K.V. Mohandas v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 06TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941** ## **WP(C).No.12510 OF 2015(K)** ## **PETITIONER/S:** **K.V. MOHANDAS, AGED 67 YEARS, S/O. VELAYUDHAN, KOZHIPARAMBIL HOUSE, KAIPAMANGALAM P.O., THRISSUR DISTRICT-680 681** **BY ADVS. SMT.DAISY A.PHILIPOSE SRI.JAI GEORGE** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM, PIN - 695 001. 3 THE DISTRICT EDUCATION OFFICER, CHAVAKKAD, PIN - 680 506. 4 THE ASSISTANT EDUCATIONAL OFFICER, VALAPPAD, THRIPRAYAR P.O., PIN - 680 567 R1 TO R4 BY SMT. NISHA BOSE, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)No.12510 of 2015** **2** ## **JUDGMENT** This writ petition is filed by the Manager of Kshemodayam L.P. School, Kaipamangalam in Thrissur District, seeking to quash Ext.P3 order dated 09.04.2015 passed by the Director of Public Instruction, Thiruvananthapuram, i.e., the 2[nd] respondent herein, declining closure of the school sought for by the petitioner, and for other related and consequential reliefs. Basic material facts for the disposal of the writ petition are as follows: 2. On 20.05.2013, petitioner submitted a representation before the State Government as well as the Director of Public Instruction, Thiruvananthapuram, requesting to transfer the teachers and students to another school or to purchase the school by giving adequate market value. Since the respondents did not take any effective action on the request of the petitioner, he filed W.P.(C) No.12729 of 2014 before this Court, and as per the judgment dated 21.10.2014, the 2[nd] respondent was directed to consider and pass orders on the application submitted by the petitioner within two months from the date of receipt of a copy of the judgment. Thereupon, the judgment as well as the representation was forwarded on 05.11.2014, which were **W.P.(C)No.12510 of 2015 3** received by the 2[nd] respondent on 11.12.2014, but no orders were passed. Consequent to which, C.C.C No.569 of 2015 was filed. However, during the pendency of the contempt case, Ext.P3 order was passed, declining the request for closure of the school. These are the basic background facts available for consideration of the reliefs sought for by the petitioner. 3. The 2[nd] respondent has filed a detailed counter affidavit, refuting the claims and demands raised by the petitioner. The application submitted by the petitioner is admitted. According to the 2[nd] respondent, while examining the rule provisions, it is found that the Government of Kerala has issued the Right of Children to Free and Compulsory Education, Rules, 2011 in accordance with the Right of Children to Free and Compulsory Education Act, 2009 (for brevity, 'the Act, 2009'). In accordance with Rule 6(10) of the said Rules, the Government or local authority shall ensure that access of children to the school is not hindered on account of social, cultural factors, on account of closure of a Government or aided school and that no such school is closed down without the recommendation of the Assistant Educational Officer and the Local Authority and prior sanction of the **W.P.(C)No.12510 of 2015** **4** Government. 4. The Act, 2009 came into force on 01.04.2010 and the State Rules were framed effective from 30.04.2011, and since the application submitted by the petitioner is dated 20.05.2013, the provisions of the Act and the State Rules are applicable in the matter. So also, as per Sec.6 of Act, 2009, a duty is cast upon the Government as well as the local authority to establish schools, within such area or limits of neighbourhood, as may be prescribed, a school, where it is not so established, within a period of three years from the commencement of the Act. Therefore, according to the 2[nd] respondent, the State Government and the local authority is under an obligation to establish schools in the neighbourhood. 5. It is also submitted that, the reasons assigned by the petitioner that he is aged and he is unable to run the Educational Institution due to illhealth is not a ground for permitting the petitioner to close down the school. It is further submitted that, petitioner can change the management or ownership of the school, and further that the management of an aided school can be carried on by the manager or a person appointed by him and approved by the Director. ## **W.P.(C)No.12510 of 2015** **5** Therefore, the reasons stated in the application to close down the school cannot be sustained under law. Other contentions are also raised to justify the stand adopted in Ext.P3 order passed by the 2[nd] respondent. 6. The 1[st] respondent has also filed a statement in similar lines with the counter affidavit filed by the 2[nd] respondent. 7. I have heard learned counsel for the petitioner and the learned Senior Government Pleader and perused the pleadings and the documents on record. 8. The issue with respect to closure of a school is dealt with in Sec.7(6) of the Kerala Education Act, 1958, ('the Act, 1958' for short) which reads thus: _“(_ _**6** ) No manager shall close down any school unless one year's notice, expiring with the 31[st] May of any year, of his intention so to do, has been given to the officer authorised by the Government in this behalf”._ Therefore, on a reading of the said provision, it is clear that the statutory requirement is one year's notice, expiring with the 31[st] May of any year. The respondents have no case that the statutory requirement as per Sec.7(6) of Act, 1958 is not complied with by the petitioner. 9. On the other hand, it is contended that, by virtue of the introduction of Act, 2009 and the Rules **W.P.(C)No.12510 of 2015** **6** framed by the State Government thereunder, the right of the Manager under Sec.7(6) of Act, 1958 is circumscribed by the provisions of Act, 2009 and the Rules, 2011. The said question was considered by a Division Bench of this Court in ' _**State of Kerala and Others v. Manager, Aided Upper Primary School, Kozhikode**_ ' [2016 (2) KHC 629 (DB)]. Paragraphs 24 and 25 are relevant to the context, which read thus: _“_ _**24** . Insofar as Rule 6(10) of the Kerala Rules, 2011 is concerned, it is true that under this Rule, no school shall be closed down without the recommendation of the AEO or local authority and prior sanction of the Government. As we have already stated, there is no provision in the RTE Act dealing with the closure of the schools to which the Act is applicable. Rules framed by the Government are in exercise of its powers under Section 38 of the Act. Section 38(1) provides that the appropriate Government may, by notification, make rules “for carrying out the provisions of this Act”. Subjects on which the rules can be framed are enumerated in Clauses (a) to (r) of Section 38(2). Therefore, in view of the provisions contained in Section 38(1), only for the purpose of carrying out the provisions of the Act and not even for the purposes of the Act, can rules be framed. Law is settled that rules can be framed only on matters covered by the parent Act. This therefore means that the provisions in Rule 6(10) providing that no school shall be closed down without the recommendation of the AEO and the local authority and sanction of the Government are beyond the scope of the rule making authority of the Government._ _**25** . Even otherwise, the Kerala Rules, 2011 is only a subordinate legislation. The subordinate legislation, it is trite, can be framed only within the four corners of the parent Act under which the same is made. Or else, it will be ultra vires the parent Act. As we have stated, Rule 6(10) has travelled beyond the scope_ **W.P.(C)No.12510 of 2015** **7** _of the parent Act and therefore, is ultra vires. In that view of the matter, we cannot recognise the requirements of Rule 6(10) and place restrictions on the Manager's rights recognised under the provisions of the KE Act, enabling them to close down the school on satisfying the conditions specified in Section 7(6) n the provisions of Chapter V Rule 24.”_ 10. Therefore, on a reading of the provisions of Act, 1958 and the Rules, 2011, and taking into account the proposition of law laid down by the Division Bench of this Court cited _supra_ , it is clear that, irrespective of the provisions contained under Act, 2009 and the Rules, 2011, the application is to be considered by the State Government taking into account the provisions of Sec.7(6) of Act, 1958. 11. Learned Senior Government Pleader has invited my attention to Sec.6 of Act, 2009, which deals with the duty of appropriate Government and local authority to establish school, which read thus: _“_ _**6. Duty of appropriate Government and local authority to establish school** .--For carrying out the provisions of this Act, the appropriate Government and the local authority shall establish, within such area or limits of neighbourhood, as may be prescribed, a school, where it is not so established, within a period of three years from the commencement of this Act.”_ 12. On a reading of the said provision, what I **==> picture [430 x 11] intentionally omitted <==** provisions of Act, 2009, the appropriate Government and **W.P.(C)No.12510 of 2015 8** the local authority are imbibed with a duty to establish within such area or limits of neighbourhood, as may be prescribed, a school and the duty is to be discharged within a period of three years, if the school is not so established by the appropriate Government and the local authority. In my considered view, that is an obligation/duty insisted upon the appropriate Government to ensure establishment of a school either by an appropriate Government or by the local authority and the said provision is in no way interfering with Sec.7(6) of Act, 1958, dealing with closure of the school by the Manager by giving requisite notice as provided under law. 13. Learned Senior Government Pleader has also invited my attention to Rule 3(15)(i) of the Rules, 2011, which read thus: _“(i) bring to the notice of the local authority and education authorities, any deviation from the rights of the child, in particular mental and physical harassment of children, denial of admission and timely provision of free entitlements under sub-section (2) of section 3”._ Rule 3 deals with composition and function of the School Management Committee, wherein, it is stipulated that a School Management Committee consisting of elected representatives of the local authority, parents ## **W.P.(C)No.12510 of 2015** ## **9** or guardians of children admitted in such school and teachers as provided in sub-section (1) of Section 21 shall be constituted in every school referred to in sub-clause (i) of clause (n) of Section 2 of Act, 2009, within six months from the appointed date and reconstituted every two years. 14. Section 2(n) of Act, 2009 defines “school” to mean; any recognized school imparting elementary education and includes- (i) a school established, owned or controlled by the appropriate Government or a local authority; (ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority; (iii)a school belonging to specified category; and (iv) an aided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority. 15. On a reading of Rule 3(15)(i), what I could conceive is that, the Committee is vested with powers to bring to the notice of the local authority and educational authorities any deviation from the rights of the child, in particular mental and physical harassment of children, denial of admission and timely ## **W.P.(C)No.12510 of 2015** ## **10** provision of free entitlements under sub-section (2) of Section 3. However, the constitution of a Committee in the school and the stipulations contained under Rule 3(15)(i) cannot stand in the way of the right conferred on the Manager of a school to seek closure by issuing notice in contemplation of Sec.7(6) of Act, 1958. 16. That apart, on an appreciation of the provisions of Act, 2009 and the Rules, 2011 framed by the State Government, I could not come across any provisions standing in the way of a Manager seeking closure of the school, especially in view of the law laid down by this Court in ' _**Manager, Aided Upper Primary School, Kozhikode'**_ ( _supra_ ). So also, the statutory requirement of one year notice given by the petitioner is not under dispute. In that view of the matter, I am of the view that, Ext.P3 order passed by the Director of Public Instruction, declining the closure of the school sought for by the petitioner, is arbitrary and illegal, liable to be interfered with by this Court under Article 226 of the Constitution of India. Therefore, I quash Ext.P3 order. 17. Consequentially, there will be a direction to the 2[nd] respondent to permit the petitioner to close down the school on account of the application submitted **W.P.(C)No.12510 of 2015 11** by the petitioner and take all steps required for closure of the school, at the earliest, and at any rate, within three months from the date of receipt of a copy of this judgment. However, I make it clear that, in the interregnum, if the State Government is interested in acquiring the school, the State Government is at liberty to take positive and suitable action for the same. The writ petition is allowed accordingly. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** **St/-07.11.2019** **W.P.(C)No.12510 of 2015** **12** # **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE JUDGMENT IN WP(C) NO. 12729 OF 2014 DATED 21/10/2014. EXHIBIT P2 A TRUE COPY OF THE REPRESENTATION DATED 5/11/2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 9/4/2015 ISSUED BY THE 2ND RESPONDENT.** **RESPONDENTS' EXHIBITS: NIL**