- (1.)Has there been a change in the management of the Mar Athnasius High School, Nedumbassery, involving a change of ownership also What is the true scope of the power of the Director of Public Instruction, in granting previous permission for effecting such change, under R.5A of Chap.3 of the Kerala Education Rules These are the two questions arising for consideration in this writ petition. The second is clearly a question of law. The first may broadly fit into the scheme of a question of fact; but as will presently be seen, a decision on it, on the peculiar facts of this case, is connected with decisions on some questions of law also.
(2.)Any person of body of persons permitted to establish and maintain a private school (which includes an aided school like the one here) is the "educational agency" of the school, under S.2(2) of the Kerala Education Act. Under S.7 any educational agency may appoint a person to be the manager of the school "under this Act", subject to the approval of such officer as Government may authorise for the purpose. The manager so approved shall be responsible for the conduct of the school in accordance with the provisions of the Act. The properties of the school shall be in his possession and control, and it shall be his duty to maintain records and accounts, as prescribed Chap.3 of the Rules deal with management of private schools. R.(1) classifies private educational institution as (i) those under individual educational agency and (ii) those under Corporate Educational Agency. Where the right to conduct the school is vested in an individual in his own right or as the representative of a joint family, the "agency" will be individual; and in all other cases, it will be corporate. Corporate agencies will include cases, among others, where the right is vested in an "institution of trust" or in "an ecclesiastical office of any religious denomination", R.2 insists that in the case of Corporate agencies, the constitution of the educational agency "to the extent and in so far as it relates to the management of any school" must be subject to rules approved by the Director prescribing, among other things, matter specified in the rule. The rules also requires that any subsequent change in such rules could operate only after obtaining the Director's approval. R.3 provides that the educational management of an aided school may be vested by the educational agency in a "Manager" who shall be responsible to the Department for the management of the institution. Under R.4, Educational officers shall be competent to approve appointment of managers and also changes in the personnel of Managers. R.5 requires the changes in the personnel of the Managers shall immediately be reported to the Educational officer and approval obtained; and the Note to the Rule makes explicit, what is implicit in R.5A. that the provisions of R.4 and R.5 do not apply to change of management involving change of ownership R.5A reads:-
"5A Change of management involving change of ownership - (1) Notwithstanding anything contained in these rules, no change of Management of any aided school involving change of ownership shall be effected except with the previous permission of the Director The Director may grant such permission unless the grant of such permission will, in his opinion, adversely affect the working of the institution and the interests of the staff and the person to whom the Management is transferred.

(2) Any person aggrieved by an order under sub-r.(1) may, within 30 days from the date of receipt of the order, prefer an appeal to the Government."

R.6 stipulates that all correspondence relating to the management of the school is to be carried on by the Manager or a person appointed by him and approved by the Manager. R.7 authorises the Director to declare a Manager unfit to hold the office under certain circumstances and to require the educational agency to appoint another in his place. R.8 prohibits certain classes of persons from being appointed as Managers, and R.6 deals with the duties and powers of Managers.

(3.)The provisions of the Act and the Rules thus show that every aided school shall have a Manager, responsible for running the institution in accordance with the Act and the Rules, and answerable to the Department. In the case of institutions under individual management, the proprietor himself can be the manger, if approval is obtained; but in the case of Corporate managements, the choice and appointment of managers are to be governed by the rules (or constitution) required to be framed under R.2. Chap.3. The Education Act itself is a piece of legislation "for the better organisation and development of educational institutions". The service conditions of teachers in aided schools are those prescribed by the Government; payment of their salary is also Government's responsibility. Prescriptions of the courses of study, preparation of the curricula, opening and recognition of schools, admission and transfer of puplis, organisation of instructions, maintenance of discipline, approval of standards for promotion, inspection of schools, payment of maintenance grant etc. are also governed by the Act and the Rules made thereunder. The State has thus considerable interest in the proper management of aided schools, and that is why the statutory provisions insist on the appointment of a proper person as the manager, for approval of such appointment or change in personnel by the department, and for prior permission in certain cases of change in management. Examining R.5A of Chap.3, in particular, it is important to notice that it is couched in negative terms: no change of management involving change of ownership shall be effected at all, except with the previous permission of the Director. Ordinarily the Director is expected to grant the permission where there is a change of ownership, because it is the scheme of the Act and the Rules that the manager should be chosen by the owner of the institution: but it will still be within the Director's discretion to refuse permission if the interests of the institution and of the staff are likely to be adversely affected. Again, it is important to remember that the power of the Director under the Rule is attracted only when there is a change of management involving change of ownership. In any proceedings under R.5A, therefore, the Director (or the Government functioning as appellate authority) has first to find whether there has been a change of ownership of the institution in question, and consequently a case for grant of permission for change in management; if they are not satisfied about a change of ownership, they cannot act at all, under the Rule.