Lakshmi vs The Assistant Educational Officer, Panur and Others

K.K. Mathew, J.—The prayers in this petition are for the issue of a writ of certiorari or other appropriate writ or order quashing the order

passed by the 1st respondent evidenced by Ex. P.3 dated 7-5-1965 and to issue a writ of mandamus or other appropriate order directing the 4th

respondent to consider the case of the petitioner for being selected to the T. T. C. Course. Petitioner was appointed as teacher in the Kadavathur

East Lower Primary School by the 5th respondent, the Manager, with effect from 1-12-1965. Petitioner by her application dated 13-4-1965

applied for admission to the T. T. C. Course. Petitioner has passed S. S. L. C. only in the 4th chance. After the appointment of the petitioner, the

manager sought the approval of the department. The I respondent declined the approval by Ex. P. 3 order, which runs as follows:--

The Manager, Kadavathur East L. P. S., is informed that as per orders contained in G. O. MS. No. 512/64/Edn. dated 21-9-1964, those who

have taken more than three chances to pass the S. S. L. C. examination are not eligible for appointment as untrained teacher in Primary Schools.

Since M. P. Lakshmi, the untrained teacher appointed in his school has taken 4 chances to pass S. S. L. C. she cannot be granted exemption in

the light of the abovesaid G. O.

The G. O. referred to in the order is Ex. P. 6. In Clause 2 of that G. O. it is laid down:

A pass in the S. S. L. C. examination or its equivalent examination with a minimum of 42% marks each in English, Malayalam and Mathematics

and an aggregate minimum of 40% marks. Those who have taken more than three chances to pass the S. S. L. C. or its equivalent examination,

shall not be appointed.

Petitioners'' counsel submitted that Ex. P. 3 order is bad for the reason that the Government have not prescribed the qualifications for appointment

as teachers in primary schools. Counsel relied on Section 10 of the Kerala Education Act, 1958 (hereinafter called the Act), which reads:--

The Government shall prescribe the qualifications to be possessed by persons for appointment as teachers in Government and private schools.

and contended that Government can fix the qualifications only by rules framed u/s 36 of the Act. The word prescribed has been defined in sub-

section (6) of Section 2 and the definition reads:

''prescribed'' means prescribed by rules made under this Act.

Counsel therefore submitted that Government could not have fixed the qualifications of teachers by executive orders. The word ''prescribed having

been defined in the Act, it was submitted, that that meaning must be given to the expression wherever the expression occurs in the Act and if so

done, Government have no power to fix the qualification of teachers by executive orders. It may be noted that Section 10 only uses the word

''prescribe'', and that is not defined in the Act. It is significant that under the Kerala Interpretation and General Clauses Act, 1125, words singular

shall include the plural and vice versa and words importing the masculine gender shall be taken to include feminine. The learned Advocate-general

to whom notice was issued submitted that the word ''prescribe'' means prescribed by rules or by executive orders and since the word ''prescribe''

is not defined in the Act, the court is not bound to give to that expression the meaning ascribed to the word ''prescribed'' in the definition clause.

On the other had, it was argued on behalf of the petitioner that the word ''prescribe'' has been used in sub-section (5) of Section 4 and even though

the word used in that sub-section is ''prescribe''. Government have framed rules for regulating the subject matter dealt with in the sub-section. That

sub-section reads:

The Government may prescribe the procedure to be followed at the meetings of the Board, and all incidental and ancillary matters for the proper

working of the Board.

No positive inference can be drawn from the fact that the Government have framed rules regulating the procedure or the incidental matters for the

working of the Board, even though the word used in Section 4 (5) is ''prescribe.'' It might as well be that Government could have regulated the

subject matter dealt with by executive orders. Petitioner''s counsel argued that the language of Section 11 would show that the word ''prescribe'' as

used in Section 10 can only mean prescribed by rules. Section 11 is as follows:--

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.

I am not able to accept the interpretation suggested by counsel because Section 11 only says ""prescribed u/s 10"", which might mean prescribed

by rules or executive orders. The use of the expression ""prescribed u/s 10"" in Section 11 does not inevitably lead to the conclusion that the

expression ""prescribe"" as used in Section 10 is intended to have the meaning ascribed to the word ''prescribed'' in the definition clause. Section 2

of the Act begins by saying that in this Act, unless the context otherwise requires, the meaning given in the definition clauses to the words defined

must be ascribed to them, wherever they occur. In the context in which the word ''prescribed'' is used in Section 11 it can only mean as prescribed

by rules or executive orders, if the word ''prescribe'' in Section 10 means that. So we return to the question as to what is the meaning of the word

prescribe in Section 10. The word ''prescribe'' is defined in the Shorter Oxford English Dictionary as:

I. To write first or beforehand; also, to describe beforehand. 2. To write or lay down as a rule or direction to be followed; to appoint, ordain,

direct, enjoin. To lay down a rule; to dictate, appoint, direct. Of a law or custom: To be of force. 3. To advise or order the use of (a medicine etc.)

with directions for the manner of using it. To limit; to confine within bounds.

II. Law. To make a claim by prescription; to assert a prescriptive right or claim (to or for something;) 2. To plead prescription of time against an

action, statute, or penalty; to cease to be liable on account of the lapse of the prescribed time.

On consideration of the matter, I am not inclined to think that Section 10 postulated that the qualifications for appointment as teachers can be laid

down only by rules framed by Government u/s 36 of the Act, It was argued for the petitioner that the presupposition of the Legislature when

passing the Act was that Government would frame rules prescribing the qualifications of the teachers to be appointed and relied upon the following

passage in re The Kerala Education Bill, (A. I. R. 1958 Supreme Court 956 at 975.) at page 957:

The power given to the Government by cl. 36 to make rules is expressly stated to be exercised ""for the purpose of carrying into effect the

provisions of this Act."" In other words, the rules to be framed must implement the policy and purpose laid down in its long title and the preamble

and the provisions of the other clauses of the said Bill. Further, under cl. 37 the rules have to be laid for not less than 14 days before the Legislative

Assembly as soon as possible after they are made and are to be subject to such modifications as the Legislative Assembly may make during the

session in which they are so laid. After the rules are laid before the Legislative Assembly they may be altered or amended and it is then that the

rules, as amended become effective. If no amendments are made the rules come into operation after the period of 14 days expires. Even in this

latter event the rules owe their efficacy to the tacit assent of the Legislative Assembly itself. Learned counsel appearing for the State of Kerala

submitted in picturesque language that here was what could be properly said to be legislation at two stages and the measure that will finally emerge

consisting of the Bill and the rules with or without amendment will represent the voice of the Legislative Assembly itself and, therefore, it cannot be

said that an unguided and un-controlled power of legislation has been improperly delegated to the Government. Whether in approving the rules laid

before it the Legislative Assembly acts as the Legislature of Kerala or acts as the delegatee of the Legislature which consists of the Legislative

Assembly and the Governor is, in the absence of the standing orders and rules of business of the Kerala Legislative Assembly, more than we can

determine. But all that we need say is that apart from laying down a policy for the guidance of the Government in the matter of the exercise of

powers conferred on it under the different provisions of the Bill including cl. 36, the Kerala Legislature has, by cl. 15 and cl. 37 provided further

safeguards. In this connection, we must bear in mind what has been laid down by this Court in more decisions than one, namely, that discretionary

power is not necessarily a discriminatory power and the abuse of power by the Government will not be lightly assumed. For reasons stated above

it appears to us that the charge of unconstitutionality of the several clauses which come within the two questions now under consideration founded

on Art. 14 cannot be sustained.

The passage would not show that the expression as used in the Section 10 indicates that the prescription of the qualification of teachers can only be

by rules framed u/s 36 of the Act. I would hold that Government was competent to lay down the qualifications of the teachers to be appointed in

aided schools by executive orders. If that be so, Ex. P.3 order is not open to challenge, and in view of rule 10 of Chapter XXV, petitioner was not

qualified to be selected for the T. T. C. Course.

I dismiss the petition. No costs.