IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 WP(C).No. 2326 of 2010(M) ------------------------- PETITIONER: ------------------ C.SASIDHARAN NAIR, MANAGER, SREE SETHU PARVATHI BHAI HIGH SCHOOL, KADAKKAVOOR, THIRUVANANTHAPURAM. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DISTRICT EDUCATIONAL OFFICER, ATTINGAL, THIRUVANANTHAPURAM. BY ADVOCATE GENERAL SRI.C.P.SUDHAKARA PRASAD BY SENIOR GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 9.12.2010, ALONG WITH WPC NO. 2348 OF 2010 AND CONNECTED CASES, THE COURT ON 16.3.2011 DELIVERED THE FOLLOWING: WP(C).No. 2326 of 2010(M) ------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF THE STAFF FIXATION ORDER OF THE YEAR 2008-09 ISSUED BY THE DEO EXT.P2., P3 & P4. COPIES OF THE APPOINTMENT ORDERS OF SMT.SREEDEVI AMMA O.A. , SANUJA G.L. AND SMT.SUNITHA S. EXT.P5. COPY OF THE APPOINTMENT ORDER OF SMT.NAZEERA BEEVI DATED 1.6.2009. EXT.P6. COPY OF THE APPOINTMENT ORDER OF SMT.LATHA DATED 4.6.2008. EXT.P7. COPY OF THE STRENGTH VERIFICATION REPORT BY DEPUTY DIRECTOR. EXT.P8, P9, P10, P11, P12 & P13. DEEPTHI V., DEVIPRIYA AND A SHYNY WERE APPOINTED AS UPSA O 1.6.2009 EXT.P14 & 15. COPIES OF THE APPOINTMENT ORDERS OF THE PRASANTH V. NAIR AND PRASANTH G. NAIR DATED 1.6.2009. EXT.P16. COPY OF THE ORDER DATED 12.1.2010 ISSUED BY THE GOVERNMENT. EXT.P17. COPY OF THE G.O.(P) 178/02 DATED 28.6.2002. EXT.P18.COPY OF THE STAFF FIXATION ORDER OF THE ACADEMIC YEAR 2008-09. EXT.P19. COPY OF THE STAFF FIXATION ORDER OF THE YEAR 2009-2010. RESPONDENT'S EXHIBITS ------------------------------------- EXT.R1(A). COPY OF THE JUDGMENT IN WP(C) NO.273/07. EXT.R1(B). COPY OF G.O.(P) NO.70/79/G.EDN. DATED 05.05.1979 EXT.R1(C). COPY OF FORM 27. EXT.R1(D). COPY of the AMENDMENT DATED 26.05.2010 OF RULE 6 (VIII) CHAPTER V. ANNEXURE A: COPY OF ENGLISH VERSION OF G.O.(P) NO.10/10/G.EDN DATED 12.1.10. ANNEXURE B: COPY OF LIST OF PROTECTED TEACHERS. / TREUE COPY / P.A. TO JUDGE VK WPC NO. 2822 OF 2010 WPC NO. 3023 OF 2010 WPC NO. 3051 OF 201 WPC NO. 3051 OF 2010 WPC NO. 3067 OF 2010 WPC NO. 3169 OF 2010 WPC NO. 3688 OF 2010 WPC NO. 3828 OF 2010 WPC NO. 3905 OF 2010 WPC NO. 4067 OF 2010 WPC NO. 4158 OF 2010 WPC NO. 4187 OF 2010 WPC NO. 4260 OF 2010 WPC NO. 4297 OF 2010 WPC NO. 4481 OF 2010 WPC NO. 4674 OF 2010 WPC NO. 4688 OF 2010 WPC NO. 4697 OF 2010 WPC NO. 4757 OF 2010 WPC NO. 5070 OF 2010 WPC NO. 5286 OF 2010 WPC NO. 5362 OF 2010 WPC NO. 5545 OF 2010 WPC NO. 5761 OF 2010 WPC NO. 5844 OF 2010 WPC NO. 6039 OF 2010 WPC NO. 6065 OF 2010 WPC NO. 6574 OF 2010 WPC NO. 6590 OF 2010 WPC NO. 6603 OF 2010 WPC NO. 6793 OF 2010 WPC NO. 6816 OF 2010 WPC NO. 6832 OF 2010 WPC NO. 6834 OF 2010 WPC NO. 7036 OF 2010 WPC NO. 7442 OF 2010 WPC NO. 7557 OF 2010 WPC NO. 7958 OF 2010 WPC NO. 7959 OF 2010 WPC NO. 8012 OF 2010 WPC NO. 8574 OF 2010 WPC NO. 8630 OF 2010 WPC NO. 9332 OF 2010 WPC NO. 9354 OF 2010 WPC NO. 9408 OF 2010 WPC NO. 9434 OF 2010 WPC NO. 9518 OF 2010 WPC NO. 9630 OF 2010 WPC NO. 9707 OF 2010 WPC NO. 10147 OF 2010 WPC NO. 10549 OF 2010 WPC NO. 10552 OF 2010 WPC NO. 10557 OF 2010 WPC NO. 10575 OF 2010 WPC NO. 10596 OF 2010 WPC NO. 10597 OF 2010 WPC NO. 10654 OF 2010 WPC NO. 10655 OF 2010 WPC NO. 10668 OF 2010 WPC NO. 10810 OF 2010 WPC NO. 10831 OF 2010 WPC NO. 10853 OF 2010 WPC NO. 10855 OF 2010 WPC NO. 10909 OF 2010 WPC NO. 11130 OF 2010 WPC NO. 11152 OF 2010 WPC NO. 11509 OF 2010 WPC NO. 11753 OF 2010 WPC NO. 11971 OF 2010 WPC NO. 12118 OF 2010 WPC NO. 12284 OF 2010 WPC NO. 12476 OF 2010 WPC NO. 12488 OF 2010 WPC NO. 12852 OF 2010 WPC NO. 13015 OF 2010 WPC NO. 13136 OF 2010 WPC NO. 15225 OF 2010 WPC NO. 15244 OF 2010 WPC NO. 15355 OF 2010 WPC NO. 15563 OF 2010 WPC NO. 15577 OF 2010 WPC NO. 16961 OF 2010 WPC NO. 17006 OF 2010 WPC NO. 17226 OF 2010 WPC NO. 17851 OF 2010 WPC NO. 17937 OF 2010 WPC NO. 17975 OF 2010 WPC NO. 18611 OF 2010 WPC NO. 18657 OF 2010 WPC NO. 18667 OF 2010 WPC NO. 18704 OF 2010 WPC NO. 18714 OF 2010 WPC NO. 18843 OF 2010 WPC NO. 19698 OF 2010 WPC NO. 19718 OF 2010 WPC NO. 19728 OF 2010 WPC NO. 19767 OF 2010 WPC NO. 20151 OF 2010 WPC NO. 20279 OF 2010 WPC NO. 21281 OF 2010 WPC NO. 22236 OF 2010 WPC NO. 22551 OF 2010 WPC NO. 22892 OF 2010 WPC NO. 23157 OF 2010 WPC NO. 24072 OF 2010 WPC NO. 24466 OF 2010 WPC NO. 24602 OF 2010 WPC NO. 25062 OF 2010 WPC NO. 25528 OF 2010 WPC NO. 25902 OF 2010 WPC NO. 26097 OF 2010 WPC NO. 26413 OF 2010 WPC NO. 26459 OF 2010 WPC NO. 26861 OF 2010 WPC NO. 27445 OF 2010 WPC NO. 27564 OF 2010 WPC NO. 27611 OF 2010 WPC NO. 28092 OF 2010 WPC NO. 28198 OF 2010 WPC NO. 28283 OF 2010 WPC NO. 30194 OF 2010 WPC NO. 30876 OF 2010 WPC NO. 31920 OF 2010 WPC NO. 32613 OF 2010 WPC NO. 33438 OF 2010 WPC NO. 33552 OF 2010 WPC NO. 33775 OF 2010 WPC NO. 36195 OF 2010 WPC NO. 36196 OF 2010 WPC NO. 36337 OF 2010 WPC NO. 36484 OF 2010 WPC NO. 36943 OF 2010 WPC NO. 38149 OF 2010 WPC NO. 38192 OF 2010 WPC NO. 9477 OF 2010 WPC NO. 12937 OF 2010 WPC NO. 8988 OF 2010 WPC NO. 4937 OF 2010 WPC NO. 13071 OF 2010 WPC NO. 19914 OF 2010 WPC NO. 6960 OF 2010 WPC NO. 8560 OF 2010 WPC NO. 8570 OF 2010 WPC NO. 8701 OF 2010 WPC NO. 20540 OF 2010 WPC NO. 20877 OF 2010 WPC NO. 21116 OF 2010 WPC NO. 22288 OF 2010 WPC NO. 23464 OF 2010 WPC NO. 23779 OF 2010 WPC NO. 24913 OF 2010 WPC NO. 25073 OF 2010 WPC NO. 25141 OF 2010 WPC NO. 20620 OF 2010 WPC NO. 29128 OF 2010 WPC NO. 30461 OF 2010 WPC NO. 30462 OF 2010 WPC NO. 30499 OF 2010 WPC NO. 31346 OF 2010 WPC NO. 33241 OF 2010 WPC NO. 33814 OF 2010 WPC NO. 34785 OF 2010 WPC NO. 34798 OF 2010 WPC NO. 34956 OF 2010 WPC NO. 34960 OF 2010 WPC NO. 34997 OF 2010 WPC NO. 35021 OF 2010 WPC NO. 36086 OF 2010 WPC NO. 36124 OF 2010 WPC NO. 37149 OF 2010 WPC NO. 37508 OF 2010 WPC NO. 37833 OF 2010 WPC NO. 37883 OF 2010 WPC NO. 37987 OF 2010 WPC NO. 32293 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ----------------------------------------------------- W.P.(C). NOS.2326, 2348, 2822, 3023, 3051, 3067, 3169, 3688, 3828, 3905, 4067, 4158, 4187, 4260, 4297, 4481, 4674, 4688, 4697, 4757, 4937, 5070, 5286, 5362, 5545, 5761, 5844, 6039, 6065, 6574, 6590, 6603, 6793, 6816, 6832, 6834, 7036, 7442, 7557, 7958, 7959, 8012, 8574, 8630, 8988, 9332, 9354, 9408, 9434, 9477, 9518, 9630, 9707, 10147, 10549, 10552, 10557, 10575, 10596, 10597, 10654, 10655, 10668, 10810, 10831, 10853, 10855, 10909, 11130, 11509, 11753, 12118, 12284, 12476, 12488, 12852, 12937, 13015, 13071, 13136, 15225, 15244, 15355, 15563, 15577, 16961, 17006, 17226, 17851, 17937, 17975, 18611, 18657, 18667, 18704, 18714, 18843, 19698, 19718, 19728, 19767, 19914, 20151, 20279, 21281, 22236, 22551, 22892, 23157, 24072, 24466, 24602, 25062, 25528, 25902, 26097, 26413, 26459, 26861, 27445, 27564, 27611, 28092, 28198, 30194, 30876, 31920, 32613, 33438, 33552, 33775, 36195, 36196, 36337, 36484, 36943, 38149, 38192 of 2010, 28283 of 2008, 31346 of 2009, 6960, 8560, 8570, 8701, 11971, 20540, 20877, 21116, 22288, 23464, 23779, 24913, 25073, 20620, 29128, 30461, 30462, 30499, 32293, 33241, 33814, 34785, 34798, 34956, 34960, 34997, 35021, 36086, 36124, 37149, 37508, 37833, 37883 & 37987/10. ----------------------------------------------------- Dated this the 16th day of March, 2011 W.P.(C) NO.2326 OF 2010 AND CONNECTED CASES :: 2 :: JUDGMENT In majority of these Writ Petitions, the petitioners challenge the validity of clauses (v) and (vi) of G.O.(P)No.10/10/G.Edn. dated 12.1.2010. The petitioners therein contend that the Government Order is contrary to the provisions of the Kerala Education Act and Rules. In some of the said Writ Petitions, minority institutions contend that the aforesaid clauses of the Government Order are against the constitutional guarantee under Article 30 (1) of the Constitution of India. Some other managements and teachers filed Writ Petitions (as shown below separately) to get the Government Order implemented. The Writ Petitions challenging clauses (v) and (vi) of G.O.(P)No. 10/10:- 2. For the sake of convenience, the Government Order is extracted below: “O R D E R In the economy orders issued as per Government Order read as 1st paper above it was ordered therein W.P.(C) NO.2326 OF 2010 AND CONNECTED CASES :: 3 :: that no new post will be created in Government/Aided Schools and Colleges. Considering the practical difficulties due to the non-sanctioning of posts in schools, the General Education Department has relaxed the economy orders as per Government Orders read as second to six and as per Government Order read as sixth paper above, it was interalia ordered that restriction on appointment on additional vacancies will continue with effect from 2006-07 academic year onwards. In spite of the Government Orders, several Managers had appointed teachers and non-teaching staff in additional division vacancies. Government have not approved such appointments. Considering the request from various quarters, Government have examined the matter in detail and have decided to lift the restriction imposed on the appointment with effect from 2006-07 academic year subject to the following conditions:- i) The appointments made against additional division vacancies in Government/Aided schools from 2006-07 can be approved as per the provisions in KER. ii) The salary and allowance of the teachers and other staff so approved will be credited to the Provident Fund Accounts as and when it begins. No withdrawal from such Provident Fund Accounts will be allowed till 31/03/2015. W.P.(C) NO.2326 OF 2010 AND CONNECTED CASES :: 4 :: iii) The concerned Educational Officers will revise the staff fixation orders, for the academic years 2006-07, 2007-08, 2008-09 and 2009-10 and sanction the posts that can be allowed. While sanctioning such posts, the concerned Educational Officers will take necessary steps to ensure the students' strength in each year and the Deputy Directors of Education should ensure its accuracy. iv) Before approving each appointments the concerned Educational Officers should ensure that vacancies are available and the appointees are possessing the required qualifications. v) For approving the appointments made in the additional divisions during the period from 2006-07 to 2009-10 in the aided schools, the Managers should execute an agreement in the stamp paper worth Rs.50/- duly witnessed by Notary to the concerned Educational Officers to the effect that they will appoint protected teachers/non-teaching staff equal to such appointees in all the arising vacancies in the schools from 2010-11 onwards. The Educational Officers should submit a consolidated statement of such agreements to Government. vi) After appointing protected teachers/non teaching staff equal to the appointees in additional W.P.(C) NO.2326 OF 2010 AND CONNECTED CASES :: 5 :: division vacancies during 2006-07 to 2009-2010, the vacancies that arise as additional division vacancies in future should be filled up in the order of protected teacher and open recruit in the ratio of 1:1. vii) With regard to the appointment of protected teachers in 'new schools' ie., 'the schools started/upgraded after 1979', the orders relating to the appointment of protected teachers will be governed by the conditions in G.O.(P)No.178/2002/G.Edn. dated 28/06/02 and G.O.(P)No.46/2006/G.Edn. dated 01/02/06. 2. The concerned Educational Officers should verify and approve the appointments made during 2006- 07 onwards in additional division vacancies subject to the above conditions without waiting for the appellate orders/revisions.” 3. To comprehend the contentions raised by the petitioners and the learned Advocate General, it is necessary to refer to some of the provisions of the Kerala Education Act, 1958 (hereinafter referred to as the ‘Act’ ) and the Kerala Education Rules, 1959 (hereinafter referred to as ‘KER’). W.P.(C) NO.2326 OF 2010 AND CONNECTED CASES :: 6 :: 4. The Act is intended to provide for the better organisation and development of educational institutions in the State. Section 3 of the Act provides that the Government may regulate the primary and other stages of education and courses of instructions in Government and private schools. The Government shall take, from time to time, such steps as they may consider necessary or expedient, for the purpose of providing facilities for general education, special education and for the training of teachers. Sub Section (3) of Section 3 states that the Government may, for the purpose of providing such facilities (a) establish and maintain schools; or (b) permit any person or body of persons to establish and maintain aided schools; or (c) recognise any school established and maintained by any person or body of persons. The expressions “aided school”, “educational agency”, “existing school”, “minority schools”, “private school”, “recognised school” and “school” are defined in Section 2 of the Act. Section 10 provides that the Government shall prescribe the qualification to be possessed by persons for appointment as teachers in Government and private schools. Section 11 of the Act, on which much reliance is placed, reads as follows: W.P.(C) NO.2326 OF 2010 AND CONNECTED CASES :: 7 :: “11. Appointment of teachers in aided schools:- Subject to the rules and conditions laid down by the Government, teachers of aided schools shall be appointed by the managers of such schools from among persons who possess the qualifications prescribed under section 10.” Section 11 of the Kerala Education Act, 1958, as it originally stood, provided that the Public Service Commission shall select candidates for appointment as teachers in Government and aided schools. Section 11, as it stands now, was substituted by Amendment Act 35 of 1960. 5. Chapter III of KER deals with Management of Private schools. Rule 1 classifies private educational institutions into two categories, namely, (i) those under individual Educational Agency and (ii) those under Corporate Educational Agency. Rule 3 of Chapter III states that the management of every aided school may be vested by the Educational Agency in a person who shall be referred to as the Manager and who shall be responsible to the department for the management of the institution. Chapter V provides for opening and recognition of schools. For opening a new W.P.(C) NO.2326 OF 2010 AND CONNECTED CASES :: 8 :: school or for upgrading schools, an application should be submitted. The Government shall take a final decision in the matter. Rule 6 of Chapter V states that every application shall be accompanied by the documents mentioned in that Rule. The document referred to in clause (viii) of Rule 6 of Chapter V is “an agreement duly executed by the applicant to the effect that he is prepared to absorb qualified teachers/ non teaching staff who, after putting in service of 2 years and drawing 2 vacation salaries, have been retrenched from any of the aided high schools in the Education district or aided primary school in the Education Sub- district in which the applicant proposes to open/ upgrade the school.” Clause (viii) was substituted by S.R.O. No. 510/2010 notified as per G.O.(P) No.79/2010/ G.Edn. dated 25th May 2010, which reads: “An agreement duly executed by the applicant to the effect that he is prepared to absorb qualified teachers/ non –teaching staff who are eligible for protection as per orders issued by Government from time to time and that any such orders shall form part and parcel of the agreement as if they were incorporated in the agreement.” 6. Situations arose resulting in unexpected retrenchment of qualified teachers with long service from aided schools due to W.P.(C) NO.2326 OF 2010 AND CONNECTED CASES :: 9 :: reasons beyond their control. The number of schools increased. Some of the schools became uneconomic. The number of recognised schools in the State also increased considerably. Fall in student strength occurred and it was one of the reasons for retrenchment of teachers in aided sector. Withdrawal of recognition of schools, closure of uneconomic schools etc. were other reasons. The provisions in the Act and KER intended to cope up with these situations are Sections 13, Rule 6 (viii) of Chapter V of the KER and Rule 5A of Chapter XIV A of the KER. Section 13 of the Act provides for absorption of teachers on retrenchment. Section 13 is as follows: “13. Absorption of teachers on retrenchment:- Where any retrenchment of teachers in any aided school is rendered necessary consequent on orders of the Government relating to the course of studies of scheme of teaching or of such other matters, it shall be competent for the Government or the manager of an aided school to appoint such teachers in any Government school or aided school, as the case may be.” 7. Rule 5A of Chapter XIV A of the KER provides that “Qualified teachers who are retrenched by the opening of new schools or consequent on orders of Government relating to the W.P.(C) NO.2326 OF 2010 AND CONNECTED CASES :: 10 :: course of studies or scheme of teaching or due to withdrawal of recognition of the school for any of the reasons specified in Rules 22, 22A or 23 in Chapter V and consequent closure of the school shall be given preference for appointment to future vacancies in schools under the same Educational Agency or under other Educational Agencies. Rule 6 (viii) of Chapter V KER is already referred to. 8. Apart from these statutory provisions, the Government issued various executive orders from time to time to accommodate retrenched teachers. These executive orders are popularly known as “protection orders”. 9. Another provision which deals with protected teachers is Rule 51-A of Chapter XIV A which provides for preference for appointment to future vacancies. Second proviso therein was added in 2005 making the first preference under the Rule to protected teachers. 10. The first protection order was G.O.(MS) No.104/69/G.Edn. dated 6-3-1969, in which the following among other provisions were made: W.P.(C) NO.2326 OF 2010 AND CONNECTED CASES :: 11 :: “Government, after considering all aspects of the question are pleased to order that the lien of these teachers should be retained under the management of the aided schools in which they were working at the time of retrenchment. But they may be posted on a purely working arrangement in the next available vacancies of similar category arising in Government schools in the same educational district. But before posting them on a temporary basis in Government schools, controlling officers will verify that there are no vacancies in the same or other schools belonging to the management under which the teacher was working at the time of retrenchment. In the case of schools under corporate managements which have schools in a region or covering the entire State, the controlling officers should satisfy themselves that there are no vacancies under the corporate managements as a whole to absorb these teachers. .......... The retrenched teacher will be absorbed in the next vacancy arising in any of the aided schools under the management by whom he was appointed. The controlling officers will not approve any new appointments in the schools under these managements until and unless the retrenched hands are absorbed first. The retrenched teachers will not be entitled to salary and allowances for the period he is out of job. But as this may constitute a break in service the period during which he is out of job will be treated as eligible leave and leave on loss of pay.” W.P.(C) NO.2326 OF 2010 AND CONNECTED CASES :: 12 :: 11. In Form 27 issued under Rule 7 of Chapter XIV A of the KER, which contains the appointment order of a teacher, the Educational Officer has to certify that the appointment has been made after satisfying that no qualified retrenched teacher entitled to absorption is available. 12. After the issue of G.O.(MS) No.104/69/G.Edn. dated 6.3.1969, various Government Orders were issued providing protection to retrenched teachers, namely, G.O.(MS) No.474/69, G.O.(P) No.240/99, G.O.(P) No.112/2001, G.O.(MS) No.83/88, G.O. (P) No.178/2002, G.O.(P) No.403/2002, G.O.(P) No.46/2006 etc. Various changes were made in the matter of implementation of the orders for ‘protection’, taking into account the representation of teachers, managers and service organisations. 13. Meanwhile, the Government issued G.O.(P) No.2278/99/Fin. Dated 17-11-1999, G.O.(P) No.994/2000/Fin. Dated 30-6-2000 and G.O.(P) No.817/2001/Fin. Dated 11-6.2001 imposing ban on creation of new posts in Government and Government aided schools and colleges. The Government could do so in view of Rule W.P.(C) NO.2326 OF 2010 AND CONNECTED CASES :: 13 :: 14 of Chapter XXIII KER, which provides that “notwithstanding anything contained in these rules, if it is found necessary, Government may by orders extend any ban on creation of posts, retrenchment of staff etc., effected by them in Government schools to aided schools.” G.O. (P) No. 303/01 G.Edn. Dated 5-10-2001 was issued to relax the economy measures in so far as it relates to teachers, by providing that all appointments of teachers in Government/aided schools upto 14-7-2001 will be approved if those are in accordance with the statutory provisions of KER. G.O.(P) No.80/2002/G.Edn. dated 27-4-2002 was issued providing for approval of appointment of teachers in Government/aided schools upto 29-10-2001. It was also provided therein that “hereafter, no new vacancies consequent on staff fixation shall be filled up without the prior approval of Government”. Later the Government issued G.O.(P) No.317/2005/G.Edn. dated 17-8-2005, providing inter alia, the following: “(i) The Assistant Educational Officers/ District Educational Officers concerned will sanction additional divisions in Government/ Aided schools, eligible as per the provisions in the KER, for the year 2005-06 and approve the appointments against those vacancies, if they are otherwise in order. ........ (ii) All appointments of Government /Aided Schools teachers made against W.P.(C) NO.2326 OF 2010 AND CONNECTED CASES :: 14 :: regular additional division vacancies during 2004-05 will also be approved, if otherwise eligible as per the provisions in the KER.” 14. The Government Order in question, (G.O.(P) No.10/10/G.Edn. dated 12-1-2010), was issued in these circumstances. 15. Heard Senior Advocate Sri. K.Ramakumar, Sr. Advocate Sri.Kurian George Kannanthanam, Sr. Advocate Smt.V.P. Seemandini, Sr. Advocate Sri. Babu Varghese, Sri. K.E. Hamza, Sri.George Poonthottam, Sri.John Joseph Vettikad, Sri.George Abraham, Sri.Mohammed Haneef, Sri.Vinod Madhavan, Sri.Babu Karukapadath, learned counsel for the Petitioners and the learned Advocate General Sri.C.P.Sudhakara Prasad for the respondent. Also heard Sr. Advoate Sri.N.Sugathan and Advocate Smt.P.V. Asha, who supported the Government Order. 16. The contentions raised by the parties are discussed under the “points” hereinbelow. Point No. 1: W.P.(C) NO.2326 OF 2010 AND CONNECTED CASES :: 15 :: The petitioners contended that the Government Order is against Section 11 of the Act and Rule 3 of Chapter III KER. Section 11 speaks of “conditions laid down by the Government”. According to the petitioners, these conditions could be as provided in the Act and KER. An executive order cannot be issued to lay down ‘conditions’. Under Section 11 of the Act, the Manager is the authority to make appointment of teachers and that right cannot be divested by an executive order. As provided in Rule 3 of Chapter III KER, the management of every aided school is vested in the Manager. The Government Order in question makes inroads into the indefeasible right of the Manager to appoint teachers, according to the Petitioners. The petitioner also contended that assuming the Government Order amounts to a ‘condition’, it