Kerala High Court
Rev. Sr. Mary Angella vs State Of Kerala on 15 March, 2005
Equivalent citations: 2005(3)KLT29
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, M.N. Krishnan
JUDGMENT K.S. Radhakrishnan, J.
1. The Apex Court vide its order dated 1-4-2003 and 12-3-2003 in Civil Appeal No. 4204 of 1984 and C.A. No. 2334/2002 directed this court to rehear the appeals in the light of the decision of the Apex Court in TMA Pai Foundation & Ors v. State of Karnataka and Ors., (2002) 8 SCC 481 and hence these appeals have been posted before us for fresh hearing in the light of the principle laid down by the Apex Court in the above mentioned decision. While ordering so, the Apex Court has stated as follows:
"The several questions raised in these matters are covered by the decision of a Constitution Bench of this Court in Writ Petition No. 317/1993 - TMA Pai Foundation & Ors. etc. v. State of Karnataka & Ors. Etc. and connected batch decided on 31st October, 2002. Since larger questions have been decided by this Court, it becomes necessary for the High Court to re-examine the matters which have been decided and which are in appeal before this Court. The orders of the High Court are, therefore, set aside without expressing any opinion on merits and the matters are remitted to the High Court for fresh consideration in accordance with law."
Writ Petitions are moved by the Managers of schools run by Anglo-Indian Community. They are challenging some of rules framed by the State Government for Anglo-Indian Schools. Rules were published in the Gazette dated 10-9-1974. Certain rules according to the petitioners, violates Articles 15 and 30(1) of the Constitution of India and hence sought to be struck down. Learned single Judge had struck down Rule 14 on the ground that it violates Article 30( 1) of the Constitution of India and that Rule 132 on the ground that it violates the guarantee contained in Article 15 of the Constitution of India. Learned single Judge repelled the challenge with regard to other rules. Aggrieved by the order of the learned single Judge repelling the challenge in respect of Rules 4(c), 15, 39, 53(2), 160, 161, 162, the proviso to Rules 196, 197 and 244 petitioners filed WA. 37, 38, 39 and 61 of 1979. A Division Bench of this Court vide and judgment dated 25th September 1980* upheld the challenge so far as Rule 4(c), 39, 160, 161, Sub-rule (3) of Rule182, proviso to Rule 196, Rules 197 and 244 holding that those provisions are violative of Article 30(1) of the Constitution of India. State took up the matter before the Apex Court. Judgment of this court was set aside and the matter was remitted back. No appeal was preferred by the Management before the Apex Court and therefore we are in this case concerned only with the question as to whether Rule 4(c), Rule 39, Rule 160, Rule 161, Sub-rule (3) of Rule 182, proviso to Rule 196, Rule 197 and Rule 244 are violative of Article 30(1) of the Constitution of India. We have to examine the validity of these rules in the light of the decision of the Apex Court in TMA Pal Foundation's case as ordered by the Supreme Court.
2. Apex Court in TMA Pai Foundation's case posed as many as 11 questions of which we are concerned with question No. 5(c) which is extracted below;
"Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees etc., would interfere with the right of administration of minorities ?
Further in paragraph 124 of the judgment Apex Court has held as follows:
"In Lily Kurian v. Sr. Lewina, Reported in 1981 KLT SN 182, P. 109 this Court struck down the power of the Vice-Chancellor to veto the decision of the management to impose a penalty on a teacher. It was held that the power of the Vice-Chancellor, while hearing an appeal against the imposition of the penalty, was uncanalized and unguided. In Christian Medical College Hospital Employees' Union v. Christian Medical College Vellore Assn. this Court upheld the application of industrial law to minority colleges, and it was held that providing a remedy against unfair dismissals would not infringe Article 30. In Gandhi Faiz-e-am College v. University of Agra, a law which sought to regulate the working of minority institutions by providing that a broad-based management committee could be reconstituted by including therein the Principal and the senior most teacher, was valid and not violative of the right under Article 30(1) of the Constitution. In All Saints High School v. Government of A.P. a regulation providing that no teacher would be dismissed, removed or reduced in rank, or terminated otherwise except with the prior approval of the competent authority, was held to be invalid, as it sought to confer an unqualified power upon the competent authority. In Frank Anthony Public School Employees' Association v. Union of India the regulation providing for prior approval for dismissal was held to be invalid, while the provision for an appeal against the order of dismissal by an employee to a tribunal was upheld. The regulation requiring prior approval before suspending an employee was held to be valid, but the provision, which exempted unaided minority schools from the regulation that equated the pay and other benefits of employees of recognized schools with those in schools run by the authority, was held to be invalid and violative of the equality clause. It was held by this Court that the regulations regarding pay and allowances for teachers and staff would not violate Article 30."
We may examine the validity of various rules referred to hereinbefore in the light of the principles laid down by the Apex Court.
3. Apex Court in TMA Pai Foundation's case held that Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. The essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. Further it was also held that the conditions of aid that do not involve a surrender of the substantial right of management would not be inconsistent with constitutional guarantees, even if they indirectly impinge upon some facet of administration. The right under Article 30(1) implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. Apex Court also cautioned that it is difficult to accept that in the establishment and administration of Educational Institutions by the religious and linguistic minorities, no law of the land, even the Constitution, is to apply to them. Right to administer does not include the right to maladminister. Further it was also held that the right to administer is not absolute, but must be subject to reasonable regulations for the benefit of the institutions as the vehicle of education, consistent with national interest. General laws of the land applicable to all persons have been held to be applicable to the minority institutions also. Further it was also held by the Apex Court that it is difficult to comprehend that the framers of the Constitution would have given such an absolute right to the religious or linguistic minorities, which would enable them to establish and administer Educational Institutions in a manner so as to be in conflict with the other parts of the Constitution. Apex Court further held as follows:
"It will be wrong to presume that the Government or the Legislature will act against the Constitution or contrary to the public or national interest at all times. Viewing every action of the Government with scepticism, and with the belief that it must be invalid unless proved otherwise, goes against the democratic form of government. It is no doubt true that the Court has the power and the function to see that no one including the Government acts contrary to the law, but the cardinal principle of our jurisprudence is that it is for the person who alleges that the law has been violated to prove it to be so. In such an event, the action of the Government or the authority may have to be carefully examined, but it is improper to proceed on the assumption that, merely because an allegation is made, the action impugned or taken must be bad in law. Such being the position, when the Government frames rules and regulations or lays down norms, especially with regard to education, one must assume that unless shown otherwise, the action taken is in accordance with law. Therefore, it will not be in order to so interpret a Constitution, and Articles 29 and 30 in particular, on the presumption that the State will normally not act in the interest of the general public or in the interests of the sections concerned of the society."
On the basis of the above mentioned principle we may examine the validity of the rules governing Anglo Indian Schools.
4. The Kerala Education Act, 1958 was enacted to provide for the better organisation and development of educational institutions in the State providing a varied and comprehensive educational service throughout the State. In exercise of the powers conferred by Section 36 of the Kerala Education Act, 1958 the Government framed the Kerala Education Rules, 1959. The Act and the Rules govern various aided schools in the State of Kerala. Section 2(1) of the Act defines "aided school" to mean a private school which is recognised by and is receiving aid from the Government, but shall not include educational institutions entitled to receive grants under Article 337 of the Constitution of India, except in so far as they are receiving aid in excess of the grants to which they are so entitled. Article 337 of the Constitution of India deals with special provision with respect to educational grants for the benefit of Anglo-Indian Community.
5. Government of Kerala issued notification No. 76l4/J4/73/G.Edn. dated 26th July 1974 which was published in the Gazette dated 10th September 1974 framing the Rules for Anglo Indian Schools in the Kerala State. Provisions of the Kerala Education Act, 1958 and the Rules framed thereunder govern aided schools established and managed by minority communities like Christians, Muslims etc. However, for Anglo Indian Community separate Rules have been framed by the State Section 2(5) of the Kerala Education Act defines "minority schools" to mean schools of their choice established and administered by such minorities as have the right to do so under Clause (1) of Article 30 of the Constitution. Kerala Education Act and Rules as well as the Rules for the Anglo Indian Schools in the Kerala State framed by the Government govern the aided schools established and administered by the minority communities in the State of Kerala.
6. We are in this case concerned with the validity or otherwise of certain rules framed by the Government for the Anglo Indian Schools. For a proper understanding of those Rules it is necessary to compare the rules governing the minority communities under the Kerala Education Act and the Rules with that of the Rules framed for Anglo-Indian Schools. We may first examine the validity of Rule 4 (c) of the Rules for Anglo-Indian Schools and the parallel provisions in the Kerala Education Act and Rules governing other minority communities in the State.
Rules for Anglo-Indian Schools (aided):
Kerala Education Act & Rules:
"4(c). The appointment of the manager by the educational agency and the changes in the personnel of managers shall have the approval of the Department".
"7. Managers of Schools - (1) Any educational agency may appoint any person to be the manager of an aided school under this Act, subject to the approval of such officer as may be authorised by the Government in this behalf."
The Kerala Education Act or the Rules framed by the Government for the Anglo-Indian Schools have not interfered with right of the minority community in the matter of appointment of managers in the aided schools. While the minority community is entitled to appoint managers of their choice the statutory provision only stipulates that they should get approval of the educational authorities. Right of the minority community to appoint managers of their choice cannot be doubted. Division Bench had struck down Rule 4(c) on the ground that no guidelines have been laid down by the rule making authority for granting approval to appointment of manager. Division Bench had opined that since no proper guidelines have been laid down by the rule making authority uncanalized and unguided powers have been exercised by the department while considering the question of approval of the manager. We find it difficult to support that reasoning when we test that clause in the light of the decision of the Apex Court in T.M.A. Pai Foundation's case. In our view once the power of appointment of manager by the minority institutions is conceded the grant of approval by the department would no way affect or make an inroad to the power of appointment by the minority institution. Approval of manager is necessitated since the institutions are funded and aided by the State Government and salary of the teachers and nonteaching staff are being paid by the State Government. Managers appointed shall be responsible for the conduct of schools in accordance with the Rules for the Anglo-Indian Schools. Manager evidently has to maintain records of the teaching and non-teaching staff of the schools, since they are being paid from the funds of the State. The Manager has to give all assistance and facilities for the inspection of the school by such officer as may be authorised by the Government in that behalf. Absence of any guidelines would not render Rule 4(c) illegal and violative of Article 30(1) of the Constitution of India. We therefore uphold Rule 4(c).
7. We may point out Rules 14 and 132 were held to be bad by the learned single Judge against which no appeal was preferred by the State Government. Rule 14 has subsequently been amended by the State Government vide its notification dated 6-1 -1982 which was published in the Kerala Gazette dated 22-6-1982. Amended Rules have not been challenged by the writ petitioner, consequently Amended Rules would govern the field, therefore interference by the learned single Judge striking down earlier Rules 14 and 132 have no consequence.
8. We may now consider the validity or otherwise of Rule 39 and compare the same with the parallel provisions in the K.E.R. Rule 39 - Anglo-Indian Schools:
Rule 6 of Chapter IX of K.E.R. "Suspension and dismissal:- (1) Any pupil who is deliberately insubordinate mischievous or guilty of fraud or malpractice in connection with examinations or who is found guilty of any other offence or who by his/her proved misconduct is in the opinion of the Headmaster likely to cause an unwholesome influence on other pupils, may according to the degree of offence be censured, suspended or expelled by the Headmaster. The Headmaster of a High School may, also for adequate reasons, impose fines on pupils of standards VIII to X/XI. In case of expulsion a report shall be sent to the Department. An appeal from the expelled pupil shall lie to the Department."
"Suspension and dismissal:- (1) Any pupil who is deliberately insubordinate mischievous or guilty of fraud or malpractice in connection with examinations or who is found guilty of any other offence under these rules or who by his proved conduct is in the opinion of the Headmaster likely to cause an unwholesome influence on other pupils, may be, according to the degree or offence, censured, suspended or dismissed by the Headmaster. The Headmaster of a Secondary School may also for adequate reasons impose fines on pupils studying in Standards VIII to X. In case of dismissal a report shall be sent to the Educational Officer. An appeal from the dismissed pupil shall lie to the Educational Officer.
Note:- (i) Temporary removal and permanent removal from rolls for misconduct also mean suspension and dismissal respectively under this Rule. "Rolls" means mainly the Admission Register and includes also the Attendance Register.
(ii) When a pupil is dismissed he should be removed from the rolls with appropriate entries in the Admission Register. When a pupil is suspended, his name should not, for that reason alone, be removed from rolls but the particulars of the suspension should be entered against his name in the Attendance Register.
(iii) Before a pupil is suspended or dismissed from school, the Headmaster shall inform the pupil's guardian of the fact.
(iv) Suspension and dismissal are within the competence of Headmasters of Secondary Schools. In other Schools, the Headmaster shall make recommendation to the Educational Officer who shall be competent to deal with the matter, stating in detail the facts of the case, but he may suspend the pupil until orders are received.
(2) Any pupil who is found to have secured admission by means of a false certificate or by false representation of any kind shall be summarily dismissed with forfeiture of whatever fee he may have paid.
(3) Any pupil who seeks admission into a Government, aided, or recognised school by means of false certificate or false representations of any kind, but who does not actually obtained admission, shall be debarred from being admitted into any school for a period not exceeding one year, to be determined by the Educational Officer."
Providing an appeal to the department by an expelled pupil would not in any way violate Article 30(1) of the Constitution of India. The Apex Court in Rev. Sidhajbai Sabhai v. State of Bombay (1963) 3 SCR 837 and TMA Pai Foundation's case has held that regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality and public order could be enforced^ By entertaining an appeal Government is in no way interfering with the right to administer and manage educational institution by minority community nor with the power of suspension or dismissal. Power of appeal is conferred on the department only to see that the power is not misused. Right to administer educational institutions could not include right to maladminister.
9. Now we may examine Rules 160 and 161 and Rule 6 of Chapter XIV-A of K.E.R. which are extracted below:
Rules 160 and 161 of the Rules for Anglo-Indian Schools (aided) Rule 6 of Chapter XIV-A of K.E.R. "160. At any time before the expiry of the period of probation, the manager may by order extend the period of probation for a further period not exceeding one year if the work of the probationer is found to be unsatisfactory. In cases where the probation is extended a condition shall, unless there are special reasons to the contrary, be attached in the order of extension of probation that the probationer's increment shall be stopped until he is declared to have satisfactorily completed his probation. Such stoppage of increment shall not be treated as a penalty, but only as a condition of extension of probation and shall not have the effect of postponing future increments after he is declared to have satisfactorily completed his probation. For extension of probation in Aided Schools the approval of the Departmental Officer shall be obtained.
161. If the work of the probationer is found to be unsatisfactory at any time before the expiry of the period of probation or where such period of probation is extended the manager may, by order either terminate the probation and discharge him from service or in case probation has not been extended, extend the period of probation after giving him a reasonable opportunity of showing cause against the action proposed to be taken against him:
Provided that where a probationer has been given a reasonable opportunity of showing cause against the imposition on him of any penalties specified in items (v), (vi) and (vii) of Rule 196 and at the end of the disciplinary proceedings a tentative conclusion is arrived at to terminate his probation, a further opportunity of showing cause specifically against termination of his probation need not be given to him. In the case of Aided Schools for termination of probation, approval of Departmental Officer should be obtained.
Explanation: (i) An opportunity to show cause may be given after arriving at a provisional conclusion on the suitability or otherwise of the probationer.
(ii) The probation may be terminated and the probationer discharged at any time by the manager for want of vacancy."
"6(a). Teachers appointed under Rule 3 shall be on probation for a total period of one year on duty within a continuous period of two years. Qualified teachers in the lower grade promoted to the higher grade under Rule 43 before completing their probation shall be on probation in the higher grade as if appointed under Rule 3 in the category. At the end of the period of probation the manager may issue an order declaring him to have satisfactorily completed his probation;
Explanation:- Broken-periods of duty within a continuous period of two years can be reckoned for calculating the one year duty period. In such cases satisfactory completion of probation of the teacher concerned shall be declared by the Manager with retrospective effect from the date on which he is found eligible/suitable for such declaration of completion of probation.
(b) At any time before the expiry of the period of probation, the manger may with approval of the Educational Officer, by order extend the period of probation for a further period not exceeding one year if the work of the probationer is found to be unsatisfactory. In cases where the probation is extended, a condition shall, unless there are special reasons to the contrary, be attached in the order of extension of probation that the probationer's increment shall be stopped until he is declared to have satisfactorily completed his probation. Such stoppage of increment shall not be treated as a penalty, but only as a condition of extension of probation and shall not have the effect of postponing future increments after he has declared to have satisfactorily completed his probation;
(c) If the work of the probationer is found to be unsatisfactory at any time before the expiry of the period of probation or where such period of probation is extended, the manager may, with the approval of the Educational Officer, by order either terminate the probation and discharge him from service or in case probation has not been extended, extend the period of probation after giving him a reasonable opportunity of showing cause against the action proposed to be taken against him: Provided that where a probationer has been given a reasonable opportunity of showing cause against the imposition on him of any of the penalties specified in items (v), (vi) and (vii) of R, 65 and at the end of the disciplinary proceedings a tentative conclusion is arrived at to terminate his probation, a further opportunity of showing cause specifically against termination of his probation need not be given to him.
Explanation:-- An opportunity to show cause may be given after arriving at a provisional conclusion on the suitability or otherwise of the probationer.
(d) The probation of a teacher may be terminated and the probationer discharged at any time by the manager for want of vacancy.
(e) Notwithstanding anything contained in this Rule the power specified herein may also be exercised by the Educational Officer or by any other higher authority."
Rule 160 says that approval of the department shall be obtained for extension of probation of a probationer in aided schools. Rule 161 deals with disciplinary proceedings. In the case of aided schools for termination of probation, approval of department should be obtained. Safeguards imposed by the Rules would enable the Department to examine whether manager is acting arbitrarily or there is maladministration. Attempt is not to usurp the powers of the manager or with the minority institution or interfere with the administration of the minority institution. Applying the principle laid down by the apex court in TMA Pai Foundation's case we are not prepared to say that those provisions in any way would violate Article 30(1) of the Constitution of India.
10. We may now examine Rule 182(3) which is extracted below:
R.182(3) R.44 of Chapter XIV-A of K.E.R. "In the absence of duly qualified candidates for appointment as Headmaster, the senior most High School/Training School Assistant in the School or Unit shall be put in charge of the Headmaster for a period not exceeding one year at a time (with the approval of the Department in the case of Aided Schools)."
"44(1). The appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under Clauses (a) and (b) as the case may be of Rule 34. The manager will appoint the Head master subject to the Rules laid down in the matter. A teacher if he is aggrieved by such appointment will have the right of appeal to the Department.
Note:- Whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, the Manager shall obtain a written consent from such senior claimant renouncing his claim permanently. Such consent shall have the approval of the Educational Officer concerned.
(2)An appeal under Sub-rule (1) shall lie to the Educational Officer.
(3) A second appeal shall lie to the District Educational Officer against the order of the Assistant Educational Officer passed on an appeal preferred under Sub-rule (2) . In the case of an order passed by the District Educational Officer under Sub-rule (2), the second appeal shall lie to the Deputy Director (Education).
(4) No appeal or second appeal preferred under these rules shall be entertained unless it is preferred within one month of the date of receipt of the order appealed against."
Rule 182 (3) only says that in the absence of duly qualified candidates for appointment as Headmaster, the senior most High School Assistant/Training School Assistant in the school or unit shall be put in charge of the Headmaster for a period not exceeding one year at a time with the approval of the Department in the case of aided schools. Rule 44(1) of Chapter XIV-A of KER says that appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under Clause (a) and (b) as the case may be of Rule 34. We are of the view Rule 182(3) is only a stop gap arrangement and not intended to interfere with the right of the management in appointing Headmaster in the school of their choice. Rule 182(3) only says that in the absence of any duly qualified teacher, senior most High School Assistant shall be put in charge of the Headmaster with the approval of the department in the case of aided schools. It is always open to the management to appoint a qualified person of their choice. Contention was raised by the counsel for the petitioner that senior most High School Assistant should be put in charge would amount to interference with the administration of the minority school. We are of the view the said provision can be read down to hold that ordinarily senior most High School Assistant be put in charge. In such a case it is always open to the management to appoint a Headmaster of their choice.
11. Now we may examine Rule 196 which reads as follows:
Rule 196 Rule 65 of Chapter XIV-A of K.E.R. "196. Discipline-Penalties --The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon teachers of aided schools by managers, namely: --
(i) Censure;
(ii) withholding of increments or promotion;
(iii) (a) Recovery from pay of the whole or part of any pecuniary loss caused to the State Government by negligence or breach of orders:
(b) Recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld where such an order cannot be given effect to;
(iv) Reduction to a lower rank in seniority list or to a lower grade or post or time-
scale;
(v) Compulsory retirement;
(vi) Removal from service which shall not be disqualification for future employment;
(vii) Dismissal from service which shall ordinarily be a disqualification for future employment;
(viii) Reduction of pension.
Provided that no punishment specified in items (iv) to (viii) shall be enforced by the manager except with the previous sanction of the Department."
65. Discipline -- Penalties: The following penalties may, for good and sufficient reasons and as hereinafter provided be imposed upon teachers of aided schools, namely
(i) Censure;
(ii) Withholding of increments or promotion;
Note: (1) Withholding of increments or promotion referred to may be either permanent or temporary for a specified period;
(2) Temporary period of withholding of increments or promotion shall not be less than six months and not more than, three years. If the period is not specified in the order it will be deemed to be six months.
(3) Withholding of promotion shall not entail loss of seniority in that grade.
(4) A teacher whose promotion is withheld shall, if and when promoted to a higher grade or higher time scale subsequently on promotion take his place at the bottom of the higher grade or higher time scale.
(iii) (a) recovery from pay of the whole or part of any pecuniary loss, caused to the State Government by negligence or breach of orders;
(b) Recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld where such an order cannot be given effect to;
(iv) Reduction to a lower rank in seniority list or to a lower grade or post or time scale.
Note: (1) There duction referred to may be either permanent or temporary for a specified period.
(2) Temporary period of reduction shall not be less than six months and not more than two years. If the period is not specified in the order the period of reduction shall be deemed to be six months.
(3) An order of reduction to a lower post or to a lower time scale shall entail loss of seniority.
(4) A teacher so reduced shall take his place in the lower grade or in the lower time scale at the top of the list of teachers in that grade or time scale. He shall be considered for promotion on completion of the specified period of reduction. On promotion, he shall take his place at the bottom of the higher grade or higher time scale.
(5) The previous service in the higher grade or time scale of a teacher who has been reduced to a tower post of tower time scale shall on repromotion to the higher grade or higher time scale count for increment.
(v) Compulsory retirement.
(vi) Removal from service which shall not be disqualification for future employment.
(vii) Dismissal from service which shall ordinarily be a disqualification for future employment.
(viii) Reduction of pension.
Note:-- (1) The penalty of reduction of pension shall be imposed in such a manner that pension will not be reduced to nothing or to a nominal amount.
(2) No punishment shall be imposed without giving the person affected an opportunity to show cause against the action proposed to be taken. Explanation:-- The following shall not amount to a penalty within the meaning of this Rule:-
(i) Withholding of increments consequential to the extension of probation in accordance with the terms of appointment.
(ii) Termination of service:-
(a) of teacher appointed on probation during or at the end of the prescribed or extended period of probation or
(b) of a teacher appointed to hold a temporary appointment on the expiration of the period of appointment Rule 196 would indicate that so far as penalties (iv) to (viii) are concerned manager has to obtain previous sanction of the department before imposing those punishment considering seriousness of the penalties. The provisions of Kerala Education Act and Rules as well as the Rules for the Anglo-Indian Schools in the Kerala State stipulate that prior approval of the department be obtained before imposing major penalty. The power is not to be misused to the detriment of the teachers of the aided schools by the managers. Those provisions would not have the effect of interfering with the rights guaranteed to the minority community under Article 30(1) of the Constitution of India.
12. Now we may examine Rule 197 which reads as follows:
Rule 197 Rule 80 of Chapter XIV-A of K.E.R. "197. An appeal from any final decision taken by the manager shall lie to the Director. The appeal shall be made within one month from the date of the order."
"80. Appeal against orders imposing penalties : A teacher shall be entitled to appeal from an order imposing on him any of the penalties specified in Rule 65 to the next higher authority to whom the former authority is subordinate."
13. Now we may examine Rule 244 which reads as follows:
Rule 244 Rule 92 of Chapter XIV-A of K.E.R. "244. Notwithstanding anything contained in these rules, Government may on their own motion or otherwise, after calling for the records of the case revise any order passed by a subordinate authority which is made or is appealable under these rules, confirm, modify or set aside the order."
"92. Revision :--
(1) Notwithstanding anything contained in these rules the Government, may or their own motion or otherwise, after calling for the records of the case, revise any order passed by a Subordinate authority in respect of matters contained in this Chapter which is made or is appealable under these Rules :-
(a) confirm, modify or set aside the order;
(b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order;
(c) remit the case to the authority which made the order or to any other authority directing such further action or enquiry as they consider proper in the circumstances of the case or
(d) pass such other order as they deem fit;
Provided that-
(i) an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such enhanced penalty provided that such representation shall be based only on the evidence adduced during the enquiry;
(ii) if the Government propose to impose any of the penalties specified in items (iv) to (viii) of Rule 65- on a case where an inquiry be held and thereafter on consideration of the proceedings of such inquiry and after giving the person concerned an opportunity of making any representation which he may wish to make against such penalty pass such orders as they deem fit. Explanation:-- For the purpose of this proviso and Sub-rule (2) the person concerned shall include the manager of a School whose orders are sought to be revised by the Government.
(2) Nothing contained in the proviso to sub-rule shall be deemed to require the Government to give an opportunity for personal hearing to the person concerned and it shall be sufficient if:--
(i) Where the Government propose to revise an order on their own motion, a copy of the grounds on which the order is proposed to be revised, or
(ii) where the Government propose to revise an order in pursuance of a revision petition filed by a party, a copy of the revision petition is furnished to the person concerned along with a notice requiring him to make representation, if any, in the matter in writing within a period specified in the notice and the Government pass final orders in revision after consideration of such representation."
The rule has given varied power on the Government since aided schools are governed by the Kerala Education Act and Rules as well as Rules for Anglo-Indian Schools and State Government is paying salary to teaching and nonteaching staff. It is only to see that managers are following the statutory rules and regulations Government has given such an overriding power. The power cannot be exercised so as to interfere with the rights of minority communities. Apex court on T.M.A, Pai Foundation's case held that it would be wrong to presume that the Government or the Legislature will act against the Constitution or contrary to the public or national interest at all times. Apex court reminded viewing every action of the Government with scepticism, and with the belief that it must be invalid unless proved otherwise, goes against the democratic form of Government. The court held that when the Government frames rules and regulations or lays down norms, especially with regard to education, one must assume that unless shown otherwise, the action taken is in accordance with law. It will not be in order to so interpret a Constitution and Articles29 and 30 in particular, on the presumption that the State will normally not act in the interest of the general public or in the interests of the sections concerned of the society. Apex court held that right to administer does not include the right to maladminister. It has also been held that the right to administer is not absolute, but must be subject to reasonable regulations for the benefit of the institutions as the vehicle of education, consistent with national interest. General laws of the land applicable to all persons have been held to be applicable to all persons have been held to be applicable to the minority institutions also. It follows from the aforesaid decisions that even though the words of Article 30(1) are unqualified, the Court has held that at least certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate there is no reason why regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere, as such provisions impugned do not in anyway interfere with the right of administration of management under Article 30(1).
14. Viewed in the above legal principles laid down by the Apex Court in T.M.A. Pai Foundation's case we are not prepared to say that the Rules framed by the Kerala Government for Anglo-Indian schools is in any way violative of Article 14 or 30(1) of the Constitution of India.
Writ appeals are therefore dismissed.