Kunhimmu Haji v. State of Kerala — 1996 DIGILAW 397 (KER)

Judgment :- P.K. Balasubramanyan, J. The petitioner, Kunhimmu Haji. is the member of the Managing Committee of the Parent Teachers Associations Government Lower Primary School, Oorakam, Kizhmuri. He has approached this Court praying for a declaration that all the Government Schools in the State including the L.P. School, Oorakam, Kizhmuri are bound to follow the Education Department Calendar issued by the Director of Public Instruction, for a declaration that the action of the State in directing the Government Schools to follow the calender of any particular religion like Muslim Calender is illegal and unconstitutional, for the issue of a writ of certiorari to quash the orders in that behalf issued by the Secretary to the Government and for a direction to the respondents to follow the Education Department Calender in the L.P. School, Oorakam, Kizhmuri. 2. The petitioner contends that the L.P. School, Oorakam, Kizhmuri was started in the year 1927-28 and it is one of the pioneer educational institutions in the locality. The petitioner was the President of 'the Parent Teachers Association of the School for nearly 17 years and is deeply interested in the good functioning of the School and in its affairs. Right from the commencement of the School during the pre-independence era, the School was following the general calendar. After the introduction of the Kerala Education Department Calender for each year that was being followed by the school. The academic year used to commence in June and the School used to be closed for summer vacation by the end of March, in addition to the summer vacation, the School had the Onam and Christmas holidays. In the week, the Saturdays and Sundays were holidays This was in addition to the other declared holidays as per the Department Calendar. The petitioner submits that during the academic year 1992-93, to the surprise and dismay of the parents, pupils and the public, the School was closed for the month of Ramzan. On enquiry with the Headmaster of the School, no satisfactory information could he obtained. The Committee of I he Parent Teachers Association approached the Assistant Educational Officer for information. Alter repeated requests, in May, 1993 the Asst. Educational Officer ultimately gave the members of the committee a copy of an order dated 25.8.1992 issued by him directing the school to follow the Muslim Calender. The Committee of I he Parent Teachers Association approached the Assistant Educational Officer for information. Alter repeated requests, in May, 1993 the Asst. Educational Officer ultimately gave the members of the committee a copy of an order dated 25.8.1992 issued by him directing the school to follow the Muslim Calender. The petitioner has produced a copy of that order and marked the same as Ext. P1 The order says that the majority of pupils studying in the GLPS, Oorakam, Kizhmuri belong to the muslim community. The President of the Parent Teachers Association reported the difficulty and the inconvenience for those students to participate in their religious and ritual functions if the school is allowed to continue as a general school. Considering that problem in detail, the Asst. Educational Officer was pleased to order that the School in question will thereafter follow the Muslim Calendar. The arrangement would enable the majority muslim pupils to participate in their religious rituals. The petitioner alleges that the order was issued based on the correspondence between the Asst. Educational Office on the one side and the Headmaster and the President of the Parent Teachers' Association of the School, on the other. It is stated that the President of the Parent Teachers' Association in his personal capacity appeared to have approached the Assistant Educational Officer and managed to get the order Ext. P1 issued. According to the petitioner, no final decision was taken by the Parent Teachers' Association for adopting the Muslim Calendar or authorising its President to approach any authority with any such request. The petitioner therefore, submits that respondent No. 4 and the President of the Parent Teachers' Association have acted in collusion behind the back of the Parent Teachers' Association and had procured the order Ext. P1. The petitioner submits that the change brought about in the arrangement followed in the School for more than half a century has created confusion and misunderstanding among the people and the parents. It is pointed out that hardly 50 to 75 metres away from the LP School, there is an Aided Lower Primary School following the Muslim Calendar. It is submitted that even then, majority of the students including muslim students, were rushing to the Government Lower Primary School in view of its standards in education which it has secured by following the general calendar. It is submitted that even then, majority of the students including muslim students, were rushing to the Government Lower Primary School in view of its standards in education which it has secured by following the general calendar. The petitioner contends that the action of respondents 3 to 5 is motivated and based on irrelevant and extraneous considerations. On coming to know about Ext. P1 order, the members of the Parent Teachers' Association and parents and guardians submitted to the Government a representation signed by 73 persons. A true copy of the same is produced by the petitioner and marked as Ext. P2. Since, no action was taken on the representation, the petitioner filed O.P. No. 9866 if 1993 before this Court and this Court by Ext. P4 judgment dated 26.7.1993, directed the State to consider the representation made by the petitioner and others and to pass appropriate orders having due regard to a judgment rendered by this Court in O.P. No. 5991 of 1987. The petitioner has marked a copy of the judgment in O.P. 5991 of 1987 as Ext. P3. Pursuant to the direction in Ext. P4, the Government passed an order on Ext. P2 representation. A copy of the said order dated. 81.1994, is marked by the petitioner as Ext. P5. Ext. P5 directed the Deputy Director of Education to convene a meeting of the newly elected Parent- Teacher Association to decide on the question whether Fridays and the Ramzan months are to he treated as holidays or not. Thereafter, even before the meeting could be convened, the Government issued another communication Ext. P6 dated 21.4.1994 directing the Deputy Director of Education not to convene the Parent-Teacher Association Meeting, but to continue the present arrangement pending a decision by the High Court in some Original Petitions pending in that court. It is in that circumstance that the petitioner has approached this Court with the present Original Petition. 3. In the counter affidavit filed on behalf of the first respondent State, it is asserted that ours is a secular State and in our Constitutional framework citizens are guaranteed equality of opportunities in matters of Education as stated by the petitioner but that the said averments have nothing to do with the case on hand. 3. In the counter affidavit filed on behalf of the first respondent State, it is asserted that ours is a secular State and in our Constitutional framework citizens are guaranteed equality of opportunities in matters of Education as stated by the petitioner but that the said averments have nothing to do with the case on hand. The State had not shown any discrimination as alleged in the Original Petition on the ground of religion in the matter of running of Government Schools. The School in question was at the moment following the Muslim Calendar and such a change in the calendar will not stand in the way of the proper functioning of the School as the School can enjoy public holidays including Onam and Christmas holidays as in the case of other Schools. The order Ext. P1 was issued by the third respondent based on relevant considerations. The President of the then Parent Teachers' Association as well as Headmaster of the School had requested for a change in the Calendar as the majority of the pupils studying in the School belong to the Muslim community. It is stated that the President of the then Parent Teachers Association had brought to the notice of the authorities the difficulties and inconveniences faced by the students for performing their religious rituals if the general calendar was followed. Even at present 61.1% of the students of the School belong to the Muslim community. Under R.4(3) of Chapter VII of the Kerala Education Rules, schools in which the majority of the stall or the students belong to the Muslim community, Saturdays can be made working days instead of Fridays, declaring Fridays holidays. The order Ext. P1 was issued by the 3rd respondent in good faith and no complaint whatsoever had been received against the order Ext. P1. The allegation that Ext. P1 order was issued merely to oblige the private school functioning nearby was not true. The order Ext. P5 was passed by the State on the representation Ext. P2 in accordance with the directions of this court in Ext. P4 judgment. The order Ext. P6 directing the Deputy Director of Education to keep the proceedings in abeyance, issued by the Government, had been vacated as per Government letter dated 24.11.1995 enabling the Deputy Director of Education, to implement the order Ext.P5. P2 in accordance with the directions of this court in Ext. P4 judgment. The order Ext. P6 directing the Deputy Director of Education to keep the proceedings in abeyance, issued by the Government, had been vacated as per Government letter dated 24.11.1995 enabling the Deputy Director of Education, to implement the order Ext.P5. The petitioner therefore cannot have any grievance and the Original Petition is liable to be dismissed. The functioning of the Schools in the State are governed by the Kerala Education Rules. There is specific provision in R.4(3) in Chapter VII of the Kerala Education Rules to justify the order Ext. P1 passed by the third respondent. Ext. P2 representation was considered and discussed in the order Ext. P5, passed by the Government. There are various Schools in the State which follow the calender of Muslims and this has not led to a theocratic State as feared by the petitioner. Such an apprehension on the part of the petitioner is not justified in the framework of our Constitution. It could not he stated that introduction of the Muslim calendar will perpetuate religious ill-feelings as alleged in the Original Petition. The State is not imparting any religious instruction or teaching a particular religion in Government Schools and a change in the calender is envisaged only with the view to enable the students to perform their religious rituals outside the School. 4. The fifth respondent, the President of the Parent Teachers' Association of the School, in his counter affidavit, has attacked the petitioner as a regular litigant. He has also questioned the intention of the petitioner in filing the Original Petition. He asserts that the intention of the petitioner was to sow the seeds of communal disharmony and to make political gain out of it. It is said that out of the total 85 Schools in Vengara District., 84 schools are following Muslim Calender for the last so many years since majority of pupils in those schools belong to the Muslim community. A large 'number of Schools in Malabar area are following Muslim calendar. The Muslim Calendar was ordered to be followed in those schools in order to enable the Muslim students to follow their religious rituals during Ramzan month and Fridays. It is asserted that until the academic year 1984-85. Muslim students were a minority in the school in question. A large 'number of Schools in Malabar area are following Muslim calendar. The Muslim Calendar was ordered to be followed in those schools in order to enable the Muslim students to follow their religious rituals during Ramzan month and Fridays. It is asserted that until the academic year 1984-85. Muslim students were a minority in the school in question. From the academic year 1985-86, the majority of pupils were of Muslim religion. The Parent Teacher Association had taken a decision to request the authorities for a change in calendar and it was in pursuance of that decision that a petition was filed before the third respondent who was pleased to issue the order Ext. P1. The order Ext. P1 was perfectly legal. The 5th respondent has asserted that the change of calender was not against the secular interests of the nation. It would not create communal hatred. It is persons like the petitioner who create communal hatred by raising it as an issue. The identity of the signatories of Ext. P2 representation is questioned by the 5th respondent and their status as members of the Parent Teachers' Association is challenged. The order Exts. P5 and P6 according to the 5th respondent are justified are not liable to be interfered with this court. 5. In his judgment in O.P. 5991 of 1987, His Lordship Justice T.L. Viswanatha Iyer has indicated that the following of the general calender does not deprive the pupils belonging to Muslim community of an opportunity for their prayers. Sufficient time is left on Fridays for enabling them to conduct or participate in mid-day prayers. No prejudice is caused to anybody by the general calendar governing the Schools being followed in any school. The School involved in that case was also a School, where there was a fluctuation in the strength of Muslim and non-muslim students, like in the present School. The justification attempted by the fifth respondent in the present case is also the assertion that now, the Muslim students are in the majority in this School. In that case, the Government had also sought to justify its order on the ground that the following of a general calendar would facilitate the lessening of communal tension and prevent the flaring up of communal passions. In that case, the Government had also sought to justify its order on the ground that the following of a general calendar would facilitate the lessening of communal tension and prevent the flaring up of communal passions. The Government had also taken the stand that it was in the interests of the secular State to adapt the general calendar and to apply it to all institutions generally. In my view, the ratio of that decision would govern this case also and would not justify the orders Ext. P1 and Ext. P5. 6. Our country is a Secular Democratic Republic securing to all its citizens, justice. Utterly, equality, and fraternity as indicated by the preamble to our Constitution. In the context of our constitution, religion or religious rights have no place in public life. It has a place only in the private life of the individual and right of the individual to practice a particular religion unobstructed, is ensured by the Constitution. Art.14 of the Constitution, ensures equality before law and Art.15 specifically prohibits any discrimination on the ground of religion..Art.44 of the Constitution envisages a Directive Principle of State policy, even the securing of a uniform Civil Code for the citizens of this country. It is in this context, that one will have to consider whether the Government Schools in the State should be permitted to have religious calendars as opposed to the general educational calendar prescribed for all such schools. The providing of Hindu, Muslim, Buddhist and Christian calendars for the various segments of people or for Government schools in the State on the ground that one or the other community is in the majority, at a point of time, would lead ultimately to the negation of equality of religions before law and to that extent, on general principles, there would be no jurisdiction for introducing religious calenders for the educational institutions in the State. As the Government itself had pointed out in O.P. 5991 of 1987, it would be in the interests of the Secular State, to foster communal harmony in the minds of the pupils and staff and to achieve that a general calendar be adopted and applied to all educational institutions generally. The State cannot permit Government Educational Institutions to be run on religious lines or in accordance with the religious calendar of any particular community. 7. The State cannot permit Government Educational Institutions to be run on religious lines or in accordance with the religious calendar of any particular community. 7. Chapter VII of the Kerala Education Rules lays down the Rules regarding attendance, holidays and vacation in Schools. R.1 provides that all schools shall be closed for the summer vacation every year on the last working day of March and reopened on the first working day of June, unless otherwise notified by the Director. This makes it clear that the general rule is that summer vacation will be during the months of April and May and any variation due to circumstances by the Director, is an exception. R.3 provides for the minimum number of working days to be 220 instructional days, excluding the days of examination in every school. Sub-r.3 of R.4 provides that schools in which the majority of the staff or pupils are Muslims, may have Fridays as holidays, instead of Saturdays, which may be made working days. Schools in which Fridays are not made holidays, the noon interval on Friday shall be two hours from 12.30 to 2.30 P.M.. to enable Muslim staff or pupils, to attend to prayers. The working hours on these days will be from 9.30 A.M.. to 12.30 P.M... and from 2.30 pm to 4.30 pm. Obviously, R.4(3) is intended to provide a special facility to the Muslim community to attend to their Friday prayers. R.5 provides for the issuance of the Education Department Calendar, for every school year, showing among other things, the opening day and closing day, the dates of public holidays, the date of commencement and termination of Onam and Christmas holidays, the dales of special holidays, if any; the number of working days available and the deficiency to be made up if any, to achieve the minimum number of working days. Sub-r.4 of R.5 insists that all Government and Private schools shall follow the calendar issued by the Director. The contention of the petitioner is that in view of the provisions referred to above and the mandate contained in Chapter VII R.5(4) of the Kerala Education Rules, the Order Ext. P1 issued by the third respondent is plainly illegal and certainly unwarranted. The contention of the petitioner is that in view of the provisions referred to above and the mandate contained in Chapter VII R.5(4) of the Kerala Education Rules, the Order Ext. P1 issued by the third respondent is plainly illegal and certainly unwarranted. As per the scheme of the Rules contained in Chapter VII, the alleged existence of majority of students from the Muslim community is covered by R.4(3) which enables the schools to have Fridays as weekly holidays instead of Saturdays with the further stipulation that the noon interval on Fridays otherwise, shall be of two hours' duration. The mere existence of a Muslim majority among the pupils of the school does not enable the Asst. Educational Officer to dispense with the mandate of R.5(4) of the Kerala Education Rules. In the scheme of the Rules, the schools have to work in terms of Rr.1 & 2 of Chapter VII of the Rules. The reason given in Ext. P1 for bypassing R.1 and R.5(4) of Chapter VII of the Rules is therefore, unsustainable. There is no pleading in this case that during the month of Ramzan, all Muslim pupils have to perform religious rites during the day time. In fact, it is contended by counsel for the petitioner that the prayers and other connected religious activities are confined to the evenings and possibly also to the early mornings before sunrise every day, in the month of Ramzan and there is no justification for declaring that month as a holiday in so far as the Government Schools are concerned. If this submission is correct, obviously there is also no rationale behind the order Ext. P1 going against the mandate contained in R.5(4) of Chapter VII of the Kerala Education Rules. The Kerala Education Act and the Rules have been enacted and framed with a view to regulate the imparting of education in schools in the State and particularly the Government Schools. Specific provisions have been made in Chapter VII of the Kerala Education Rules regarding the holidays, vacation and attendance in schools. It is not open to any of the authorities under the Act to permit departure from the provisions of the Rules contained in that Chapter merely for the reason that the Parent Teachers' Association of some school had sought a departure from the relevant rules in that regard. It is not open to any of the authorities under the Act to permit departure from the provisions of the Rules contained in that Chapter merely for the reason that the Parent Teachers' Association of some school had sought a departure from the relevant rules in that regard. A departure from the rules at the instance of the Parent Teachers' Association of Government Schools to cater to the religious demands of any particular community would go against the very scheme of the Kerala Education Act and the Rules and the basic concept of secularism enshrined in our Constitution. 8. Even otherwise, the practice of religion in our State is personal to the citizen and it has nothing to do with secular activities or public life. The schools run by the Government with public funds can only be secular in our constitutional set up. In the context of our constitutional commitment to secularism, it is clear that education in Government Schools is and can only he, secular and in that context, the personal religious beliefs and practices of the Hindus, the Christians, the Muslims and the Buddhists have no relevance. The citizens and the pupils will have to find their own time for practising their religion outside the school hours and religion cannot be injected into our system of education. Religious practices cannot control or regulate the running of Government educational institutions. In my view, this is what has been indicated by Mr. Justice T.L. Viswanatha Iyer in the judgment in O.P. 5991 of 1987. The aspect indicated above is also supported by the observations of the Supreme Court in the decision in S.R. Bomtnai v. Union of India (1994 (3) SCC 1) wherein their Lordships have pointed out that secularism is a part of the basic structure of the Constitution and politics cannot be mixed with religion by the political parties and if a party in power in a State does acts calculating to sabotage secularism, that would be unconstitutional. All that is needed is to adopt the above observations of the Supreme Court and substitute the word 'polities' with 'education' and we get a situation where it has to be held that the mixing of religion with education in Government Schools would even go against the basic structure of the Constitution. 9. All that is needed is to adopt the above observations of the Supreme Court and substitute the word 'polities' with 'education' and we get a situation where it has to be held that the mixing of religion with education in Government Schools would even go against the basic structure of the Constitution. 9. In the case on hand, it is clear that the School has been following the Education Department calendar or the general calendar, for the last 60 years. The attempt to change that calendar will not certainly be in line with the contentions put forward by the State in O.P. 5991 of 1987 and accepted with approval by the learned judge. The introduction of a calendar other than the Education„ Department calendar would unnecessarily bring into existence religious tensions which in the context of our Constitution, should be prevented at any cost. 19. In the order Ext. P5, though the Government found that the Assistant Educational Officer has no power to change the school calendar and consequently Ext. P1 order was bad in law, it merely directed the Dy. Director of Education to maintain the status quo till 14.7.1994 and directed him to call a meeting of the Parent Teachers' Association and to proceed on the basis of a decision to be taken by the majority of the Parent Teacher Association. In my view, the authority who passed the order Ext. P5 has failed to apply his mind to the relevant aspects considered in the context of the basic structure of the Constitution and the decision of his Lordship Justice T.L. Viswanatha Iyer in O.P. 5991 of 1987 brought to that authority's pointed notice by the direction contained in the judgment Ext. P4 rendered by His Lordship Justice K.G. Balakrishnan. The order Ext. P5 is therefore, vitiated by non application of mind and consequently erroneous on the face of the record. It also shows an abdication of duty to consider the representation made before the Government in the context of Chapter VII of the Kerala Education Rules and the mandate of the Constitution. I have therefore, no hesitation in striking down Ext. P5. As observed in Ext. P5 itself, the order Ext. P1 is also one without jurisdiction and cannot stand. Thus, i n my view, the petitioner is entitled to have Exts. P1 & P5 quashed. Since Ext. I have therefore, no hesitation in striking down Ext. P5. As observed in Ext. P5 itself, the order Ext. P1 is also one without jurisdiction and cannot stand. Thus, i n my view, the petitioner is entitled to have Exts. P1 & P5 quashed. Since Ext. P6 has already been withdrawn, there is no need to set aside that order. Even otherwise, having quashed Ext. P5, the order Ext. P6 cannot stand. 11. The petitioner has also sought a declaration to the effect that all Government schools in the State including Lower Primary School, Oorakam, Kizhamuri, the school involved in this case, arc bound to follow the Education Department Calendar issued by the second respondent. It appeal's to me that the petitioner is entitled to this relief. The Government Schools are secular in character and the Government is constitutionally bound to protect secularism, the basic feature of our Constitution. The Government and the second respondent are also bound to implement the relevant rules of Chap. VII of Kerala Education Rules in respect of all Government schools. There is sufficient provision in R.4(3) of Chapter VII of the Kerala Education Rules to enable the Muslim pupils of the school to practice their religion, something personal to themselves, without impairing the requirements of R.5(4) of the Kerala Education Rules. In my view, R.4(3) of Chap. VII of Kerala Education Rules would be sufficient to protect the interests of the Muslim community, who are part of the main stream of life in this country. I am therefore, of the view that the petitioner is entitled to the declaration prayed for by him and the Government and the Educational authorities are bound to insist on the use of the Educational Department calendar by all Government Schools irrespective of the majority of the pupils being from one community or another and who have been given the liberty to follow R.4(3) of Chapter VII of the Kerala Education Rules as regards Fridays and Saturdays, In view of what is stated above, I allow this Original Petition, quash the orders Exts. P1 and P5 and declare that the State and the Educational Authorities are bound to ensure that only the Educational Department calendar published under R.5 of Chap. VII of the Kerala Education Rules is followed in all Government Schools in the State including Government Lower Primary School, Oorakam, Kozhamuri. P1 and P5 and declare that the State and the Educational Authorities are bound to ensure that only the Educational Department calendar published under R.5 of Chap. VII of the Kerala Education Rules is followed in all Government Schools in the State including Government Lower Primary School, Oorakam, Kozhamuri. In the circumstances of the case, I make no order as to costs.