STATE OF KERALA Vs. KRISHANANKUTTY NAIR

JUDGEMENT

(1.) W.A. Nos. 653 of 2011 and 53 of 2012 arise from W.P.(C) No. 18311 of 2010, the latter among which is instituted having obtained leave to appeal. W.A. No. 601 of 2011 arises from W.P.(C) No. 16909 of 2010. Except the appeal instituted with leave, the other two appeals are by State of Kerala. Issues arose as to whether the statutory authorities acted within jurisdiction in taking action to take over two schools, which are the subject matter of the two different Writ Petitions. The managers had issued notices under S. 7(6) of the Kerala Education Act, 1958, "K.E. Act", for short, about the intention to close down the schools concerned. The statutory provision envisages a notice of one year ending with 31st May of the year in which the school is proposed to be closed down, to the Government. The authorities, apparently, took action as if they were taking over the schools in question in terms of S. 14 of the K.E. Act. The learned single Judge found that action for take over can be only by the Government and decision in that regard has to be by that authority only, however that, the impugned decisions were issued either by the Director of Public Instructions or by the District Collector. Those proceedings were, therefore, quashed. The learned single Judge also noted that the notices given in terms of S. 7(6) cannot by itself generate an action under S. 14 of the K.E. Act. The Writ Petitions were accordingly allowed.

(2.) Hearing the appeals, the Division Bench noted that the issues relating to application of Ss. 7 and 14 of the K.E. Act are dealt with by the Division Bench earlier in the decision in Parent Teacher Association v. State of Kerala,2000 1 KerLT 804). Noticing that the said and earlier decisions in that regard had not addressed on the question of rehabilitation of students, teachers and staff of the closed schools, the matter has been adjourned to the Full Bench for consideration of such issues as well, though the Bench did not disagree with the views expressed earlier.

(3.) With the passage of time, the Right of Children to Free and Compulsory Education Act, 2009, which is a Central Act, hereinafter "F.C.E. Act", for short, came into force with effect from 01.04.2010. Thereafter, the Government of Kerala, made the Kerala Right of Children to Free and Compulsory Education Rules, 2011, "F.C.E. Rules," for short, with effect from 30.04.2011. Those rules are issued in exercise of powers conferred on the State Government under Section 38 of the F.C.E. Act. R.6(10) of the F.C.E. Rules provides that 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. Assistant Educational Officer means an officer in-charge of elementary education in all schools having classes up to eighth standard - See R. 2(f) of the F.C.E. Rules. S. 2(n) of the F.C.E. Act defines a school to mean any recognised school imparting elementary education and includes different types which are enumerated under clauses (i) to (iv) under that provision. Elementary education is defined in S. 2 (f) of the F.C.E. Act to mean the education from first class to eighth class. The schools which are subject matter of these Writ Appeals are schools which fall into that category.