High Court Kerala High Court

Samatha Law Society (Er.896/98) vs State Of Kerala on 8 October, 2007

Kerala High Court
Samatha Law Society (Er.896/98) vs State Of Kerala on 8 October, 2007
       

  

  

 
 
  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
              ...................................................................................
                            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.