Koshy, J.

Doubting the correctness of the decision reported in Mohammed Kutty v. State of Kerala (2002 (2) KLT 300) this matter was referred to Division Bench by the learned Single Judge (Justice Mr. K.M. Joseph). The question is whether legal representatives of ‘an individual educational agency’ of an aided private school can be treated as an ‘individual educational agency’ or a ‘corporate educational agency’. According to the dictum in Mohammed kutty’s case when a person who is entitled to run a School in his own right dies and his legal representatives continue in management, it will not become a ‘corporate educational agency’ but it will continue as an ‘individual Educational Agency’. In Mohammed Kutty’s case it was observed as follows:

“A reading of Rule 1 of Chapter lll would indicate that in the case of a Corporate Educational Agency, the right of Management would be vested in two or more persons jointly by a written registered agreement or vested in a Board, Association or created by a statute. Rule 2 would further make it clear that in the case of a Corporate Educational Agency, the Management of the school must be subject to the Rules approved by the Director. Rule 1 says that the right to conduct a school if vested in an individual in his own right or as the legal representative of a joint Family, the Educational Agency shall be termed as Individual Educational Agency. The usage of the term “Joint Family” in KER does not refer to the concept of “Joint Family” under the Hindu Law. In the case of the death of one of the members of the joint Hindu Family, his right would devolve on the other members of the family by survivorship and not on the legal representatives of the deceased individual. The usage “the legal representatives of the joint Family” under the above Rule takes in only all the legal representatives of the deceased person jointly or collectively and all the legal representatives of deceased individual Educational Agency is termed as the joint Family and it does not take in a Joint Hindu Family as contemplated under the Hindu Law. The term “legal representatives of the joint Family” would apply to all the individual Educational Agencies irrespective of the religion or community to which the Individual Educational Agency belonged. Corporate Management is a creation by agreement between the parties or a creation by a law, but not a creation by operation by law. By the death of Hamsa Haji, the character of Individual Educational Agency did not cease, but it would continue and it would be open for all the legal representatives of deceased Hamsa Haji to treat the school and the Management as common and to nominate or appoint one of the legal heirs as the Manager. Here, all the legal representatives had decided to treat the school as common by Exhibit R.5 (b) agreement and later all of them, except the petitioner, decided to convert the Management to a corporate one by Exhibit R5(g) Constitution. Till Exhibit R5(g) document is approved by the competent authorities and treated it as a Corporate Educational Agency, the Management shall be deemed to be an individual Educational Agency and the Management of the school shall be subject to the majority decision of the legal representatives as stipulated Exhibit R5 (b) agreement. It is for the legal representatives to decide whether the Management of the school should be continued as an Individual Educational Agency or be converted into a Corporate Educational Agency by agreement among them”.

Rule 1 of Chapter lll of the Kerala Education Rules is as follows:

1. Classification of private Educational institutions – Private Educational institutions may be classified into two categories viz. (i) those under individual Educational Agency and (ii) those under Corporate Educational Agency. Where the right to conduct the school is vested in an individual in his own right or as the legal representative of a joint family, the Educational Agency shall be termed ‘Individua