Document Fragment View

Matching Fragments

4. Whether the stipulation in Clause 6 of G.O.(Ms) No.111/2022/G.Edn. dated 25.06.2022 requiring the Manager of the School to request the Employment Director to furnish list of eligible differently abled person to fill the backlog vacancies, is to be treated as mandatory?
5. Whether the backlog vacancies to be earmarked for differently abled persons are to be ascertained on the basis of vacancy position in the school or from the cadre strength?

Clause 6 reads thus.

"6. The school Manager shall obtain the list of eligible differently abled candidates eligible for appointment in various posts including backlog vacancies reserved for differently abled persons, from the Employment Director and the appointment should be made from the list so provided. The list should be selected by the Manager along with the appointment proposal. In case of non- receipt of qualified candidates, advertisement inviting application for appointment should be published in three important Malayalam dailies and two English dailies."

32. The Managements contend that the requirement to publish notifications in three Malayalam newspapers and two English newspapers is not valid. They contend that there cannot be a mandate to the Managers of the schools to request the Employment Director to furnish a list of differently abled persons to fill the W.P.(C). No.36659 of 2022 & con. Cases 2025:KER:33395 backlog vacancies. They contend that such a clause affects the rights of the Managers, under the Kerala Education Act, to select suitable candidates. Section 9 of the Kerala Education Act deals with the payment of the salary to the teachers in aided schools. As per Section 11 of the Act, the teachers in aided schools are to be appointed by the Managers of such schools from among persons who possess the qualifications prescribed under Section 10, subject to the Kerala Education Rules and conditions laid down by the Government (emphasis supplied). It is hence contended that there is a statutory right available to the Manager of a school to appoint a teacher, and the Government cannot intervene and issue orders and directions in this regard. In K.P.Sethumadhavan (supra), a Division Bench of this Court held that the educational authorities have no power to direct, in the first instance, that a person should be appointed as a teacher or a Headmaster, and the said power must be exercised by the Manager. This Court held that it was the Manager who had to run the school, and his power of choice, his ideas of competence, and regarding how the school should be efficiently run in the best interests of the pupils and the general W.P.(C). No.36659 of 2022 & con. Cases 2025:KER:33395 public, must not be interfered with by the educational authorities who have been created by the Statute solely for ensuring fair play and the prevention of favouritism, and denial to persons, the right they have under the Statute. The above judgment will not in any manner help the cause of the Managements which have failed to honour the mandate of the 1995 Act and the 2016 Act to appoint differently abled persons, as it is in that context that the directions contained in clause 6 have been issued. It is not in any manner an interference with the right of the Managers to appoint. It is an interference that became necessary when the Managers did not perform the duty cast on them under the Kerala Education Act and the Rules, the 1995 Act, and the 2016 Act. Moreover, Section 11 of the KE Act does not vest any absolute power in the Manager, since it specifically says that the said right to appoint is subject to the "rules and conditions laid down by the Government".

33. In P.R.Mamoo (supra), a Full Bench of this Court considered the scope and ambit of Sections 11 and 12 of the KE Act.

The Full Bench was concerned with a situation where a learned Single Judge of this Court held that Rule 67(1) of the KER 1969, W.P.(C). No.36659 of 2022 & con. Cases 2025:KER:33395 insofar as it authorises the various educational agencies and the Government to suspend a teacher of an aided school, is repugnant to Section 12(2) of the KE Act. The State challenged the said decision in a writ appeal, and the case was referred to a Full Bench. The Full Bench held that Section 11 specifies the authority to make the appointment of teachers to be the Manager of the School and the authority to lay down the rules and conditions of such appointment as the Government, and it does not in any manner empower the Government to oust the Manager and specify the authority to make appointments to be some other or itself. The Full Bench also noticed that Section 11 concedes the power to appoint teachers to the Managers, to be exercised "subject to the Rules and conditions laid down by the Government". The Court held that the laying down of Rules and conditions does not mean that the Manager can appoint only if the departmental authorities do not appoint anybody to fill the vacancies. The Court finally held that Rules 67, 75 and 77 of the KE Rules, 1959 as amended in 1965, to the extent they constitute original authority in officers (other than the Manager of the schools) to take disciplinary action and to impose penalties on teachers W.P.(C). No.36659 of 2022 & con. Cases 2025:KER:33395 (inclusive of Headmasters) in aided schools, is repugnant to the provisions of the KE Act and to that extent void. The discussions regarding the right of the Manager while considering whether the educational authorities have the power to take disciplinary action and impose penalties on teachers cannot by themselves determine the scope and extent of the power available under Section 11. The judgment in Sethumadhavan (supra), which was rendered after the decision of the Full Bench, has considered the scope of Section 11 from the context of making appointments, and this Court held that the power vests in the Management at the first instance. In Honey v. Manager, Co-operate Higher Secondary School [2022 (5) KLT 60], a Division Bench of this Court held that in the absence of any specific provision in the Statute interdicting the Manager from making appointments in a particular manner, there is no illegality in the decision taken by the Manager to appoint a very meritorious candidate on an earlier date. The Bench was dealing with the powers available under Section 7 of the KE Act and Rule 5 of Chapter 32 of the KER. Section 7 of the Act deals with the appointment of Managers and does not deal with the appointment of W.P.(C). No.36659 of 2022 & con. Cases 2025:KER:33395 teachers. Rule 5 of Chapter 32 says that the appointing authority for the various categories of posts shall be the Manager and that all appointments are to be approved by the Director. The said judgment also does not deal with the situation which is on hand. In this case, we are concerned with the validity of the Government Order which says that the differently abled candidates eligible for appointment in various posts including the backlog vacancies reserved for differently abled persons are to be made from a list which is obtained from the Employment Director and if such a list is not available, the Manager should appoint from the open market by advertising in Malayalam dailies and English dailies. As observed above, the Government Order was issued to tide over a situation where the Managers did not appoint differently abled persons to the vacancies to which they are entitled, under the 1995 Act and the 2016 Act. In such a case, Section 11 permits conditions to be laid down by the Government and I do not find anything wrong with clause 6. It is not a case where the freedom of the Management to appoint has been taken away, but a case where the right of persons with disabilities is being enforced, by laying down conditions for their appointment, when W.P.(C). No.36659 of 2022 & con. Cases 2025:KER:33395 there was a failure on the part of the Managers to make such appointments. The question whether the power of the Manager to make appointments is absolute has already been considered by the Division Bench of this Court in Haseeb (supra), and it was held in paragraph 31 of the judgment, that there is no such absolute power and the appointment can only be in accordance with the rules, and the conditions laid down by the Government and that such conditions can be imposed by executive orders as well.