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PETITIONER: M.M. DOLICHAN & ORS.

       Vs.

RESPONDENT: STATE OF KERALA & ORS.

DATE OF JUDGMENT:       14/11/2000

BENCH: G.B. Pattanaik, & B N Agarawal.

JUDGMENT:

PATTANAIK,J. L...I...T.......T.......T.......T.......T.......T.......T..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 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

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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. 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

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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 will  be  offered  as  an   optional  subject  in  place  of

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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 the  Rules  will  have  no application  to  the  institution

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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

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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  the parties to  move  this  Court  for appropriate direction.