P KRISHNAKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the manager of an aided upper primary school at Shoranur. The school was originally started by the petitioner's grandfather more than 60 years ago. After the death of the founder the petitioner's father succeeded him as the manager of the school. He died in June 1966 when the petitioner was only 19 years old. In spite of his young age the petitioner had to take up the responsibility of administering the school as its manager and he took over the said burden. It would appear that the petitioner found it difficult to properly look after the management of the school, especially in view of the fact that he was not keeping normal health and was unable to move out freely on account of some defect in his knee joints. Hence on 27-5-1971 he addressed a letter Ext. P1 to the Director of Public Instruction, Trivandrum (2nd respondent) intimating the latter about the petitioner's intention to close down this school with effect from the academic year 1972-73. It was expressly mentioned in Ex. P1 that the notice was being given by him as per R.24 of Chap.5 of the Kerala Education Rules. The petitioner's case is that he did not receive any reply from the 2nd respondent for several months and hence he addressed a reminder petition to the 2nd respondent on 29-11-1971. Thereafter on 31-12-1971 the Assistant Educational Officer, Shoranur sent the letter Ext. P3 to the petitioner informing him that permission for the closure of the school had been declined by the Director of Public Instruction and as an enclosure to the said letter the petitioner was furnished with a copy of the proceedings of the Director which purports to have been passed on 31-7-1971. The petitioner has produced a copy of the said order and it has been marked as Ext. P4. By this writ petition the petitioner seeks to quash Est. P4 and he has also prayed for the issuance of a writ of mandamus or other appropriate writ compelling the 3rd respondent the Assistant Educational Officer, Shoranur to receive from the petitioner and the Headmistress of the school all the records and accounts maintained in the school on the date of closing or immediately after the closing down of the school on 31-5-1972. The petitioner has challenged the validity of R.24(2) of Chap.5 of the Kerala Education Rules on the ground that it is ultra vires S.7(6) of the Kerala Education Act, 1958.

(2.) In the counter affidavit filed on behalf of the respondents it is contended that the manager has no legal right to close down an aided school without the permission of the competent authority and that in the present case such permission has been validly refused by the Director. The plea of the petitioner that R.24(2) of Chap.5 of the Kerala Education Rules is ultra vires has been strongly refuted by the respondents.

(3.) The petitioner is admittedly the owner of the school. Ordinarily, it is a right inherent in the owner of any institution or establishment to close it down if he finds it impossible or even inconvenient for him to continue to run it. This right is an essential ingredient of the fundamental rights guaranteed under Art.19(1)(f) and (g) of the Constitution. Reasonable restrictions can however be imposed on the exercise of the said right in the manner authorised by clauses (5) and (6) of Art.19 of the Constitution but that can be done only by the legislature by enacting a suitable statutory prevision in that regard. The only provision in the Kerala Education Act which purports to impose a restriction on the right of the manager of a school to close down the institution is that contained in S.7(6). That provision reads: