly opened/upgraded schools to act in terms of the agreement and to obey the "conditions" laid down as per the Government orders, regarding appointment of protected teachers. It is stated that all these orders were in force upto 30-09-2011, till introduction of Teachers' package, from 01.10.2011. However the Managers did not act in tune with the statutory mandate to accommodate the retrenched teachers from other educational agencies also resulting in huge number of retrenched teachers. But Government out of its social commitment, have only recognised the rights of the retrenched teachers of aided Schools who are distributed in various Government and aided schools and those who are awaiting deployment in the absence of posts. It is also stated that almost all the protected teachers in the Teachers' bank have already completed probation. The reason for such a huge number of protected teachers which increased to 3523 thereafter was stated to be the result of blatant violation of the orders issued by Government, by the Managers. It is stated that the number of protected hands deployed in aided schools consequent to staff fixation for 2015-16 is 755; whereas 2855 are deployed in Government Schools and Government offices on temporary arrangement, as per Ext.P6 order. All of them are likely to return to the Teachers' bank as and when regular hands report in the W.P(c).No.1356/2017 & C/cases 21 respective posts where they are accommodated, when those teachers would not be able to get salary until their next deployment. It is further stated that the number of additional posts found admissible for 2016-17 was 3815, number of posts found excess was 910. 333 teachers rendered surplus in 2015-16 were already adjusted against the additional vacancies of 2016-17. It is also stated that there is no distinction between a teacher from minority institution or non-minority institution for inclusion in the Teachers' bank and for deployment or salary. Therefore, there cannot be any exemption for institutions run by minority communities. The number of protected teachers to the bank would go on increasing, on account of the reduction in pupils' strength in the 7145 aided Schools in the State.
11. Heard learned Senior Counsel - Smt.V.P.Seemanthini, M/s K.Ramakumar and Kurian George Kannanthanam, as well as learned counsel - M/s V.A.Muhammed, Kaleeswaram Raj, John Joseph Vettikad, R.T.Pradeep, U.Balagangadharan Augustine Joseph, M.A.Fayaz, K.S.Bharathan, Jiji Thomas, V.M.Kurian, Poovamulle Parambil Abdulkareem, P.M.Pareeth, T.T.Muhamood, Dr.George Abraham, P.U.Shailajan, S.M.Prem, P.R.Venketesh, R.K.Muraleedharan, S.Muhammed Haneeff, K.Jagadeesh, S.Subhash Chand, Jamsheed Hafiz, Santheep W.P(c).No.1356/2017 & C/cases 22 Ankarath, A.Balagopalan, V.T.Madhavanunni, Georgekutty Mathew, K.M.Sathyanatha Menon, B.Pramod, K.R.Krishnakumari, M.Vijayakumar, V.Vijulal, Cherian Gee Varghese, C.D.Dileep, K.B.Gangesh and Sudhinkumar, appearing for the petitioners and learned Advocate General Shri C.P.Sudhakara Prasad, learned Senior Government Pleader Smt.Nisha Bose as also learned Assistant Solicitor General of India Shri N.Nagaresh.
12. The Managers allege that the rules are unconstitutional infringing their right to appoint, while running an aided School, which is their fundamental right under Article 19(1)(g) of the Constitution of India; there is no legislative competence to issue such rules, as the Act does not envisage protection or appointment of protected teachers who are appointed by other managements. The Rules do not come within the ambit of law under Article 13 of the Constitution of India, which is capable of restricting their fundamental rights; it runs contrary to the provisions in Section 25 of the Central Act, etc. These Rules are contrary to the judgment dated 15.01.2015 in W.P.(C).No.30107 of 2013 and connected cases and in the judgment dated 17.12.2015 in Kerala Aided L.P. And U.P School. Judgments in Bijoe Emmanuel & others v. State of Kerala: 1986 KLT 1037, TMA Pai Foundation & others v. State of Karnataka & others: W.P(c).No.1356/2017 & C/cases 23
(2002) 8 481: AIR 2003 SC 355, State of Bihar v. Project Uchcha Vidya, Sikshak Sangh: (2006) 2 SCC 545, Subramanian Swamy v. Union of India :(2016) 7 SCC 221, Kerala Samstha Chethu thozhilali Union v.
State of Kerala :(2006) 4 SCC 327, State of Kerala v. Mar Apraem Kuri Co. Ltd: (2012) 7 SCC 106, Pramati Educational & Cultural Trust v. Union of India: (2014) 8 SCC 1, etc. are relied on. It was alleged that the statutory preference enjoyed by claimants under Rule 51A, Rule 43, 51B is taken away in order to protect the protected teachers. The retrospectivity given to the rules from 29.01.2016 is also challenged pointing out that they had already filled up the vacancies in June-July 2016. The extension of staff fixation is also illegal, according to them. It is alleged that the Act or Rules do not provide for any protection for protected teachers and therefore they cannot be made liable to appoint such teachers. It is argued that each and every provision in Ext.P8 amounts to interference to the right of the Managers; their right to keep the teachers on probation is taken away; the rules are contrary to the judgments of this Court in Assistant Educational Officer v. P.R. Mammoo: 1968 KLT 556 (FB), Manager MMHS v. Deputy Director: 1994(1) KLT 321 and Shobhana v. Manager, Cholapurath AUP School:1997 KHC 566, Sahmna B v. Hemambika W.P(c).No.1356/2017 & C/cases 24 Sanskrit School & others: 2008 (4) KLT 346, etc. The contentions that the right of the Manager to provide sufficient number of teachers to the School cannot be interfered with and Managers cannot be directed to appoint teachers of other Schools were relied on while arguing that the power to appoint is only on Manager. Apart from that it is pointed out that minority schools are entitled to protection from such restrictions, as held by the Apex Court in Rt. Rev. Aldo Maria Patroni v. E.C. Kesavan & others: 1964 KLT791, State of Kerala and Another v. The Corporate Management of Schools of the Archdiocese of Changanacherry : 1970 KLT 232, Ahmedabad St. Xavier's College Society v. State of Gujarat:1974 SC 1389 (para.102, 183, 188), Sindhi Educational Society v. Govt.(NCT of Delhi): (2010)8SCC 49 (para.18, 49, 111),etc. Relying on the judgments in Ciji P.Jose v. State of Kerala: 2012(1) KLT 867, P.K. High School v. State of Kerala :2011 (4) KLT 365, etc. it was argued that the priority provided to the protected teachers over the claimants under Rule 43, 51A and 51B of Chapter XIVA is contrary to the dictum laid down in those judgments. It was also argued that the provision to appoint retrenched teachers from Teachers' bank, who are included in the Teachers' bank who have not drawn two vacation salary is contrary to the agreement executed by W.P(c).No.1356/2017 & C/cases 25 the Managers under rule (viii) of Chapter V of KER and contrary to the dictum laid down in Zile Singh v. State of Haryana (2004) 8 SCC 1, Fr. Mathew Maleparambil v. State of Kerala:2008 (4) KLT 643, etc; it was also argued that the judgment in NSS case was rendered without noticing the judgment in Rev. Fr. Xavier v. State of Kerala: 1971 KLT 941:KHC 208 which was on the very same point and therefore it cannot have any binding force, as held in Fibre Boards Pvt. Ltd, Bangalore v. Commissioner of Income Tax: 2015 (10) SCC 333 and that there should be consistency in the judgments for maintaining judicial discipline, as held in Mamleswar Prasad & another v. Kanahaiya Lal (Dead) through Lrs:
AIR 1975 SC 907 (1975 KHC 568). The judgment of the Apex Court in Municipal Corporation of Delhi v. Gurnam Kaur: (1989) 1 SCC 101 was relied on and contended that the judgment in NSS case is obiter dicta.
Relying on the judgments in A. Janardhana v. Union of India: AIR 1983 SC 769 and Sharafali U v. State of Kerala: 2010 KHC 587, it was argued that impleading of protected teachers is not necessary.
13. The learned Advocate General argued that all these writ petitions are liable to be dismissed for non-joinder of necessary parties in the light of the judgments in Prabodh Verma v. State of U.P (1984) 4 SCC W.P(c).No.1356/2017 & C/cases 26 251, and Arun Tewari v. Zila Mansavi Shikshak Sangh as none of the protected teachers are impleaded in the writ petitions. The judgments in Manager, Eravannoor AUP School v. State of Kerala & others:ILR 2011 (2) Kerala 301, paragraphs 19, 36 and 40 of the judgment in NSS case, paragraph 45, 46, 47, 63 and 64 of the judgment in Kerala aided LP& UP School case (supra) were relied on in support of the contention that the Managers did not have any unbridled power to appoint and to defend the competence to lay down the rules for appointment of protected teachers.
Learned Advocate General relied on the judgments in Bindu Thomas v. State of Kerala: 2003 (3) KLT 217, R.C Tobaco (P) Ltd v. U.O.I (2005) 7 SCC 725, on the competence of Government to issue rules and with retrospectivity. Relying on the judgments in Abdu Rehman v. District Collector, Malapuram: 2009 (4) KLT 485 : 2009 (4) KHC 283 and Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assn., (1992) 3 SCC 1, it was argued that the judgment in NSS case is to be followed despite the stay order granted by the Apex Court and that the order of stay will not stand in the way of framing rules. Paragraph 73 of the judgment in TMA Pai's case, the judgments in Modern Dental College & Research Centre v. State of M.P: (2016) 7 SCC 353, Annamalai University v. W.P(c).No.1356/2017 & C/cases 27 Information & Tourism Deptt., (2009) 4 SCC 590, Union of India & others v. Maliakkal Industrial Enterprises :2014 KHC 337, were relied on and it was argued that the right of Managers could be restricted by way of impugned rules. Relying on Secy., Malankara Syrian Catholic College v. T. Jose: (2007) 1 SCC 386 and Rev. Rev Kuriakose V State of Kerala:1981 KLT 294, it was argued that the minority institutions cannot be treated separately in the matter. The judgment in Poulose K.V v. Assistant Educational Officer: 1967 KLT 1021: 1967 KHC 316 was relied on in support of the contention with respect to Section 37 of the Act.
14. The main contentions of the petitioners are that (1) the provisions in the impugned rules are those which are already set aside in the common judgment dated 15.01.2015 in W.P(c).No.30107 of 2013 and connected cases and in the judgment dated 17.12.2015 in Kerala Aided LP & UP Schools case; (2) it deprives the power of Managers to appoint and to keep them under probation; (3) there is no legislative competence for issuing the rules as the provisions in the Act do not provide for appointment of protected teachers; (4) the rules affect the fundamental right of petitioners under Article 19(g); (5) it is violative of fundamental right of minorities under Article 30(1) of the Constitution of India (6) the rules are issued in W.P(c).No.1356/2017 & C/cases 28 December 2016, with retrospective effect; (7) No guidelines are available for implementing the rules; (8) Apex Court has stayed the operation of clause (v) and (vi) of Government Order dated 12.1.2010 upheld in the judgment in NSS case (9) the judgment in NSS case cannot be relied on as it is rendered without noticing another judgment of the Division Bench on the same point; (9) interim orders passed in cases challenging executive orders on the same issue are in force when the rules are issued; (10) impugned rules cannot be applied to the educational agencies which have acted in obedience to the directions of Government and from which no teacher is included in Teachers' bank and they cannot be penalised for the disobedience of others.
15. In order to consider these contentions, I shall examine the provisions contained in Ext.P8 amendment rules. Rule 7, which is the sole provision in Chapter XXI, sustained in the judgment in Kerala Aided LP & UP schools case, is substituted with 10 sub rules. In Chapter XXIII, item
(iii) to clause (b) of Rule 1 and item (iv) in Rule 5 are inserted by which additional posts of LPSA and UPSA can be sanctioned when Headmasters are given exemption from class charges, in the Lower Primary School and Upper Primary School respectively, when the strength of pupils in the L.P W.P(c).No.1356/2017 & C/cases 29 School with standard I to IV or I to V exceeds 150 and when the strength of pupils in an Upper Primary School having standards V to VII exceeds 100 or in a school having standard I to VII if the strength exceeds 150 from standard I to V or 100 from standard V to VII. Sub Rule 1 of Rule 7 provides that such additional posts of LPSA and UPSAs shall be filled up from the list of protected teachers maintained under the Teachers' bank, with permission of Deputy Director of Education. Rule 7 of Chapter XXI of KER introduced as per the 2014 Amendment Rule, provided for filling up of such vacancies also, along with leave vacancies and short term vacancies arising on deputation, by appointment of protected teachers from Teachers' bank. Prior to amendment by Ext.P8, Rule 7 read as follows:
"7. Appointments to vacancies occur due to exemption of Head Teacher from class charges as per R.1b(iii) & (iv) Chap.XXIII, leave vacancies and short term vacancies including vacancies of teachers deputed for training shall be filled up from among the list of fully qualified hands supplied from Teachers Bank. The Teachers Bank is a temporary arrangement for retaining excess teachers for suitable deployment to schools. The eligibility criteria of teachers for inclusion in Teachers Bank and the guidelines for their deployment shall be decided as per the orders issued by Government from time to time. Appointment from Teachers Bank shall have no claim for future appointment in schools other than their schools."
The vacancy arising out of the exemption from class charges to Headmasters is one such vacancy mentioned in Rule 7 of Chapter XXI of KER, introduced in 2014 amendment. When sub rule 1 is read with sub rule W.P(c).No.1356/2017 & C/cases 30 5, it is seen that the appointment against the first among the two posts of LPSA/UPSA sanctioned in a School shall invariably be filled up by a protected teacher from the teachers' bank even if there are claimants under Rule 43, 51A and 51B of Chaper XIVA of KER. In the light of the findings in paragraphs 63 and 64 of the judgment in Kerala Aided LP & UP School case, which sustained Rule 7 of the rules, the contentions raised by the petitioners as against sub rule 1 cannot be accepted. I shall deal with the contention regarding the curtailment of the right of Managers to appoint and regarding the reliance placed on the judgment dated 15.1.2015 in W.P.(C). No.30107/2013 separately.
16. Sub rule 2 of Rule 7 provides for filling up of additional posts arising out of staff fixation by appointing protected teachers from the Teachers' bank and by appointing teachers otherwise than from Teachers' bank in the ratio of 1:1. Main contention raised against sub rules 1 and 2 was that protected teachers from the Teachers' bank i.e, those who were appointed by other managements, are given priority over the statutory claim holders under Rules 43, 51A and 51B of the same educational agency. The provision for appointment of protected teachers against vacancies arising from 2010-11 onwards was upheld by this Court in the judgment in NSS W.P(c).No.1356/2017 & C/cases 31 case, where no preference was given to the statutory claimants. The provision contained in sub rule 2 is the same as the one contained in paragraph (vi) of the G.O.(P) No.10/10/G.Edn dated 12.01.2010. Such a provision introduced by an executive order was upheld in the judgment of the Division Bench in NSS case. In the present case such a provision is provided by statutory rules.
17. Sub Rule 3 of Rule 7 provided that appointments in all the vacancies arising in the Schools upgraded/newly opened after 22.05.1979, should be made from the list of protected teachers in the Teachers' bank, subject to Rules 43, 51A and 51B of Chapter XIVA. In order to examine this provision it is necessary to examine the liability of the upgraded/newly opened Schools in Chapter V of KER which deals with opening and recognition of Schools. Rule 6 of Chapter V provides for the documents which should be enclosed along with an application for upgradation/opening of a school. Clause viii was inserted to that rule insisting execution of an agreement by the applicants as a condition precedent for permission for upgradation/opening of the new school. Accordingly, all such applicants have executed agreements to the effect that : "an agreement duly executed by the applicant to the effect that he is W.P(c).No.1356/2017 & C/cases 32 prepared to absorb qualified teachers/non-teaching staff who, after putting in service of 2 years and drawing 2 vacation salaries, have been retrenched from any of the aided high schools in the Education district or aided primary schools in the Education Sub-district in which the applicant proposes to open/upgrade the school". A Division Bench of this Court in Rev.Fr.Kuriakose v. State of Kerala: 1981 KHC 294: 1980KLN 443, held that the liability of minority educational institutions as well as non- minority educational institutions which got its schools newly opened/ upgraded after executing agreement is one and the same and they are equally bound to abide by the terms of the agreement which includes absorption of protected teachers. In that case, the managements challenged paragraph 22 of that judgment, the Division Bench held as follows:
"xxxxIt is sufficient to say that having obtained advantage by reason of consenting to absorb the protected teachers and non - teaching staff it may not now be fair to seek relief from this Court to avoid the consequences of the agreement entered into by the petitioners on the plea of violation of the minority rights under Art.30(1) of the Constitution of India."
It is pertinent to note the issue which arose for consideration in Rev.Fr. Kuriakose' case, as seen from paragraph 3 of the judgment, which reads:
"3.xxxBut they claim that the agreements are hit by Art.30(1) of the Constitution since the effect of requiring the petitioners to execute such agreements was to compel them to give up the fundamental right guaranteed to them under Art.30(1) of the Constitution to establish and administer their educational institutions. They claim that they are free to challenge the amendment brought about to Chapter V R.6 of the Kerala Education Rules by W.P(c).No.1356/2017 & C/cases 33 Ext. P1 notification. They also claim that the insistence by the Educational authorities to appoint protected teachers from the list maintained by the respective educational officers of the Districts were clearly violative of the fundamental right of the petitioners as minorities under Art.30(1) of the Constitution. It is said that the right to appoint teachers of their choice in the schools established by them is one which cannot be trespassed upon and inasmuch as by the amendment of the Rule impugned and insistence upon execution of the agreement the petitioners have been prejudiced, they should not be asked to face the consequence of non approval of appointments made by them despite the agreements entered into by them in exercise of their minority rights."
The contention of the Managers of minority school, on the transgression over their right and on the compulsion to appoint teachers from the list of protected teachers whose character and antecedents are not known to them, were also repelled. In Rajan Pillai v. State of Kerala: 1990(1) KLT 544, this Court upheld the power of the Government to compel the Managers to appoint retrenched teachers against vacancies arising in their schools, pointing out that the liability is not confined only to one vacancy. The contentions raised by the managements in those cases when they challenged sub rule (viii) of Rule 6 of Chapter V, is evident from paragraph 9 of the judgment. The relevant portion of the judgment read as follows:
"Counsel for the petitioner urged, that after passing Ext. P1 order, the only manner in which recognition could be withheld is by withdrawal under R.22, R.22A or 23 of the Rules, after due compliance with the requirements of those rules. But R.17 provides for conditions to be satisfied for grant of recognition. Sub- rule (iii) thereof requires, that teachers must have been appointed in accordance with the relevant provisions in the Kerala Education Act and the Rules thereunder. S.13 of the Kerala Education Act provides, that: -
"Where any retrenchment of teachers in any aided school is rendered necessary consequent on orders of the Government relating to the course of studies or scheme of teaching or of such other matters, it shall be competent for the Government or W.P(c).No.1356/2017 & C/cases 34 the manager of an aided school to appoint such teachers in any Government school or aided school, as the case may be."
The Manager is obliged by reason of R.17(iii), which I have referred to above, to comply with the direction to appoint retrenched teachers of any aided school or Government School in his School. As long as the petitioner does not comply with that condition, he cannot insist upon grant of recognition.
10. xxxx I am inclined to hold that the respondents had necessary power to substitute one protected teacher with another and the Manager was bound by the terms of the agreement, which he executed under R.6(viii) of Chapter V of the rules to appoint that substitute, in view of the fact that the first appointment was not effective. I am also inclined to accept the alternative submission urged by Government, that the agreement which the petitioner executed, obliged him to absorb qualified retrenched teachers of aided schools in the educational district. The obligation was not confined to one teacher. The power which the petitioner gave by reason of executing the agreement to the respondents would not be exhausted by its first exercise. It is available for exercise as and when necessary. It was available on subsequent occasions as well. One of the conditions which the Manager had to satisfy to obtain recognition is that teachers must have been appointed in accordance with the relevant provisions under the Kerala Education Act and the Rules thereunder. Even without the assistance of the agreement, it was open to the respondents to require the Manager to appoint a teacher retrenched from an aided school consequent on orders of the Government relating to course of studies or scheme of teaching or such other matters."
The judgment in Rajan Pillai's case (supra) was affirmed by the Division Bench in its judgment dated 31.05.1999 in W.A.No.202 of 1990 upholding the power of Government to direct the Managers to appoint protected teachers, in the light of Section 13 of the Act and in the light of the agreement executed by the Managers. Contentions were advanced on behalf of some of the petitioners pointing out that the agreement executed by them was to appoint the protected teachers who had drawn 2 vacation salary; they are not bound by the changes brought about in the eligibility to be termed as a protected teacher and that they are not bound by unilateral agreements. W.P(c).No.1356/2017 & C/cases 35 It is pertinent to note that Sub rule (viiii) was further amended in 2010, extending the liability to absorb any retrenched teaching or non-teaching staff who are eligible for protection as per orders issued by the Government from time to time. It further provides that such orders shall form part and parcel of such agreement as if they were incorporated in the agreement. Thus the schools upgraded/newly opened subsequent to 22.05.1979 have executed agreements with Government and they are bound by the deemed terms of such agreements as provided in the sub rule viii. The petitioners did not have any complaint against the amendment effected in the year 2010. In the above circumstances, the judgment of the Apex Court in Zile Singh v. State of Haryana : (2004) 8 SCC 1, or the judgment of the Division Bench of this Court in Fr. Mathew Maleparambil v. State of Kerala:(4) KLT643 cannot be applied in this case. Contention is that there was no amendment to Rule 6 (viii) of Chapter V of KER subsequent to 1.6.2011. The judgment in Fr. Mathew Maleparambil was rendered with reference to the provisions in the agreement entered into between the aided colleges and Government, where it was held that Government cannot impose unilateral conditions. But that agreement was not covered by a statutory provision like Rule 6(viii), which by way of amendment effected W.P(c).No.1356/2017 & C/cases 36 in 2010, deems the orders issued by Government from time to time regarding retrenched/protected teachers, part of the agreement. The contention that minority educational institutions cannot be compelled to appoint protected teachers was also repelled by the Division Bench of this Court in Fr. Kuriakose' case as well as NSS case. Contention now raised by the petitioners that the protection available at the time when they executed agreement was only to those teachers having two years' service and that they are not liable to absorb the teachers who got protection merely by one year service, cannot also be accepted, because they have to abide by the orders issued by Government. It is also relevant to note that in Rajan Pillai's case, which was affirmed by the Division Bench, this Court had found that Section 13 of the Act fastens a liability on the Managers to appoint the retrenched teachers. Rule 5A of Chapter XIVA provides that preference shall be given to teachers who were retrenched by the opening of new schools, etc., for appointment in future vacancies in the same or other educational agencies. Under Rule 7 of Chapter XIVAof KER, the Managers have to issue an appointment order to the teacher in Form 27. The declaration to be furnished in Form 27 is: "This appointment is subject to the provisions in the Kerala Education Act and the rules thereunder and W.P(c).No.1356/2017 & C/cases 37 such other rules and orders issued from time to time by the Government or other competent authority. xxx". Before approving such appointments, the educational officer has to certify that the said appointment has been made after satisfying that there is no qualified person retrenched from any of the aided High Schools in the education district or aided primary schools in the education sub districts after putting in two years of service and drawing 2 vacation salaries is available for absorption to the post in the School. Rule 5A and conditions in form 27 are to be observed by the Managers of all schools, as held in Manager, Eravannoor AUP School, Kozhikode & others v. State of Kerala & others: ILR 2011 (2) Ker 301, by a learned Single Judge of this Court while considering the validity of G.O.(P) 10/10/G.Edn dated 12.01.2010. These findings are upheld in the judgment in NSS case. In paragraph 44 of the judgment, the Division Bench held as follows:
"Even otherwise, the mere absence of an agreement in terms of Clause
(viii) of R.6 of Chapter V of KER, 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 S.13 of the Act, read with sub- rule (1) of R.1 and R.5A of Chapter XIVA of KER. On this ground as well, the challenge made against Clauses (v) and (vi) of GO dated 12/01/2010 cannot be sustained."
W.P(c).No.1356/2017 & C/cases 38 In the light of the aforesaid judgments, the provision in sub rule 3 insisting filling up of vacancies in the Schools which are newly opened or upgraded after 22.5.1979 i.e, after the introduction of the provisions contained in sub rule (viii) of Rule 6, by appointing protected teachers from the teachers' bank cannot be said to be illegal.
18. Sub rule 4 of Rule 7, provides for filling up of short term vacancies arising out of leave, deputation for training having duration of one academic year and above, by appointing protected teachers from Teachers' bank, with the permission of Deputy Director of Education. It also provides for appointing teachers from the Teachers' bank of other revenue districts in the event of non-availability of a teacher in the same category in the same revenue district. The provision to fill up short term vacancies by protected teachers was part of Rule 7 inserted by 2014 Amendment Rules and it was upheld in paragraphs 63 and 64 of the judgment in Kerala Aided LP & UP School's case. The only addition is the liability to appoint protected teachers of other districts also in the case of their non-availability in the district, for which also there cannot be any valid objection.
19. Sub rule 5 starts with a non obstante clause, providing that the first among the 2 vacancies which arises on account of the sanctioning of W.P(c).No.1356/2017 & C/cases 39 posts on the basis of exemption of class charges to head teacher (i.e the appointments covered by sub rule 1 of Rule 7) shall be filled up only by a protected teacher, notwithstanding anything contained in Rule 43, 51A and 51B of Chapter XIVA. Going by this provision it would appear that as far as the 2nd post covered by sub rule 1 is concerned, appointment shall be made subject to Rules 43, 51A and 51B. As already found this is a provision which was already upheld in paras.63 and 64 of the judgment in Kerala LP & UP school case, relying on NSS case which had upheld the appointment of protected teachers.
20. Sub rules 6 and 7 only provide that the vacancy caused by the relief of a protected teacher has to be filled up by another protected teacher from the Teachers' bank and that the protected teachers appointed from the Teachers' bank would not have any claim for appointment in any school in any future vacancies other than their parent school. Such a provision is already upheld in Rajan Pillai's case (supra) as upheld by the Division Bench. Once the provision for appointing protected teachers is sustained, the liability to fill up the vacancies on the relieving of protected teachers cannot be said to be illegal.
21. Sub Rule 8 provides that in the absence of protected teachers in W.P(c).No.1356/2017 & C/cases 40 the Teachers' bank of a particular revenue district, the Managers shall appoint protected teachers of other districts and in the absence of such teachers even in other districts, Managers shall fill up the vacancies otherwise, with the permission of the Director. However vacancies covered by sub rules 1 and 2 shall not be filled up like that and those vacancies shall be filled up only in accordance with the orders issued by Government from time to time. When the Managers are liable to appoint protected teachers, the provision to appoint them even from the list of other districts cannot also be found to have any illegality. The liability to appoint protected teachers from other district is already there on the Managers of the schools, newly opened/upgraded subsequent to 25.02.1979. The liability of others come under Section 13 and rule 5A of Chapter XIVA of KER. However, even when there is no protected teacher in any of the lists, it will be arbitrary to ask the Managers not to make appointment against the vacancies and to wait for orders of Government. Counter Affidavit does not explain the intention of such a provision. Nothing is mentioned about the orders if any issued by Government in this behalf and no such orders are also made available. In the above circumstances, sub rule 8, to the extent it directs not to fill up the vacancies covered by rule (1) and (2) even if there is no W.P(c).No.1356/2017 & C/cases 41 protected teacher available in the teachers' bank maintained in any of the districts, can only be said to be arbitrary.
22. Sub rule 9 provides that the educational agencies having more than one school shall not transfer the protected teacher appointed in one school to another and the services of the protected teacher shall not be terminated except with the prior permission of Deputy Director of Education concerned. When the appointment of protected teachers in post 1979 schools is already governed by sub rule viii of Rule 6 of Chapter V of KER and the appointment of the protected teachers from Teachers' bank is confined to a particular school, the restrictions on their transfer to other schools, can only be seen as a regulatory measure. Termination of service of any teacher, requires prior permission from the educational officers. Therefore, the conditions in sub rule 9 can only be termed as part of regulatory measures.
23. Sub rule 10 makes the provisions relating to teaching staff applicable to the non-teaching staff also. There cannot be any objection on that provision, in view of Rule 7 of Chapter XXIVB of KER which makes the provisions in Rule XIVAof KER applicable to non-teaching staff.
24. Note to Rule 7 defines Teachers' bank as the list of teachers W.P(c).No.1356/2017 & C/cases 42 retrenched due to division fall from schools of various aided educational agencies and eligible for protection as per orders issued by Government from time to time. It further provides that it is a temporary arrangement for retaining the protected teachers for suitable appointment or deployment. Under Note 2, the Deputy Director of Education of the concerned revenue district is to enlist the teachers eligible for protection and the Managers are to make appointments from such lists with the permission of the Deputy Director. Note 3 enables Managers of minority educational institutions to choose teachers from the Teachers' bank of any revenue district with the permission of DPI. The provision for Teachers' bank is already upheld in Kerala Aided LP & UP schools case. The Managers of the minority schools complain that their right to appoint is taken away arbitrarily, by limiting the zone of selection to the Teachers' bank, pointing out that mere right of choice will in no way dilute the rigor of that transgression. But it is to be noted that the provisions contained in the agreement executed/to be executed for upgradation/opening of new school by all the applicants are one and the same irrespective of the status as to minority or majority. The very same ground of attack was already repelled by this Court in Fr. Kuriakose's case, as well as in the judgment in NSS case. By Note 3 they W.P(c).No.1356/2017 & C/cases 43 are getting an opportunity to select any teacher in the State included in the Teachers' bank, which is not available for others and which was not available in G.O.(P) No.10/10.
25. The learned counsel for the petitioners pointed out that the procedure for implementation or the consequences of non-implementation are not provided and therefore these are vague in the absence of any guidelines. It is also pointed out that there is no provision to gather the service particulars or qualification of the teachers in the Teachers' bank. But in the counter affidavit it is stated that the service particulars of the teachers in the Teachers' bank are available in the offices of the Deputy Directors of Education and that the procedure for filling up the vacancies by protected teachers from the Teachers' bank would be issued from time to time by the Government/Director of Public Instructions. The learned Advocate General pointed out that these details are available in the website also. It is also stated that all these teachers are those who got approval and therefore there cannot be any dispute regarding the qualification. It is also stated that all of them are teachers who got their probation declared. Therefore, the contentions of the petitioners are untenable. However, Government has to see that the educational officers are implementing Note 2 below Rule 7 W.P(c).No.1356/2017 & C/cases 44 making available the subject wise list of teachers with their service particulars, either in the website or otherwise, without giving room for further complaints, well before the commencement of each academic year or at least before 15th July of every year.
26. The amendments brought about in Chapter XXIII are in Rules 1, 5 and introduction of Rule 14A. Item (iii) in clause (b) of Rule 1, provides for sanctioning of one additional post of LPSA, when the Headmaster is exempted from class charge, where the strength of pupils in LP schools with standard I to IV or I to V exceeds 150. This provision is incorporated in tune with the provisions contained in RTEAct, 2009. There cannot be any objection over this. Item (iv) is added in Rule 5 of Chapter XXIII, providing that subject to items (i) and (ii), one post of UPSA shall be sanctioned additionally, where the strength of the pupils in a UP School with classes V to VII exceeds 100 or in a UP school having classes I to VII if the strength exceeds 150 from class I to V and 100 from V to VII, by exempting the Headmaster from class charges. This provision is incorporated in tune with the provisions contained in RTE Act, 2009, and in tune with the directions in the Kerala Aided LP & UP Schools case. W.P(c).No.1356/2017 & C/cases 45
27. The last provision relates to staff fixation. As per Rule 14 Government could extend the ban on creation of posts, retrenchment of staff etc., effected in Government Schools to aided Schools. By Ext.P8-the 2016 Amendment Rules, Rule 14A is inserted in Chapter XXIII, which provides that notwithstanding anything contained in Rule 12 of Chapter XXIII and Rule 3A of Chapter XXIVB, Government may, by notification in official gazette extend the strength of teaching and non-teaching staff already sanctioned in the Schools for the last year to subsequent year or years. At the same time, the Note to the Rule provides that when such extension is ordered, the educational officers have to see that there are sufficient numbers of teachers in tune with the PTR in classes I to VIII and the deficiencies shall be made good by appointing protected teachers from the Teachers' bank. One objection raised was that though such extensions were allowed under rules only after issuing notification in gazette, no such gazette notification is published so far. It is also pointed out that similar provisions were introduced by way of executive orders and thereafter in 2014 amendment rules were already held unsustainable in the judgments dated 15.01.2015 and 15.12.2015. In the judgment dated 15.01.2015, the extension of staff fixation was by executive orders and those executive W.P(c).No.1356/2017 & C/cases 46 orders were set aside seeing that the field is governed by statutory rules. In the 2014 amendment rules considered in Kerala Aided LP & UP School case, there was no provision like Rule 14 A with a non-obstante clause. Moreover, it was found that such extension would violate the provisions in the RTE Act. In Ext.P8 rules, even while permitting extension of the staff fixation to subsequent years sufficient safeguard is provided as per the Note in order to see that the PTR is maintained in tune with the provisions in RTE Act, which was the main reason for interfering with the previous amendment to Rule 12 in 2014 Rules in the judgment in Kerala Aided LP & UP schools case. In the counter affidavit it is stated that the extension of staff fixation would not be a permanent arrangement and once the present crisis which occurred to accommodate the teachers is met, the normal staff fixation would be carried out from year to year. The learned Single Judge, while dealing with the 2014 Amendment Rules, in the judgment in Kerala aided LP & UP School case supra, found as follows:
51. xxxxx The staff fixation under the newly introduced R.12 and the procedure delineated is proper, though the earlier Rule provided for more comprehensive checks and balances in so far as providing for cross verification, by way of re-visit and re-fixation, which is taken away in the new Rule. However, that is the prerogative of the Government which need not be looked into by this Court, which is not acting as a watch-dog, of how the Government functions and arranges its affairs. Prejudice, arbitrariness and unreasonableness being absent; this Court would not W.P(c).No.1356/2017 & C/cases 47 instruct the Government as to how the administration could be made more efficient; which would only infringe upon the executive powers. Suffice it to notice that even now scrutiny of staff fixation by higher officers is permitted by R.12C, re-fixation on ground of bogus admission by R.15 and under R.12E(3) based on an enquiry report, super check under R.16, all coming under Chap.XXIII.
52. Despite the prescription with respect to staff fixation being found to be proper, this Court is unable to uphold the permanent fixation of strength of teaching staff as reckoned for the academic year 2010-2011.
The same would run contrary to the prescription of the PTR, as per the KER and more so as per the RTEAct. The KER earlier provided for a PTR of 1:45, on which basis the staff fixation was to be made under the unamended R.12. When such PTR, or a divisional strength is prescribed by the rules with reference to which the probable divisions are to be determined and on which rests the fixation of staff strength; there cannot be a rule incorporated making the strength of teaching staff, permanent as on 2010-2011. The newly introduced Rule also contains a procedure by which the fixation of staff of each school has to be finalised by the Educational Officer, not later than 15th July of every year. This has to be done on the PTR, as contained in the KER and now, as contained in the RTE Act also. The fixation of a permanent staff strength as on 2010-11 would also run against the provisions of the RTE Act. The adoption of 2010-11 staff strength would run foul of S. 26 of the RTE Act which prohibits the vacancies of teachers in aided schools, remaining unfilled in excess of 10%. The vacancies are to be taken on the basis of the staff strength determined as per the PTR provided by the RTE Act. Hence, such prescription of permanent staff strength as reckoned, of the year 2010-2011, as per the unamended R.12, has to be struck down."
(emphasis supplied) It is therefore clear that the main reason for interference in that case was non-compliance of the provisions in Central Act, 2009. At any rate, the present amendment has brought in R.14A with non-obstante clause, coupled with the note based on which the vacancies as per PTR has to be filled up by appointing protected teachers.
W.P(c).No.1356/2017 & C/cases 48
28. In this context, it is pertinent to note that executive order issued by Government-G.O.(P).No.10/10/G.Edn dated 12.01.2010, which provided, inter alia, for filling up the future vacancies in the ratio of 1:1 between protected teachers and other teachers was upheld by this Court in the Eramanallur Schools' case and later by the Division Bench in NSS case. The main contention raised in those cases was that such conditions cannot be laid down by issuing executive orders. Repelling those contentions, this Court held that the executive orders issued for regulating the right of Managers of aided schools in making appointments do not override statutory provisions in Act or Rules and that those orders are perfectly within the competence even without any amendment to the rules. The Division Bench after a discussion on the orders of ban issued by Government from time to time since the year 1999, against creation of posts in Government and aided Schools and about the conditional orders lifting the ban, upheld those orders in the light of Rule 14 of Chapter XXIII of KER. The Division Bench also noticed that the orders imposing the ban or lifting the ban, issued during the period from 1999 to 2005 were never under challenge. It was also noticed that the restriction imposed in the G.O. (P)No.317/05/G.Edn. dated 17.08.2005 that the ban on creation of posts W.P(c).No.1356/2017 & C/cases 49 would continue in 2006-07 also, was upheld in the judgment dated 25.09.2009 in W.P(C).No.273/2007 and connected cases. The Division Bench has considered the impact of the non-obstante clause contained in Rule 14 of Chapter XXIII of KER, based on which the ban orders were issued against creation of posts, retrenchment of staff etc. In the judgment in the NSS case, the Division Bench analysed a catena of judgments on interpretation of non-obstante clause starting from Aswini Kumar v. Arbinda Bose : AIR 1952 SC 369 to State (NCT Delhi) v. Sanjay, 2014 KHC 4558 : 2014 (9) SCC 772, in which it is held that a non-obstante clause provides for overriding effect to certain provisions over the other provisions either in the same enactment but in other enactment also. Going by the very same interpretation, Rule 14A inserted by 2016 Rules by way of its over-riding power makes the provisions contained in Rule 12, in effective, permitting extension of Staff strength to subsequent year. It is also pertinent to note that in paragraphs 22 to 27 of the judgment in NSS case, it was held that Rule 14 of the Chapter XXIII, which begins with a non-obstante clause empowered the Government to extend any ban on the creation of posts, retrenchment of staff, etc., effected by them in Government schools to aided schools and it has overriding effect over the W.P(c).No.1356/2017 & C/cases 50 other provisions contained in the KER, contrary to it. It was held that when the liability to pay salary to the teaching and non-teaching staff appointed by the Managers of aided Schools as enjoined in sub-section (1) of S.9 of the Act was on Government, R.14, which was introduced by way of Kerala Education (Amendment) Rules, 1969, empowers Government to extend the ban on creation of posts. In paragraph 29 it was held as follows:
"29. In the case on hand, going by R.23 of Chapter VI read with R.12 of Chapter XXIII of KER fixation of the strength of teaching staff in an aided school is based on the effective strength of class as on the sixth working day from the re
-opening day in June. However, going by R.14 of Chapter XXIII of KER, notwithstanding anything contained in the KER, the Government is empowered to extend any ban on the creation of posts, retrenchment of staff, etc. effected by them in Government schools to aided schools. Since any reconciliation between these provisions would render the provisions of R.14 of Chapter XXIII of KER redundant and otiose. For all these reasons, the contention of the learned counsel for the appellants in WA Nos. 1027/2011 and connected cases that, R.14 of Chapter XXIII of KER is unconstitutional and opposed to R.23 of Chapter VI of KER and R.12 of Chapter XXIII of KER can only be rejected and we do so.,Any interpretation to the contra shall make R.14 redundant and otiose.
The aforesaid findings are applicable in this case also, when it comes to Rule 14A.
29. Rule 14A introduced by 2016 amendment also starts with a non-obstante clause, conferring power on Government to extend the staff fixation orders for last year to the subsequent year or years notwithstanding anything contained in Rule 12 of Chapter XXIII of KER. However such extension has to be made by publication in gazette. Admittedly no W.P(c).No.1356/2017 & C/cases 51 publication is made in the gazette. The amendment rules were issued on 03.12.2016 and were brought into force on 29.01.2016. Even as per the procedure prescribed as per Rule 14 Government could extend the ban on creation of posts, retrenchment of staff etc., effected in Government Schools to aided Schools. By Ext.P8-the 2016 Amendment Rules, Rule 14A provides that notwithstanding anything contained in Rule 12 of Chapter XXIII and Rule 3A of Chapter XXIVB, Government may, by notification in official gazette extend the strength of teaching and non-teaching staff already sanctioned in the Schools for the last year to subsequent year or years. Even as per the new procedure based on UID provided in Rule12(1)
(ii) (6), the fixation of staff in each school shall be finalised by the educational officer not later than 15th of July every year and orders of staff fixation shall take effect on the 15th July every year. The procedure prescribed under this provision is not interfered with in the Kerala Aided LP & UP School case. Therefore, as on 15th July 2016 there was no rule which permitted extension of staff strength. Even Ext.P8 rules provide for extension only by notification in the gazette. It is settled law that when rules require that a particular thing is to be done in a particular manner, it shall be done only in accordance with that manner (See para 17 of State of Kerala W.P(c).No.1356/2017 & C/cases 52 v. Kerala Rare Earth & Minerals Ltd., (2016) 6 SCC 323). The learned Advocate General argued that Rule 12B is already deleted and therefore there is no provision which provides for staff fixation from July 2015. Even though Rule 12B is deleted, the requirement of finalisation of staff strength before July 2015 continues. Rule 12B only provided that orders of staff fixation take effect from 15th July of each year and for deemed creation of additional posts with effect from the date of appointment in anticipation of sanction of posts. Moreover, any gazette notification has to be done well before the commencement of the subsequent academic year or 15th July of subsequent year.
30. Arguments were raised by the petitioners pointing out the stay order passed by this Court in a batch of cases where executive orders issued by the Government on 29.01.2016 and thereafter on 05.08.2016 are under challenge. Paragraph (iii)(2)(c) of G.O.(P)No.29/2016/G.Edn dated 29.01.2016 (Ext.P3) provided that vacancies arising in future in aided Schools, shall be made in the ratio of 1:1 between protected teachers and fresh hands in terms of the judgment in the NSS case. This provision to the extent it relates to minority schools is kept in abeyance in a batch of writ petitions. Later Government issued Ext.P6 order-G.O.(P) W.P(c).No.1356/2017 & C/cases 53 No.134/2016/G.Edn dated 05.08.2016 laying down the guidelines in respect of staff fixation, deployment of protected teachers, etc. Clause 4 of Ext.P6 order provides that the staff fixation for the academic year 2015-16 shall apply to the Academic Year 2016-17 also. This provision is also stayed in a batch of cases, as per Ext.P7 order and similar other orders. As per order dated 28.09.2016, the interim orders passed in these cases were modified, taking note of the undertaking not to deploy persons who can be otherwise retained in the schools, based on UID verification for the Academic Year 2016-17. It was observed that the apprehension of the petitioners regarding deployment of those who are found surplus in the staff fixation 2015-16 need not subsist. The following order was issued :
"ORDER In these writ petitions, the petitioners challenge Para (iii) (2) (c) of the GO.(P) No.29/2016 dated 29.01.2016, and Clause (4) of GO(P) No.134/2016 dated 05.08.2016. By interim orders passed by this Court in these writ petitions, in the ease of minority institutions a stay was granted against operation of Para (iii)(2)(c) of GO dated 29.01.2016, and in all the cases, including the minority institutions, a stay was granted against operation of Clause (4) of GO dated 05.08.2016 to the extent it contemplated that the staff fixation order for the academic year 2015-16 would continue to apply for future years also. The stay order has not been challenged in further proceedings by the State Government. As a result of the stay granted against operation of Clause (4) of GO dated 05.08.2016, therefore, it became incumbent upon the respondent educational authorities to comply with the statutory provisions with regard to the conduct of staff fixation in the various schools in the State, as contemplated under the KER.
When these matters came up for orders on 26.09.2016, the learned Advocate General, appearing on behalf of the official respondents, indicated that even the procedures for 2015-16 staff fixation have not been completed, and there are lot of teachers included in the deployment list whose deployments have not been completed. It was also pointed out that the Government has decided to amend the KER. Taking note of the submission of the learned Advocate General, it was pointed out by this court that, inasmuch as the operation of Clause (4) of GO dated 05.08.2016 has already been stayed W.P(c).No.1356/2017 & C/cases 54 by this Court, the Government would necessarily have to issue instructions with regard to the completion of the staff fixation for the ensuing academic year namely; 2016-17, and further ensure that deployments of teachers are not carried out, based solely on the staff fixation orders in the various schools for the academic year 2015-16. It was then submitted by the learned Advocate General that instructions would begiven to the Government to ensure that verificationof the UID strength of students in the various schools for the academic year 2016-17is conducted within a specified period andfurther, that if on the basis of the said report, posts were found to be availableduring the academic year 2016-17, in the various schools, to accommodate teachers who were included in the deploymentlist pursuant to the staff fixation for the academic year 2015- 16, they should be retained/sent back to the parent school, and salary should be paid to those teachers. It was also submittedthat, instructions would also be given that no deployment should be made without getting further instructions from the Office of the AdvocateGeneral. It is now pointed out by the learned Government Pleader that, pursuant to the instructions sent from the Office of the Advocate General, the State Government has issued a communication dated 27.09.2016 to the Director of Public Instructions, Thiruvananthapuram to issue necessary directions to all educational officers to comply with the following instructions, namely:
(i) Verify the UID strength of 2016-17 in all schools within two weeks and to submit a report.
(ii) On the basis of the above report if there are posts in 2016-17 to accommodate those teachers, who are included in the deployment list of 2015-16, they shall be retained/sent back to their school and salary be paid to those teachers.
(iii) Process of deployment shall be kept in abeyance until further orders.
Taking note of the said instructions that have been issued by the Government to the Director of Public Instructions, Thiruvananthapuram, I am of the view that since the State Government has already undertaken not to deploy persons, who can otherwise be retained in the school, based on the UID strength verification for the academic year 2016-17, the apprehension of the petitioners in these writ petitions, with regard to the deployment of teachers who are found surplus in the staff fixation of 2015-16, need not subsist. It is made clear that the arrangement indicated in the Government communication to the Director of Public Instructions, shall hold the field during the pendency of the writ petitions.
The writ petitions are posted to 18.10.2016."
Clause 4 of Ext.P6 order to extend the staff fixation of the previous year to the subsequent year is given statutory force by inserting the same as Rule 14A with a non-obstante clause. The impact of such a non-obstante clause, as already discussed by this Court in the NSS judgment with respect to Rule 14 applies with more vigour on Rule 14A also. When the judgment in NSS W.P(c).No.1356/2017 & C/cases 55 case was rendered while upholding the executive order, even in the absence of a provision like Rule 14A, a non-obstante clause is inserted in the rules which provides for extending the staff fixation for one year to one or more subsequent years. In 2014 amendment rules such a non-obstante clause was not available. The stay order passed by this Court against the executive order will not stand in the way of amendment of the rules incorporating the same provision as held in R.C. Tobacco (P) Ltd. v. Union of India, (2005) 7 SCC 725. Therefore, Rule 14A is liable to be upheld. However, extension can be done only on the basis of a notification in the gazette. It is pertinent to note that Ext.P8 amendment rules were issued when Ext.P6 order was already issued extending the staff fixation of 2015-16 to 2016-17. Despite that the rules provide for gazette notification. Though the purpose of such a notification would have been only for public notice and information and when an executive order was already in force, since the rules are issued a provision for publication in gazette, I am of the view that any such extension can have effect from the date of notification in the gazette only in tune with the procedure prescribed in the rules. Therefore, the statutory rule could have been legally enforced notwithstanding the stay order, in case there was a gazette notification.
W.P(c).No.1356/2017 & C/cases 56
31. The main contention of the petitioners is that there is no provision in the Act relating to appointment of protected teachers. Therefore, the rules cannot be framed for such matters. Therefore, it is necessary to examine whether Government is not competent to make such rules and whether such rules cannot be made with retrospective effect. Both sides relied on the judgments of the Apex Court in Indian Express Newspapers (Bombay) Private Ltd. and others v. Union of India and others:1985 (1) SCC 641:1985 KHC 554, which was relied on in Kerala Aided LP and UP School case. In this context it is relevant to note the judgment Division Bench of this Court in Pankajaksy & others v. George Mathew & others: 1987(2) KLT 723, which also has laid down the parameters under which a subordinate legislation can be challenged. It was also a case under KER. The relevant paragraphs in the judgment read as follows:
"5 It has to be borne in mind that the rules are framed by virtue of the powers conferred under S.36 of the Kerala Education Act. The grounds that are available for the challenge of a rule made by a delegated authority have to be outlined first, before the contentions advanced to challenge the rules are considered. Fortunately, there is at present, no problem on this score, because the Supreme Court has spoken in clear terms on this aspect on several occasions, and we need refer only to some of the later pronouncements.
6 In State of U. P. v. Hindustan Aluminium Corpn. (AIR 1979 SC 1459 (1979) 3 SCC 229) at Para.41 it is stated thus:-
"The grounds of challenging the validity of subordinate legislation W.P(c).No.1356/2017 & C/cases 57 are well known. The challenge may be on the ground that the power to make the law could not have been exercised in the circumstances which were prevailing at the time when it was made, or that a condition precedent to the making of the legislation did not exist, or that the authority which made the order was not competent to do so, or that the order was not made according to the procedure prescribed by law, or that its provisions were outside the scope of the enabling power in the parent Act or were otherwise violative of its provisions or of any other existing statute."
7 In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth (AIR 1984 SC 1543: 1984 (4) SCC 27) it is stated thus:-"It would be wholly wrong for the Court to substitute its own opinion for that of the Legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the Legislature and its delegate to determine, as a matter of policy, how the provisions of the statute can best be implemented and what measures, substantive as well as procedural would have to be Incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the statute."
xxxx xxxxx xxxxxx 10 In the Indian Express case (AIR 1986 SC 515) in Para.73 the Supreme Court stated thus:-
"A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. In England, the Judges would say "Parliament never intended authority to make such rules. They are unreasonable and ultra vires."
It was further stated thus:-
W.P(c).No.1356/2017 & C/cases 58
"A distinction must be made between delegation of a legislative function in the case of which the question of reasonableness cannot be enquired into and the investment by statute to exercise particular discretionary powers. In the latter case the question may be considered on all grounds on which administrative action may be questioned, such as, non-application of mind taking irrelevant matters into consideration, failure to take relevant matters into consideration, etc. etc. On the facts and circumstances of a case, a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution. This can only be done on the ground that it does not conform to the statutory or constitutional requirements or that it offends Art.14 or Art.19(1)(a) of the Constitution. It cannot, no doubt be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant."
xxxx 12 Thus, the rule made under a statute by an authority delegated for the purpose can be challenged on the ground (1) that it is ultra vires of the Act; (2) it is opposed to the Fundamental rights; (3) it is opposed to other plenary laws. To ascertain whether a rule is ultra vires of the Act, the Court can go into the question (a) whether it contravenes expressly or impliedly any of the provisions of the statute; (b) whether it achieves the intent and object of the Act; and (c) whether it is "unreasonable" to be manifestly arbitrary, unjust or partial implying thereby want of authority to make such rules."
Therefore, the validity of the rules can be tested on the above circumstances.
32. The Preamble of the Kerala Education Act, 1958, would show that the Act is enacted for the better organisation and development of educational institutions in the State, by providing a varied and comprehensive service throughout the State. Subsection 1 of Section 2 of the Act defines aided School to mean a private school recognised by and is receiving aid from Government. Educational agency is defined under Section 2(2) as any person or body of persons permitted to establish and W.P(c).No.1356/2017 & C/cases 59 maintain any private school under the Act. Section 2(8) defines recognised school as a private school recognised by Government under the Act. Subsection 1 of Section 3 provides that Government may regulate the primary and other stages of education and courses of instructions in Government and Private Schools. Sub-section (2) provides that the Government shall take, from time to time, such steps as they may consider necessary or expedient, for the purpose of providing facilities for general education, special education and for the training of teachers. Sub-section (3) provides that the Government may, for the purpose of providing such facilities (a) establish and maintain schools; or (b) permit any person or body of persons to establish and maintain aided schools; or (c) recognise any school established and maintained by any person or body of persons. Sub-section (4) provides that all existing schools shall be deemed to have been established in accordance with the Act. Proviso to subsection 4 stipulates that the educational agency of an aided school existing at the commencement of the section may, within one month of such commencement, after giving notice to Government, opt to run the school as a recognised school, subject to the condition that the services of teachers or other members of the staff shall not be dispensed with or their conditions of W.P(c).No.1356/2017 & C/cases 60 service varied to their disadvantage on account of the exercise of the option. Sub-section (5) provides that after the commencement of the Act, the establishment of a new school or the opening of a higher class in any private school shall be subject to the provisions of the Act and the Rules made thereunder and the school or higher class established or opened otherwise than in accordance with such provisions, shall not be entitled to be recognised by Government. Under subsection 2 of Section 7, the Managers are responsible for the conduct of the school in accordance with the provisions of the Act and the Rules thereunder. Subsection 1 of Section 9 provides that Government shall pay the salary of all teachers in aided Schools. Subsection 2 provides for payment of salary of non-teaching staff appointed in accordance with rules prescribed. Subsection 3 provides for payment of maintenance grant to the Managers at rates prescribed. Subsection 4 provides that Government may make grants in aid for the purchase, improvement and repairs of any land, building or equipment of an aided School. Under Section 10, Government shall prescribe the qualifications for appointment of teachers in Government and private schools. Section 11 as it originally stood provided for appointment of teachers in aided and Government schools by district wise selection W.P(c).No.1356/2017 & C/cases 61 through Public Service Commission. But it was amended by Act 35 of 1960, enabling appointment by Managers. Section 12 also underwent an amendment. Sections 11, 12 and 13 which are relevant for the purpose of this case read as follows:
"11. Appointment of teachers in aided Schools: Subject to the rules and conditions laid down by Government, teachers of aided Schools shall be appointed by Managers from among persons who possess the qualifications prescribed under Section 10.
12. 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 Government.
(2) No teacher 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.
Xxxx
13. Absorption of teachers on retrenchment: Where any retrenchment of teachers in any aided school is rendered necessary consequent on orders of the Government relating to the course of studies or scheme of teaching or of such other matters, it shall be competent for the Government or the manager of an aided school to appoint such teachers in any government school or aided school, as the case may be."
Section 36 of the Act empowers Government to make rules for the purpose of carrying into effect the provisions of the Act either prospectively or retrospectively. Subsection 2 provides for the matters for which rules can be made in particular, without prejudice to the generality of the power under subsection 1. Under subsection 2, rules can be made providing for establishment and maintenance of schools, grant of aid, grant of recognition, collection of fees, admission to schools, maintenance of records, submission of accounts, inspection, audit, standards of education and courses of study, etc. Under Clause (m) rules can be made on all matters expressly required or W.P(c).No.1356/2017 & C/cases 62 allowed by the Act to be prescribed. Section 11 of the Act itself provides that appointment of teachers in aided Schools shall be made from among persons having qualification provided under Section 10, subject to the rules and conditions laid down by Government. Under Section 12, it is for the Government to prescribe the rules. Therefore, Government is having every authority to lay down conditions for appointment and also conditions of service. Retrenchment as well as protection of the retrenched teachers is coming under the purview of the conditions of service. Such conditions for appointment can be laid down not only by rules but also by executive orders. Therefore, it cannot be said that there is no power vested in Government to make rules providing for appointment of protected teachers, or for their appointment from a teachers' bank when there is no dispute over the power of Government to prescribe the conditions of service. Therefore, the contentions raised by the petitioners that Government has no power to frame rules insisting appointment of protected teachers, cannot be accepted. Apart from Sections 11 and 12, Section 13 provides for absorption of retrenched teachers either in Government or in aided Schools. The Kerala Education Rules, 1959 are issued in exercise of powers under Section 36 of the Act.
W.P(c).No.1356/2017 & C/cases 63
33. The power of Managers are provided under Section 11 of the Act and R.9 (1) of Chapter III of KER, according to which they are bound to conduct the school strictly in accordance with the provisions of the Act and Rules and also the orders that are issued by the Government from time to time in conformity with the provisions of the Act and the Rules. Apart from that the Managers of the newly opened/upgraded schools subsequent to 25.02.1979 had executed agreements with Government agreeing to appoint protected teachers in the vacancies arising in their schools, as provided in Rule 6(viii) of Chapter V of KER. Going by the judgments in Fr. Kuriakose and Rajan Pillai's cases, as already discussed in paragraph 17, the Managers cannot be heard to raise any such contention regarding infringement or transgression of their right to appoint. Apart from that, under Rule 1 of Chapter XIVAof KER all the Managers are bound to abide by the orders issued by Government to fill up the vacancies in accordance with the orders issued by Government. Rule 5A thereof provides for absorption of protected teachers. Apart from that all the Managers are bound by the conditions laid down by Government while filling up the vacancies. They have to furnish declaration in form 27 in which it should be certified that non-availability of protected teachers should be certified for approving W.P(c).No.1356/2017 & C/cases 64 the appointment. They are bound by Section 13 of the Act and Rule 5A of Chapter XIVAof KER to give preference to the teachers who are retrenched by the opening of new schools or consequent to orders relating to course of study or scheme of teaching or closure of schools on withdrawal of recognition. In the judgment in NSS case, these aspects are discussed elaborately and in para.19 it was held as follows:
19. The provisions of the Kerala Education Act and the KER 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. As we have already noticed, going by S.11 of the Act, any appointment of teachers in aided schools from among persons who possess the qualifications prescribed under S.10, can only be made subject to the rules and conditions laid down by the Government. Sub-rule (1) of R.1 of Chapter XIVA of KER provides that, whenever vacancy of teacher occurs, for ascertaining the availability of qualified hand and also for filling up vacancy the Manager shall follow the directions issued by the Government from time to time. Sub-
rule (4) of R.1 provides further that, in determining the requirement of subjects, the Director of Public Instruction shall also issue such instructions as he may deem necessary for giving protection to those teachers enumerated in Clause 1 and 2 of the said sub-rule. Going by R.43 of Chapter XIVA of KER, promotion according to seniority to any higher grade of pay is made subject to consideration of efficiency and any general order that may be issued by the Government. Similarly, the retrenchment of junior hands under R.51 of Chapter XIVAof KER is made subject to the requirement of subjects determined by the Director of Public Instruction and also the instructions issued by him under sub-rule (4) of that Rule. Further, R.14 of Chapter XXIII of KER, which begins with a non obstante clause, empowers the Government, by orders, to extend any ban on the creation of posts, retrenchment of staff, etc., effected by them in Government schools to aided schools. Therefore, 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; general orders on promotion to any higher grade of pay; extending any ban on the creation of posts, retrenchment of staff, etc., effected in Government schools to aided schools; etc., in order to regulate the right on the Manager of an aided school to make appointment of teachers, W.P(c).No.1356/2017 & C/cases 65 cannot be termed as executive orders which override the statutory provisions under the Kerala Education Act and the KER. Similarly, the instructions issued by the Director of Public Instruction to determine the subject requirement, etc. cannot be termed as instructions contrary to the statutory provisions under the said Act and the Rules. Therefore, the contentions raised on behalf of the appellants that, the Government have no authority to issue executive orders regulating the right of the Manager of an aided school to make appointment of teachers, without making appropriate amendments to S.11 of the Kerala Education Act and also to the relevant provisions under the KER can only be rejected and we do so."
34. In NSS case, the Division Bench was dealing with the validity of an executive order. Now rules are amended. The amendment rules 2016 have only imposed some more conditions for filling up the vacancies, insisting appointment of protected teachers from teachers' bank against certain vacancies, on given circumstances. It also provides for the extension of staff fixation. The Government have explained the circumstances under which the amendment became necessary. In paragraph 32, the Division Bench has referred to the judgment dated 15.09.2009 in W.P(C). No.273/2007 and connected cases dismissing the writ petitions filed by Managers challenging clause (vi) of G.O dated 17/8/2005, by which the ban imposed on appointment in additional division vacancies was extended to 2006-07, repelling their contention that the Managers were entitled to make appointment against additional division vacancies in accordance with sub rules 2 and 3 of Rule 12 of Chapter XXIII of KER, upholding the ban in the W.P(c).No.1356/2017 & C/cases 66 light of Rule 14 of that Chapter which contained a non-obstante clause. The Division Bench approved that judgment and repelled the contention on behalf of the Managers who pointed out that Rule 14 was not under challenge, observing that the Rule 14 was already sustained in the judgment in W.A.No.1027/2011 and connected cases. Therefore, it can be seen that the protection of teachers was envisaged even at the time when the Act and Rules were framed in 1958 and 1959 itself, as can be seen from Section 13 of the Act and Rule 5A of the Rules. Government have been issuing orders regarding protection of teachers right from 1969. Apart from the statutory requirement to appoint protected teachers in tune with the agreement under rule 6(viii) of Chapter V of KER, Government had in G.O.(P) No.178/2002/G.Edn dated 28.06.2002, directed the Managers of newly opened Schools to fill up all the vacancies in their schools by appointing protected teachers. Seeing the consistent disobedience towards that order, another order - G.O.(P) No.46/2006/G.Edn dated 01.02.2006 was issued directing to appoint at least one protected hand. In G.O.(P) No.259/2006/G.Edn dated 12.10.2006 the Managers of all uneconomic schools were directed to appoint protected hands only in the vacancies in their schools. It is stated that by G.O.(P)No.317/05/G.Edn dated 17.08.2005 W.P(c).No.1356/2017 & C/cases 67 appointments against additional division vacancies were banned in schools from 2006-07 onwards. The consistent violation of that ban order led to G.O.(P) No.10/10/G.Edn dated 12.01.2010 permitting approval on a bond agreeing to appoint equal number of protected teachers. Future appointments were to be made in the ratio of 1:1 between protected teachers and others. Restriction on filling up of vacancies of teaching and non- teaching posts was being issued directing the Managers to appoint protected hands by way of statutory rule itself ever since the insertion of clause (viii) of Chapter V of KER in respect of newly opened/upgraded schools on and after 22.05.1979. Those provisions were already upheld in Fr. Kuriakose's case and Rajan Pillai's case (supra), which justified the action of Government in the light of Section 13 of the Act and Rule 5A of Chapter XIVA. The Division Bench has in the judgment in NSS case, scanned each of the orders issued by Government right from 17.11.1999 to 2005, imposing ban on creation of new posts in the schools, orders issued lifting the ban, insisting prior approval of Government for appointments against new division vacancies; Government order dated 17.08.2005 directing sanctioning of additional divisions in accordance with the provisions in the KER, for the year 2005-06 and approval of appointments against those W.P(c).No.1356/2017 & C/cases 68 vacancies, while directing that the orders of ban on appointment against additional division vacancies shall continue from the academic year 2006- 07 onwards while upholding the G.O.(P)No.10/10 issued thereafter. When Section 13 of the Act, Rule 1 and 5A of Chapter XIVA and Rule 6(viii) of Chapter V of KER, which provide for appointment of protected teachers are already available in the statute, the attack made against Ext.P8 amendment rules either on the ground that it interferes with the right of Managers, it is unconstitutional or vitiated by lack of legislative competence or on the ground that it is not a law by which the fundamental right to Article 19(1)(g) of the Constitution could be restricted, cannot be sustained. It is also pertinent to note that none of the petitioners have any complaint against the 2nd proviso to Rule 43 of Chapter XIVA, which was inserted by G.O.(P) No.187/05/G.Edn dated 17.06.2005 notified in gazette dated 25.06.2005 which provides that if the Headmaster or a teacher, who is promoted, faces retrenchment he shall be reverted to the post from which he was promoted, only if he is not eligible for protection in the retrenched post as per orders issued by Government from time to time. The contention of the petitioners relying on the judgments in Sahmna B V Hemambika Sanskrit School & others: 2008 (4) KLT 346, Assistant Educational Officer v. P.R. W.P(c).No.1356/2017 & C/cases 69 Mammoo: 1968 KLT 556, Manager MMHS v. Deputy Director: 1994(1) KLT 321 and Shobhana v. Manager, Cholapurath AUP School, cannot be accepted as the factual circumstances leading to those judgments were entirely different and cannot be applied.
35. In this context, it is necessary to examine the contention of the counsel for the petitioners that their fundamental rights to run the Schools guaranteed under Article 19(1)(g) are not restricted by a law, relying on the judgments in paragraphs 71, 72, 73, 90, 208, 382 and 386 of T.M.A. Pai Foundation v. State of Karnataka : (2002) 8 SCC 481, paragraph 69 of State of Bihar v. Project Uchcha Vidya, Sikshak Sangh: (2006) 2 SCC 545, paragraph 121 to 131 of Subramanian Swamy v. Union of India :
(2016)7 SCC 221, paragraph 17 of Kerala Samstha Chethu thozhilali Union v. State of Kerala :(2006)4 SCC 327, paragraph 45 of the judgment in State of Kerala v. Mar Apraem Kuri Co. Ltd:(2012)7 SCC 106. In paragraphs 71 to 73 of the judgment in TMA Pai's case (supra) the Apex Court held that when Government is bearing the financial burden it can impose conditions that are necessary for the proper maintenance of the high standards of W.P(c).No.1356/2017 & C/cases 70 education and that the State is under an obligation to protect the interest of the teaching and non-teaching staff and to ensure that the teachers working in those institutions are governed by proper service conditions. The State has ample power to regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same. It was held that rules and regulations that promote good administration and prevent maladministration can be formulated so as to promote the efficiency of teachers, discipline and fairness in administration and to preserve harmony among affiliated institutions, without any interference to the constitution of the governing bodies or thrusting the staff without reference to management. Following the judgment in TMA Pai's case, the Apex Court in the Project Uchcha Vidya, Sikshak Sangh of Bihar case also held that the fundamental right for occupation of a citizen cannot be deprived of except in accordance with law as provided in clause (6) of Article 19 of the Constitution and that such a law must be one enacted by the legislature and not by issuing a circular or a policy decision in terms of Article 162 of the Constitution or otherwise. In the judgment in Subramanian Swamy v.
Union of India : (2016) 7 SCC 221, the Apex Court, while considering the constitutionality of the provisions contained in Sections 499 & 500 of IPC, W.P(c).No.1356/2017 & C/cases 71 discussed about the nature of restrictions which could be imposed under Article 19(2) of the Constitution of India, on one's fundamental right under Article 19(1) of the Constitution of India. In paragraphs 129 and 130 of the judgment it was held as follows:
"129. In Papnasam Labour Union v. Madura Coats Ltd. the Court on the base of earlier authorities summed up that when the constitutionality of a statutory provision is challenged on the ground of reasonableness of the restriction, the Court should evaluate whether the restriction is excessive in nature, existence of the reasonable nexus between restriction imposed and the object sought to be achieved, quality of reasonableness, felt need of the society and the complex issues facing the people which the legislature intends to solve, protection of social welfare prevailing within the social values, its consistency and accord with Article 14 of the Constitution. Additionally, the Court also observed that in judging the reasonableness of the restriction imposed by clause (6) of Article 19, the Court has to bear in mind the directive principles of State policy and any restriction so imposed which has the effect of promoting or effectuating a directive principle can be presumed to be a reasonable restriction in public interest.
130. The principles as regards reasonable restriction as has been stated by this Court from time to time are that the restriction should not be excessive and in public interest. The legislation should not invade the rights and should not smack of arbitrariness. The test of reasonableness cannot be determined by laying down any abstract standard or general pattern. It would depend upon the nature of the right which has been infringed or sought to be infringed. The ultimate "impact", that is, effect on the right has to be determined. The "impact doctrine" or the principle of "inevitable effect"
or "inevitable consequence" stands in contradistinction to abuse or misuse of a legislation or a statutory provision depending upon the circumstances of the case. The prevailing conditions of the time and the principles of proportionality of restraint are to be kept in mind by the court while adjudging the constitutionality of a provision regard being had to the nature of the right. The nature of social control which includes public interest has a role. The conception of social interest has to be borne in mind while considering reasonableness of the restriction imposed on a right. The social interest principle would include the felt needs of the society."
36. In Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353, the right to establish educational institutions, was considered elaborately and it was held as follows :
"65. We may unhesitatingly remark that this doctrine of proportionality, explained hereinabove in brief, is enshrined in Article 19 itself when we read clause (1) along with clause (6) thereof. While defining as to what constitutes a W.P(c).No.1356/2017 & C/cases 72 reasonable restriction, this Court in a plethora of judgments has held that the expression "reasonable restriction" seeks to strike a balance between the freedom guaranteed by any of the sub-clauses of clause (1) of Article 19 and the social control permitted by any of the clauses (2) to (6). It is held that the expression "reasonable" connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of public. Further, in order to be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to achieve, and must not go in excess of that object (see P.P. Enterprises v. Union of India). At the same time, reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and not from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations (see Mohd. Hanif Quareshi v. State of Bihar). In M.R.F. Ltd. v. State of Kerala, this Court held that in examining the reasonableness of a statutory provision one has to keep in mind the following factors:
(1) The directive principles of State policy.
(2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public. (3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances. (4) A just balance has to be struck between the restrictions imposed and the social control envisaged by Article 19(6).
(5) Prevailing social values as also social needs which are intended to be satisfied by the restrictions.
There must be a direct and proximate nexus or reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions, and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise." The social commitment of the Government towards retrenched teachers and teachers working without salary is explained in the counter affidavit, furnishing the number of teachers included in the Teachers' bank each year along with the number of teachers retrenched each year and number of teachers deployed. The petitioners cannot have a case that there is no public W.P(c).No.1356/2017 & C/cases 73 interest or social commitment behind the issuance of the impugned rules. The reliance made on the judgment in Kerala Samsthana Chethu Thozhilali Union v. State of Kerala : (2006) 4 SCC 327, is misplaced, as para.17 of that judgment only says that a rule should not only be in conformity with the provisions of the Act under which it is made, but also with the provisions of any other Act, as a subordinate legislation cannot be violative of any plenary legislation made by Parliament or the State Legislature. There the Apex Court was considering the validity of Rules 4 (2) and 9(10)(b) of the Kerala Abkari Shops Disposal Rules, 2002. As per Rule 9(10)(b) the licensees were to absorb one arrack worker who remained unemployed due to abolition of arrack shops, in their shops as decided by the Government observing the district-level seniority of such arrack workers. Such a provision was made in order to ensure that the employment of workers of abolished toddy and arrack shops is protected. It was held that there was no enabling provision in the Abkari Act to make such a rule. It was found that rehabilitation of the workers in arrack shop was not within the statutory scheme and, thus, the Rules are ultra vires the provisions of the Act and the power under sub-section (1) of Section 29 of the Act could be resorted to only for the purpose of giving effect to the Act. But Ext.P8 W.P(c).No.1356/2017 & C/cases 74 amendment is a continuation of the provisions already in force, which were either challenged and repelled or not challenged. It cannot be said that the rules are issued not for the purposes of the Act,
37. Government have in their counter affidavit explained the circumstances under which Government had to resort to the amendment of the rules. The consistent disobedience towards the orders issued by Government contrary to the provisions in the agreements executed by the Managers, who filled up vacancies otherwise, resulted in a situation that a number of teachers had to work in various schools without approval and hence without salary. The Managers who were to fill up all the vacancies by protected teachers were thereafter asked to appoint at least one protected teacher as a condition for approving the appointments. Even then the violation continued consistently resulting in production of a large number of protected teachers. Simultaneously, the reduction in pupil strength consequent to the commencement of CBSE Schools, unaided Schools etc. resulted in retrenchment of teachers. According to Government, the orders of protection of teachers and the orders directing their appointments are issued as a measure of social commitment. Teachers are inevitable part of education. Their protection is also a necessity in organising education in the W.P(c).No.1356/2017 & C/cases 75 State. Except for R.14A and the retrospectivity, all these are provisions closely connected or similar to the provisions which were upheld by this Court in NSS case and Kerala Aided LP & UP school case or which do not have the objectionable parts found in the 2014 amendment and provisions inserted with non-obstante clause.
38. It was contended that the amendment in Ext.P8 rules interferes with or transgresses into the field of central legislation RTE Act 2009 and is hence illegal, pointing out the provisions contained in subsection 2 of Section 25 of the RTE Act. Subsection 2 only provides that for the purpose of maintaining the Pupil-Teacher Ratio, no teacher posted in a school shall be made to serve in any other school or office or deployed for any non- educational purpose. By Ext.P8 amendment sufficient safeguards are already given to strictly adhere to the PTR. Ext.P8 rules do not in any manner direct or provide for deployment of any teacher for any non- educational purposes. It also does not provide for retention of any teacher in the same school, even when the strength of pupil does not justify the sanctioning of the same. Therefore, Ext.P8 rules cannot be said to be a transgression to the field occupied by Central Act.
39. Next questions which arise for consideration are with respect to W.P(c).No.1356/2017 & C/cases 76 retrospectivity given to the amendment rules from 29.01.2016 and the right of minority educational institutions if any for exemption from the provisions/right of Government to impose conditions on them. In order to implement the directions contained in the judgment in Kerala Aided LP & UP School's case, Government issued Ext.P3 order on 29.01.2016, laying down the guidelines on various aspects including protection of teaching and non-teaching staff, fixation of staff for the years 2011-12 onwards upto 2015-16, approval of appointments, deployment of excess hands, method of appointment, conditions of service of protected teachers, general guidelines, appointments of specialist teachers/in uneconomic schools/in leave vacancies, etc., in tune with the directions contained in the judgment in Kerala Aided LP & UP School case. By Ext.P6 order issued on 07.08.2016, Government issued guidelines for deploying the staff who were rendered excess consequent to the staff fixation proceedings issued on the basis of Ext.P3 order. Specific directions were given that the vacancies arising on account of sanctioning of posts on exemption of class charge to Headmasters and all existing vacancies shall be filled up by protected teachers. It was directed that the 1st of every two additional division vacancies should be filled up by protected teacher. It was also ordered that W.P(c).No.1356/2017 & C/cases 77 the staff fixation for the year 2015-16 will continue for 2016-17 also. That part of the order was stayed by this Court in a batch of cases. Amendment rules were issued on 03.12.2016, incorporating these provisions regarding the filling up of vacancies contained in Ext.P3 order with effect from the date of that order. The provision for extension of staff fixation for a particular year for subsequent year is also incorporated as Rule 14A of Chapter XXIII of KER. Despite these, the Managers filled up the vacancies in total disregard of Ext.P3 order, by the time Ext.P8 rules were issued. According to them, under subrules 3 and 5 of Rule 9, the Managers are duty bound to provide sufficient number of staff after verifying the staff position of the School in conformity with the number of class divisions. But what is provided in Sub rule 1 of Rule 9 of Chapter III is that the Manager shall be responsible for the conduct of the school strictly in accordance with the provisions of the Kerala Education Act and Rules issued thereunder and that he shall abide by the orders that may be issued from time to time by the Government and the Department in conformity with the provisions in the Act and Rules. Sub rule 3 also provides that Manager shall provide staff as per the rules and orders issued from time to time. The power of the Manager to fill up the vacancies is subject to the provisions in the Act, the W.P(c).No.1356/2017 & C/cases 78 Rules as well as the executive orders issued from time to time. Managers' duty under sub Rule 5 is to verify the staff position in conformity with the number of class divisions sanctioned by the department. But even before divisions are sanctioned, they filled up the vacancies. As per Rule 12B which was deleted by 2014 Amendment, the orders of staff fixation were to take effect from 15th July of every year and appointments made against anticipated vacancies were to be effective from the date of appointments. The deletion of Rule 12 B was sustained by this Court. As at present there is no provision which provides for approval of appointment from the date of appointment. Therefore, the illegal appointments made by the Managers cannot be a factor for determining the validity of Ext.P8 Rules. The right of Government to frame rules retrospectively was upheld by this Court and the Apex Court time and again. As argued by the learned Advocate General, this Court has in the judgment in Bindu Thomas v. State of Kerala : 2003 (3) KLT 217, upheld the amendment effected to the qualification for appointment as H.S.A with retrospective effect, as it was permissible under Section 36 of the Act and it was held that the fact that it adversely affected a person cannot be a reason for invalidating the rule. On the question of retrospectivity, the Apex Court, while considering the validity of a W.P(c).No.1356/2017 & C/cases 79 notification withdrawing the benefit of excise exemption to cigarettes issued under Section 5A of Central Excise Act in R.C. Tobacco (P) Ltd. v. Union of India: (2005) 7 S725, held as follows :
24.The particular context of the section impugned in this case was the industrial policy formulated by the Central and the State Government of Assam for the development of that State. The obvious intention behind the grant of the package of incentives including an exemption from payment of excise duties was to stimulate further industrial growth in the area with enduring benefits not only to the local populace by way of employment opportunities but also to the economic welfare of the State. The State Government's insistence from the very outset on the need to regulate the industries which were claiming the benefit of the exemption was to ensure that these objects were attained. According to the Union of India the exemption notification, at least as interpreted by the High Court, did not effectuate that intent. As it transpired, none of the industrial units manufacturing cigarettes were prepared to contribute to this object and their investment in the manufacture of cigarettes was co-extensive with the period of the exemption. The loss of revenue suffered by the Union and the State by the various subsidies and exemptions granted was the quid in return for which the petitioners were not prepared to suffer any quo. With the withdrawal of the exemption, all of them without exception immediately closed down their cigarette manufacturing units and a large majority have shifted out of the State. Clearly, if the grant of the exemption had operated as it was intended to, it would have been unnecessary to enact Section
154.
25.The High Court may have been right in construing the exemption notification as it stood. Yet the respondent can contend that the words should have been used in the exemption so as to provide for sufficient safeguards to ensure that the benefit of exemption was granted only to those industries which would in turn permanently invest in the State. By the retrospective enactment this defective expression of the object of the policy, was rectified.
26.The exemption notifications were issued under Section 5-A of the Central Excise Act, 1944 as a delegate of Parliament. In a cabinet form of Government, the executive is expected to reflect the views of the legislature. It would be impossible for the legislatures to deal in detail and cater to the innumerable problems which may arise in implementing a statute. When the power of subordinate legislation is conferred by Parliament in certain matters it can only lay down the policy and guidelines and expect that what is done by the executive is in keeping with such policy. It does of course retain control over its delegate and can exercise that control by repealing the action of the delegate. Consequently, if the executive has failed to carry out the object of Parliament, such control may be exercised by retrospectively enacting what the executive ought to have achieved.
In this case also retrospectivity is given only from the date on which Ext.P3 order was issued. All the provisions in Rule 7 of Chapter XXI as contained W.P(c).No.1356/2017 & C/cases 80 in Ext.P8 rules were available in Ext.P3 order, which the Managers were bound to follow as provided in Section 9 as well as Rule 1 of Chapter XIVA, before making appointment. However, Rule 14A can operate only from the date of notification in the gazette. Except in the case of Rule 14A, all other provisions will have retrospective effect from 13.12.2016.
40. Regarding the right of minority educational institutions, the Apex Court in T.M.A. Pai Foundation v. State of Karnataka : (2002) 8 SCC 481 held as follows:
117. While considering this right to administer, it was held that the same was not an absolute right and that the right was not free from regulation.
While referring to the observations of Das, C.J., in Kerala Education Bill, 1957 case it was reiterated in St. Xaviers' College case that the right to administer was not a right to maladminister. Elaborating the minority's right to administer at SCR p. 196, it was observed as follows: (SCC p. 748, para 30) "The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary eclecticism in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or proclaim its minority character."
118. Ray, C.J., concluded by observing at SCR p. 200, as follows:
(SCC p. 752, paras 46-47) "46. The ultimate goal of a minority institution too imparting general secular education is advancement of learning. This Court has consistently held that it is not only permissible but also desirable to regulate everything in educational and academic matters for achieving excellence and uniformity in standards of education.
47. In the field of administration it is not reasonable to claim that minority institutions will have complete autonomy. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and W.P(c).No.1356/2017 & C/cases 81 will serve the academic needs of the institution. The right of a minority to administer its educational institution involves, as part of it, a correlative duty of good administration."
xxxxxx xxxxxx xxxxx
126. It was further noticed that the right under Article 30(1) had to be read subject to the power of the State to regulate education, educational standards and allied matters. In this connection, at SCC pp. 598-99, para 59, it was observed as follows:
"59. The need for a detailed study on this aspect is indeed not necessary. The right to minorities whether religious or linguistic, to administer educational institutions and the power of the State to regulate academic matters and management is now fairly well settled. The right to administer does not include the right to maladminister. The State being the controlling authority has right and duty to regulate all academic matters. Regulations which will serve the interests of students and teachers, and to preserve the uniformity in standards of education among the affiliated institutions could be made. The minority institutions cannot claim immunity against such general pattern and standard or against general laws such as laws relating to law and order, health, hygiene, labour relations, social welfare legislations, contracts, torts etc. which are applicable to all communities. So long as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30(1)."
41. In the judgment in Rev.Sidhajbhai Sabhai v. State of Bombay : AIR 1963 SC 540, an order issued by the Government of Bombay directing to reserve 80% of the seats in the training colleges for teachers in non-Government training colleges run by minority community was held to have interfered with their rights under Article 30(1) of the Constitution of India. However, it was held even in that case that regulations can be imposed either by legislative or executive action as a condition for receiving grant or of recognition, while retaining the character of the minority W.P(c).No.1356/2017 & C/cases 82 institution effective as an educational institution. After referring to that judgment, the Apex Court in para.103 of the TMA Pai's case held that the right under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf, though Government regulations cannot destroy the minority character of the institution and that the right under Article 30 is not so absolute as to be above the law. In paragraph 107, the Apex Court held as follows:
"107. The aforesaid decision does indicate that the right under Article 30(1) is not so absolute as to prevent the Government from making any regulation whatsoever. As already noted hereinabove, in Sidhajbhai Sabhai case it was laid down that regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality and public order could be imposed. If this is so, it is difficult to appreciate how the Government can be prevented from framing regulations that are in the national interest, as it seems to be indicated in the passage quoted hereinabove. Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf. It is, of course, true that government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law. It will further be seen that in Sidhajbhai Sabhai case no reference was made to Article 29(2) of the Constitution. This decision, therefore, cannot be an authority for the proposition canvassed before us."
42. After taking note of all these judgments, the Apex Court in the judgment in Secy, Malankara Syrian Catholic College v. T. Jose, (2007) 1 SCC 386, held as follows:
19. The general principles relating to establishment and administration of W.P(c).No.1356/2017 & C/cases 83 educational institution by minorities may be summarised thus:
(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:
(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;
(b) to appoint teaching staff (teachers/lecturers and Headmasters/Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees;
(c) to admit eligible students of their choice and to set up a reasonable fee structure;
(d) to use its properties and assets for the benefit of the institution.
(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-`-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also.
(iii) The right to establish and administer educational institutions is not absolute.
Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).
(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.
(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under Article 30(1)."
It is relevant to note that the question which came up for consideration in the case was regarding appointment of the Principals of Colleges who are the Head of the institution.
43. In para.53 of the judgment in NSS case this Court held as W.P(c).No.1356/2017 & C/cases 84 follows:
"As we have already noticed, S.13 of the Act and the provisions in the KER, which we have already referred to, provides for absorption of retrenched teachers. None of these provisions are under challenge in any of the Writ Petitions from which the present Writ Appeals arise. The Managers of the aided schools have also not chosen to challenge the orders issued by the Government during the period 1999-2005, by which the Government lifted the ban on creation of posts, after imposing various conditions, including absorption of protected hands.
The provisions for appointment of protected teachers have been inserted in the rules, as a measure of social obligation in the interest of innumerable teachers, who are facing retrenchment due to division fall from the aided educational institutions whether it is run by minority or non-minority communities. Any exemption to minority educational institutions from appointing protected teachers will result in undue advantage to them and an unreasonable burden on the non-minority institutions. It will also amount to invidious discrimination, which is never intended by the makers of the Constitution. Minority institutions are given the opportunity to opt from the list of protected teachers, which is not available to others. The Teachers' bank would be having teachers from all communities and from all types of institutions. As the provisions in the Act, Rules and orders including Section 13 of the Act and Rule 5A and the impugned amendment rules apply to all schools including minority institutions equally, there cannot be any W.P(c).No.1356/2017 & C/cases 85 exemption to the minority institutions from the application of the amendment rules 2016. The Teachers' bank envisages inclusion of all teachers coming under its parameters, irrespective of the Schools from which they were retrenched. In the counter affidavit it is stated that there are 2236 aided schools having minority status. The number of protected teachers from 146 of such schools is 386 after the 2015-16 staff fixation.
The number of teachers being included in Teachers' bank is always on the ascending order, as long as the management does not take any action to protect the teachers, who happen to be retrenched from their schools, and the rules governing staff fixation, method of appointment under them are the same, they cannot have any special privilege and they cannot evade from their responsibility in appointing the teachers from Teachers' bank. No privileges can be granted to them by fastening liabilities on non-minority institutions. There is no difference in financial burden of Government on minority as well as non-minority schools. The eligibility for protection to the teachers, who are retrenched from minority as well as non-minority schools, is the same. Therefore, liability to accommodate them has to be thrust upon minority as well as non-minority schools, without causing undue advantages or disadvantages to any of such institutions. None of the W.P(c).No.1356/2017 & C/cases 86 Managers of minority schools have a case that their teachers need not be included in the teachers' bank, on retrenchment or that such teachers need not be deployed. At any rate, there cannot be any unequal treatment on the basis of the status of the institution. The freedom of the minority institutions to appoint the head of the schools who are administering their schools is not in any way interfered with.
44. Regarding the contention with respect to Section 37, this Court has already held in Poulose K.V v. Assistant Educational Officer: 1967 KLT 1021:1967KHC 316, that failure to place the rules before legislative assembly does not affect its validity. The Apex Court in the judgment in K.T. Plantations (P) Ltd. v. State of Karnataka: (2011)9 SCC 1, held that it is a curable defect. Therefore, the contention that the rules are invalid for non compliance of the provisions contained in Section 37 of the Act cannot be accepted.
45. It was pointed out that the judgment in NSS case is stayed by the Apex Court and therefore the findings in that case cannot be relied on or implemented. The direction of Government to the Managers to appoint protected teachers in the ratio of 1:1 is already upheld by a Division Bench of this Court. The liability of the Minorities to appoint protected teachers W.P(c).No.1356/2017 & C/cases 87 was upheld in it. The findings in the judgment of the learned Single Judge in W.P.(C).No.30107 of 2013, while setting aside executive orders by which staff fixation was extended and on the directions to fill up the vacancies by protected teachers, etc. cannot be reasons for invalidating statutory rules. The power to impose restriction on the right of Managers, though was interfered with in that judgment, it was upheld in the judgment in NSS case. In the light of the dictum laid down in Abdu Rahiman v. District Collector, Malappuram: 2009(4) KLT 485, I am bound to follow the judgment of the Division Bench in NSS case, notwithstanding the interim order of stay passed in that case by the Apex Court. In that case it was held as follows:
"But, till the law is amended, we are of the view that the Division Bench has taken, in the aforementioned two decisions, a plausible view on the power of the District Collector to order confiscation and lack of power on the Judicial Magistrates to entertain applications for interim custody. The said declaration of law should prevail until it is unsettled by a Full Bench of this Court or by the Apex Court or by legislative intervention. The learned Single Judges are, therefore, bound to follow the decisions in Abdul Samad (supra) and Moosakoya (supra)."
In the light of the dictum laid down in the judgment in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assn., (1992) 3 SCC 1, on the effect of a stay order passed by the High Court, this Court has to consider W.P(c).No.1356/2017 & C/cases 88 the provisions contained in the order which is stayed, because the order of stay has not invalidated the provisions of the order; the provisions therein continue to exist until it is set aside in a valid proceedings. Therefore, the provisions in the Government order, which is the subject matter of the NSS case, continue to be valid. Similar is the case with respect to the order Ext.P3.
46. Forceful arguments were advanced asserting that the Division Bench, which rendered the judgment in NSS case, did not take notice of the judgment of another Division Bench in Rev.Fr.Xavier v. State of Kerala :
1971 KLT 941: 1971 KHC 208, which is on the point and therefore the judgment in NSS case does not have any binding effect and it is 'per incurium'. Before going into the contentions as to 'per incurium', etc., I would like to examine the factual circumstances which led to Fr.Xavier's case (supra). Approval was declined to an appointment made in 1967-68, for the reason that an unqualified teacher who worked in the school was not given preference as provided in Rule 5 of Chapter XIVA, which came into force on 02.02.1965. Manager of the School filed the writ petition challenging the same. The 3rd respondent therein, who objected to the appointment, had rendered temporary service in the school in 1962-63 as an W.P(c).No.1356/2017 & C/cases 89 unqualified teacher. The contentions of the respondents were to the effect that by virtue of Rule 5, all the unqualified hands who worked as teacher, were entitled to preference for re-appointment, irrespective of their dates of initial appointments i.e whether before or after 02.2.1965. Rule 5 was enforced only with prospective effect. The temporary appointment of unqualified teachers was exclusively governed by Rule 2 of Chapter XXI of KER, which provided that such teachers would not be entitled to any preferential claim for future appointments/re-appointment by virtue of their temporary unqualified service. Even after the introduction of Rule 5 in Chapter XIVA, provision contained in Rule 2 of Chapter XXI continued to be in force. Moreover, Rule 5 itself provided the benefit to those appointed under Rule 2 of Chapter XIVA, which had also underwent amendment on 02.02.1965. The learned Single Judge had upheld the validity of the rule by virtue of the rule making power under Rules 10, 11 and 12. The Division Bench upheld the rule under Section 12 only, while observing that orders referred to in Section 11 of the Act can only be in respect of procedural and incidental matters like approval, fixation of staff strength, PTR, circumstances under which appointments are to be made temporarily or regularly, on probation, etc. It was held that the benefit of the rule would be W.P(c).No.1356/2017 & C/cases 90 applicable only to those appointed on or after 02.02.1965, the date of introduction of Rule 5. It was held as follows:
"13. That takes us to the question whether the benefit conferred by R.5 of Chapter XIV (A) of the Rules can be claimed by persons who had put in temporary service as unqualified teachers during some period prior to the date of the introduction of the rule and were not in service in the schools concerned on such date. In this context it becomes very material to remember that until R.5 came into force on 2.2.1965 temporary appointments of unqualified teachers were governed exclusively by the express stipulation contained in R.2 of Chapter XXI of the Rules that such person shall have no preferential claim for future appointment by reason of such temporary service. In making temporary appointments of unqualified teachers during the period prior to the introduction of R.5 both the Manager as well as the teacher concerned must be deemed to have entered into the arrangement on the basis of the specific condition contained in R.1 of Chapter XXI, namely that such teacher would have no right to preference in the matter of future appointment in the school. In respect of cases where the temporary appointments which were so made had already terminated and the teachers concerned had left the service of the respective schools prior to the introduction of R.5, the terms and conditions of their past service cannot be subsequently laid down by any rule framed under S.12 because that would clearly amount to giving retrospective effect to such rule so as to disrupt and rip open transactions which are past and closed."
47. The judgment in NSS case, was rendered not on the basis of Section 11 only. The Division Bench, upheld the rules after undertaking a thorough analysis of relevant provisions in the Act, Rules and various Government orders, relating to the issue. The executive order G.O(P). No.10/2010/G.Edn. dt.12.1.2010, by which Government lifted the ban on appointments on condition that Managers have to execute an agreement for filling up equal number of vacancies by appointing protected teachers and thereafter to apply the ratio of 1:1 between protected teachers and W.P(c).No.1356/2017 & C/cases 91 others against the vacancies arising thereafter. That order does not deal with qualification of the teachers, as was considered in Rev.Fr.Xavier's case. The factual circumstances arising in those cases are entirely different. On that ground the contention of the petitioners, who themselves lost before the Division Bench in that case, cannot be heard to contend that the said judgment is per incurium. The contention that these cases are covered by the Rev.Fr.Xavier's case cannot also be accepted. The arguments advanced with respect to the inapplicability of the judgment in NSS case are therefore unsustainable. The arguments relying on the judgment in Fibre Boards Pvt Ltd, Bangalore v. Commissioner of Income Tax: 2015 (10) SCC 333, asserting the requirement of consistency in the judgment in the light of Rev. Fr. Xavier's case, pointing out that the judgment in NSS case is rendered on inadvertence or oversight relying on paragraph 7 of the judgment of the Apex Court in Mamleswar Prasad & another v. Kanahaiya Lal (Dead) through Lrs: AIR 1975 SC 907 (1975 KHC 568), cannot also be accepted. In Fibre Board's case, the issue was relating to decisions rendered without considering a statutory provision - Rule A of the General Clauses Act. In Mamleswar Prasad's case the Apex Court was dealing with an identical issue which was already decided by that Court, on the request W.P(c).No.1356/2017 & C/cases 92 for a consolidated hearing on all the cases. Facts of the present case do not have any identity or similarity with Fr. Xavier's case. But it has got some similarity with the NSS case. The judgment in NSS case was rendered on the validity of an executive order, not only referring to Section 11, but also the provisions contained in Sections 12, 13, Rule 1 of Chapter XIVA, the powers of the Managers in Section 9 and various provisions contained in Chapter III, the obligations of the Managers under various rules including in clause (viii) of Rule 6 of Chapter V, Section 13, Rule 5 of Chapter XIVA and also considering the executive orders relating to ban on appointments and protection issued from time to time. These rules are either not challenged or were sustained when challenged by rulings of Division Bench and Full Bench. Moreover, going by the judgment of the Full Bench of this Court in Raman Gopi v. Kunhu Raman Uthaman: 2011(4) KLT 458, I am bound to follow the later judgment in NSS case.
48. Relying on para.11 of the judgment of the Apex Court in Municipal Corporation of Delhi v. Gurnam Kaur: (1989) 1 SCC 101, it was argued by one of the learned Counsel for the petitioners appearing for minority institutions, that the judgment in NSS case cannot be W.P(c).No.1356/2017 & C/cases 93 relied on since it does not have the force of a judgment as no reason is stated for distinguishing the judgments of the Supreme Court which considered the right of minority educational institutions, though discussion is made. I am unable to accept such a contention. In this context it is relevant to note the following observations of the Division Bench while repelling the contentions for the minority institutions.
64. In the case on hand, as we have already noticed, the provisions of the Kerala Education Act and the KER referred to herein before, which empower the Government to insist absorption of protected teachers in aided schools, are neither under challenge nor a declaration sought for to the effect that, the aforesaid provisions of the Act and the KER are violative of Art.30(1) of the Constitution of India and therefore, they can have no application to aided schools established and administered by religious or linguistic minorities. In such circumstances, the challenge made against Clauses (v) and (vi) of GO dated 12/01/2010, which form part of an executive order issued in exercise of the powers under aforesaid provisions of the Act and the KER, can only be rejected."
The provisions which were already there prior to Ext.P8 rules are not under challenge in these writ petitions also.
49. The contention raised by the learned Advocate General that the writ petitions are liable to be dismissed, for non-joinder of necessary parties, without impleading the protected teachers party to the writ petition, cannot be accepted, in the light of the judgment of the Apex Court in A. Janardhana V Union of India: AIR 1983 SC 769 and Sharafali U V State of Kerala: 2010 KHC 587.
W.P(c).No.1356/2017 & C/cases 94
50. The learned Counsel appearing for the petitioners in W.P.(c) Nos.1432 of 2017 and 1489 of 2017 argued that the case of the petitioners therein has to be considered separately, since there is no teacher retrenched from that school so far and there had never been any violation of rules or orders so far. There are other writ petitions also in which the petitioners have claimed that they have been respecting the rules and orders of the educational authorities on the question of appointment. At present all the Managers, i.e those who did not fill up the additional division vacancies contrary to the ban orders and those who did not contribute anybody to the Teachers' bank, are treated equally. Though the Rules are issued by way of a social security measure, I find force in the contention of the law abiding Managers when the field is occupied by the invaders of law. Government shall therefore make effective provisions to encourage such law abiding Managers and make appropriate modifications in such cases by granting them incentives/relaxation, along with the procedure to find out such institutions.
51. In the result, the writ petitions are disposed of with the following declarations and directions:
(i) sub rule 8 of Rule 7 of Chapter XXI of KER, to the extent it W.P(c).No.1356/2017 & C/cases 95 directs not to fill up the vacancies covered by Rules (1) and (2) even if there is no protected teacher available in the Teachers' bank maintained in any of the districts, is unsustainable;
(ii) all other provisions in the 2016 amendment rules are upheld;
(iii) in the absence of a gazette notification, before 15th July of the subsequent year, there cannot be any extension of staff strength of the previous year to the subsequent year, in terms of Rule 14A of Chapter XXIII of KER;
(iv) there shall be a direction to the Government to formulate a scheme to find out the law abiding Managers as claimed by the petitioners in W.P.(C) Nos.1432 of 2017 and 1489 of 2017 and to issue suitable provisions/appropriate modifications, to grant them incentives/relaxation on the conditions for appointing protected teachers, within a period of three months from the date of receipt of a copy of the judgment.
Sd/-
(P.V.ASHA, JUDGE) rtr/