Supreme Court Stays Kerala High Court Judgment Which Barred Aided School Teachers From Contesting Elections

Supreme Court on Thursday stayed the KeralaHigh Court Judgment which held that the Teachers of aided schools cannot contest in the election to the local bodies, State Legislative Assembly and Parliament.

The Bench headed by Chief Justice SA Bobde passed the order after hearing Senior Advocate V Giri.

The petition filed by Anurag 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.

Supreme Court has also issued notice to Kerala Government. 

The matter was argued by Senior Advocate V. Giri assisted by Advocate Amith Krishnan, who impressed upon the Court that the findings of the High Court by which the High Court had held that the Legislative Assembly Act, 1951, which had been in force for more than 70 years was held to be unconstitutional was erroneous and that the last date of filing of nominations was tomorrow i.e. 19.03.2021 .

The Bench has also allowed  the Petitioners in the SLP to file their nominations and contest in the upcoming General Elections to the Legislative Assembly for the State of Kerala.

It is submitted by the petitioner that the post of teacher in an aided educational institution in Kerala cannot be considered to be an office of profit as the appointment and termination of aided school teachers is done by the Manager of the school and not by the State Government. Furthermore, the service conditions of aided school teachers are entirely different from that of Government school teachers. It is submitted that merely because the salary of an aided school teacher is paid by the Government, it does not become an office of profit. 

It is also submitted that aided school teachers who are not employed directly under the State Government, cannot be said to be holding an office of profit for the purpose of Article 191(1)(a). 

The High Court has found that Section 2(iv) of the Legislative Assembly Act, 1951 which specifically excluded the holding of the office of an aided school teacher from being a disqualification to being a member of the Legislative Assembly of the State as being ultra vires Article 21A of the Constitution and being contrary to the provisions of the Right of Children to Free and Compulsory Education Act, 2009 

The petitioners submitted that the said finding is incorrect inter alia for the following reasons:

* No fundamental rights of a child available under Article 21A of the Constitution is affected, much less violated because an aided school teacher participates in the elections to the Legislative Assembly. 


* Legislative Assembly Act, 1951 enacted Entry 37 of List II of the 7th Schedule and the RTE Act which was framed under Entry 25 of List III operate in entirely different fields and do not overlap in any manner whatsoever. 

In February 2021, the Kerala High Court bench comprising the Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that a teacher of an aided educational institution, within the State of Kerala, in terms of the provisions of Kerala Education Act, 1958, and the rules framed thereunder, is a person holding an 'office of profit', under the Government of the State of Kerala.

Political right of a teacher, working in an aided school, to contest in an election, cannot, in any manner, override the Constitutional right guaranteed under Article 21A of the Constitution of India, i.e., the fundamental right of the children, the court said while declaring that Section 2(iv) of the Legislative Assembly (Removal of Disqualifications) Act, 1951 is ultra vires to Article 21A of the Constitution of India and thus unconstitutional. The bench, however, clarified that this judgment would be prospective in nature.

Section 2(iv) of Legislative Assembly (Removal of Disqualifications) Act, 1951, provides that a person shall not be disqualified for being chosen as and for being, a member of the Legislative Assembly of the State of Kerala by reason only—(iv) that he holds an office in any educational institution other than a Government institution.

Click here to read/download the order