N.K.KRISHNAN KUTTY NAIR v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 WP(C).No. 16909 of 2010(K) -------------------------- PETITIONER(S): - --------------- N.K.KRISHNAN KUTTY NAIR,S/O.LATE A.P.UNNIKUARAN NAIR,AGED 72 YEARS,MANAGER, A.S.V.U.P.SCHOOL, EDAKKARA, KOZHIKODE-673 616. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.JIJI THOMAS RESPONDENT(S): - --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY,DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, KOZHIKODE. 4. DEPUTY DIRECTOR OF EDUCATION,KOZHIKODE. 5. THE ASSISTANT EDUCATIONAL OFFICER, BALUSSERY,KOZHIKODE DISTRICT. GOVERNMENT PLEADER FOR RES THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/04/2011, ALONG WITH WPC NO. 18311 OF 2010 THE COURT ON THE DELIVERED THE FOLLOWING: APPENDIX IN WPC 16909/2010 EXT.P1-TRUE COPY OF FITNESS CERTIFICATE DT.12.7.2008 EXT.P2-TRUE COPY OF MEDICAL REPORT DATED 3.5.2008 EXT.P2(A)-TRUE COPY OF DO. DATED 23.10.2008 EXT.P2(B)-TRUE COPY OF DO. DATED 23.10.2009 EXT.P3-TRUE COPY OF NOTICE DATED 20.5.2009 EXT.P4-TRUE COPY OF JUDGMENT IN WPC 32121/2009 EXT.P5-TRUE COPY OF SHOW CAUSE NOTICE DT.22.12.09 EXT.P6-TRUE COPY OF REPLY NOTICE DATED 15.3.2010 EXT.P7-TRUE COPY OF REJECTION ORDER DT.18.3.2010 EXT.P8-TRUE COPY OF LIST OF SCHOOLS EXT.P9-TRUE COPY OF HEARING NOTICE DT.8.4.2010 EXT.P10-TRUE COPY OF REPLY NOTICE DT.19.4.2010 EXT.P11-TRUE COPY OF ORDER DATED 1.5.2010 EXT.P12-TRUE COPY OF ORDER DATED 15.5.2010 // TRUE COPY // P.S. TO JUDGE ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos.16909/2010-K 18311 2010-L** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 12th day of April, 2011.** ## **JUDGMENT** Both these writ petitions concern a common question, viz. the legality of the rejection of the notice issued by the Manager of the school under Section 7(6) of the Kerala Education Act for closing down the school. 2. In W.P.(C) No.16909/2010 it is pointed out that the U.P. School of which the petitioner is the Manager, was established in the year 1914. It was upgraded as a U.P. School in the year 1958. There are 9 class divisions with 251 students in the school, out of which 36 are in the 7[th] standard. During the year 2007-2008 fitness certificate was issued, but for the year 2008-2009 it was not issued, since major repairs were required. It is pointed out that the petitioner is aged 72 years and is suffering from various ailments and he is not in a position to repair the buildings by making huge investments and there is nobody to manage the affairs of the school. 3. Ext.P3 is the copy of the notice dated 20.5.2009 given under Section 7(6) of the Act. When there was no response from the Director of Public Instruction, the petitioner approached this Court by filing W.P.(C) wpc 16909 & 18311 of 2010 2 No.32121/2009 and Ext.P4 is the judgment, whereby the Director of Public Instruction was directed to consider and take a decision on the notice. Thereafter, he was served with a notice by the District Collector invoking Rule 2 of Chapter XX K.E.R. saying that no maintenance work was carried out to the school buildings for the past several years and it is proposed to take over the school. Finally, the District Collector passed an order Ext.P11, taking over the school for five years. The same is under challenge in this writ petition. 4. In W.P.(C) No.18311/2010, the petitioner is the Manager of A.M.L.P. School which was established in 1943. It is pointed out that there are only four classes one each in Standards I to IV and 120 students are studying in the said school. There are five teachers, viz. one Headmistress, three LPSAs. and one Arabic Teacher. It is further pointed out that there are lot of schools in and around the locality. The notice issued by the petitioner is produced as Ext.P1. The order rejecting the same is produced as Ext.P7. 5. Heard learned Senior Counsel Shri Kurian George Kannanthanam, appearing for the petitioner in W.P.(C) No.16909/2010 and Shri K.E. Hamsa, learned counsel appearing for the petitioner in W.P.(C) wpc 16909 & 18311 of 2010 3 No.18311/2010 and learned Govt. Pleader Shri T.T. Muhamood. 6. It is the contention of the learned counsel for the petitioners that once the requirement of Section 7(6) of the Act is satisfied, there is no provision enabling the department to reject it. Reliance is placed on various decisions of this Court wherein the view taken is that the statutory notice is liable to be acted upon and there is no provision for granting permission by the Director of Public Instruction. 7. Section 7(6) of the Act provides that “no manager shall close down any school unless one year's notice, expiring with the 31[st] May of any year, of the intention so to do, has been given to the officer authorised by the Government in that behalf.” Rule 24 of Chapter V provides that “no private school shall be closed down without giving the Director one year's notice expiring with the 31[st] May of any year of the intention to do so.” Sub-rule (2) provides that “the Director may, after considering all aspects of the question, grant permission for the closure of the school and recognition of such school shall lapse. 8. With regard to Sub-rule (2), the interpretation given by this Court in **Krishnakumar v. State** (1972 KLT 496) is that the same is beyond the rule making power of the Government and is inconsistent with Section 7(6) wpc 16909 & 18311 of 2010 4 of the Act. In a later decision in **Subramanian v. State** (1986 KLT 359) the legal position was reiterated that there is no requirement of any permission and the obligation of the manager is to give one year's notice of his intention to close down the school. 9. What is mentioned in Rule 25 is as follows: “When a school is closed down or discontinued or its recognition is withdrawn, the manager shall hand over to the Assistant Educational Officer for the area in the case of the Primary schools and to the District Educational Officer for the area in the case of all other schools, all records and accounts of the school and the Department shall take the necessary steps for taking charge of the records and accounts.” 10. All the related legal issues were considered by a Division Bench of this Court in **Parent Teacher Association v. State of Kerala** (2000 (1) KLT 804). Under similar circumstances, after referring to various decisions of this Court, the Division Bench held in para 18 as follows: “In our opinion in S.7(6) of the Act, the Manager's right to close down his school is preserved subject to his complying with the conditions laid down in the said section insisting one year prior notice. In our view, it is the right of the manager to close down the school under the Section and it cannot be treated as an act of neglect within the meaning of S.14(1) as argued by counsel wpc 16909 & 18311 of 2010 5 appearing for the appellants. Provisions of S.7 and R.24(1) of Chap. V do not speak of any permission from any one and that the only obligation of the manager is to give one year's notice of intention to close down the school ( _Balakrishnan v. Ramaseshan,_ 1993 (1) KLT 519 = 1993 (1) KLJ 735). Therefore, the only obligation of the manager is to give one year's notice of his intention to close down so that if th authorities are so minded, they can make other arrangements for the staff and the pupils. There is therefore no question of permission being obtained before closing down the school.” Section 14 of the Act was considered in para 19 of the judgment. In that case also, after notice was received under Section 7(6) of the Act, the Government invoked the power under Section 14(1) of the Act. It was held by the Division Bench in para 20 that the decision of the Government to take over the school under Section 14(1) without hearing, is not valid at all. Therefore, the legal position admits of no doubt. The obligation of the manager is only to give a notice under Section 7(6) of the Act. 11. Learned Govt. Pleader submitted that in the light of the requirement to provide education to all the children especially as per The Right of Children to Free and Compulsory Education Act, 2009, a child is entitled for education from nearby schools and if the schools run by wpc 16909 & 18311 of 2010 6 managements herein are closed down, there will be a denial of the right to education. The concept of providing the right to education to children and the right of the manager to close down the school are totally different. This Court in **Subramanian's case** (1986 KLT 359) held that “if the establishment and administration of an aided school have anything to do with Art. 19(1)(g) of the Constitution, the Manager of such a school should also have the freedom to close it down, subject of course to such reasonable restrictions as are permissible under Art. 19(6).” In the light of the above, there cannot be any fetter on the right of the manager to close down a school in the light of the interpretation given by various decisions of this Court. Therefore, the impugned orders passed by the Director of Public Instruction in both the writ petitions cannot be supported. 12. In Ext.P7 produced in W.P.(C) No.16909/2010, the Director of Public Instruction took the view that it has been recommended to take over the school and therefore the ultimate decision will have to be taken by the Government. Accordingly, the application was rejected. Thereafter, Ext.P11 order was passed by the District Collector on 1.5.2010 under Section 14(8) of the Kerala Education Act for taking over the school for five years by authorising the Deputy Director of Education. Evidently, wpc 16909 & 18311 of 2010 7 Section 14 confers power on the Government only to take over the management of the school. It is evident from sub-section (1) of Section 14 that the satisfaction required is that of the Government. the District Collector will have to fix the rent, going by Sub-section (5) of that Section. What is pointed out as a justification for the order passed by the District Collector is by relying on Rule 2(2) of Chapter XX K.E.R. Actually, the said rule also will not apply, since it is specifically stated in sub-rule (1) of Rule 2 of Chapter XX K.E.R. that “the Collector shall, on receipt of Government Orders under sub-rule (4) of rule 1 or under sub-section (2) of Section 14 of the Act, as the case may be, take possession of the school immediately either by himself or by any officer authorised by him in this behalf. Sub-rule 2 can have any application only after the Government passes an order, which is absent here. Sub-rule (4) of Rule 1 of Chapter XX of the Rules provides for the procedure under which the Government will have to pass orders after taking a decision with regard to the taking over of the management of the school. Therefore, nowhere under Chapter XX of the Rules as well as under Section 14 of the Act, the Collector gets a power to take over a school like that. 13. In the light of the above, the petitioners are entitled to succeed in wpc 16909 & 18311 of 2010 8 these writ petitions. As the petitioners have complied with the requirement under Section 7(6) of the Act, the impugned orders cannot be supported. 14. Therefore, the writ petitions are allowed. Exts.P7, P11 and P12 in W.P.(C) No.16909/2010 are quashed. In W.P.(C) No.18311/2010 also, Exts.P5 and P7 are quashed. There will be a direction to respondents 3 and 4 in W.P.(C) No.16909/2010 to hand over the school and the properties to the petitioner without delay. 15. Evidently, one year's notice is provided since alternate arrangements will have to be made with regard to the deployment of staff as well as admission of students to the nearby schools. In both the writ petitions, it is contended that there are so many nearby schools. Therefore, there will be a direction to the Director of Public Instruction to pass appropriate orders in the matter including the deployment of staff and admission of students and a decision will be taken after hearing the petitioners and any other parties, expeditiously, at any rate, before the reopening of the schools. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**