1. This appeal is from gopalan nambiyar j. Who declared a g. O. Concerning appointment of teachers in aided schools not to apply to 'minority schools.

2. The g. O. Is given at p. 412 of "the kerala education act, 1958", Published by k. K. Narendran in july 1969, And reads thus:

"g. O. (ms) no. 343/65/ edn. Dated, Trivandrum, 24th june, 1965.

as per the provision in chapter xxi ker. Whenever a vacancy occur in an aided school the managers shall follow the directions issued by government from time to time for ascertaining the availability of qualified hands for appointment as teachers. As per the existing orders the managers have to advertise vacancies of teachers in the prescribed form and in the approved dailies in two consecutive issues.

2. Government are in receipt of a large number of complaints from qualified persons that some of the managements are not adhering strictly to the orders issued under the kerala education rules in the matter and are appointing unqualified hands when qualified hands are available. Government therefore issue the following orders:

(i) managements should appoint only fully qualified hands as teachers in aided schools. If fully qualified hands are not readily available they should advertise the vacancies as per orders already existing.

(ii) if fully qualified hands are not available even after advertisement of the vacancies, The management should approach the employment exchange of the area concerned for trained teachers.

(iii) if employment exchange is unable to provide a trained teacher, Appointment of untrained candidates satisfying the qualifications regarding age and marks may be made unqualified hands become available. Such appointments will be approved by the controlling officers only on production of a letter from the employment officer to the effect that qualified hands are not available with the employment exchange of the area at the time when the appointment was made.

(iv) however, Appointments, If any made already of untrained teachers during the current school year after following the procedure hitherto in force will be approved by the district educational officers till qualified hands are available.

3. Appointments of candidates as per para. 2 (iii) above are purely temporary and such candidates will have no preferential claims for future appointment in the same school. "

3. S. 10 and 11 of the kerala education act, 1958, Enact: "10. Qualifications for appointment as teachers:

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

11. Appointment of teachers in aided schools:

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 s. 10 ' '

obviously, These sections apply to all private schools alike, And make no discrimination of 'minority schools' entitled to special treatment under art. 30 (1) of the constitution. Injustice arises equally when equals are treated unequally and when unequals are treated equally. Schools maintained by religious minorities have a special purpose to fulfil, Wherefore are constituted a special category with particular favour and flavour by the constitution, Which should not be disturbed by any imposition by the state.

4. The contention of the learned government pleader that the instant schools maintained by the archdiocese of changanacherry cannot be characterised as educational institutions of the christian community within the meaning or art. 30 of the constitution appears to carry little force. The right conceded by that article by its very nature belongs to and can be exercised by every member of the minority community or an association or body of such members.

5. The procedure prescribed by the g. O. Allows the managements of private schools to appoint teachers of their choice from fully qualified persons. But, If such person is not available at hand, The management must advertise the vacancies in dailies; and if none comes forth in response thereto, It must approach the employment exchange of the area concerned for a trained teacher; and, Only if a qualified hand is not available with the employment exchange, Can the management appoint an untrained teacher to serve till a qualified hand becomes available to fill the post. We are not here concerned with the excellence of these provisions, But to test its impact on the fundamental freedom guaranteed to minority communities under art. 30 of our constitution. That freedom is, As pointed out in in re. Kerala education bill, Air. 1958 sc. 956, 979 to establish and administer educational institutions that may conserve the community's religion, Language or culture and also give a good general education to their children. To serve such double purpose, The management must have considerable freedom of choice of teachers to be employed in their schools. If the management is compelled to appoint qualified teachers, Irrespective of their express aversion for the religion and culture of the community that has established the school, "the right guaranteed by art. 30 (1) will be but a 'teasing illusion', A promise of unreality. " rev. Sidhrajbhai sabbai v. State of gujarat air. 1963 sc. 540, 547.

6. Counsel for the state contended that the provisions in the impugned g. O. Are only regulative in character and conducive to the betterment of the educational institution as such and is therefore within the permissible limit of imposition by the state. The right enshrined in art. 30 (1) is absolute in character, Subject only to the direction contained in clause (2) of art. 29 of the constitution. Any infringement of the same would be unconstitutional. The direction in clause (1) of the impugned go. To make public advertisement of vacancies is not, And cannot be, Objected to. But an insistence on appointment of any person qualified as per governmental standards, Irrespective of his suitability for purposes conserved under art. 30 (1), Is objectionable and has to be prohibited. Counsel called our attention to certain observations of the supreme court in in re. The kerala education bill, 1957 air. 1958 sc. 956, 979

"likewise cl. Ii takes away an obvious item of management, For the manager cannot appoint any teacher at all except out of the panel to be prepared by the public service commission, Which, Apart from the question of its power of taking up such duties, May not be qualified at all to select teachers who will be acceptable to religious denominations and in particular sub - cl. (2) of that clause is objectionable for it thrusts upon educational institutions of religious minorities teachers of scheduled castes who may have no knowledge of the tenets of their religion and may be otherwise weak educationally. Power of dismissal, Removal, Reduction in rank or suspension is an index of the right of management and that is taken away by clause. 12 (4). These are no doubt, Serious inroads on the right of administration and appear perilously near violating that right. But considering that those provisions are applicable to all educational institutions and that the impugned parts of clause. 9,11 and 12 are designed to give protection and security to the ill paid teachers who are engaged in rendering service to the nation and protect the backward classes, We are prepared, As at present advised, To treat these clause. 9,11 (2) and 12 (4) as permissible regulations which the state may impose on the minorities as a condition for granting aid to their educational institutions."

and urged that regulations which are apparently serious inroads on the right contemplated in art. 30 (1) may be lawfully imposed by the state in the larger interests of the nation. We are afraid that the opinion contained in a report of the supreme court to the president of india in answer to a question referred under art. 143, Would not come within the purview - of art. 141 of the constitution. The expression'law declared by the supreme court', In art. 141 refers, In our opinion, To declarations of law made judicially. In the exercise of the advisory jurisdiction under art. 143 of the constitution, The supreme court is not obliged to hear any argument at all. It is in the discretion of the supreme court to make "such hearing as it thinks fit. " art. 143 does not oblige the supreme court to pronounce its opinion in public: it directs only a report of opinion to the president. There is no scope for "declaration" as such in such reporting of opinion. It is in their lordships' exercise of judicial function, That they "declare" law in a jurisprudential sense. Needless to say that any opinion on a point of law made by the supreme court, Particularly one made by a constitution bench or full court, After mature deliberation, Will command very high respect. But it cannot match with a judicial declaration of law made by the supreme court; and in cases of apparent conflict between an advisory report and a judicial declaration the latter must prevail. In rev. Sidhrajbhai sabbai v. State of gujarat air. 1963 sc. 540 the supreme court by 6:1 majority have referred to the report on the kerala education bill air. 1958 sc. 956 and observed:

"it was therefore held that notwithstanding the absolute terms in which the fundamental freedom under art. 30 (1) was guaranteed, It was open to the state by legislation or by executive direction to impose reasonable regulations. The court did not, However, Lay down any test of reasonableness of the regulation. The court did not decide that public or national interest was the sole measure or test of reasonableness: it also did not decide that a regulation would be deemed unreasonable only if it was totally destructive of the right of the minority to administer the educational institution. No general principle on which reasonableness or otherwise of a regulation may be tested was sought to be laid down by the court. 1959 scr 995: (air. 1958 sc. 956), Therefore is not an authority for the proposition submitted by the additional solicitor general that all regulative measures which are not destructive or annihilative of the character of the institution established by the minority, Provided the regulations are in the national or public interest, Are valid."

their lordships continued:

"the right established by art. 30 (1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by art. 19 it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so called regulative measure conceived in the interest not of the minority educational institution, But of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, Though not in its interest as an educational institution the right guaranteed by art. 30 (1) will be but a "teasing illusion", A promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. "

to effectuate the guarantee of art. 30 (1), It is not enough if the teacher of a school maintained by a religious minority possesses the educational qualifications or even the character suitable for appointment in a government or aided school, But must also be suitable for employment in the institution with a set purpose of conserving the religious culture of the minority community. In so far as the impugned go. Makes general prescriptions and imposes them without any restriction on the management of the minority schools it seriously infringes the freedom of choice of teachers essential for effectuating the purposes of art. 30 (1) of the constitution.

we therefore direct that the go. As concerns the minority schools, Can be put to operation only in such, Manner as not to offend the fundamental freedom conceded in art. 30 (1) of the constitution. In other words, The choice of a teacher for employment in a minority school is not to be guided by the qualifications prescribed for the generality of schools, But must also be tested by suitability for employment in the minority schools concerned consistently with art. 30 of the constitution.

in the result, The appeal fails and is dismissed with costs. Dismissed.