CHERIAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS Writ Appeal is filed by the petitioner-appellant against the dismissal at the stage of admission of O. P. No. 8480 of 1988-ll. The O. P. was filed seeking the "dllowing relief's: (1) a declaration to the effect that the directions contained in Ext. P5 order of the Government are illegal, and without jurisdiction, and accordingly to quash a same; (2) to issue a writ of mandamus directing the respondents to follow the subject requirement ratio of 1:1:1 in the matter of retrenchment/ reversion of teachers consequent on reduction of posts in Annual fixation of staff. A consequential prayer of Mandamus directing the authorities not to review or vary Ext. P4 and interim relief pending the O. P. are also prayed for. When the O. P. came up for admission before llis Lordship, Sri. U. L. Bhat, J. , the learned judge issued notice to respondents 1 to 3 and after the Government filed counter taking the view that it is unnecessary to issue notice to the 4th respondent, the Manager of the Aided High School, the learned judge dealt with the O. P. , and following the decision of this Court in Radha v. Dist. Educational Officer, Badagara, 1975 KLT 617, came to the conclusion that the Government was fully competent to issue Ext. P5, though it did not satisfy the requirements of "prescribed" by rules" as contemplated under S. 2 (6) of the Kerala education Act. The learned judge was of the view that the State Government has overriding power to "prescribe" conditions of service, and as the state Government is the rule-making authority, which had given the Director of public Instruction the power to prescribe subject requirement by rule 1 (4) of chapter XIV-A of the K. E. R. the Government's order is within its competence and hence Ext. P5 executive order is perfectly competent to modify Ext. P4 order, and accordingly dismissed the O. P.

(2.) IN this Writ Appeal, Smt. K. K. Usha contends that the approach adopted by the learned Single Judge is not correct and it is against the provisions of the statute and the prescribed rules. She contended that ext. P5 is without authority of law, and under Chap, XIV-A, rule (4) the Director of Public INstruction alone is competent to issue instructions as he may deem necessary, and there is no residuary power for the Government to issue any instructions. She further contended that the subject ratio has always to be maintained, as the subject ratio is essential for proper education of the students. The declarations or instructions issued in Ext. P5 militate against s. 12 of the Act and the scheme of the Rules in Chap. XIV-A She points out that the decision referred to by the learned Single Judge is not a case of conflict between executive order and statutory rules. That decision has no application. The learned judge having noticed that Ext. P5 does not satisfy the requirements of "prescribed" as defined in S. 2 (6) has committed a mistake in invoking the theory of residuary powers for the Government to uphold Ext. P5. Under any circumstances, Ext. P5 cannot be sustained. The Writ Appeal has to be allowed and the relief's as prayed for in the O. P. have to be granted.

(3.) IN the light of the facts stated above, we have to examine the legal position to find out whether Ext. P5 is valid and in accordance with law.