WP(C) Nos. 8094/2022, 8212/2022, 16323/2022; The Manager, Haji Essa Haji Moosa Memorial School, Mattancherry; and K.B. Ashraf, President, Parent Teachers Association of Haji Essa Haji Moosa Memorial LP School and High School, Mattancherry v State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944`** ## **`WP(C) NO. 8094 OF 2022`** ## **`PETITIONER:`** ``` THE MANAGER HAJI ESSA HAJI MOOSA MEMORIAL SCHOOL, MATTANCHERY, (SCHOOL CODE-726017), KOCHI, PIN-682002. ``` ``` BY ADVS. K.V.SREE VINAYAKAN K.JAJU BABU (SR.) ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN-695014.` - `2 THE SECRETARY GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIURVANANTHAPURAM, PIN-695014.` - `3 DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, KAKKANAD PO, ERNAKULAM, PIN-692030.` - `4 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM, PIN-682011.` - `5 THE DIRECTOR OF GENERAL EDUCATION, THE DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM, PIN-695014.` - `6 ADDL.R6.K.B.ASHRAF AGED 60 YEARS, S/O. BAVA, PRESIDENT, PARAENT TEACHERS ASSOCIATION OF HAJI ESSA HAJI MOOSA MEMMORIAL HIGH SCHOOL` ``` 2 ``` ## **`WP(C)NOs.8094/2022 Conn. Cases`** ``` RESIDING AT MATTANCHERRY HOUSE NO. 3/971, IREVALI,KOCHI, ERNAKULAM. ``` ``` (ADDITIONAL R6 IMPLEADED AS PER ORDER DATED 6-4- 2022 INIA NO.1/2022) ``` ``` BY ADVS. VINOD KUMAR.C- ADDL. R6 JOHN VARGHESE ``` ``` SRI.V.K.SUNIL SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.06.2022, ALONG WITH WP(C).8212/2022, 16323/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C)NOs.8094/2022 Conn. Cases ``` ``` 3 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 ``` ``` WP(C) NO. 8212 OF 2022 ``` ## **`PETITIONER:`** ``` THE MANAGER HAJI ESSA HAJI MOOSA MEMORIAL L. P. SCHOOL, MATTANCHERRY, (SCHOOL CODE - 726017) KOCHI, PIN - 682002. ``` ``` BY ADVS. K.V.SREE VINAYAKAN K.JAJU BABU (SR.) ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN - 695 001. ``` ``` 2THE SECRETARY GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN - 695 001. 3DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, KAKKANAD P. O., ERNAKULAM, PIN - 682 030. ``` ``` 4THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM, PIN - 682011. ``` ``` 4 ``` ## **`WP(C)NOs.8094/2022 Conn. Cases`** - `5 THE DIRECTOR OF GENERAL EDUCATION, THE DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM, PIN - 695 014.` - `6 THE ASSISTANT EDUCATIONAL OFFICER MATTANCHERRY, FORT KOCHI, PIN – 682002. BY ADV ADVOCATE GENERAL OFFICE KERALA ARI.V.K. SUNIL SR.GP` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.06.2022, ALONG WITH WP(C).8094/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C)NOs.8094/2022 Conn. Cases ``` ``` 5 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 WP(C) NO. 16323 OF 2022 ``` ## **`PETITIONER:`** ``` K.B.ASHRAF AGED 60 YEARS S/O.BAVA, PRESIDENT PARAENT TEACHERS ASSOCIATION OF HAJI ESSA HAJI MOOSA MEMMORIAL LP SCHOOL AND HIGH SCHOOL AND RESIDING AT MATTANCHERRY HOUSE NO.3/971, IREVALI, KOCHI, ERNAKULAM. ``` ``` BY ADV VINOD KUMAR.C ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001. ``` ``` 2THE SECRETARY GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001. ``` ``` 3DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, KAKKANAD P.O., ERNAKULAM - 682 030. ``` ``` 4THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM, PIN - 682 011. ``` ``` 6 ``` ## **`WP(C)NOs.8094/2022 Conn. Cases`** - `5 THE DIRECTOR OF GENERAL EDUCATION THE DIRECTORATE OF GENERAL EDUCATION JAGATHY, THIRUVANANTHAPURAM, PIN - 695 014.` - `6 THE ASSISTANT EDUCATIONAL OFFICER MATTANCHERRY, FORT KOCHI, PIN - 682 002.` - `7 THE MANAGER HAJI ESSA HAJI MOOSA MEMORIAL LP SCHOOL MATTANCHERRY SCHOOL CODE 726 017, KOCHI, PIN - 682 002.` ``` BY ADV K.V.SREE VINAYAKAN ``` ``` SRI.K.V.SUNIL – SR. GP. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.06.2022, ALONG WITH WP(C).8094/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 7 ``` ## **`WP(C)NOs.8094/2022 Conn. Cases`** ## **JUDGMENT** [WP(C) Nos.8094/2022, 8212/2022, 16323/2022] This order of mine shall dispose of three writ petitions, W.P.(C).No.8094/2022 and 8212/2022 filed by the manager of the school for closing down High School and Lower Primary School and W.P.(C).No.16323/2022 filed by the Parent Teachers Association opposing the aforementioned prayer on various grounds. The facts and the question of law involved in these writ petitions are common and therefore they are being disposed of together. 2. Section 7 of the Kerala Education Act enables the manager of the school to close down any school by giving one year notice to the Director of Education expiring 31[st] May of any year. Rule 24 of Chapter V of Kerala Education Rules deals with the procedure of entertaining such application. The application of the petitioner-manager was submitted one year ago as per the provisions of Section 7 of the Act entailed into rejection vide common order dated 18.08.2021. Relevant portion of the order ``` WP(C)NOs.8094/2022 Conn. Cases ``` ``` 8 ``` ## reads thus: “Attention is invited to the above mentioned references. On your request for closing down HEHMMHS and HEMMLPS Mattancherry from the academic year 2022-2023, a detailed report has been called for from the District Educational Officer. In the said report it is reported that there has not been any instance where there has been no students in the school and there are altogether 23 staff, including teaching and nonteaching staff. In the year 2021-2022 from class 1 to 10 there are 138 students studying. If the school is closed the continuing education for the aforesaid students would be affected and the Government would have to take over the staff and there is no permission to incur any burden on the Government and accordingly you are informed that the permission has been declined.” 3. Learned senior counsel representing the petitioner submits that petitioner/manager is running Higher Secondary Lower Primary School in Fort Kochi on a land owned by them. The school in the past had been producing 100% success in S.S.L.C. exams. It had all the buildings, but over a past year there was a considerable drop in the strength of the students, it fell down to 189 which was approximately 18% as it was some year ago. The total number of student in the High School is only ``` 9 ``` ## **`WP(C)NOs.8094/2022 Conn. Cases`** 137 against the normal strength of 240 and Lower Primary is 52 as against normal strength of 140. The request in terms of the aforementioned provisions was submitted on 01.03.2021 for closing both schools. There are about 23 teaching and nonteaching staff vis-a-vis the students aforementioned. As per the information obtained under the RTI, there are four schools running in the nearby locality with following name and style (1) M.M.O.V.H.S.S Panayappilly, (2) G.H.S.S Mattancherry, (3) Gujarathi Vidyalaya High School Mattancherry, (4) T.D.S.S., Mattancherry. The respondents cannot compel the petitioner to continue the school when the intention to close down the school as per the provisions of Section 7(6) of the Kerala Education Act read with Rule 24 is brought in to motion. 4. It is next contended that Rule 6(10) of the Right of Children to Free and Compulsory Education Rules, 2011 imposed obligation upon the Government and local authority to ensure that the access of children to the school is not hindered on account of social and cultural factors and also on account of ``` 10 ``` ## **`WP(C)NOs.8094/2022 Conn. Cases`** the closure of a Government or aided school and that no school is closed down without the recommendation of the Assistant Educational Officer and the Local Authority and prior sanction of the Government. In the judgment reported in _**State of Kerala and Others**_ v. _**Manager, Aided Upper Primary School, Kozhikode**_ [2016 (2) KHC 629] the aforementioned Rule 6(10) has been struck down by the Division Bench of this Court by holding that the provisions of Rule 6(10) providing that no school shall be closed down without recommendation of the AEO and the local authority, was beyond the scope of the rule making authority of Government as there is no provisions in the Right to Education Act dealing with the closure of the school to which the Act is applicable. The Rules are framed by the Government in exercise of the power 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 have been enumerated in Clauses (a) to (r) of Section 38(2) whereas 38(1) is only for the purpose of carrying out the provisions of ``` 11 ``` ## **`WP(C)NOs.8094/2022 Conn. Cases`** the Act not for other purposes. Aided schools do not generate income on the admission of the students ie., education to the students are free of cost. The session has just started yesterday and future of the students will not be hindered in case the permission to close down the school is granted as this Court can always issue a direction to the Government to admit the students to nearest Aided or Government School. 5. Per contra, learned counsel representing the Parents Teachers Association and the learned Government Pleader oppose the aforementioned prayer on the ground that as and when the manager had intended to close down the school, the intimation of the same ought to have been given to the parents or the Association so that an alternative arrangement could have been made well in advance but not at the fag end when the application was rejected. Classes have already started in school and the students have been deprived of the education. They have no objection in the school closing down for the next academic year and for the time being they may be permitted to ``` WP(C)NOs.8094/2022 Conn. Cases ``` ``` 12 ``` continue with the existing school. 6. I have heard the learned counsel for the parties and appraised the paper books. 7. Section 7(6) and Rule 24 as noticed above are required to be extracted. The same reads thus: “Section 7(6) :-No Manager shall close down any school unless one year's notice, expiring with the 31st May of any year, of his intention so to do, has been given to the officer authorised by the Government in this behalf. Rule 24. Closure of Private Schools. No private school shall be closed down without giving the Director one year’s notice, expiring with the 31st May of any year, of the intention to do so.” 8. The Division Bench of this Court in paragraph 24 while dealing with Rule 6(10) of the Right of Children to Free and Compulsory Education Rules, 2011 held that it cannot place a restriction on the manager’s right to close down the school as per the provisions of Section 7(6) of the Kerala Education Act. The Kerala Rules are only subordinate legislation. In paragraph 24 and 25, it was held as under: ``` WP(C)NOs.8094/2022 Conn. Cases ``` ``` 13 ``` “24. Insofar as R.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 S.38 of the Act. S.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 S.38(2). Therefore, in view of the provisions contained in S.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 R.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, R.6(10) has travelled beyond the scope of the parent Act and therefore, is ultra vires. In that view of the matter, we cannot recognise the requirements of R.6(10) and place restrictions on the Manager's rights recognised under the provisions of the KE Act, enabling them to ``` 14 ``` ## **`WP(C)NOs.8094/2022 Conn. Cases`** close down the school on satisfying the conditions specified in S.7(6) and the provisions of Chapter V R.24.” 9. Similar controversy was pondered by the Division Bench of this Court in an unreported judgment dated 17.07.2019 titled as _**Parent Teacher Association and Others**_ v. _**M.U.Poulose and Others**_ in W.A..Nos.1230 & 106 of 2019 wherein by allowing the closure of the school, direction was issued to the State to admit the students to the near Aided or Government schools so that their education is not offended. In other words, the students were accommodated in a nearby school. It is a matter of record that there are five schools in the nearby area and have good strength not only of students but vis-a-vis the faculty. 10. This Court during the course of hearing had called upon the learned counsel representing the petitioner in first two writ petitions filed on behalf of the manager to file an affidavit with specific averment whether after submission of the request, of intention to close the school, competent authority had taken any admissions. The affidavit reveals 32 admissions were taken ``` 15 ``` ## **`WP(C)NOs.8094/2022 Conn. Cases`** on purported directions of the AEO. Since Rules 6(10) has already been held to be ultra vires by this Court in the judgment cited above, I am of the view that the intention of the Act and Rules framed thereunder do not give any scope for the authority for rejection of application submitted by the manager expressing intention to close the school. The reasoning assigned as extracted above has been only that it would impair the career of the students who are already on the rolls of the school. I am of the view that the said action is not sustainable, accordingly it is set aside. The writ petitions filed by the manager are allowed. State is directed to undertake the task of accommodating the 178 students as the classes for all the standards have commenced only from 01.06.2022. No school in the nearby would refuse to accommodate the students which may entail into a multifarious litigation. 11. I.A.No.4 of 2022 is dismissed as there is no need of impleading since the writ petitions have been disposed of by a common judgment. ``` 16 ``` ## **`WP(C)NOs.8094/2022 Conn. Cases`** 12. W.P.(C).No.16323/2022 filed by the president of the Parents Teachers Association by making a representation to the Government to take over the management of the school. As this Court has allowed the closure of the schools the cause of action accrued in the writ petition no longer subsists. Accordingly the writ petition is dismissed. Liberty is granted to the Parent Teachers Association to revive the petition seeking clarification or for addressing any difficulty. **Sd/AMIT RAWAL JUDGE** nak ``` 17 ``` ## **`WP(C)NOs.8094/2022 Conn. Cases`** ## **`APPENDIX OF WP(C) 8212/2022`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 TRUE COPY OF THE REPRESENTATION BEFORE THE RESPONDENTS 2 TO 4 DATED 01.03.2021 ALONG WITH POSTAL RECEIPT.` - `Exhibit P2 THE TRUE COPY OF THE TRACKING PRINTOUT FROM INDIA POST IN RESPECT OF EXHIBIT P1 REPRESENTATION TO THE 2ND RESPONDENT.` - `Exhibit P2(a) THE TRUE COPY OF THE TRACKING PRINTOUT FROM INDIA POST IN RESPECT OF EXHIBIT P1 REPRESENTATION TO THE 3RD RESPONDENT.` - `Exhibit P2(b) THE TRUE COPY OF THE TRACKING PRINTOUT FROM INDIA POST IN RESPECT OF EXHIBIT P1 REPRESENTATION TO THE 4TH RESPONDENT.` - `Exhibit P3 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 18.08.2021 WITH ENGLISH TRANSLATION.` - `Exhibit P4 TRUE COPY OF THE LETTER UNDER RIGHT TO INFORMATION ACT DATED 30.10.2021 REGARDING PANAYAPPILLY M.M.O.V.H.S.L.P.S. WITH ENGLISH TRANSLATION.` - `Exhibit P5 TRUE COPY OF THE LETTER UNDER RIGHT TO INFORMATION ACT DATED 30.10.2021 REGARDING G.H.S.S.L.P.S. MATTANCHERRY WITH ENGLISH TRANSLATION.` - `Exhibit P6 TRUE COPY OF THE LETTER UNDER RIGHT TO INFORMATION ACT DATED 30.10.2021 REGARDING PANAYAPPILLY T.D.L.P.S. WITH ENGLISH TRANSLATION.` - `Exhibit P7 TRUE COPY OF THE COMMUNICATION DATED 11/4/2022 ISSUED TO THE HEAD MISTRESS, HAJI ESSA HAJI MOOSA MEMORIAL LP SCHOOL, MATTACHERRY` ``` 18 ``` ## **`WP(C)NOs.8094/2022 Conn. Cases`** ## **`APPENDIX OF WP(C) 16323/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF MEMORANDUM SUBMITTED BY PETITIONER AND OTHERS DT NIL WITH ENGLISH TRANSLATION. Exhibit P2TRUE COPY OF ACKNOWLEDGEMENT OF P1 DT. 05/4/22. ``` ``` 19 ``` ## **`WP(C)NOs.8094/2022 Conn. Cases`** ## **`APPENDIX OF WP(C) 8094/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE REPRESENTATION BEFORE THE RESPONDENTS 2 TO 4 DATED 01-03-2021 ``` ``` Exhibit P2THE TRUE COPY OF THE POSTAL RECEIPTS IN RESPECT OF EXHIBIT P1 REPRESENTATION DATED 6-3-2021 Exhibit P3TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 18-08-2021 WITH ENGLISH TRANSLATION ``` - `Exhibit P4 TRUE COPY OF THE LETTER UNDER RIGHT TO INFORMATION ACT DATED 30-10-2021 IN M.MO.V.H.S.S PANAYAPPILLY WITH ENGLISH TRANSLATION.` - `Exhibit P5 TRUE COPY OF THE LETTER UNDER RIGHT TO INFORMATION ACT DATED 30-10-2021 IN G.H.S.S MATTANCHERRY WITH ENGLISH TRANSLATION` - `Exhibit P6 TRUE COPY OF THE LETTER UNDER RIGHT TO INFORMATION ACT DATED 30-10-2021 IN T.D.S.S MATTANCHERRY WITH ENGLISH TRANSLATION` ``` Exhibit P7TRUE COPY OF THE COMMUNICATION DATED 11/4/2022 ISSUED TO THE HEAD MISTRESS, HAJI ESSA HAJI MOOSA MEMORIAL HIGH SCHOOL, MATTACHERRY ```