Full Judgment Text
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PETITIONER:
M.M. DOLICHAN & ORS.
Vs.
RESPONDENT:
STATE OF KERALA & ORS.
DATE OF JUDGMENT: 14/11/2000
BENCH:
B.N.Agrawal, G.BPattanaik
JUDGMENT:
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JUDGMENT
PATTANAIK,J.
These batch of cases, some of which are appeals
against the judgment of the Kerala High Court, and some
others are Writ Petitions directly filed under Article 32 of
the Constitution in this Court relate to the same problem,
namely, appointment of teachers for teaching class XI and
XII and the procedure to be adopted for the same. The
Kerala Education Act, 1958 (hereinafter referred to as The
Act), was passed by the Kerala Legislature to provide for
better organisation of general education in the State of
Kerala. The said Act has been amended from time to time to
meet the needs of the situation. The Act made provisions
for the aided school, the existing school as well for
minority schools. Under the Act, qualificaion for
appointment of teachers have been provided for and mode of
appointment of teachers in aided school also has been
provided for together with the condition of service of such
teachers. Section 36 of the Act confers power on the State
Government to make Rules and all such Rules made is required
to be laid before the Legislative Assembly for not less than
fourteen days, as provided under Section 37. In exercise of
the powers under Section 36 the Kerala Education Rules have
been framed (hereinafter referred to as The Rules). There
are different chapters in the said Rule and each chapter
contains a number of Rules. The schools for General
Education are of two grades, called Primary and Secondary.
Standard 1 to 7 are collectively known as the Primary Grade
and the same again is sub-divided into Lower Primary and
Upper Primary. Standard 8 to 10 are collectively known as
Secondary Grade but when standard 11 is added to 8 to 10
then they are collectively known as Higher Secondary Grade.
Such Rules were framed keeping in view the courses of
education available in the general line at the relevant
point of time. Rule 43 in Chapter XIV provided for the
manner in which vacancies in any higher grade of pay should
be filled up by promotion of qualified hands in the lower
grade according to the seniority. The aforesaid Rule is
subject to the Rules 44 and 45, which Rules deal with the
appointment of Head Master. It is to be noted that until
National Educational Policy envisaging a common educational
structure in the country to have 10+2+3 year structure in
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the State of Kerala the schools used to impart education
till class 10 and a 2 year course used to be imparted
thereafter, called pre-degree and then the degree courses
used to be 3 years course. The level in between the
secondary and degree, which is of 2 years duration and is
commonly called Higher Secondary and the persons to be
appointed for imparting education in those two standards are
the subject matter of challenge in these group of cases.
There are different sets of appellants/applicants before us,
namely, the Teachers of Private Schools for these two
classes, the Teachers of Government Schools, the Management
of the Schools, the Private Managers of non- minority
schools, the Managers of Minority schools, as well as some
un-employed qualified persons seeking employment to the
schools. The State of Kerala issued a Government Order on
13.5.1998 indicating the Government permission for opening
up of Higher Secondary grade during the academic year
1998-99 in the schools appended to the order. It also
provided for a method for appointment of the teachers who
would be required to teach in the Higher Secondary grade.
As the method indicated thereuner was substantially varying
from the method earlier adopted, Writ Petitions were filed
before the High Court. It may be stated at this stage that
in accordance with the National Educational Policy the
system of 10+2+3 course were adopted in the State of Kerala
in the year 1992 and since then till the Government letter
dated 13.5.1998 emanated, the prescribed mode of appointment
of teachers to teach in the Higher Secondary grade was same
as the mode of appointment of teachers provided under the
Rules in Rule 43 and thus existing qualified teachers were
being appointed on the basis of their seniority and
qualification and direct recruitment was being resorted to
only when sufficient qualified teachers were not available
in the schools concerned. The Government Order dated
13.5.1998, however, changed the mode of recruitment inasmuch
as it provided for 25% of the vacancies to be reserved for
appointment from qualified High School Assistants and
Primary School Teachers whereas remaining 75% of posts in
Government Schools would be filled up by direct recruitment
through the Public Service Commission. In Private Schools
also 75% of vacancies were required to be filled up by
direct recruitment to be done by the Management. Detailed
procedure had also been indicated in the said Government
Order dated 13.5.1998. The aforesaid Government order is
extracted hereinbelow in extenso:-
Higher Secondary Education opening of Higher
Secondary Schools for 1998 Sanctioned Orders issued GENERAL
EDUCATION (T) DEPARTMENT G.O.(MS) No. 162/98/G.Edn. Dated
Thiruvananthapuram, dated 13.5.98
Read: 1. Notification No. 11042/T/97/G.Edn. dated
2.4.1997 2. G.O.(MS) No. 204/97/G.Edn. dated 12.6.1997.
ORDER
As per the G.O. read as second above, Government have
published a provisional list of Government and aided schools
in which Higher Secondary courses are proposed to be started
in the year 1998-99. It was also ordered that the
facilities available in the above schools will be verified.
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It was further ordered that after scrutinising the
verification reports and satisfying the infrastructure
available in each school, Government will notify the final
list of schools and courses to be offered in each school
from 1998-99 onwards. Accordingly as authorised in G.O.
(RT) No. 631/98/GE dated 13.2.1998 the Deputy Directors,
Education, verified the facilities available in these
schools and submitted their reports. Government after
considering the reports of the Deputy Directors, are pleased
to sanction Higher Secondary courses in 95 Government
Schools and 178 Aided Schools as detailed in the annexure to
this order. The above schools are sanctioned Higher
Secondary courses on the subjects noted against the name of
each school subject to the following conditions.
i. The schools will be permitted to open Standard XI
during the academic year 1998-99. ii. The last date for
students to submit their application form will be 30th June
1998.
2. The posts of Higher Secondary school teachers in
Government Higher Secondary Schools and Aided Higher
Secondary schools will be filled up as follows. i. 25%
vacancies will be reserved for appointment from qualified
High School Assistants and Primary School Teachers. ii.
The remaining 75% of posts in Government schools will be
filled up by direct recruitment through the Public Service
Commission. In the absence of select list with the Public
Service Commission the vacancies will be filled up by
candidates from Employment Exchange. Should there be
shortage of suitable candidates from the Employment
Exchange, Guest Lecturers may be appointed as is done in
colleges. The selection of Employment Exchange candidates
will be done by Director of Higher Secondary Education and
that of the Guest Lecturers will be done by the concerned
Deputy Director, Education by constituting a selection
committee consisting of the Principal, Deputy Director/and
President of the concerned PTA. iii. Appointments to the
75% vacancies earmarked for direct recruitment in the Aided
Higher Secondary Schools will be done by the management. If
qualified teachers are not available for appointment as
mentioned in item (i) above, the management will fill up
such vacancies also by direct recruitment. Selection of
candidates for direct recruitment in Aided Higher Secondary
schools will be done by a staff selection committee
consisting of the Manager or his representative, the
Principal of the school and a Government nominee from the
panel of officers consisting of Deputy Director, Education,
D.E.O. of the area and DIET Principal of the district. The
management can select a nominee from among the above
officers. The above officers are permitted to attend the
staff selection committee meeting without further sanction.
3. While making appointments the Manager will see
that only Part-time teachers are appointed when the periods
to be taught are less than 15 in a week. This procedure
will be followed in Government schools also when direct
recruitment is resorted to through Employment Exchange. But
the teachers appointed from General Education Subordinate
Service will be treated as appointment by promotion and they
will be fill-time teachers irrespective of the periods to be
taught.
In the schools where the course of Humanities is
sanctioned for the year 1998-99, the subject of Sociology
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will be offered as an optional subject in place of
Geography."
This Order of the Government had been assailed in the
High Court of Kerala and by the impugned judgment the High
Court having upheld the validity of the aforesaid Government
Order the present appeals by grant of Special Leave as well
as Writ Petitions have been filed.
The contention of Mr. Gopal Subramanium, learned
Senior Counsel, appearing for the teachers of the Private
Schools essentially is that standard 11 and 12 apertain to
Higher Secondary grade, and as such, the institution
continues to remain as a school and, that being the
position, the method of recruitment of teachers for teaching
the Higher Secondary grade is required to be in accordance
with the Act and the Rules made thereunder and the impugned
Order dated 13.5.1998 contravenes the statutory Rules, more
particularly, Rule 43 in Chapter XIV and, therefore, the
Order must be struck down. The contention of Mr. P.P.
Rao, learned senior counsel, appearing for the State of
Kerala as well as Mr. Vaidyanathan, learned senior counsel
appearing for the Management of the Non-Minority
Institutions are to some stage is similar but divergent at
the later stage. According to Mr. Rao the Act and the
Rules had been enacted at a point of time when Higher
Secondary grade consisting of standard 11 and 12 were not in
existence and, therefore, even if in the common parlance the
institution could be called school, but in legal parlance
the Act, as well as the Rules will have no application and
necessarily therefore the mode of recruitment as well as
service conditions of such employees could be determined and
governed by the Administrative Order. According to Mr. Rao
until issuance of Order dated 13.5.1998, it is no doubt true
that the Government by issuance of similar Administrative
Order had followed the practice as provided in Rule 43,
namely, by appointing teachers by way of promotion of the
qualified personnel available in the schools but since that
method was found to be not in the interest of the students
the Government issued the Administrative Order dated
13.5.1998 and the said Order cannot be held to be
discriminatory or violative of any provisions of the Act and
Rules, as contended by Mr. Subramanium. Mr. Vaidyanathan,
on the other hand though fully supports the contention of
Mr. Rao so far as the power of State Government to issue
orders pertaining to the method of recruitment of teachers
for the Higher Secondary Grade, but he vehemently contended
that reservation to the extent of 25% to be filled up by
promotion from amongst the teachers of the schools provided
they have necessary qualification, is grossly detrimental to
the interest of the students and since their interest if of
paramount consideration that part of the Government Order
providing for reservation to the extent of 25% should be
struck down.
We are not proposing to examine in detail the
submissions made by counsel of different parties in the
light of the documents available on record, in view of the
order we are proposing to pass in these batch of cases.
Suffice it to say that the State Government has the power to
issue Administrative Order governing the service conditions
of its employees in the absence of any statutory provisions
governing the field. In the case in hand the Government
appears to have issued the impugned order in exercise of
such power as in its opinion the provisions of the Act and
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the Rules will have no application to the institution
imparting education to standard 11 and 12 which is a concept
subsequent to the enactment of rules on account of the
National Education Policy. In course of hearing Mr. Rao
appearing for the State of Kerala produced before us a set
of draft Rules called Special Rules for Kerala Higher
Secondary School Education Services framed in exercise of
powers conferred under sub-section (1) of Section 2 of the
Kerala Public Service Act and it was submitted also that the
said set of Rules are now being examined by the Kerala
Public Service Commission. It is, therefore, undisputed
that Statutory Rules are in the offing and such Statutory
Rules once having been notified the so-called Administrative
Orders will have no force in relation to the matters
provided under the Statutory Rules. It was also pointed out
to us in course of hearing of these batch of cases that by
the interim order of this Court dated 7.12.1999, in case of
Private Aided Schools this Court permitted the schools to
appoint from amongst the existing teachers of the school if
suitably qualified candidates are available after they are
selected and recommended by a Selection Committee
constituted by the Manager or his Representative of the
school, but that appointment would be purely on ad hoc basis
as stop-gap arrangement. It was also stipulated that if
suitable candidates will not be available then appointment
could be made from the open market, but that also should be
on ad hoc basis. So far as the Government Schools are
concerned, the Order dated 1.2.1999 passed by this Court was
to the effect that the ad hoc appointments could be made
from the list already said to have been prepared for the
year 1997, but if qualified and suitable candidates are not
available in the list then it would be open to the
government to appoint persons through Employment Exchange.
Mr. Vaidyanathan in course of his submission had also urged
that several teachers have already been appointed in
accordance with the procedure prescribed in the Government
Order dated 13.5.1998.
In the aforesaid premises, and keeping in view the
fact that the Statutory Rules are in the process of being
notified we would dispose of these batch of cases with the
following direction :-
(1) All the teachers in the Private Schools who have
been appointed during the pendency of these cases pursuance
to the interim order dated 7.12.1999 would be held to be
duly appointed to the post and their services will not be
annulled. (2) All the teachers who have been appointed also
in the Government Schools pursuance to the order dated
1.2.1999 shall also be held to be duly appointed and those
appointments will not be annulled. (3) If there has been
any appointment made pursuance to the Government Order of
13.5.1998 as on today those appointments also would continue
and will not be annulled. (4) There will be no further
appointment from any source either in the Private School or
in the Government Schools from today for a period of 3
months. (5) The State Government is directed to bring into
force the Statutory Recruitment Rules within the aforesaid
period of 3 months where after recruitment to the vacancies
in the Higher Secondary Grade could be dealt with in
accordance with the said Statutory Rule. (6) If for any
unforeseen circumstances the Statutory Rule cannot be
notified and brought in force within the aforesaid period of
3 months and on such event there exists any necessity for
immediate recruitment of teachers then it would be open for
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2ge parties to move this Court for appropriate direction.