The court reaffirmed the absolute authority of school managers under Section 7(6) of the Kerala Education Act to close schools, invalidating conflicting regulations.

J U D G M E N T

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 7th 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 31st May of any year.

2. 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.

3. 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 31st 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, inKrishnakumar vs.State of Kerala ( 1972 KLT 496 ), had struck down the said Rule holding that it is inconsistent with Section 7(6) and beyond the rule making power. Therefore, Rule 24(2) of Chapter V KER is no longer there as a statutory rule.

4. 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:

“6. Area or limits of neighbourhood:-

....

(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”.

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

6. 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.

7. 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.

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

This writ petition is allowed by setting aside the