IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 WP(C).No. 8824 of 2008(A) ------------------------- PETITIONER(S): --------------- 1. MANAGER,VISWADEEPTHI PUBLIC SCHOOL ADIMALI 685 561. 2. PRINCIPAL VISWADEEPTHI PUBLIC SCHOOL ADIMALI 685 561. BY ADV. SRI.BABY ISSAC ILLICKAL RESPONDENT(S): --------------- 1. DIRECTOR OF PUBLIC INSURCTION, THIRUVANANTHAPURAM. 2. DISTRICT EDUCATIONAL OFFICER THODUPUZHA. 3. CENTRAL BOARD OF SECONDARY EDUCATION (CBSE) NEW DELHI. GOVERNMENT PLEADER SRI.T.B.HOOD FOR R1 & R2 SRI.DEVAN RAMACHANDRAN FOR R3 SRI.K.M.ANEESH FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2009, ALONG WITH WPC NO. 11067 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 8824/2008 APPENDIX PETITIONERS' EXTS. EXT.P1 - PHOTO COPY OF THE CIRCULAR OF THE 1ST RESPONDENT DT. 4.5.2007. EXT.P2 - PHOTO COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DT. 15.5.2007. EXT.P3 - PHOTO COPY OF THE REPLY DT. 25.5.2007 OF THE 2ND PETITIONER. RESPONDENTS' EXTS. EXT.R1(a) – TRUE COPY OF CIRCULAR NO.H4/31570/05/DPI DATED 23.4.2005. EXT.R1(b) – TRUE COPY OF CIRCULAR NO.H4/031570/05/DPI DATED 2.12.05. EXT.R1(c) – TRUE COPY OF THE COMPLAINT DATED 4.5.07. /TRUE COPY/ K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.P.(C) NO. 8824 & 11067/2008 ----------------------------------------- Dated 24th March, 2009. JUDGMENT Balakrishnan Nair, J. W.P.(C) No.8824/2008: This writ petition is filed by the Manager and Principal of Viswadeepthi Public School, Adimali, challenging Ext.P1 circular issued by the Director of Public Instruction (DPI) dated 4.5.2007 and also Ext.P2 communication dated 15.5.2007 issued by the Assistant Educational Officer (AEO), Adimali, following Ext.P1. The learned Judge granted stay of Exts.P1 and P2, while admitting the Writ Petition. So, the respondents 1 and 2 herein have preferred W.A.No.937/2008. Since we are disposing of the Writ Petition itself, it is unnecessary to consider the Writ Appeal, as it is only against an interim order. 2. Ext.P1 circular issued by the DPI instructs the subordinate officers in the Education Department to ensure that no Primary Schools including Lower Primary and Upper Primary Schools are allowed to open WPC Nos.8824&11067/08 2 and function during mid-summer vacation, irrespective of whether they are aided, unaided or affiliated to C.B.S.E or I.C.S.E. Since the School run by the petitioners was conducting special classes during the mid-summer vacation, the AEO, Adimali issued Ext.P2 communication to stop the running of the classes during summer recess. The petitioners challenge Exts.P1 and P2, stating that the DPI has no jurisdiction to issue the direction contained in Ext.P1. Therefore, the consequential action taken by the AEO is also without jurisdiction. So, they pray for quashing Exts.P1 and P2. 3. The respondents have filed a counter affidavit, supporting the impugned circular and communication issued by the DPI and AEO respectively. They rely on Rule 1 of Chapter VII of the Kerala Education Rules (for short “the KER”) and contended that the Schools covered by the KER shall remain closed from the last working day in March to the first working day of June of every year. They also point out that by virtue of the affiliation bye-laws, the above said Rule is applicable to all Schools affiliated to the Central Board of Secondary Education (for short “the CBSE”). The petitioners' School is, admittedly, a School affiliated to the CBSE. Special reference is made to the provisions under Rules 13(1), 19(2) and 31 of the CBSE Affiliation Bye-laws. Going by the above provisions, WPC Nos.8824&11067/08 3 the petitioners' School is bound to follow the calendar of the Schools under the KER, including the provision regarding vacation, contained in Rule 1 of Chapter VII of the KER. Therefore, the DPI has issued the direction rightly and the impugned orders are valid, it is submitted. The learned Government Pleader also pointed out that even assuming the State has no jurisdiction to interfere in the matter, still, this Court can interfere in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India. Otherwise, the result will be that it will have the effect of approving the illegal commissions and omissions of the writ petitioners. 4. In answer the learned counsel for the petitioners submitted that even assuming there is violation of the Affiliation Bye-laws, the DPI or the State Government is not competent to take action against their School. At best, they can bring it to the notice of the CBSE, so that the CBSE can, in turn, take action against the School concerned for violation of the Bye-laws. But, as a matter of fact, in this case they are following the calendar of Kendriya Vidyalayas, which is permissible as per the Affiliation Bye-laws. As per the calendar of Kendriya Vidyalayas, during 2008, the mid-summer vacation was from 4.5.2008 to 22.6.2008. Further, the petitioners point out that they have not taken classes for students of Primary Classes. Only for WPC Nos.8824&11067/08 4 those studying in Standard VIII and higher standards, special classes are arranged. Therefore, their action does not offend Ext.P1 circular, even assuming it is valid and enforceable. As per the CBSE norms, there must be at least 200 working days in an academic year. Therefore, the petitioners have no other option, but to take special classes during holidays also, it is submitted. 5. We considered the rival submissions made at the Bar. Rule 1 of Chapter VII of the KER reads as follows: “1. All Schools shall be closed for the Summer Vacation every year on the last working day on March and re-opened on the first working day of June unless otherwise notified by the Director.” Rule 31(1) of the CBSE Affiliation Bye-laws reads as follows: “31. Working Days and Working Hours (1) The working days and holidays will be as per State Government Schools or Kendriya Vidyalayas.” Going by the above quoted Rule of the Affiliation Bye-laws, the petitioners can follow Rule 1 of Chapter VII of the KER or follow the working days and holidays as provided in the case of Kendriya Vidyalayas. So, following the calendar of Kendriya Vidyalayas, even if the same is at variance with the calendar of Schools under the KER, the same cannot be treated as an illegality. WPC Nos.8824&11067/08 5 6. The next provision relied on by the official respondents is Rule 13 (1) of the Affiliation Bye-laws, which provides that the Education Department of the State is also authorised to inspect the Schools affiliated to the CBSE. Rule 19(2) of the Affiliation Bye-laws says that the Society or Trust managing the School shall ensure that the School is run as per the provisions of the Education Act of the State concerned or as per the Affiliation Bye-laws of the CBSE. Going by the provisions of the Affiliation Bye-laws, it is a condition of affiliation that the School affiliated shall follow the norms contained in the Affiliation Bye-laws, which includes following the calendar of the Schools under the KER or that of the Kendriya Vidyalayas. 7. In this case, we find that there is no express provision authorising the Government to interfere with the functioning of the Schools affiliated to the CBSE, if they are run in violation of the Affiliation Bye-laws. But, definitely, the Educational Officers can inspect the Schools to find out the shortcomings and report the same to the CBSE, so that appropriate action will be taken against the School concerned. 8. But, in this case, we find that in view of the submission made by the learned counsel for the petitioners that the petitioners will strictly follow the calendar of Kendriya Vidyalayas and will arrange special classes WPC Nos.8824&11067/08 6 during vacation, only for the students studying in Standard VIII and higher standards, the Writ Petition can be disposed of without going into the other contentious issues. We record the above submission of the writ petitioners. If, in violation of the undertaking, any action is taken, the Educational Officer can bring it to the notice of the CBSE for appropriate further action. If classes are taken in accordance with the Kendriya Vidyalaya patten, the same cannot be treated as an illegality. Since the petitioners do not take special classes for students of Primary Classes, their action is not affected by Exts.P1 and P2. It is declared so. The Writ Petition is disposed of as above. W.P.(C) No.11067/2008: 9. The judgment in W.P.(C) No.8824/2008 will govern this Writ Petition also. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/