Judgment :- Balakrishnan Nair, J. The main point that arises for decision in these Writ Petitions is whether the school buildings constructed before 6.1959, which are called pre-KER buildings, can be used to run lasses, even if they are certified fit and strong for the same by the competent Engineer. The orders/circulars impugned in these Writ Petitions, which are issued by the Government/Director of Public Instruction, indicate that such buildings cannot be used to run classes. Since the aforementioned point arises for decision in all these cases, they are heard and disposed of by this common judgment. W.P(C) No.15536/2008: 2. This Writ Petition is treated as the main case, for the purpose of referring to the facts and exhibits. The petitioners are the Managers of aided schools and many of the class divisions of their schools are housed in pre-KER buildings. According to them, the pre-KER buildings, even if they do not conform to the stipulations contained in the Kerala Education Rules (for short "KER"), can be used for housing class rooms, in view of the provisions contained in Rules 5 and 6 of Chapter IV of the KER, framed under the Kerala Education Act. The dispute, if any, of continued use of pre-KER buildings for housing class rooms, was settled by a decision of this Court in O.P.No.4650/1970. Based on the said decision, the Government issued Ext.P1 order dated 2.1975, permitting continued use of the pre-KER buildings. The relevant portion of the said order reads as follows: "2. The High Court of Kerala in O.P.4650/70, has accepted the contention that the words in Rule 12 of Chapter XXIII, Kerala Education Rules, subject to availability of accommodation can relate only to the new divisions for which application is made and that it cannot relate to the existing divisions under any circumstances, because to do so would be to make the rule retrospective over for the existing divisions and observed that the construction given by the authorities to Rule 12 of Chapter XXIII making it applicable to the pre- existing divisions also, is wrong. 3. Based on the above decision, Government have allowed additional divisions in some cases without insisting on the extra space required to be provided under the rules 4. 3. Based on the above decision, Government have allowed additional divisions in some cases without insisting on the extra space required to be provided under the rules 4. Government hereby order that hereafter, for pre Kerala Education Rules class-rooms, the dimensions of class- rooms specified in Rule 6 of Chapter IV of the Kerala Education Rules will not be insisted on, i.e., if at the time of introduction of the Kerala Education Rules, a school had 10 class-rooms, that school can be considered as having accommodation for 10 divisions. For every additional new division to be opened there should be accommodation for these class-rooms as well as the extra spaces, as specified in the Kerala Education Rules." The Government also issued G.O.(Ms) No.106/88/G.Edn., dated 6.1988, a copy of which is produced as Ext.P5 in the connected W.P.(C) No.15379/2008, concerning the continued use of pre-KER buildings. The relevant portion of the said Government order reads as follows: "(2) Government have considered the objections raised by the Managers, aggrieved teachers etc., in the matter. Accordingly the following orders are issued. (A) PRE-KER BENEFITS (i) While sanctioning new divisions, the accommodation for class rooms and extra space required as per KER should be insisted on in respect of class rooms which were in existence prior to the introduction of the KER (which came into force from 6.1959). (ii) The size of the class rooms and accommodation available on 6.1959 shall be deemed to be sufficient for conducting the number of divisions which existed on that date. (iii) When minor structural alterations are made, or when Pre-KER buildings are demolished, and when new constructions are made as per KER specifications, on or after 6.59, the number of divisions which existed in the Pre-KER buildings may continued to be allowed. .(iv) For sanctioning new divisions, additional accommodation for those divisions and extra space need be insisted. In other words, if at the time of introduction of KER, a school had 10 class rooms that school can be considered as having accommodation for 10 divisions. For every additional new division to be opened, there should be the accommodation for these class rooms, as well as the extra space as specified in the KER. In other words, if at the time of introduction of KER, a school had 10 class rooms that school can be considered as having accommodation for 10 divisions. For every additional new division to be opened, there should be the accommodation for these class rooms, as well as the extra space as specified in the KER. (v) In the absence of a Pre-KER register, the Controlling Officers shall accept the copies of the Staff Fixation orders of the previous years as valid proof for allowing Pre-KER benefits for allowing the continuance of existing divisions and for sanctioning new divisions. B) EXTRA SPACE The rule regarding Extra Space shall not be applied for the Pre- KER Schools/Pre-KER Divisions." As per the orders of the Government, the petitioners were getting fitness certificates for their school buildings from the competent authority. This time also, they moved for fitness certificate for the concerned buildings. But, their motion was not considered, apparently, relying on Ext.P3 circular issued by the Government on 10.3.2006. The said circular contained various directions to ensure the safety of the school buildings, so that the lives of the students and teachers are not endangered. The only grievance canvassed by the petitioners against Ext.P3, is the inclusion of direction No.(vii) therein. The said direction reads as follows: "The existing pre-KER buildings shall be replaced with new buildings on the condition that the posts allowed in consideration of the pre-KER buildings will continue to be allowed. The buildings so constructed will be as per KER specifications. All the pre-KER buildings should be replaced with new buildings by 6.2008. If the Managers fail to reconstruct the existing pre-KER buildings within the above time, the pre-KER benefit shall be withdrawn. All officers concerned should ensure that the above instructions are followed." Thus the above circular mandates that all pre-KER buildings should be replaced by buildings constructed as per the KER specifications, before 6.2008. If the same is not done, all pre-KER benefits granted to the schools will be withdrawn. The above circular was followed by Ext.P4 circular dated 112.2007. It is claimed to be issued as a clarification of Ext.P3 circular, in view of the numerous representations received by the Director of Public Instruction (for short "DPI"). In fact, it was meant as an internal communication to educational officers under the DPI. A translation of the relevant directions in Ext.P4 is as follows: "1. It is claimed to be issued as a clarification of Ext.P3 circular, in view of the numerous representations received by the Director of Public Instruction (for short "DPI"). In fact, it was meant as an internal communication to educational officers under the DPI. A translation of the relevant directions in Ext.P4 is as follows: "1. The pre-KER buildings which are very strong and are maintained as heritage buildings, can be continued to be used for running classes, after modifying them as per the specifications in the KER and fitness certificate is obtained, ensuring safety of the buildings. 2. Unsafe buildings should be replaced by new buildings and fitness certificate should be obtained by completing the construction within 6.2008. In this matter no further extension of time will be granted." The Government, by letter dated 13.2008, directed the DPI to modify Ext.P4 circular. The DPI was directed to insist for modification of the area of the class rooms in accordance with the KER specifications and thereby reduce the number of class rooms in each pre-KER buidling. Pursuant to that, the DPI issued Ext.P5 circular dated 17.3.2008. By Ext.P5, direction No.1 in Ext.P4, the translation of which was quoted above, was modified. A translation of the said direction in Ext.P5 reads as follows: "The pre-KER buildings which are very strong and are maintained as heritage buildings, can be continued to be used for running classes, after modifying them as per the specifications in the KER and fitness certificate is obtained, ensuring safety of the buildings. When re-arrangements are made, the number of class rooms in each building can be reduced, so that each class will have the area as per the specifications in the KER." The above circular was followed by Government letter dated 29.2008, a copy of which is produced as Ext.P7 in W.P.(C) No.15274/2008. Ext.P7 is, in fact, a direction issued to the DPI, while answering his letter dated 7.2008. A translation of Ext.P7 reads as follows: "Sir, Sub: General Education - Request to retain pre-KER buildings - Reg. Ref: Your letter No.W1/40614/08/DPI dated 7.2008. Regarding the above matter, the following details are given for emergent action. 1. The pre-KER buildings which are very strong and are maintained as heritage buildings, can be continued to be used for running classes, after modifying them as per the specifications in the KER and fitness certificate is obtained, ensuring safety of the buildings. Regarding the above matter, the following details are given for emergent action. 1. The pre-KER buildings which are very strong and are maintained as heritage buildings, can be continued to be used for running classes, after modifying them as per the specifications in the KER and fitness certificate is obtained, ensuring safety of the buildings. While permitting so, the number of class rooms can be allowed without insisting for the length and breadth specified in the KER for them, but without reducing the area specified therein. 2. Unsafe buildings shall not be taken into account for staff fixation. Such buildings, taking into account the safety of the students and teachers, shall be removed immediately. Yours faithfully, James Varghese, Government Secretary." 3. The writ petitioners submit that the cumulative effect of the above orders is that some of the pre-KER buildings, even if they are strong and fitness certificates are obtained for them, will not be reckoned for the purpose of staff fixation, if they do not have the area prescribed in the KER. They point out that the Government have every power to take steps to ensure the safety of the buildings. But, it cannot insist that strong buildings having fitness certificates cannot be used for running classes, for the reason that they are not heritage buildings or that they do not have the area specified under the KER. The petitioners would point out that the decision of this Court quoted in Ext.P1, lays down that the specifications in the KER can be enforced only in relation to class rooms meant for additional divisions sanctioned. In other words, the use of the existing buildings for housing the existing class divisions as on 6.1959 is not prohibited by the provisions of the KER. The said declaration of law made by this Court has become final and in conformity with that, the Government have issued Ext.P1 also. So, in the absence of any amendment to the Act or the Rules, the Government cannot issue any direction against the continued use of pre-KER buildings. Such directions are unauthorised and liable to be interfered with. The petitioners pray for quashing the offending portions in the aforementioned orders/circulars issued by the Government in 2006 and subsequently, imposing new conditions for the continued use of the pre-KER buildings. 4. The Government have filed a counter affidavit in W.P.(C) No.15379/2008. Such directions are unauthorised and liable to be interfered with. The petitioners pray for quashing the offending portions in the aforementioned orders/circulars issued by the Government in 2006 and subsequently, imposing new conditions for the continued use of the pre-KER buildings. 4. The Government have filed a counter affidavit in W.P.(C) No.15379/2008. Memos have been filed in all other Writ Petitions, along with the copy of the said counter affidavit, adopting the said affidavit as the counter affidavit in all other cases. The Government supported its actions and that of its officers, stating that they are mainly meant to ensure the safety of the students and teachers. They have the necessary powers under the provisions of the KER, to issue such directions and the Managers of aided schools are bound to go by them. Therefore, the respondents prayed for dismissal of the Writ Petitions. 5. We heard Sri.Kurian George Kannanthanam, learned senior counsel for the petitioners and Sri.Benny Gervasis, learned senior Government Pleader and Smt. R. Bindu, learned Government Pleader for the respondents. We also had the benefit of hearing Sri. K. Ramakumar, learned senior counsel and also M/s. V.M. Kurian, George Poonthottam, R.K.Muraleedharan, P.M.Pareeth, C.Khalid, P.V. Jayachandran, Kaleeswaram Raj, Jiji Thomas, Sarvothaman, T.K. Vipindas, K. Abdul Jawad, A. Sudheesh and R.Rajesh Kormath, who were appearing in the connected Writ Petitions. 6. The learned counsel for the petitioners took us through sub-section (3) of Section 2 of the Kerala Education Act, defining "existing school" and also sub-sections (4) and (5) of Section 3. They pointed out that the above provisions would show that all existing schools on the date of commencement of the Kerala Education Act shall be deemed to have been established in accordance with the said Act. It is also evident that after the commencement of the Kerala Education Act, establishment of new schools or opening of higher classes in private schools will be subject to the provisions of the said Act and the Rules framed thereunder. They also placed reliance on Rules 5 and 6 of Chapter IV of the KER. Rule 5 deals with accommodation and Rule 6 deals with dimensions of class rooms. Next the petitioners referred to Rule 12 of Chapter XXIII of the KER. Special reference was made to the opening sentence of Rule 12, which reads as follows: "12. They also placed reliance on Rules 5 and 6 of Chapter IV of the KER. Rule 5 deals with accommodation and Rule 6 deals with dimensions of class rooms. Next the petitioners referred to Rule 12 of Chapter XXIII of the KER. Special reference was made to the opening sentence of Rule 12, which reads as follows: "12. Strength of teaching staff:- Subject to the availability of accommodation the strength of teaching staff in each school be fixed by the Educational Officer in accordance with the above general provisions, once a year, after finalising the number of divisions based on the effective strength of the class as on the 6th working day from the re-opening date in June." The words "subject to availability of accommodation" in the above Rule were inserted by an amendment published in the gazette dated 28.7.1970. This Court in Manager, M.T.M.U.P. School Puthiyedom v. A.E.O. (O.P.No.4650/1970) held that the said amendment has only prospective effect. Accommodation in accordance with the KER can be insisted only for divisions sanctioned thereafter. The learned counsel also pointed out that the specifications introduced as per the KER were meant to govern buildings erected in future for housing new class divisions or new schools. The aforementioned statutory provisions including the Rules as interpreted by this Court in O.P.No.4650/1970 permit continuance of the existing buildings for housing classes, even though they do not conform to the specifications in the KER. So, the directions issued to demolish the pre-KER buildings, even though they are strong and certified to be fit, run counter to the statutory provisions. By issuing executive instructions in the form of Government orders, letters or circulars, the effect of statutory rules cannot be nullified. So, the orders/letters/circulars mentioned above to the extent they are impugned, are liable to be quashed, it is submitted. 7. The learnedGovernment Pleader, on the other hand, took us through sub-sections (3) and (9) of Section 2, sub-section (4) of Section 3 and sub-section (3) of Section 7, in support of his submissions. The learned Government Pleader also took us through Rule 9 of Chapter III and Rules 5 (3A), 6 and 8(3) of Chapter IV of the KER. According to the learned Government Pleader, the Government and the DPI are empowered to issue directions to the Managers and the Managers are bound to obey such orders/directions. The learned Government Pleader also took us through Rule 9 of Chapter III and Rules 5 (3A), 6 and 8(3) of Chapter IV of the KER. According to the learned Government Pleader, the Government and the DPI are empowered to issue directions to the Managers and the Managers are bound to obey such orders/directions. In the present case, the directions were issued to ensure safety of the students and teachers. Recently, the Apex Court also issued certain directions governing safety measures to be adopted in schools, in Avinash Mehrotra v. Union of India [ILR 2009(2) Kerala 341]. Therefore, the Government are bound to take steps to implement the directions contained in the said judgment. The Government have done everything in good faith and to safeguard the public interest. So, the learned Government Pleader prayed for dismissal of the Writ Petitions. 8. Before dealing with the rival submissions, we will refer to the statutory provisions relied on by both sides. "Existing School" defined in Section 2(3) of the Kerala Education Act reads as follows: " existing school means any aided, recognised or Government school established before the commencement of this Act and continuing as such at such commencement." Sub-sections (4) and (5) of Section 3, dealing with existing schools and establishment of new schools respectively are as follows: "(4) All existing schools shall be deemed to have been established in accordance with the Act: Provided that the educational agency of an aided school existing at the commencement of this section may, at any time within one month of such commencement, after giving notice to the Government of its intention so to do, opt to run the school as a recognised school, subject to the condition that the services of the teachers and other members of the staff of the school shall not be dispensed with or their conditions of service under the management varied to their disadvantage on account of the exercise of this option. (5) After the commencement of this Act, the establishment of a new school or the opening of a higher class in any private school shall be subject to the provisions of this Act, and the rules made thereunder and any school or higher class established or opened otherwise then in accordance with such provisions shall not be entitled to be recognised by the Government." Section 7(3) mandates the Manager to maintain the school properties, which include its buildings also, in proper and good condition. It reads as follows: "(3) The properties of the school shall be in the possession and control of the manager who shall be responsible to maintain them in proper and good condition." Rule 9(1) of Chapter III of the KER provides that the Manager shall abide by the orders that may be issued from time to time by the Government and the Department in conformity with the provisions of the Act and the Rules issued thereunder. The said provision reads as follows: "9. Duties and powers of the managers of Aided Schools:-(1) The Manager shall be responsible for the conduct of the school strictly in accordance with the provisions of the Kerala Education Act and the Rules issued thereunder. He shall also abide by the orders that may be issued from time to time by the Government and the Department in conformity with the provisions of the Act and the rules issued thereunder." Rule 9(3) is also relevant in this case, which reads as follows: "(3) The Manager shall provide site, building, staff, equipments, furniture etc., as per Rules issued under the Education Act and as per orders that may be issued from time to time by the Government and the Department in conformity with the provisions of the Act and the rules issued thereunder." Rules 5 and 6 of Chapter IV of the KER, dealing with accommodation and dimensions of class rooms are as follows: "5. Accommodation:- (1) Every school shall have buildings of specifications and plans approved by the Director and the buildings exclusive of veranda shall be of dimensions sufficient to provide accommodation for the various rooms as specified in the following schedule:- SCHEDULE TABLE Note:- There should also be a waiting room for girls in mixed schools coming under the last three types. Accommodation:- (1) Every school shall have buildings of specifications and plans approved by the Director and the buildings exclusive of veranda shall be of dimensions sufficient to provide accommodation for the various rooms as specified in the following schedule:- SCHEDULE TABLE Note:- There should also be a waiting room for girls in mixed schools coming under the last three types. (2) No school building shall be altered or added to materially except in accordance with a plan approved by the Department. (3) The construction of buildings for Secondary Schools in future should be so designed that it maybe possible to adjust the design in course of time without much change in the original building so as to provide for additional accommodation for introducing two or more types of diversified courses. (4) In the construction of school building the following instructions shall be specially noted:" (3A) No school shall be permitted to function if the roof of the school building is a thatched one or the building is roofed with easily inflammable materials. xxxxx xxxxx xxxxx xxxxx "6. Dimensions of Class Rooms:- (1) The dimensions of every class room shall be such as to provide, on the average, a minimum of eight square feet of floor space and eight cubic feet of air space per pupil on the rolls in the class or classes accommodated in the room. The dimensions of every class room in Upper Primary or Secondary (High and Higher Secondary) schools should be 6m x 6m x 3.7m and in a Lower Primary School 6m x 5.5m x 3m. In the case of building for Upper Primary and Secondary Schools a veranda 1.5m wide should be provided at least on the front side. The superficial area of the floor, the cubic contents of the room, and the maximum number of pupils which may be accommodated in accordance with the details above shall be clearly marked in a conspicuous place in each class room. (2) Class rooms shall be separated with walls or with partitions put up to a height of at least 2.4m." Rule 8(2) speaks of the liability of the Manager to maintain school buildings in good repair. The said provision reads as follows: "8. Repairs and annual Maintenance:- .(1) ................................................................................................ (2) Class rooms shall be separated with walls or with partitions put up to a height of at least 2.4m." Rule 8(2) speaks of the liability of the Manager to maintain school buildings in good repair. The said provision reads as follows: "8. Repairs and annual Maintenance:- .(1) ................................................................................................ .(2) School buildings and grounds shall be maintained in good repair and kept clean and tidy, scribbling on the walls, doors and windows, and furniture or otherwise defacing them shall be prevented." 9. We went through the above statutory provisions, perused the materials on record and considered the rival submissions. Having regard to the provisions of the Act and the Rules, we are inclined to accept the contention of the petitioners that the specifications under the provisions of the KER regarding the buildings to house the class rooms are applicable only to buildings erected after the commencement of the KER on 6.1959, to house new class divisions. If the intention of the legislature or the rule making authority was that all existing school buildings should be made in conformity with the specifications in the KER, there would have been express provisions for that and the functioning of all schools in buildings which do not conform to the provisions of the KER would have been stopped from 6.1959. The intention of the legislature or its delegate was not to stop all the schools, on enforcement of the provisions of the KER. The schools housed in pre-KER buildings were allowed to function for the last several years. A reading of sub-sections (4) and (5) of Section 3 of the Kerala Education Act would clearly indicate that the stipulations in the KER were meant to take effect prospectively, so as to govern establishment of new schools or opening of any higher class in existing private schools. The said provisions would also indicate that all existing schools were deemed to have been established in accordance with the Act, though they were not, in fact, so established. So, the view taken by this Court in O.P.No.4650/1970, which is extracted in Ext.P1, is the correct view of the legal position emerging from the provisions of the Act and the Rules. We endorse that view. If that be the position, can the Government modify the said legal position by issuing executive orders/instructions/circulars? The answer can only be in the negative. We endorse that view. If that be the position, can the Government modify the said legal position by issuing executive orders/instructions/circulars? The answer can only be in the negative. If the Government wanted to effect any change in the law, appropriate amendments should have been carried out at least to the Rules, if not to the Act. In the absence of any change in law effected by statutory amendment, we are of the view that the existing school buildings, if they are strong and fitness certificate is granted for them by the competent authority, can be used for running classes, even if they do not conform to the specifications contained in the KER. We appreciate the concern of the Government about the safety of the students and teachers. We are also conscious of the obligation of the Government to implement the directions issued by the Apex Court in Avinash Mehrotra v. Union of India {I.L.R. 2009(2) Kerala 341]. But, we are of the view that the above finding made by us will not in any manner stand in the way of the Government implementing the directions of the Apex Court. The Government can implement the directions of the Apex Court unfettered by anything said in this judgment. 10. In the result, the impugned circulars Exts.P3 to P5 in this Writ Petition and Ext.P7 in W.P.(C) No.15274/2008 to the extent they stand in the way of using pre-KER buildings, which are strong and certified to be fit by the competent authority, are declared ultra vires and unenforcible. It is clarified that the various other directions in the impugned orders/letters/circulars, concerning the steps to be taken for the safety of the students and teachers and demolition of unsafe buildings, are not interfered with. In view of our above finding, the concerned Engineer (going by the materials on record, we find it is the Assistant Engineer of the Local Self Government Department having jurisdiction over the area) is directed to inspect the schools of the petitioners immediately and decide whether they are entitled to get fitness certificates for their pre-KER buildings, so that they could house the class divisions in them. This, the said officer shall do within two weeks from the date of production of a copy of this judgment and the results shall be communicated to the Managers forthwith. The Writ Petition is disposed of as above. W.P.(C) Nos. W.P.(C) NO. This, the said officer shall do within two weeks from the date of production of a copy of this judgment and the results shall be communicated to the Managers forthwith. The Writ Petition is disposed of as above. W.P.(C) Nos. W.P.(C) NO. 15274, 15379, 15853, 16089, 16392, 16415, 16640, 16826, 16904, 17718, 17719, 17867, 19317, 19762, 19763, 20086, 20087, 20088, 20428, 20798, 20854, 20894, 21065, 21191, 21227, 21365, 21471, 22127, 22163, 22371, 23186, 23568, 24980, 25389, 25667, 26576, & 28670 OF 2008: 11. The judgment in W.P.(C) No.15536/2008 will govern these Writ Petitions also. The directions issued therein shall be treated as the directions issued in these Writ Petitions.