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Mrs. Rachel Phillip Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 6059 and 6115 of 1970
Judge
Reported inAIR1972Ker238
ActsKerala Education Act, 1959 - Sections 11; Kerala Education Rules - Rules 7, 8 and 51A; Constitution of India - Article 30(1)
AppellantMrs. Rachel Phillip
RespondentState of Kerala and ors.
Appellant Advocate K.V. Kuriakose and; N. Haridas, Advs.
Respondent Advocate V. Rama Sehnoi and; T.N. Sarala, Advs. and;Govt. Pleader
DispositionPetition dismissed
Cases ReferredD. A. V. College. Jullundur v. State of Puniab.
Excerpt:
.....1959 - petitioner teacher resigned from job - after sometimes she came back and wanted to join in school - rules of reappointment of teacher are regulatory measures - it is not intended in any manner to curtail right of administration of institution - rules intended to maintain excellence of institution in its own interest - administration not bound to reappointment of teachers once after resignation. - - both the manager as well as the teacher thereupon filed revisions to the government which passed ext. section 11 of the act, it seems to us clearly contemplates rules being made regulating the appointment of teachers'.3. but counsel contends before me that the division bench has anparentlv not noticed the observations of the supreme court in several of its decisions and therefore..........the provisions, the validity of which has been canvassed before me. though in both the cases the right of approval of the appointment is reserved in an authority, in the case before the supreme court there was no rule of guidance as to how approval should be made and as to what should be the criteria for such approval. that is not the case in rules 7 and 8 chapter xiva of the kerala education rules. not only guidelines are furnished but it is evident from these provisions that the educational authorities have no discretion whatsoever to refuse appointment if the appointment has been made in accordance with the provisions of the act rulesand orders. if the said provisions in the act rules and orders are valid and constitutional necessarily the management is bound to comply with them and.....
Judgment:
ORDER

P. Subramonian Poti, J.

1. These are petitions in which identical reliefs are sought lor. O. P. No 6059 of 1970 is bv a person who was a teacher in the school of which the 4th respondent is the manager and the O. P. No. 6113 of 1970 is bv the said manager. The petitioner in O. P. No 6059 of 1970 was working as a High School Assistant in the 4th respondent's school till 31-3-1967. She resigned her post on 1-4-1967 in order to ioin her husband who was working in Bombay and having so resigned she Proceeded to Bombay. But she had to return soon thereafter when she lost her husband. Thereupon she claimed appointment in the school and then she had to face a com-peting claim from the 3rd respondent, who. under Rule 51A of Chapter XIV-A claimed that he was entitled to preference. That rule runs as follows:--

'51-A. Qualified teachers who are relieved as per rule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same educational agency provided thev have not been appointed in permanent vacancies in schools under any other Educational Agency'.

The 3rd respondent was one of those who came within the scope of the rule. The petitioner, having resiened from the school, could not claim that she was either relieved in accordance with rule 49 or in accordance with rule 52 or on account of termination of vacancy, and therefore, she was not one entitled to the benefit of rule 51A. But when the manager preferred her to the 3rd respondent, a complaint was made bv the 3rd respondent to the 2nd respondent, the District Educational Officer. Ernakulam. Her claim was based upon having worked in the school as a High School Assistant from 27-11-1967 to 15-2-1968. The second resnondent passed orders upholding the 3rd respondent's claim and declining to approve the netitioner's appointment. This was by Ext. PI order. Both the Manager as well as the teacher thereupon filed revisions to the Government which passed Ext. P2 order dismissing the revision petitions. These orders are challenged in the Original Petitions and the onlv ground urged is that Rule 51A is viola-tive of the guarantee under Article 30(1) of the Constitution of India and for that reason should be held to be unconstitutional. It is contended by the Manager in.O. P. 6113 of 1970 that the school is a minority school having been established by a Muslim and being intended to impart education to the members of the Muslim Community. For the purpose of this petition. I am assumine that the school is a minority school without going into the correctness of that contention. If that be so. whether rule 51A could be challenged is the question that arises for decision here.

2. I do not think it is necessary for me to go into this question in detail in view of the Division Bench decision in Writ Appeal No. 44 of 1970. The learned Judges said thus:

'We see little substance in the contention that rule 51A is ultra vires Article 30(1) of the Constitution. That a fully qualified person who has once been appointed bv the Manager and discharged for want of vacancy should be re-appoint-ed unless he has meanwhile disqualified himself in some wav or other -- and there is no such allegation here -- is if it at all affects the right to administer only regulatory and not restrictive of that right. We see even less in the further contention that the rule is beyond the rule making power conferred bv the Kerala Education Act. Section 11 of the Act, it seems to us clearly contemplates rules being made regulating the appointment of teachers'.

3. But counsel contends before me that the Division Bench has anparentlv not noticed the observations of the Supreme Court in several of its decisions and therefore it is ocen to me to go into that question afresh. Particular reference is made to a passage wherein Justice Shah in Sidhraibhai v. State of Guiarat (AIR 1963 SC 540) observed thus:

'The right established bv Article 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Article 19 it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down bv so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution the right guaranteed by Art. 30 (1) will be but a 'teasing illusion' a promise of unreality. Regulations which mav lawfully be imposed either bv legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution Such regulation must satisfy a dual test -- the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to mak-ins the institution an effective vehicle of education for the minority community or other persons who resort to it.'

My attention has also been drawn to the decision of the Supreme Court in D. A. V. College. Jullundur v. State of Puniab. (AIR 1971 SC 1737). In that case. Their Lordships reiterated what was said in the earlier decision,

4. I do not see anythina in the decisions of the Supreme Court which compels me to hold that the decision of this Court has been contrary to the decisions of the Supreme Court. While in Sidhraibhai's case AIR 1963 SC 540 the Supreme Court held that regulative measures conceived in the interests not of the minority educational institution but of the public or the nation as a whole, mav not be valid and mav not iustify the curtailment of the fundamental right guaranteed under Article 30(1) of the Constitution, they did conceive of such regulatory measures in the interests of the institutions themselves. Therefore, regulatory measures if they are in the interest of the minority institutions may have to be upheld and what this Court said was only that Rule 51 A does not affect the right to administer but is only regulatory and not restrictive of that risht.

5. Another contention has been urged before me and that is that rules 7 and 8 of Chapter 14A of the Kerala Education Rules of also equally bad being violative of the fundamental right under Article 30(1) of the Constitution. These rules mav be extracted here:

'7. As soon as a teacher is appointed In a school the Manager shall immediately Issue an appointment order to the teacher In form 27 and the appointment shall be effective from the date on which the teacher is admitted to duty, provided the appointment is duly approved.

7A (1) No appointment shall be made In anticipation of sanction of posts except in the case of new schools opened or existing schools ungraded.

(2) Posts that mav fall vacant on the closing date shall not be filled UD till the reopening date.

8 (1) Three copies of appointment order all signed bv the Manager and theteacher, shall be forwarded bv theManager to the Educational Officer for approval together with such details, particulars and documents as may be required bv the Director within one week from the date of receipt of the fixation order or one week from the date of ioinine dutv of the candidates whichever is later in the manner prescribed bv the Director.

(2) The educational Officer on receipt of the appointment order and other records mentioned in Sub-rule (1) mav approve the appointment if it is in accordance with the provisions of the Act the Rule and orders issued bv Government or the Director from time to time. After an-proval one CODV shall be forwarded bv the Educational Officer to the teacher through the Manager and another copy forwarded to the Manager to be filed in the school records. The approval mav be given as expeditiouslv as possible.

(3) If the approval of appointment Is declined for any reasons the order declining approval showing reasons thereof shall be communicated to the teacher through the Manager.

(4) If the appointment order and other required particulars are not forwarded in the manner prescribed bv Director within the time specified in sub-rule (1). it shall be deemed that no such appointment has taken effect.

(5) An appeal shall lie against the order declining approval of appointment issued bv the Assistant Educational Officer, or the District Educational Officer to the District Educational Officer or the Regional Deputy Director as the case mav be. The decision of the appellate authority shall be final.

(6) No appeal shall be entertained unless it is preferred within 15 davs from the date of receipt of the order appealed against

(7) The manager shall give effect to the orders passed bv the appellate authority forthwith.

(8) The violation of these provisions will be one of the grounds for withdrawal of recognition under rule 23 of Chapter V and action under rule 7 of Chanter III of the Kerala Education Rules.'

These rules require approval for the appointment of a teacher and that approval is to be by the Educational Officer. It is open to him to withhold approval of an appointment which is not in accordance with the Act the rule and orders issued by the Government or the Director from time to time. The field of choice of the teacher is left to the manager. No interference is made with appointments made by him unless it be that the appointment violates the Act rules or orders. That will be the case where, sav an unqualifledteacher Is appointed or a teacher is ap-pointed ignoring the legitimate claim of another who by reason of his previous service is entitled to preference. Those are regulatory measures not intended in any manner to curtail the right of administration of the institution but only intended to see that the excellence of the Institution is maintained in its own interest. Reference is made in this connection to the decision in (AIR 1971 SC 1737). One of the clauses which arose for consideration in the context of the contention as to Infringement of the guarantee to the minorities under Article 30(1) of the Constitution was clause 17 of the relevant statute- That clause read thus:

'17. The staff initially appointed shall be approved by the Vice Chancellor. All subsecruent changes shall be reported to the University for Vice Chancellor's approval. In the case of training institutions, the teacher pupil ratio shall not be less than 1 : 12. Non-Government Colleges shall comply with the requirements laid down in the Ordinance governing service and conduct of teachers in non-Government colleges as may be framed by the University.'

The requirement that the staff initially appointed shall be approved and all subsequent chances shall be reported to the University for Vice Chancellor's approval were found to be one which interfered with the right of management of the College of the petitioner therein. Therefore the Supreme Court found that this cannot be made a condition for affiliation. Con-seauently the clause was struck down as offending Article 30(1) of the Constitution of India. Counsel for the petitioners urges that rules 7 and 8 in Chapter XIVA of Kerala Education Rules more or less compare with clause 17 of (the statute with which the Supreme Court was concerned in that case and therefore (the requirement of approval has to be struck down for the same reason. I see an essential difference between the provision which engaged their Lordships' attention in the case adverted to and the provisions, the validity of which has been canvassed before me. Though in both the cases the right of approval of the appointment is reserved in an authority, in the case before the Supreme Court there was no rule of guidance as to how approval should be made and as to what should be the criteria for such approval. That is not the case in rules 7 and 8 Chapter XIVA of the Kerala Education Rules. Not only guidelines are furnished but it Is evident from these provisions that the educational authorities have no discretion whatsoever to refuse appointment if the appointment has been made in accordance with the provisions of the Act rulesand orders. If the said provisions in the Act rules and orders are valid and constitutional necessarily the management is bound to comply with them and if for the purpose of seeing that there is such compliance authority is given to the educational officers, it could in no way be spelt as imposing restrictions on the right to administer the educational institutions. On the other hand, it will be only in the nature of regulation intended to enforce the provisions in the Act and rules which if good in themselves, are necessarily to be enforced. Therefore. I see no substance in the attack to rules 7 and 8.

6. Though there was an omnibus attack to Ss. 11 and 12 also, nothing has been urged before me in support of such an attack and I see no reason to hold that these sections infringe Article 30(1) of the Constitution.

In these circumstances. I see no merit In either of these Original Petitions. Both the Petitions are dismissed- In the circumstances of the case. I direct the parties to suffer cost.


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