WP(C) Nos. 2761 of 2014 (U) and 12540 of 2014, The Parent Teachers Association Malaparamba A.U.P.School represented by its President Ajith Kumar K.P v. The Manager, Malaparamba A.U.P.School, Kozhikode, and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **WEDNESDAY, THE 9TH DAY OF JULY 2014/18TH ASHADHA, 1936** ## **WP(C).No. 2761 of 2014 (U)** ## **---------------------------** ## **PETITIONER(S)/PETITIONER:** **------------------------------------------------** **THE PARENT TEACHER ASSOCIATION MALAPARAMBA A.U.P.SCHOOL REPRESENTED BY ITS PRESIDENT, AJITH KUMAR.K.P S/O.CHANDRAN, NANGHARIYIL HOUSE, MALAPARAMBA KOZHIKODE, 673 009.** ## **BY ADV. SRI.M.KRISHNAKUMAR** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** ## **1. THE MANAGER** **MALAPARAMBA A.U.P.SCHOOL, MALAPARAMBA CHEVAYOOR AMSOM DESOM, KOZHIKODE, PIN-673 009.** **2. THE ASST.EDUCATIONAL OFFICER, KOZHIKODE TOWN, KOZHIKODE-673 009.** **3. DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE-673 001.** **4. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695 001.** **5. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695 001.** **R1 BY ADV. SRI.R.K.MURALEEDHARAN R2 TO R5 BY SPECIAL GOVERNMENT PLEADER SRI.T.T.MUHAMOOD.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-07-2014, ALONG WITH WPC. 12540/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 2761 of 2014 (U) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** **EXT.P1 TRUE COPY OF THE LETTER AND 25-9-2010 ASST.EDUCATION OFFICER, KOZHIKODE CITY.** **EXT.P2 TRUE COPY OF THE ORDER DATED 25-5-2011 OF THE DPI. EXT.P3 TRUE COPY OF THE LETTER DATED 12-7-2012 OF THE DDE, KOZHIKODE. EXT.P4 TRUE COPY OF THE LETTER DATED 26-3-2013 OF THE DDE, KOZHIKODE. EXT.P5 TRUE COPY OF THE GOVERNMENT ORDER DATED 1-11-2013. EXT.P6 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 18-12-2012 . EXT.P7 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 16-4-2013. EXT.P8 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 21-5-2013. EXT.P9 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 21-7.2012. EXT.P10 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 10-10-2009. EXT.P11 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 28-1-2013. EXT.P12 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 26-7-2010.** **RESPONDENT(S)' EXHIBITS NIL ---------------------------------------** **/TRUE COPY/** **P.A. TO JUDGE** **VPV** ## **P.N.RAVINDRAN, J.** ## **=-=-=-=-=-=-=-=-=-=-=** ## **W.P.(C)Nos.2761 & 12540 of 2014 =-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 9[th] day of July, 2014** ## **JUDGMENT** The petitioner in W.P.(C)No.12540 of 2014 is the Educational Agency and Manager of Malaparamba AUP School, which was established more than a century ago. The petitioner became the Educational Agency and Manager of the school consequent on transfer of management involving change of ownership in the year 1997. Transfer of management was effected in his favour, after the permission of the Assistant Educational Officer, Kozhikode City was granted in terms of rule 4(1) of Chapter III of the Kerala Education Rules, by Ext.P1 proceedings dated 22.9.1997. 2. The land where the school is situate has an extent of 35 cents. On the ground that the school is an uneconomic school and a portion of the land is sought to be acquired for widening the Wayanad-Kozhikode highway, the petitioner gave a notice dated 1.3.2010 as required under section 7(6) of the Kerala Education Act, 1958 and rule 24 of Chapter V of the Kerala Education Rules, 1959 to the designated authority namely the Director of Public **W.P.(C)Nos.2761 & 12540 of 2014** **2** Instruction informing him that he intends to close down the school with effect from 31.5.2011. Long after the said notice was received and six days before 31.5.2011, the Director of Public Instruction sent Ext.P3 letter dated 25.5.2011 to the Deputy Director of Education, Kozhikode and directed as follows:- _“I invite your attention to the reference cited and direct you to take steps to make the school economic by making more attractive to students and parents by improving the school environment and more awareness programmes for the parents of the locality. The request of the manager to close down the school need not be considered at present.”_ 3. Aggrieved thereby, the petitioner filed W.P.(C)No.15954 of 2011 in this Court. The said writ petition was disposed of by judgment delivered on 15.6.2011 reserving liberty with the petitioner to move the Government in revision. The petitioner accordingly submitted a representation dated 15.6.2011 before the Government. On that representation, the Government passed Ext.P4 order dated 1.11.2013 whereby the Government granted permission to the petitioner to close down the school from the academic year 2014-2015. The Government also directed the Deputy Director of Education, Kozhikode to redeploy the teaching and non-teaching staff in accordance with the existing Government **W.P.(C)Nos.2761 & 12540 of 2014** **3** orders. The school was also a polling station for the elections to the Lok Sabha that was held on 10.4.2014. Alleging that in the night of 10.4.2014, one of the buildings in the school was demolished by the petitioner, the Deputy Director of Education, Kozhikode issued Ext.P6 order dated 11.4.2014 and declared the petitioner unfit to hold the post of Manager with effect from that date. He also appointed the Assistant Educational Officer, Kozhikode City as temporary Manager with effect from the date of the order. Such an order was issued in exercise of the power conferred on him under rule 7 of Chapter III of the Kerala Education Rules. The instant writ petition was thereupon filed on 15.5.2014 challenging Ext.P6 order and seeking the following relief:- - _“i) Issue a writ of certiorari or any other appropriate writ order or direction quashing Ext.P6 order issued by the 1[st] respondent.”_ 4. The main ground raised in the instant writ petition is that before the impugned order was passed, the petitioner was not put on notice or heard. It is also stated that the Government have by Ext.P5 order permitted the school to be closed down from the academic year 2014-2015 and therefore, an order of the kind could not have been issued. The writ petition was admitted and an interim order was passed by this Court on 23.5.2014 whereby this **W.P.(C)Nos.2761 & 12540 of 2014** **4** Court directed the respondents to give effect to Ext.P4 Government order dated 1.11.2013 and to ensure that the directions therein are implemented. After the writ petition was filed and the aforesaid interim order was passed, the Government issued Ext.P7 order dated 24.5.2014 whereby it cancelled Ext.P4. The petitioner thereupon filed I.A.No.6837 of 2014 on 28.5.2014 for permission to amend the writ petition by incorporating a challenge to Ext.P7. In the writ petition as amended it is contended that before Ext.P7 order was passed, the petitioner was not put on notice or heard. 5. The first respondent has sworn to an affidavit dated 31.5.2014. As regards Ext.P4 it is stated therein that the Government have by order passed on 24.5.2014 cancelled Ext.P4. It is stated that in the night of 10.4.2014 the school was demolished, that thereupon a criminal case was registered against the petitioner and it is under investigation. The counter affidavit proceeds to state that in view of the protest raised by the Parent Teachers Association and others, an all party meeting was convened and a decision was taken on 11.4.2014 to reconstruct the demolished school building before the reopening of the school and that the Government was also requested to cancel Ext.P4. The deponent has also stated that as Ext.P4 order was one issued by **W.P.(C)Nos.2761 & 12540 of 2014** **5** mistake, the Government have the right to rectify the mistake and to cancel it. It is stated that as Ext.P4 order has been cancelled, the school has to be reopened on 2.6.2014 after the summer vacation. The deponent has not however chosen to deny the petitioner's averment that before Ext.P6 order was passed by the Deputy Director of Education, Kozhikode and before the Government cancelled Ext.P4 by Ext.P7 order passed on 24.5.2014, the petitioner was not put on notice or heard. 6. The petitioner in W.P.(C)No.2761 of 2014 is the Parent Teachers Association of Malaparamba AUP School represented by its President. In the said writ petition, the petitioner challenges Ext.P5 order dated 1.11.2013 [same as Ext.P4 produced in W.P.(C) No.12540 of 2014] whereby the Government granted permission to the petitioner to close down the school from the commencement of the academic year 2014-2015. The petitioner has also prayed for a declaration that the right of the Manager of an aided school to close down the school is subject to the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as “the Act” for short). The principal contention raised in the instant writ petition is that the Government have not considered the scope and effect of the provisions contained in the Act when it issued the **W.P.(C)Nos.2761 & 12540 of 2014** **6** impugned order. Yet another contention raised is that the order passed by the Director of Public Instruction is final and an appeal is not provided to the Government and therefore, the appellate order of the Government is without the sanction or authority or law. 7. The first respondent Manager has filed a counter affidavit resisting the writ petition and contending inter alia that there are other schools within a distance if 1 km and that the rights of children under the Act are thereby protected. He also relies on Ext.P4 report dated 26.3.2013 submitted by the Deputy Director of Education, Kozhikode to the Director of Public Instruction (Ext.P4 in W.P.(C)No.2761 of 2014). 8. I heard Sri.R.K.Muralidharan, learned counsel appearing for the petitioner in W.P.(C)No.12540 of 2014, Sri.M.Krishnakumar, learned counsel appearing for the petitioner in W.P.(C)No.2761 of 2014 and Sri.T.T.Muhamood, learned Special Government Pleader appearing for the official respondents. I have also gone through the pleadings and the materials on record. Shorn of details, the main contention raised in W.P.(C)No.12540 of 2014 filed by the educational agency and the Manager is that before the impugned orders were passed, he was not put on notice or heard. He has also raised the contention that to close down an aided school, permission **W.P.(C)Nos.2761 & 12540 of 2014** **7** of any authority is not required and that all that is required is the giving of a notice. The relevant averments in that regard are contained in paragraphs 2 and 3 of the counter affidavit filed by him in W.P.(C)No.2761 of 2014 and they are extracted below for easy reference:- _“2. The writ petition challenging Ext.P5 order issued by the 5[th] respondent permitting me to close down the school from the academic year 2014-15 at the instance of the petitioner is not maintainable either in law or on facts. As per Section 7(6) r/w Rule 24 of Chapter V of KER, the obligation of the manager is to intimate the director of his intention to close down the school with one year notice expiring by May 31[st] of any year. The sub clause (2) of Rule 24 introduced subsequently which requires the permission of the director has been declared as inconsistent with Section 7(6) of the Act and beyond the rule making power and violative of Article 14 of the Constitution of India as per the decision of this Hon'ble Court in_ _**Krishnakumar Vs. State of Kerala & Ors. reported in 1972 KLT 496.** The decision in Krishnakumar's case was affirmed by the division bench in_ _**Balakrishnan Vs. Ramesan reported in 1993(1) KLT 519** . The division bench judgment was confirmed by the Hon'ble Supreme Court in_ _**Civil Appeal No.5352/1993** . Therefore the obligation of the manager is to give one year notice of his intention to close down the school. A notice dated 01.03.2010 was submitted before the director intimating the intention to close down the school from 31.03.2011 onwards. The 4[th] respondent however issued Ext.P2 communication addressed to the 3[rd] respondent with copy to me rejecting my intention to close down as if he has got the power to consider my_ **W.P.(C)Nos.2761 & 12540 of 2014** **8** _application either way._ _3. I say that no permission is required from the director to close down the school as declared by this Hon'ble Court in the decision reported in_ _**Subramaniyan Vs. State of Kerala reported in 1986 KLT 359, Balakrishnan Vs. Ramesan reported in 1993(1) KLT 519, Parent Teachers Association Vs. State of Kerala reported in 2000(1) KLT 804 and the judgment in W.A.No.512/1988.** ”_ 9. Relying on the decisions of this Court it is contended that as sub-rule (2) of rule 24 of Chapter V of the Kerala Education Rules has been declared ultra vires, all that is required for the educational agency to close down a school is giving one year notice expiring with 31[st] of May of any year of his intention so to do. The main contention raised in W.P.(C)No.2761 of 2014 is that the Government have not taken note of the provisions contained in the Act when it passed an order granting permission to close down the school. It is also contended that the Government have no appellate power to interfere with the order passed by the Director declining such permission. As stated earlier, the main ground raised in W.P. (C)No.12540 of 2014 is that before Ext.P6 order was passed, the Deputy Director of Education, Kozhikode, did not put the petitioner on notice or hearing. The same ground is put forward to challenge Ext.P7 Government order as well. The action which lead to Ext.P6 **W.P.(C)Nos.2761 & 12540 of 2014** **9** admittedly took place in the midnight of 10.4.2014. The order itself states that the petitioner has absconded. Ext.P6 order was passed on 11.4.2014. It is therefore evident from the very order itself that before it was passed the petitioner was not put on notice or heard. In such circumstances, I am of the opinion that on that short ground Ext.P6 order which is challenged in W.P.(C)No.12540 of 2014 is liable to be quashed. 10. There is also yet another reason why the order cannot be sustained. Even assuming that the petitioner is disqualified to continue as the Manager of Malaparamba AUP School as he is himself the educational agency (individual educational agency), even while disqualifying him to act as the Manager, as the educational agency, the petitioner should have been given an opportunity to appoint another person as the Manager. The disqualification contemplated in rule 7 of Chapter III of the Kerala Education Rules is the disqualification of the Manager and not of the educational agency. Having regard to the interval of time between the alleged action which led to disqualification and the date on which the order of disqualification was passed, it is evident that such an opportunity was also not given to the petitioner. Apart from disqualifying the petitioner, the Deputy Director also appointed **W.P.(C)Nos.2761 & 12540 of 2014** **10** the Assistant Educational Officer as the temporary Manager. Such a measure could have been adopted only if the educational agency had declined to appoint another person as the Manager. 11. A learned single Judge of this Court has in **Leslie Biveira v. State of Kerala** [2007 (4) KLT 486] held that even in the absence of an express provision in rule 7 of Chapter III, an order keeping the Manager of an educational agency under suspension can be passed and that too without notice. The learned single Judge also held that even in such cases, the educational agency should be given the opportunity to appoint another suitable person as the Manager pending the action under rule 7 of Chapter III of the Kerala Education Rules. In such circumstances, on the admitted facts the only possible finding that can be arrived at in W.P.(C)No.12540 of 2014 is that Ext.P6 order is liable to be set aside. Ext.P7 Government order also suffers from the same infirmity. 12. As stated earlier, the instant writ petition was admitted and an interim order was passed on 23.5.2014. It was on the very next day that Ext.P7 order was passed cancelling Ext.P4. By Ext.P4, the appeal filed by the petitioner before the Government was allowed and he was granted permission. Even assuming that such permission is necessary and is contemplated in the Act and the rules **W.P.(C)Nos.2761 & 12540 of 2014** **11** to close down an existing school, since a right was conferred on the petitioner, the Government ought to have in my opinion issued notice to him and called upon him to show cause why the order granting permission should not be recalled for the reasons set out in the show cause notice. The respondents have no case that before the Government issued Ext.P7 order cancelling Ext.P4, the petitioner was put on notice or heard. I am therefore of the considered opinion that on that short ground Ext.P7 order is also liable to be quashed. 13. That takes me to the question whether the reliefs prayed for by the Parent Teachers Association in W.P.(C)No.2761 of 2014 can be granted. Ext.P4 in W.P.(C)No.2761 of 2014, which is a letter sent by the Deputy Director of Education, Kozhikode to the Director of Public Instruction discloses that other educational institutions are available nearby to cater to the needs of students undergoing education in Malaparamba AUP School. It is also not in dispute that the total students strength during the academic year 2012-2013 was 44. Ext.P4 letter also discloses that Malaparamba AUP School is an uneconomic school. The Deputy Director has also stated that the student strength is diminishing every year and that when the Wayanad-Kozhikode National Highway (NH 212) is widened as **W.P.(C)Nos.2761 & 12540 of 2014** **12** proposed, a portion of the school building will have to be demolished and that adequate space will not be available thereafter to put up additional buildings. The report also discloses that within a radius of 3 kms from Malaparamba AUP School, four educational institutions including two unaided schools and a school affiliated to the Central Board of Secondary Education are available. The Deputy Director has also recommended that the students in the LP section of Malaparamba AUP School can be accommodated in Kristhuraja LP School and in the aforesaid four schools. 14. In such circumstances, I am of the opinion that the Parent Teachers Association cannot insist that to accommodate 44 students, the Government should continue to pay salary and allowances to the teaching and non-teaching staff of Malaparamba AUP School and also pay maintenance grant to the Manager. As regards the contention that the Government have no appellate powers, a reading of rule 23BB of Chapter V of the Kerala Education Rules clarifies the position. It is stipulated therein that a revision will lie from any order passed by any subordinate authority in respect of matters dealt with in Chapter V of the Kerala Education Rules. Closing down of the schools is a matter covered by rule 24 of Chapter V of the Kerala Education Rules and therefore, the **13** ## **W.P.(C)Nos.2761 & 12540 of 2014** contention that the Government have no appellate powers is plainly untenable. I accordingly overrule the said contention as well. For the reasons stated above, I allow W.P.(C)No.12540 of 2014, quash Ext.P6 order dated 11.4.2014 issued by the Deputy Director of Education, Kozhikode and Ext.P7 Government order dated 24.5.2014. W.P.(C)No.2761 of 2014 shall stand dismissed. If on the strength of Ext.P7 Government order, students have been admitted in Malaparamba AUP School during the current academic year and the school is functioning though as an uneconomic school, it will be open to the Government to pass appropriate orders in the matter. The parties shall bear their respective costs. Sd/- **P.N.RAVINDRAN JUDGE** ## **vpv**