Arya Vidya Shala Parents Association vs State of Karnataka, Principal Secretary to Government and Others

Anand Byrareddy, J.—The facts of the case are as follows: The petitioner is said to be a Society registered under the Karnataka Societies Registration Act, 1960. Though it was registered as a Society in the year 1928, it is said to have established and was managing a school in the name of Arya Vidya Shala, since the year 1909. It is said to consist of the primary, middle and high school, imparting education in the Kannada medium. The petitioner claims to be one of the first four schools in Bangalore. It is also said to be running a Junior College for Arts, Commerce and Science. It is stated that the School caters mainly to the lower income group of students and nominal fee is charged only for the students of the high school. It is said to be an aided institution and is under the purview of the Director of Public Instruction, Bangalore North. Permanent recognition is said to have been granted to the School in the year 1948.

The said School has been accorded recognition under the provisions of the Karnataka Education Act, 1983 (Hereinafter referred to as the ''KE Act'', for brevity). The School is situated in Gandhi Nagar, Bangalore. It is stated that for the academic year 2011-12, the admissions were completed by August 2011. The petitioner claims it had 29 students studying in Standard X, 22 students in Standard IX and 19 students in Standard VIII. The students included both boys and girls. It is said the Respondents had placed the petitioner on notice that the strength of students was poor, as per notice dated 18.2.2011. On 31.3.2011, an Order is said to have been passed by the first respondent, intimating all the concerned authorities that teachers found to be in excess, in aided schools, be transferred to other Schools where there was vacancy for such teachers.

It is stated that on 9.8.2011, the fifth respondent is said to have inspected the petitioner''s school and had recorded that there were only 56 students, out of 71 present. He had recommended that the teachers be transferred from the School and also the students be given transfer certificates. The petitioner claims that there was no opportunity afforded to the petitioner of any hearing. Respondent No. 4 is said to have acted on the said report and is said to have directed the transfer of four teachers of the School, who were paid with the aid from the State Government. It is the case of the petitioners that repeated pleas on the part of the petitioners to reconsider the decision, was negated and the said teachers were transferred. Left with no alternative, the petitioner is said to have appointed other-teachers and is running the school on its own funds.

The petitioner is now said to have been directed by the fifth respondent, by his letter dated 23.9.2011, that the petitioner transfer all the students and that all its assets be transferred to a Government School.

By further letters dated 19.1.2012 and 23.1.2012, the sixth and fourth respondents, respectively, had called upon the petitioner to close down the School and had also indicated that its students cannot take the SSLC examination, except as private candidates, unless they were transferred to a Government School as directed.

It is stated that the petitioner had paid Rs. 5455/- vide Demand Draft bearing No. 899299 dated 26.08.2011, towards S.S.L.C. Examination fee for 26 students, who were appearing for the board examination through the petitioner''s school and a further sum of Rs. 1,265/- vide Demand Draft No. 899323 dated 02.09.2011, in respect of 6 students, who had not passed the previous year, for the academic/year 2011-2012. The petitioner after having paid the S.S.L.C. Examination fee for 26 students and for 6 repeaters belonging to the petitioners, has communicated the same to the Secretary, Karnataka Secondary Education Examination Board, vide letters dated 27.08.2011 and 06.09.2011 along with the list of students appearing for the examination. The total number of students appearing for the S.S.L.C. examination from the petitioner-School was 31 in number.

The petitioner had hence challenged the action of the respondents in a writ petition before this court in WP 3471-3475/2012. The same was disposed of directing the petitioner to exhaust an alternative remedy of appeal available. The petitioner is said to have filed an appeal before the second respondent. However, by virtue of an interim order granted in the said petition, the students in the X standard, were able to take the SSLC examination for the academic year 2011-2012. Meanwhile, admissions for the academic year 2012-2013 was also completed, but the strength had dwindled to 58, which is entirely attributable to the action initiated by the respondents, eroding the confidence of people in the locality of the ability of the petitioner to continue in the face of the onslaught.

It is claimed that the petitioner had then made a representation before the sixth respondent in respect of the Appeal No. 12/2012 pending before the second respondent and also about the interim orders. On that basis, the petitioner requested the sixth respondent to enroll the students to take up the S.S.L.C. examination for the academic year 2012-2013. The petitioner paid fees for 20 students appearing for the S.S.L.C. examination for the first time and also for 12 repeaters and in total, petitioner has paid fees for 32 students. The sixth respondent, after collecting the fee, delayed in enrolling the names of the students appearing from the petitioner''s school.

The second respondent, after hearing the matter was pleased to reject the appeal filed by the petitioner on the ground that petitioner''s school does not maintain the strength prescribed under the Act and that action taken by the respondents was in accordance with law.

The appeal was then said to have been heard and the same was rejected on the ground that the School was not able to maintain the student strength prescribed.

It is contended that the ground on which the respondents have repeatedly tried to close the Arya Vidya Shala High School is that on 9.8.2011, the date, on which the fifth respondent inspected the School, the number of students who were present in school was only 56 out of a total strength of 71 during the year 2011-2012, and about 58 students for this academic year 2012-2013. It is contended that the Act does not empower the respondents to direct the closure of the School on the ground that the number of students in the School on a given day was less than any prescribed number.

It is in the above background that the present petition is filed.

The learned counsel for the petitioner would contend that the action of the respondents in seeking to shut down a Kannada Medium School, which has provided Yeoman service in the field of education for the last several decades, merely on the ground that the number of students admitted in a given academic year is less than their minimum prescription is arbitrary, contrary to the constitutionally enshrined duty and the constitutional right of the students and the petitioner herein. The action of the respondents is violative of the constitutional mandate in Article 19 and Article 21 of the Constitution of India.

It is contended that the action of the respondents is violative of Section 39 of the KE Act, as the respondents have failed to issue one month''s notice u/s 39(2) of the KE Act, to the petitioner, assigning reasons for withdrawal and has also failed to provide an opportunity of being heard by permitting the petitioner to make a representation before the State Government to defend itself.

From the language of Section 39(2), it is abundantly clear that the action of State Government to withdraw recognition, should be initiated only in the larger interest of the public. The respondents have neither issued a notice affording opportunity nor they have substantiated as to how public at large is affected by running a school with marginally less students than the statutory requirement. The action of the respondents is highly arbitrary, illegal and the same is abuse of process of law. The respondents have not caused any Notification as prescribed under the Act for taking over the Management of the School from a specified date. The respondents have arbitrarily classified the petitioner � school as non-functional even when there were 71 students studying in the said school during the academic year 2011-2012.

It is further contended that the respondents only after being satisfied that the recognition should be withdrawn is in public interest, can initiate action under the provisions of Section 67 of the KE Act. The respondents have neither justified their action u/s 39 of the KE Act nor they have followed the provision u/s 67 of the KE Act, the action of the respondents, in closing the school is detrimental to the interest of the students, who are studying in the petitioner''s school and also contrary to the purpose of the KE Act.

It is contended that there is no prescription of a minimum number of students that is required to be maintained by a School every year under the KE Act. Even if the Rules are read as imposing any such restriction, such restriction would be arbitrary and violative of Articles 14 and 21 of the Constitution. It is submitted that if the school has less than 25 students in a given year, there is no rationale in shutting down the school, particularly when the said students are provided with all required infrastructure and training. It is further contended that if schools under the ICSE and CBSE are permitted to run with smaller number of students, there is no rationale in prescribing a minimum qualifying number for running an SSLC school.

It is contended that the respondents have erred in giving effect to some departmental directive regarding closure of Government Schools to a private educational institution like the petitioner. Kannada Medium schools are not in great demand in a cosmopolitan city like Bangalore, where the principal demand is for English Medium Schools. The Arya Vidya Shala, however, caters to the needs of the small minority of parents, who seeks Kannada Medium Schools for their children. It is contended that the children from low income groups come to schools, like the Arya Vidya Shala High School, due to its proximity, the attempt to transfer the students to another school will only result in several students dropping out and discontinuing their education.

The respondents have erred in having failed to note that the conditions for grant of aid are completely different from the condition for recognition or circumstances for closure of a School. Even if the respondent wished to discontinue aid to the petitioner''s school, they could not direct steps to close the school or to transfer teachers, who were recruited by the School.

It is contended on behalf of the respondent - State that the petition is liable to be dismissed. It is contended that the Society had been granted land under a registered agreement dated 9.2.1939 and 10.11.1944, in excess of 7700 square yards, in order that it may establish and expand its School. It is claimed that under the terms of the agreement, if the petitioner diverted the use of the land otherwise than for the purposes of the School, the land and buildings would revert to the government. It is claimed that the Society had, over a period, constructed commercial buildings on the land and had inducted about 23 tenants, who were paying a rent of Rs. 3.58 lakh. It is contended that while suppressing this, the institution was availing of grant-in-aid. Further, it is alleged that on account of careless and inept management, the student strength had collapsed leading to the closure of the School and that the School has been termed a "zero school." It is alleged that even after such closure, the petitioner continued to make nominal admissions only to show the existence of the school.

It is alleged that the petitioner was fraudulently claiming grant-in-aid, on the footing that the cost of its maintenance was well above its income. It is claimed that apart from the dwindling student strength, the above was another reason for the closure of the School.

It is further cryptically stated thus:

The Respondents hereby seek leave of this Hon''ble court to file Additional Statement of Objections on a later date as on account of paucity of time, the Respondents - Authorities have not been able to collect the complete facts and records pertaining to the above case. As such, it is most respectfully prayed that this Hon''ble may be pleased to grant leave to the respondent to file Additional Statement of Objections on a later date.

However, there are no further pleadings put-forth on behalf of the State.

It is seen that the emphasis in the objections filed by the State is on the circumstance that the school premises consists of commercial buildings and that it is contrary to the terms of grant. This, however, is not the reason assigned or the subject matter of the impugned annexures. Incidentally, it is pointed out by the counsel for the petitioner that the said commercial buildings are on the ground floor of the school building facing the road, the school has a separate entrance and exit and the school has a internal quadrangle, with no contact with the shops and other establishments occupying the ground floor. The class rooms are facing the interior of the premises. The said commercial establishments have existed since several decades without in any manner hindering the conduct of classes in the school building and it is for the first time that a controversy is sought to be raised in the Statement of Objections in these proceedings.

Further, the reason to dub the School a non-performing School or a ''zero school'' and the series of measures initiated against the School are not found relatable to the Act or the Rules.

Under the Karnataka Educational Institutions (Recognition of Primary and Secondary Schools) Rules, 1999, the conditions for grant of recognition to an Educational Institution are prescribed under Rule 4, thereof. The petitioner was granted permanent recognition much prior to the said Rules coming into force and had continued to be recognized after the same came into force. This would indicate that the petitioner had satisfied the conditions required for recognition. The said Rules do not provide for the exigency of withdrawal of recognition. Hence the condition prescribed under Rule 4(k) of the said Rules, namely, that the educational institution has maintained a minimum strength of 40 students in respect of lower primary, 100 students in respect of upper primary schools and 25 students in each standard in respect of High Schools, is a pre-condition for granting recognition. The Rule does not indicate that a fall in strength below the minimum, in any given year, would entail withdrawal of recognition. Therefore, a fall in student strength in any given year, would not ipso facto entail withdrawal of recognition or that the School should be closed. Such an interpretation in the present situation (This court has judicial notice of Kannada medium Schools run by the State government being closed down for want of enrollment - in large numbers), when there are few private institutions offering Kannada Medium of instruction, would lead to there being no more Kannada Medium schools being available. Hence, if a recognized School should meet all other conditions prescribed for recognition and if the student strength is depleting-it would not be in the interest of the State to direct the closure of the School, which may be run on private funds. This would be akin to cutting off the nose to spite the face.

It may be true that the State has, in order to utilize its scarce resources to the best advantage - has prescribed for itself a minimum student strength which would render the running of the School unviable. It may even be necessary to take measures to expedite closure of all such government schools and aided institutions so that other institutions which have sufficient student strength but are badly in need of resources also are not forced to close for want of infrastructure and other necessities But it would hardly justify the closure of private unaided institutions, which are otherwise capable of sustaining themselves, such as the petitioner''s institution - which has categorically pleaded that it would forego aid from the State and run the institution on its own. In so far as the grants-in-aid provided to the petitioner is concerned, it is evident that the same is provided in terms of Chapter IX of the KE Act. As pointed out by the petitioner, there were foul-teachers, who had been held entitled to the grant-in-aid provided. The said teachers having been unceremoniously transferred to some other institutions by the State government and the aid having been stopped. The petitioner does not seek any assistance for the present to continue running a School which has marked a century in existence.

It is claimed in the Statement of objections on behalf of the State that the impugned action is relatable to the provisions of law. However, there are no provisions to which attention has been drawn. Hence, it would be necessary for the respondents to follow the principles of natural justice in taking action against the petitioner as proposed in the various impugned annexures. The petitioners shall be afforded full opportunity of hearing in respect of any and every action of the respondents, especially when the same is not referable to any statutory provision or rule, before the petitioner is visited with any Order requiring compliance or if intended to be deprived of any benefit available to it.

As an interim measure, it was directed that the students of the School be permitted to take their SSLC examination for the academic year 2013-14, through other nearby schools which the respondents have undertaken to facilitate. That direction shall be carried through.

Consequently, in the light of the above view of this court, the writ petition is allowed, the impugned annexures are quashed.