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1978 DIGILAW 50 (KER)

ABDURAHIMAN v. STATE

1978-02-16

K.K.NARENDRAN, V.BALAKRISHNA ERADI

body1978
Judgment :- 1. In this original petition the petitioner who is the Manager of an Aided Lower Primary School challenges the orders of the 1st respondent-State issued under S.14 of the Kerala Education Art 1958, for short the Act, taking over the management of the school. Ext. PI4 is the order of the 1st respondent taking over the management of the school and Exts. P-15 and P-16 are consequential orders issued by the 3rd respondent District Collector, Malappuram. 2. According to the petitioner, early in 1976 some Muslims belonging to the orthodox section of the community at Wandoor made a demand for conducting religious instructions in the premises of the Madrassa ALP. School under his management in the morning before school hours. The majority of the Muslims of the locality was opposed to the above move and the petitioner did not accede to the above demand. Those who made the demand attempted to conduct the Madrassa in the school premises by force. Though the local Police was approached, they did not do anything in the matter and hence the petitioner filed O.P. No. 519 of 1975 before this Court for Police protection. The petitioner also approached the Munsiff's Court, Manjeri by filing O.S. No. 13 of 1976 and he obtained an interim injunction against those who attempted to conduct religious instruction by force. O.P. No. 519 of 1975 was disposed of by this Court by Ext. P-23 judgment dated 3011976 with a direction to the Police to see that no breach of peace occurred in the locality on account of the controversy and that the orders of the Munsiff's Court, as long as the same are not set aside, be respected by the concerned parties. The Civil Miscellaneous Appeal filed against Ext. P-11 order of the Munsiff's Court was later dismissed by the District Judge, Manjeri by Ext. P-22 judgment dated 23101976.On 151 76 when the Commissioner appointed by the Munsiff's Court came for inspection, a crowd collected at the school premises and hence a holiday for half a day had to be declared for the school. According to the petitioner, on no other occasion, the functioning of the school was interrupted because of the dispute. Though the direction from the High Court was to give Police protection to the petitioner, no protection, as a matter of fact, was afforded by the Police. According to the petitioner, on no other occasion, the functioning of the school was interrupted because of the dispute. Though the direction from the High Court was to give Police protection to the petitioner, no protection, as a matter of fact, was afforded by the Police. Not only that, on 6-2-1976 the Sub Divisional Magistrate, Perintalmanna initiated proceedings against the petitioner and others under S.107 of the Criminal Procedure Code. Thereupon, the petitioner and others moved Crl.R.P. No. 8 of 1976 before the Sessions Judge, Manjeri who by Ext. P-24 order dated 4101976 quashed the above proceedings. In the above order the learned Sessions Judge observed that on no reliable material did the Police find that the petitioners were law breakers and in fact the truth was the other way about. The learned Sessions Judge added that as between the wrong-doer and the wronged, the Magistrate had preferred the former. But, in the meanwhile, the 1st respondent-State issued a notification dated 12 61976 taking over the management of the school under S.14 of the Act. According to the petitioner, this was done at the instance of the rival group which is said to have had great influence with the 1st respondent. The petitioner questioned the above notification before this Court in O. P. No 3227 of 1976 and this Court quashed the above notification holding that the notification was in contravention of the mandatory provisions contained in S.14 (1) of the Act. Thereafter, the 1st respondent issued Ext. P-12 notice dated 28 91976 directing the petitioner to show cause why the management of his school should not be taken over under S.14 of the Act. Among other things, it was pointed out in Ext. P-12 notice that the school was unauthorisedly closed for two days, namely, 1511976 and 24 11976. The petitioner submitted Ext. P-13 explanation on 10101976 contending that there was no justifiable ground at all for taking action under S.14 of the Act. But the 1st respondent issued Ext. P-14 order rejecting the petitioner's contentions and taking over management of the school for a period of two years under S.14 (1) of the Act. 3. A counter-affidavit has been filed on behalf of respondents 1 and 2 controverting the averments and contentions in the original petition. The contention of the petitioner that the school is a minority school has been controverted in the counter-affidavit. 3. A counter-affidavit has been filed on behalf of respondents 1 and 2 controverting the averments and contentions in the original petition. The contention of the petitioner that the school is a minority school has been controverted in the counter-affidavit. The statement in Para.3 of the counter-affidavit is that according to the records available with the educational authorities the school was under the individual management of Shri. K. Veeran Kunju and be transferred the management of the school to the petitioner in his individual capacity. It is stated in Para.8 that the information available with the Government showed that for a long time past religious instruction was conducted in the school premises outside school hours It is also asserted in Para.8 that the Government was satisfied that the said school was not running properly and a very tense situation prevailed in and around the school which made it impossible for the students to attend the school in a peaceful atmosphere. In Para.10 it is pointed out that the tension developed because the petitioner-Manager prevented the conduct of Madrassa classes in the school premises. It is also contended that the petitioner-Manager failed to see that the school functions properly and uninterruptedly and thus acted in violation of S.7(2) of the Act. The fact that the Manager reported to the Assistant Educational Officer, Nilambur that some persons entered the school breaking open the locks and that it was on this day that he had to close the school has also been pointed out in Para.10. Reference has been made also to the report of the District Educational Officer, Malappuram, dated 8 61976. The allegation that Ext. P-14 order has been issued to oblige the persons who attempted to conduct the Madrassa classes in the school premises is denied in Para.11. 4. The petitioner has filed a reply affidavit controverting the averments and allegations made in the counter-affidavit. Along with the reply affidavit, Exts. P-17 to P-25 have also been produced. 5. The Government file in this case was made available to the court by the learned Government Pleader appearing in the case. 4. The petitioner has filed a reply affidavit controverting the averments and allegations made in the counter-affidavit. Along with the reply affidavit, Exts. P-17 to P-25 have also been produced. 5. The Government file in this case was made available to the court by the learned Government Pleader appearing in the case. It is clear from the file that the group which wanted to conduct the Madrassa classes in the school premises have asserted in their representations to the State that the Madrassa classes were being conducted in the school premises in the past and it was the petitioner-Manager and his Headmaster who prevented the same. But at the same time, the rival group in their representations to the State have pointed out that the Madrassa classes were being conducted in a separate building adjacent to the school on its southern side and the Madrassa Committee stopped the Madrassa classes there. It is also seen alleged in their representations that the Madrassa Committee was attempting to sell the above building. A report submitted by the Joint Director of Public Instruction who visited the school on 14 3 1976 is in the file. In the said report the Joint Director has said: "This is a matter which does not strictly come under the provisions of K E.R. There is a civil suit going on in the Court between the parties regarding the right of conducting Madrassa classes in the school premises." 6. We may at the very outset state that the question whether the petitioner's school is a minority school or not cannot be decided in these proceedings since the facts are disputed. Similarly, whether the Madrassa classes were conducted in the school premises prior to the present dispute is also a disputed question of fact. 7. S.14(1) of the Act which provides for taking over management of school reads: "14. Similarly, whether the Madrassa classes were conducted in the school premises prior to the present dispute is also a disputed question of fact. 7. S.14(1) of the Act which provides for taking over management of school reads: "14. Taking over management of schools: (1) Whenever it appears to the Government that the manager of any aided school has neglected to perform any of the duties imposed by or under this Act or the rules made thereunder, and that in the public interest it is necessary to take over the management of the school for a period not exceeding five years, they may, after giving the manager and the educational agency, if any, a reasonable opportunity for showing cause against the proposed action and after considering the cause, if any, shown, do so, if satisfied that such taking over for the period is necessary in the public interest," S 7(2) of the Act reads: 7(2). The manager shall be re possible for the conduct of the school in accordance with the provisions of this Act," Rule 9 Chapter III of the Kerala Education Rules, 1959, for short the K. E. R. reads: "9. Duties and powers of the Managers of Aided schools: (1) The Manager shall be responsible for the conduct school strictly in accordance with the provisions of the Kerala Education Act and the Rules issued thereunder. He shall also abide by the orders that may be issued from time to time by the Government and the Department in conformity with the provisions of the Act and the rules issued thereunder. (2) The Manager shall sign all the bills relating to the maintenance and other grants specifically granted to the Management All other bills relating to the school shall be signed by the Headmaster. (3) The Manager shall provide site, building, staff, equipment, furniture etc. as per Rules issued under the Education Act and as per orders that may be issued from time to time by the Government and the Department in conformity with the provisions of the Act and the rules issued thereunder. (4) The Manager shall not interfere with the academic work of schools which should be attended to by the Headmaster. (5) The Manager shall verify the staff position of the school in conformity with the number of class divisions sanctioned by the Department." Rule 18, Chapter IV of the Rules reads: "18. (4) The Manager shall not interfere with the academic work of schools which should be attended to by the Headmaster. (5) The Manager shall verify the staff position of the school in conformity with the number of class divisions sanctioned by the Department." Rule 18, Chapter IV of the Rules reads: "18. Imparting of Religious Instruction, (1) Religious instruction can be permitted in private schools only under the following conditions: (a) The conditions in R.17(1) (b) State funds shall not be utilised for religious instruction. (c) ... ... (d) No proselytization shall be conducted. (e) If religious instruction is imparted during school hours, the number and duration of the periods as required by the syllabus shall not thereby be reduced in any way. (2) No teacher shall be required to impart religious instruction to the pupils, against his will." The right of management a Manager of an Aided School has got is abridged only to the extent there are restrictions imposed by the Kerala Education Act 1958 and the Kerala Education Rules. So, is any matter where his powers are not restricted by the Act and the K. E. R. he has the full discretion to do what according to him is proper. He cannot be compelled by people who take law into their bands to achieve their objects. If a law and order situation is created, it is for the State to take appropriate action to see that order is maintained and that the educational institution is enabled to function peacefully without external interference. In the matter of religious instruction under R.18, Chapter IV of the K. E. R. the Manager has the freedom either to have it in his school or not to have it. It is to be noted that the words used in R.18(1) are "can be permitted". So, if a Manager does not permit religious instruction is his school or stops religious instruction in his school, nobody has a right to compel him to have religious instruction in his school. Under R.9(1) Chapter III of the KER the State and the Department can issue instructions to the Manager only in conformity with the provisions of the Act and the KER. In this case, the respondents have no case that the Manager has refused to abide by any orders issued by them. Under R.9(1) Chapter III of the KER the State and the Department can issue instructions to the Manager only in conformity with the provisions of the Act and the KER. In this case, the respondents have no case that the Manager has refused to abide by any orders issued by them. It is to be noted that only when the Manager has neglected to perform any of the duties imposed by the Act or the K E.R. and in the public interest it has become necessary to take such action that the State can invoke S.14 of the Act and take over the management of an Aided School. So, public interest alone is not enough. Neglect on the part of the Manager to perform any of the duties imposed by the Act or the K.E.R, is a'must'. In this case, the Manager has not neglected to perform any of his duties under the Act or the KER. as the imparting of religious instruction in his institution is a matter well within his discretion. Even if a Manager is guilty of any laches, the Department has ample powers to take action against him and to declare him unfit to be a Manager. The extreme steps provided for by S.14 can only be invoked very sparingly and only in cases where action under other provisions is not enough to meet the situation. The mere fact that the school had to be closed for two days because of agitation launched by some rival group is not sufficient to invoke S.14 of the Act. So, the 1st respondent-State has gone wrong in passing Ext. P-14 order taking over management of the petitioner's school. In fairness also the State should not have taken over management when the dispute regarding the conduct of the Madrassa classes in the school premises was pending in the Civil Court. 8. In the result, Ext. P-14 order of the 1st respondent State is hereby quashed. Exts. P-15 and P-16 consequential orders passed by the 3rd respondent-District Collector, Malappuram are also set aside. The Original Petition is allowed to the extent indicated above. There will be no order as to costs. Allowed.