IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 2048 of 2004(R)
1. SAMATHA LAW SOCIETY (ER.896/98),
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. NAIR SERVICE SOCIETY (CORPORATE
3. S.N.D.P.YOGAM (CORPORATE EDUCATIONAL
4. CORPORATE MANAGER,
5. CORPORATE MANAGER,
6. CORPORATE MANAGER,
For Petitioner :SRI.M.R.RAJENDRAN NAIR
For Respondent :SRI.KURIAN GEORGE KANNAMTHANAM
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.T.SANKARAN
Dated :08/10/2007
O R D E R
H.L. DATTU, C.J. & K.T. SANKARAN, J.
...................................................................................
W.P.(C) No. 2048 OF 2004
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Dated this the 8th October, 2007
J U D G M E N T
H.L. Dattu, C.J.:
This is the second round of litigation by the very same petitioner. This
is also a Public Interest Litigation. In this petition filed under Article 226 of the
Constitution of India , the petitioner-Society requests this court to quash Ext.
P2 Government Order dated 05.07.2003 and secondly, to declare that
Section 9 and 11 of the Kerala Education Act 1958 as unconstitutional and
void.
2. In so far as the second prayer is concerned, in our opinion, the
same need not be considered by us for the reason that a Division Bench of
this court, by order dated 30.11.2001 in O.P.No.22024 of 2000 and
connected matters, has observed as under:-
“24. But we do not think that we need straight away strike
down Section 11 of the Act as it now stands as arbitrary and as
violative of Articles 14, 19 or 21 of the Constitution. We think,
especially in the absence of a proper counter affidavit which
meets the very serious allegations regarding the irregularities
made in these Original Petitions that the State should be given
an opportunity to consider this serious aspect in the interests of
ensuring quality education and to prevent charges of corruption
to consider the question for itself and to take a decision thereon
leaving it to the petitioners to approach this court if they feel
aggrieved by the inaction of the State to take any remedial
W.P.(C) No. 2048 OF 2004
2
measures or by any decision that may be taken by the State in
that regard. Of course, it is not normally the part of the duty of
this court to direct what Legislation must be brought forward
by the State. That is a matter for the Legislature. When
serious constitutional aspects are highlighted and the
pernicious practices are alleged, it is necessary for the State
to consider whether a tightening up of the process is called for in
the circumstances. But this court cannot obviously direct the
State to restore the original Section 11 of the Kerala Education
Act to the statute book. But in the light of the facts disclosed it
appears to us that it is the plain duty of this court to draw the
attention of the Government to the evil projected by the
petitioners and to consider whether remedial measures are not
warranted in such circumstances. Of course, whether the old
Section 11 of the Act should be re-enacted replacing the
present Section 11 of the Act is a matter for the Legislature or
Government to consider. But we think that in exercise of our
jurisdiction under Article 226 of the Constitution of India, it is
permissible, even necessary to direct the State to bestow its
attention to the misuse or abuse of the power conferred by
Section 11 of the Act on Managers of aided schools and also to
consider whether steps should not be taken to avert the evil or
to ensure that quality is not sacrificed at the altar of avarice and
self interest. At last it is necessary for the Government to look
into this aspect in detail in the interests of education and
maintaining the proper standards in education.
25. In this view, we dispose of these Original Petitions
and the Writ Appeal by directing the State of Kerala to consider
whether any suitable changes should be brought about in the
scheme of Sections 9 and 11 of the Act as it now stands with
particular reference to the scheme as it was originally
envisaged and in fact enacted after the Supreme Court had
W.P.(C) No. 2048 OF 2004
3
given its opinion that the scheme was constitutionally valid and
did not offend Article 30 (1) of the Constitution of India. It is
necessary for the Government to consider whether the evil
sought to be averted by enacting the Kerala Education Act has
been achieved by enacting Section 11 in its present form and if
it is necessary, to do what is necessary to make the scheme
more beneficial to the State and to the citizens seeking quality
education.”
3. This Court after detailed consideration of the legal issues involved
had thought it fit not to strike down Section 11 of the Act, but had left it to the
State Government to consider whether any changes require to be made in
Section 11 of the Act.
4. The State Government, after considering the observations made by
this Court has issued the order dated 5.7.2003 and in that they have stated
that they have no intention to change the prevailing provisions under Sections
9 and 11 of the Kerala Education Act. The order passed by the State
Government dated 5.7.2003 is as under:-
“As per judgment read above the Hon’ble High Court directed
Government to consider whether any suitable changes should
be brought about in the scheme of sections 9 and 11 of K.E.
Act as it now stands with particular reference to the scheme as
it was originally envisaged and in fact enacted after Supreme
Court had given its opinion that the scheme was
constitutionally valid and did not offend Article 30(1) of the
Constitution of India.
2. Government have examined the matter in detail and
are pleased to order that it has no intention to change the
prevailing provisions under sections 9 and 11 of K.E. Act. ”
W.P.(C) No. 2048 OF 2004
4
5. As we have already noticed, this court while disposing of O.P. No.
22024 of 2000 and connected matters, had only directed the State
Government to consider as to whether any suitable changes require to be
made in the scheme of Sections 9 and 11 of the Kerala Education Act. The
State Government is of the view that such changes in the scheme of Sections
9 and 11 are not required. This appears to be the policy decision of the
State Government. A policy decision, as is well known, should not be lightly
interfered with by this court, except in those exceptional circumstances that the
Apex Court has pointed out in some of the decisions. Those exceptional
circumstances are neither pleaded nor argued. Therefore, we do not intend to
embark upon the judicial review of the policy decision of the State
Government.
6. Accordingly, we desist from interfering with the policy decision of the
State Government dated 5.7.2003 and insofar as second prayer is concerned,
since a decision has already been rendered by a Division Bench of this Court,
which, in our opinion, is binding on us, we reject the same. Accordingly, the
Writ Petition requires to be rejected and it is rejected.
Ordered accordingly.
H.L. DATTU,
CHIEF JUSTICE.
K.T. SANKARAN,
JUDGE.
lk/DK.