13. Meanwhile, the Government issued GO.(P) No. 2278/99/Fin., dated 17-11-1999, G.O.(P) No. 994/2000/Fin. dated 30-6-2000 and GO.(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 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 up to 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 up to 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 2005-2006 and approve the appointments against those vacancies, if they are otherwise in order.... (ii) All appointments of Government/Aided Schools teachers made against regular additional division vacancies during 2004-2005 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" herein below:

Point No. 1: 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 would not be a 'condition' as contemplated in Section 11, since the condition under Section 11could be one relating to appointment, whereas the Government Order in question