Allowed

M.U. Poulose v. State of Kerala

Kerala HC24 Sept 2018WP(C)/19349/2018

Case brief

AI extract

What is this about?

The Court allowed the petitioner's writ petition for permitting the closure of an aided primary school issued notice under Section 7(6) of the Kerala Education Act, holding that subsequent rules restricting such closure are ultra vires.

What did the court decide?

Writ petition allowed setting aside impugned orders; closure of school permitted but stayed till current academic year conclusion.

M.U. Poulose Vs State of Kerala — Education and Admissions | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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MONDAY ,THE 24TH DAY OF SEPTEMBER 2018 / 2ND ASWINA, 1940

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WP(C).No. 19349 of 2018

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PETITIONER/S:

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M.U. POULOSE, MARIYIL HOUSE, KAROOR, PAZHOOR.P.O,PIRAVAM, ERNAKULAM DISTRICT.

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BY ADVS. SRI.O.V.RADHAKRISHNAN (SENIOR.) SRI.RAJESH NAIR SRI.K.BALACHANDRAN (MANGALATH)

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT,THIRUVANANTHAPURAM DISTRICT,PIN-695001.

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2 THE DIRECTOR OF PUBLIC INSRTRUCTIONS THIRUVANANTHAPURAM-695001.

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3 DEPUTY DIRECTOR OF EDUCATION ERNAKULAM-682030.

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4 THE DISTRICT EDUCATION OFFICER MUVATTUPUZHA,ERNAKULAM DISTRICT-686661.

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5 THE ASSISTANT EDUCATIONAL OFFICER PIRAVOM,ERNAKULAM DISTRICT-686664.

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OTHER PRESENT:

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SMT.PRIYA SHANAVAS, GOVERNMENT PLEADER.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.19349/2018

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J U D G M E N T

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The petitioner is the Manager of St.Gregorios Upper Primary School, Karur, Piravom. The said school is an aided school and it was established in the year 1982. The school offers elementary education upto 7^th standard. The petitioner, by Ext.P1, gave a notice to the Director of Public Instructions purportedly under Section 7(6) of the Kerala Education Act to close down the school with effect from 31.05.2018. This notice was issued on 20.06.2016. Section 7(6) of the Act mandates one year notice expiring with 31^st May of any year.

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The Director of Public Instructions rejected the request taking note of the policy of the Government. Ext.P9 is the decision of the Director of Public Instructions. The petitioner approached the Government. The Government also, by Ext.P16, rejected the request of the petitioner to close down the school.

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Section 7(6) of the Kerala Education Act confers absolute power on the Manager of the school to close down any school after giving one year notice expiring with 31^st May of any year. Rule 24(2) of Chapter V of Kerala Education Rules confers a discretion on the Director to grant permission for the closure of the school. This Court, way back in the year 1972, in Krishnakumar vs. State of Kerala (1972 KLT 496), had struck down the said Rule holding that it is inconsistent with Section 7(6) and

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W.P.(C) No.19349/2018

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beyond the rule making power. Therefore, Rule 24(2) of Chapter V KER is no longer there as a statutory rule.

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The question is then in the light of Rule 6(10) of the Right of Children to Free and Compulsory Education Rules, 2011 framed by the Government invoking the power under Section 38, the Right of Children to Free and Compulsory Education Act, 2009 can be resorted to or not. Rule 6(10) reads as follows:

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“ 6. Area or limits of neighbourhood :-

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(10) The Government or local authority shall ensure that access of children to the school is not hindered on account of social and cultural factors, on account of 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”.

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The above Rule would show that no aided school can be closed

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down without the recommendation of the educational officer and the local authority and prior sanction of the Government. A Division Bench of this Court, in Writ Appeal No.1115 of 2015 and connected matters, had held that the above rule is ultra vires in as much as that this was made by travelling beyond the scope of the parent Act. If that be so, Rule 6(10) also cannot be resorted to, to deny the claim for closure of the school.

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W.P.(C) No.19349/2018

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Learned Government Pleader pointing out to the Right of Children to Free and Compulsory Education Act submits that there are no U.P schools within the 3 k.m radius and therefore, educational need exists and to protect the interest of the public, the petitioner cannot be allowed to close down the school. It is also submitted that the pupils studying in the school have approached the Kerala State Commission for SC/ST and the pupils are against the closure of the school. The statutory provisions as referred under Section 7(6) gives absolute power to the Manager to close down the school. This Court had already considered the impact of the statutory provisions as above in Krishnakumar's case (supra). Therefore, I need not reiterate the proposition of law laid down there.

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In the light of the fact that Rule 24(2) of Chapter V of Kerala Education Rules and Rule 6(10) of Right of Children to Free and Compulsory Education Rules have been held to be ultra vires, no discretion is left with the educational department or the Government to refuse such request for closure. No doubt, the Government is having sufficient power to acquire the school. I am not adverting to this issue as of now.

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In the light of the discussions as above, this writ petition is only to be allowed.

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This writ petition is allowed by setting aside the impugned orders.

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W.P.(C) No.19349/2018

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However, considering the fact that the students are studying in the school, the petitioner shall not close down the school till the conclusion of the current academic year.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 COPY OF THE NOTICE DATED 20.06.2016 EXHIBIT P2 COPY OF THE RECEIPT DATED 22.06.2016 ISSUED BY THE POST OFFICE EVIDENCING DISPATCH OF EXT.P1 EXHIBIT P3 COPY OF THE'PROOF OF DELIVERY'OF EXT.P1 ON THE 2ND RESP.RECEIVED BY THE PTR ON 25.06.16 EXHIBIT P4 COPY OF STAFF FIXATION ORDER DATED 11.12.17 FOR THE YEAR 2017-18 EXHIBIT P5 COPY OF A RECENT REPRESENTATION DT.26.12.17 SENT BY THE PTR TO THE 1ST AND 2ND RESPS EXHIBIT P6 COPY OF 'CASE SUMMARY AND DISCHARGE RECORD'DT.24/05/17 ISSUED BY THE S.C.T.I.M.S & T EXHIBIT P7 COPY OF PRESCRIPTION DATED 01.06.2017 ISSUED BY THE S.C.T.I.M.S & T EXHIBIT P8 COPY OF JUDGT DT 23.02.18 IN WP(C)NO.6134/2018 EXHIBIT P9 COPY OF LETTER DATED 10.04.18 OF THE 3RD RESP.

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W.P.(C) No.19349/2018

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EXHIBIT P10 COPY OF NOTICE DATED 11.04.18 OF THE 2ND RESP. EXHIBIT P11 COPY OF WRITTEN SUBMISSION DATED 27.04.2018 SUBMITTED BY THE PETITIONER. EXHIBIT P12 COPY OF THE 'HEARING NOTE'DATED 03.05.2018 OF THE ADDITIONAL DPI EXHIBIT P13 COPY OF THE COUNTER AFFIDAVIT DATED 28.05.18 FILED BY THE 5TH RESP IN WP(C) 15946/2018 EXHIBIT P14 COPY OF THE ABOVE SAID LETTER DATED 01.06.18 OF THE PETITIONER EXHIBIT P15 COPY OF THE MEMO DATED 01.06.2018 OF THE GOVERNMENT PLEADER EXHIBIT P16 COPY OF THE LETTER DATED 01.06.2018 OF THE 1ST RESPONDENT EXHIBIT P17 COPY OF THE LETTER DATED 04.06.2018 OF THE 5TH RESPONDENT EXHIBIT P18 COPY OF THE ORDER DATED 01.06.2018 OF THE 2ND RESPONDENT EXHIBIT P19 COPY OF JUDGT REPORTED IN 1972 KLT 496 EXHIBIT P20 COPY OF JUDGT REPORTED IN 1986 KLT 359 EXHIBIT P21 COPY OF JUDGT REPORTED IN 1993 KLT 519 EXHIBIT P22 COPY OF JUDGT REPORTED IN 2000(1) KLT 804 EXHIBIT P23 COPY OF THE DIVISION BENCH JUDGT DATED 22.07.15 IN W.A.1583/15 EXHIBIT P24 COPY OF THE ORDER DATED 05.10.15 OF THE HON'BLE SUPREME COURT IN SLP NOS:2782227827/15. 1ST RESPONDENT'S EXHIBITS : EXHIBIT R1(a) TRUE COPY OF THE REPORT OF THE AEO, PIRAVOM.

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True Copy

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P.S to Judge.

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smp

M.U. Poulose v. State of Kerala

Case brief

What is this about?

What did the court decide?

M.U. Poulose v. State of Kerala

Case brief

What is this about?

What did the court decide?

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