1. The questions arising for consideration in this Writ Petition are the following:

(1) Whether prior permission of the Director of Public Instruction is necessary for transfer of a running school, so as to apply for approval for change of management involving change of ownership?

(2) Whether transfer of a running school and the properties of the same without prior permission of the authority under the Kerala Education Act (hereinafter referred to as 'KE Act') is null and void?

(3) What is the distinction between Section 6 of the Kerala Education Act and Rule 5A of the Kerala Education Rules (hereinafter referred to as 'KER') ?

(4) At what stage the previous permission of the Director of Public Instruction be sought for under Rule 5A of Chapter III of the Kerala Education Rules?

2. The first petitioner, the Corporate Manager of Koyyode Madrassa U.P. School in Kannur District, transferred the running school, its management and properties in favour of the second petitioner as per a registered sale deed dated 14.9.2007. The transfer was made as per the decision taken by the Madrassa committee, which is the educational agency. Consent of the teaching and non teaching staff was also obtained before the transfer. It is stated that the transfer was for the purpose of running the school as an aided school. A joint application was made by the petitioners to the Director of Public Instruction, routed through the Assistant Educational Officer, Kannur North, under Rule 5A of Chapter III of KER. It is stated that along with the application, all the relevant documents evidencing transfer, decision of the committee and other

relevant documents were produced. Exhibits P2 to P7 are the application and some of the documents submitted along with the application. The Director of Public Instruction returned the application to the Assistant Educational Officer as per Exhibit P8 communication, on the ground that for transferring the property of the school, previous permission of the Director of Public Instruction was not obtained and that it amounts to a violation of Rule 5A of Chapter III KER. The Assistant Educational Officer, in turn, returned the application to the Manager as per Exhibit P9 communication. Exhibit P8 is under challenge in this Writ Petition.

3. Sri.George Poonthottam, the learned counsel for the petitioners submitted that Exhibit P8 is contrary to the principles of law and particularly the decisions reported in P.V.John vs. Director of Public Instruction and another (ILR 1975(2) Kerala 604), Kesava Kurup vs. State of Kerala and others (1987(2) KLT 801), Kesava Kurup vs. State of Kerala (1988 (1) KLT 77) and Vijayakumari Pillai vs. State of Kerala (2001(1) KLT S.N. Page No.25 Case No.28). It is submitted that notwithstanding the right of appeal under Sub Rule 2 of Rule 5A of Chapter III KER, the petitioners would be entitled to challenge Exhibit P8 under Article 226 of the Constitution of India on two grounds, namely, (i) there is no order as such which could be challenged in appeal under Sub Rule 2 of Rule 5A (ii) Exhibit P8 is contrary to the decisions referred to above.

4. The learned Government Pleader supported Exhibit P8 order and also contended that the petitioners have effective alternative remedy.

5. For the sake of convenience, Section 6 of the KE Act and Rule 5A of Chapter III KER are quoted below :

"6. Restriction on alienation of property of aided school-(1) Notwithstanding anything to the contrary contained in any law for the time being in force, no sale, mortgage, lease, pledge, charge or transfer of possession in respect of any property of an aided school shall be created or made except with the previous permission in writing of such officer not below the rank of a District Educational Officer, as may be authorised by the Government in this behalf. The officer shall grant such permission applied for unless the grant of such permission will, in his opinion adversely affect the working of the school.

(2)