Plea In Supreme Court Challenges Kerala High Court's Order Holding That Aided School Teachers Are Not Entitled To Contest In Elections

The plea has also challenged the High Court's declaration that Section 2(iv) of the Kerala Removal of Disqualifications Act as Ultra vires of the Indian Constitution.

The Petitioner, a High School Assistant English Teacher at an aided minority school, has filed the plea against against the impugned common final judgment and order dated 24th Feb 2021 passed by the High Court of Kerala in a batch of matters whereby it declared that Section 2(iv) of the Legislative Assembly (Removal of Disqualifications) Act, 1951 as ultra vires to Article 21-A of the Constitution of India.

The Court had held that a teacher of an aided educational institution, within the State of Kerala, in terms of the provisions of Kerala Education Act, 1958, and its rules is a person holding an 'office of profit', under the Government of the State of Kerala. The High Court had further held that Rule 56 of Chapter XIVA of the Kerala Education Rules, 1959, providing the teachers to take special leave, to contest in the elections to various bodies, would be redundant and inconsequential.

The petitioner had contended that the High Court's impugned judgment is completely erroneous in as much as it seeks to judicially prescribe an additional ground of disqualification being 'teachers of aided schools' from participating in elections. This approach is completely contrary to the constitution bench judgment of the Supreme Court in the case of Public Interest Foundation v. Union of India, where the Court ' emphatically stated ' that it is not within the domain of the Courts to prescribe disqualifications but it is for the Parliament to do so.

The petition has further argued that the impugned order has completely ignored a binding precedent pronounced by an earlier Division Bench of the High Court of Kerala itself in the case of Gopala Kurup v. Samuel Arulappan Paul, 1961 where it was categorically held that the employees of aided institutions in the State of Kerala "would not be treated as holding offices of profit under the Government". This judgement was also noted by the Apex Court in the case of Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev, (1992. Therefore, to disregard the well reasoned judgment in Gopala Kurup case merely on account of a long lapse of time is a breach of judicial disciple which should be set right by the Supreme Court.

According to the petitioner, the declaration by the High Court that the judgment would be operative prospectively is also beyond its jurisdiction as it is settled law that a judgment can be declared to be prospective only by this Hon'ble Court.

The plea has stated that the declaration of invalidity of Section 2(iv) of the Kerala Removal of Disqualification Act by the High Court was made in ignorance of law laid down by a Constitution Bench of the Supreme Court in Pramati Educational and Cultural Trust vs Union of India in 2014. The RTE 2009 Act was enacted by Parliament to provide free and compulsory education to all children of the age of six to fourteen years. The validity of the 2009 Act was challenged and considered in Society for Unaided Private Schools of Rajasthan vs Union of India, (2012) by Supreme Court's three-Judge Bench of this Hon'ble Court where the majority held that the 2009 Act was constitutionally valid . The Supreme Court in the case of Pramiti Trust had then held that the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution was ultra vires the Constitution.

However, according to the petitioner High Court's impugned judgment and order completely overlooked the fact that the 2009 Act does not apply to aided minority schools after the authoritative pronouncement of a Constitution Bench in Pramati's case and is therefore liable to be set aside on this ground alone.

According to the petitioner, it is well settled that the right to participate in an election is purely a statutory right and limitations to such participation is also to be statutorily provided for and the Courts ought not to create limitations where there exists none. The plea has cited Supreme Court's observation in the case Jyoti Basu v. Debi Ghosal, (1982) :

"It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies."

It has further cited Supreme Court's judgement in the case of Public Interest Foundation v. Union of India, (2019) where it was categorically held that Courts cannot be called upon to prescribe disqualifications beyond what has been provided for in the Constitution as well as the Representation of Peoples Act, 1951, and the exclusive domain for prescribing disqualifications is with the Parliament.

The petitioner has also argued that the High Court should not have struct down Section 2(iv) of the Kerala Removal of Disqualification Act without there being any prayer to that effect in any of the writ petitions or PILs.

The petitioner has submitted that this is a case where letting the impugned order attain finality would lead to irremediable injustice to the Petitioner and several other similarly situated persons, and the Apex Court should exercise its discretionary power to grant special leave to appeal under Article 136 of the Constitution of India.

The petition has been filed by Advocate Javedur Rehman on behalf of the petitioner