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2011 DIGILAW 302 (KER)

Kunhi Mohammed v. VS State of Kerala

2011-03-15

K.T.SANKARAN

body2011
JUDGMENT : K.T. Sankaran, J. The first petitioner is the convener of Vaniyannur AMUP School Samrakshana Samithi. Petitioners 2 and 3 claim that their children are studying in Vaniyannur AMUP School (Hereinafter referred to as the 'School')- The School is a pre-independence School and Pre-KER School. According to the petitioners, right from the commencement of the School, Muslim Calendar was being followed. Even after the introduction of the Kerala Education Department Calendar, Muslim. Calendar was being followed in the School. A school following the Muslim Calendar will remain closed during Ramzan month. That period will be compensated by the additional working days during summer holidays. The petitioners state that out of 554 students in the School, 540 students belong to Muslim community. The petitioners have also described the practice that is being followed by Muslims during Ramzan month. It is pointed out that the Muslim students have to attend the religious training in the morning and if they have to attend the School during Ramzan month, the students would be put to great hardship. The first petitioner was the president of the Parent Teachers Association of the School. It would appear that in the newly elected Parent Teachers Association, the petitioner was not elected as the President. There was a general body meeting of the Parent Teachers Association on 17-7-2010. According to the petitioners, change of school calendar was not an item in the agenda of that meeting. However, an item was subsequently included in the agenda clandestinely and a so called unanimous decision was taken by the association to request for changing the calendar to general calendar. On coming to know of the same, the first petitioner submitted Exhibit P-1 representation to the Director of Public Instruction. The Headmaster of the School issued Exhibit P-3 letter to the first petitioner enclosing copy of Exhibit P-2 order dated 6-8-2010 issued by the Additional Director of Public Instruction. As per Exhibit P-2 order, the calendar for the School in question was changed to the general calendar. The petitioners relied on Exhibit P-4 circular dated 8-3-2006 issued by the Director of Public Instruction wherein it is mentioned that no application would be entertained for change of calendar. 2. As per Exhibit P-2 order, the calendar for the School in question was changed to the general calendar. The petitioners relied on Exhibit P-4 circular dated 8-3-2006 issued by the Director of Public Instruction wherein it is mentioned that no application would be entertained for change of calendar. 2. The reliefs prayed for in the Original Petition are the following: (i) issue a writ of certiorari or any other appropriate writ, order or direction to the respondents to call for the records leading to Exhibits P-2 & P-4 and quash the same. (ii) issue a writ of mandamus or appropriate order or direction to direct the respondents to permit AMUP School, Vaniyannur, Iringavoor, P.O. 676 103, Malappuram to follow Muslim Calendar and consequently declare the 'Ramzan' month as holiday for the school. (iii) Declare that the action of the respondents in directing the AMUP School, Vaniyannur, Iringavoor, P.O. 676 103, Malappuram to follow General Calendar is illegal and arbitrary. (iv) Declare that the AMUP School, Vaniyannur, Iringavoor P.O. 676 103, Malappuram is entitled to follow Muslim Calendar. (v) Issue such other appropriate writ, order or direction as this Honourable Court deems fit in the nature and circumstances of the case. 3. In the counter-affidavit filed on behalf of respondents 6 to 8, it is inter alia contended as follows: The first petitioner was the President of the Parent Teachers Association. In the last election of the office-bearers of the Association,' he was not elected. The children of petitioners 1 and 3 are not studying in the School. The son of the second petitioner is a student in the School. Since the first petitioner was removed from the office of the President of the Association by the general body, he is not in good terms with the present office-bearers of the Association. There is no calendar as "Muslim Calendar" followed in the schools in Kerala. There is only one calendar which is provided under the Kerala Education Rules. In some of the schools, holidays are given during Ramzan month and that is compensated by the functioning of the school concerned in the month of April. On 17-7-2010, as per Exhibit R-7(a) minutes, unanimous decision was taken by the general body of the Parent Teachers Association to shift to the general calendar. Based on Exhibit R-7(a) resolution, the staff council unanimously agreed to change the calendar, evidenced by Exhibit R-7(b). On 17-7-2010, as per Exhibit R-7(a) minutes, unanimous decision was taken by the general body of the Parent Teachers Association to shift to the general calendar. Based on Exhibit R-7(a) resolution, the staff council unanimously agreed to change the calendar, evidenced by Exhibit R-7(b). The Manager of the School also agreed to the suggestion and he issued Exhibit R-7(c) consent letter in that regard The Vice President of Cheriyamundam Grama Panchayath, within the limits of which the School is situated, also recommended for changing the calendar. The Headmaster forwarded the decision of the Parent Teachers Association along with the recommendation of the Manager and member of the Panchayath, to the Assistant Educational Officer. Exhibit P-2 order was passed by the Director of Public Instruction, accepting the request. As regards Exhibit P-4 circular, it was contended that the said circular would not override the specific provisions in the Kerala Education Act and Rules. 4. Rule 5 of Chapter VII of the Kerala Education Rules provides for the Education Department Calendar. For the sake of convenience, the Rule is extracted below: 5. Education Department Calendar.-(1) At least ten days before the commencement of every school year, the Director shall issue the Education Department Calendar for that year, showing among other thing; (a) the opening day and the closing day; (b) the dates of public holidays; (c) the dates of commencement and termination of Onam and Christmas holidays; (d) the dates of special holidays, if any; (e) the number of working days available, and (f) the deficiency to be made up, if any to raise the number of working days to the prescribed minimum. (2) The Education Department Calendar with directions, if any, as to how the deficiency referred to in Sub-rule (1) should be made up shall be supplied to the Educational Officers for transmission to the Heads of all institutions under their control. (3) The Director may, if found necessary, make and announce any alteration in the Calendar. (4) All Government and Private Schools shall follow the Calendar issued by the Director. 5. Sub-rule (3) of Rule 5 of Chapter VII K.E.R. empowers the Director of Public Instruction to make and announce any alteration in the calendar. This power can be exercised on a request of the Parent Teachers Association, the Manager, Headmaster and members of the staff of the school. 5. Sub-rule (3) of Rule 5 of Chapter VII K.E.R. empowers the Director of Public Instruction to make and announce any alteration in the calendar. This power can be exercised on a request of the Parent Teachers Association, the Manager, Headmaster and members of the staff of the school. There is no bar for the Director to consider such a request. Exhibit P-4 circular cannot override Rule 5 of Chapter VII of K.E.R. The power vested with the Director under Rule 5 of Chapter VII is a statutory power and that power cannot be divested by the Director himself. When a power is vested with a statutory authority, the authority cannot say that he will not exercise the statutory power. Whether the statutory power is to be exercised in given circumstances is a matter to be considered by the said statutory authority. In the case on hand, the statutory authority, namely, the Director exercised the jurisdiction under Rule 5 of Chapter VII and decided to change the calendar. That decision cannot be challenged on the ground that the Director had issued a circular stating that no applications would be entertained for alteration in the calendar. 6. It is pointed out in the counter-affidavit of the seventh respondent that there are ten schools in Cheriyamundam Grama Panchayath. Except two schools, all the other schools have taken a decision to follow the general calendar and orders were passed by the Director permitting that request. In the nearby Panchayaths also, such decisions were taken by the Aided Mappila Schools. It is also pointed out that in Malappuram District, majority of the schools in which the Muslim students are in majority, are following the general calendar. The seventh respondent also raised a contention that following the general calendar is more advantageous and convenient to the staff and students. 7. The Assistant Educational Officer, Thanur (Fifth respondent) filed a statement. In the statement, Exhibit P-2 order was justified. The circumstances in which the Director of Public Instruction issued Exhibit P-4 circular were also mentioned in the statement. It is pointed out that several orders were issued in the previous years also permitting conversion from Muslim Calendar to the general calendar as it was found that the Managers as well as the Parent Teachers Associations were convinced that such a change would be beneficial to the student community. 8. It is pointed out that several orders were issued in the previous years also permitting conversion from Muslim Calendar to the general calendar as it was found that the Managers as well as the Parent Teachers Associations were convinced that such a change would be beneficial to the student community. 8. The learned counsel for the petitioners relied on the Division Bench decision in Parent-Teachers' Association, Govt. Lower Primary School Vs. Chalil Kunhimmu Haji and Others, . The Division Bench overruled the decision of the learned Single Judge reported in Chalil Kunhimmu Haji Vs. State of Kerala and Others. The Division Bench held as follows: 12. We find ourselves unable to accept the said proposition laid down by the learned Single Judge. There was no justification for the learned Single Judge to hold that the calendar which is being followed by the present Government L.P. School, Oorakam (Ext. P-2) was not the calendar issued by the Education Department under Rule 5(4) of Chapter VII of the Rules. On proper reading of Rule 5(4) of the Rules, it would appear that it contemplates only one calendar which is issued by the Education Department. There is neither general calendar nor any Muslim calendar. Thus, the calendar issued by the Education Department under Rule 5(4) of the Rules is in accordance with the mandate of Rule 5 carrying the details and prescribing the number of public holidays, the opening day and the closing day, etc. It stipulates that in case where the majority of the students are Muslim in a particular school and if they want to avail of Ramzan holidays, the same can be availed. In such a situation, the holidays availed by them during Ramzan have to be compensated by working during midsummer holidays. This can be done after obtaining sanction from the controlling officers. The controlling officer in regard to the appellant school is the Assistant Educational Officer. Thus, we find that the learned Single Judge was not correct in holding that what was being followed in the appellant school was not the calendar issued under Rule 5(4) of the Rules. In fact, all the schools, private and public, followed only one calendar issued by the Government. Thus, we find that the learned Single Judge was not correct in holding that what was being followed in the appellant school was not the calendar issued under Rule 5(4) of the Rules. In fact, all the schools, private and public, followed only one calendar issued by the Government. Further we are unable to hold that since the calendar prescribes a right to avail of the Ramzan holidays in a school where the Muslims are in majority, it could not be said that the said school violated Rule 5(4) of the Rules. The reliance placed on a judgment of this Court rendered in O.P. No. 5991 of 1987 (Ext. P-3) is of no avail to the present case, since that was a case where there was fluctuation with regard to the majority of the students. Thus, the said judgment is not applicable to the facts of the present case. 9. The decision of the Division Bench in Parent Teachers Association v. Kunhimmu Haji(1) does not support the argument of the learned counsel for the petitioners that the calendar cannot be altered to the general calendar followed by all other schools. In the present case, the Parent Teachers Association unanimously passed a resolution to make alteration in the calendar and to take away Ramzan holidays. As stated by the petitioners, more than 90% of the students are Muslims. Naturally, if their interests are likely to be effected by taking away the Ramzan holidays, their parents would not have passed such a resolution requesting for a change in the calendar. There was no opposition to the change sought to be made in the calendar. In these circumstances, I do not think that the order passed by the Director is against the decision of the Division Bench in Chalil Kunhimmu Haji Vs. State of Kerala and Others. The challenge against Exhibit P-2 order is unsustainable. No grounds are made out by the petitioners to interfere with the decision taken by the Director. The Original Petition lacks merit and it is accordingly dismissed.