Kerala High Court
Jaison P.Benedict vs State Of Kerala on 14 September, 2010
Author: Pius C.Kuriakose
Bench: Pius C.Kuriakose, P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1364 of 2010()
1. JAISON P.BENEDICT, PRESIDENT,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE DIRECTOR OF HIGHER SECONDARY
3. THE MANAGER,
For Petitioner :SRI.P.RAVINDRAN (SR.)
For Respondent :SRI.GEORGE MECHERIL
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :14/09/2010
O R D E R
PIUS C. KURIAKOSE & P.S.GOPINATHAN, JJ.
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WA. No. 1364 of 2010
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Dated this the 14th day of September, 2010
J U D G M E N T
Pius C.Kuriakose, J.
Petitioner in WP(C). No. 21169 of 2010 is the appellant. He is the President of the Parent Teacher Association of St. Thomas High School, Karikkottakkary in Kannur District. St.Thomas High School, Karikkottakkary applied to the Government for grant of Higher Secondary Course in 2000. When the application was not favourably considered by the Government despite eligibility, the Manager of the School filed writ petition before this Court and pursuant to a direction passed by this court the District Level Committee constituted by the Government for considering the applications, reconsidered the application submitted in respect of St. Thomas High School and submitted Ext.P2 report recommending for grant of two Higher Secondary Batches. Noticing that sanction was not WA. 1364/10 -2- accorded, the School Manager filed writ petition No. 29124/03 before this Court. This Court passed Ext.P3 interim order in that writ petition which was extended by Ext.P4 order until further orders. In the meanwhile, some of the affected parties approached the Honourable Supreme Court challenging Exts. P3 and P4 and in those special leave petitions, orders were passed directing grant of Plus Two Courses. While writ petition No. 29124 of 2003 came up for hearing the same was disposed of without going into the merits stating that Plus Two Courses have been granted. Ext.P5 is the judgment in that writ petition. The petitioner submits that the fact remains that Plus Two Courses is yet to be sanctioned by the Government to St. Thomas High School, Karikkottakkary and statement to the contrary in Ext.P5 is a mistake. The Government has now issued Ext.P6 G.O. inviting applications for the grant of Plus Two Courses in seven districts. Pursuant to P6 the second respondent Director of Higher Secondary Education has issued P7 WA. 1364/10 -3- notification specifying the norms and the grounds on which Plus Two Courses will be sanctioned in terms of P6. Petitioner points out with reference to Ext.P2 that St. Thomas High School, Karikkottakkary satisfied all the requirements as provided in Ext.P7 as early as in 2000. The Government has now issued another order Ext.P8 modifying what the petitioner describes as the essence of P6. Pursuant to Ext.P8, the second respondent Director has issued Ext.P9 notification diluting the requirements for sanctioning Plus Two Courses. Petitioner alleges that Exts.P8 and P9 are fraudulent exercise of powers as it is seen that the policy of granting Higher Secondary Schools only in those Panchayats where there are no Higher Secondary Schools, has been deviated from and it is decided to grant additional batches in schools where Plus Two Courses have already been sanctioned. On the basis of Ext.P10 certificate issued by the Headmistress of the School, the petitioner claims that the School has been producing WA. 1364/10 -4- cent percent pass from 2007 onwards. It is submitted that presently steps are afoot to grant Plus Two Courses for the third respondent School, Sacred Heart School, Angadikadavu ignoring the claim of St. Thomas High School. Relying on Ext.P11 Government Order dated 18-5-2002 it is submitted that the District Level Committee has recommended for granting Plus Two Course for the petitioner's School. The petitioner contends that the Government has actually concluded the issue by ordering that the recommendations of the District Level Committee will be given due weight when new Schools are sanctioned. Ext.P12 produced along with the writ petition is copy of application sent by the Manager of St. Thomas High School pursuant Exts. P6 and P11. The petitioner alleges that ignoring the mandate of the earlier committee which had representation of the elected representatives and officials, and the Government's own Ext. P11 order, the second respondent Director is now taking steps for sanctioning Plus WA. 1364/10 -5- Two Course to the third respondent Sacred Heart School. Raising various grounds the writ petition is filed seeking the following reliefs:
1. Issue a writ of mandamus directing the 1st respondent to grant plus two course to St.Thomas High School Karikkottakkary pursuant to Ext.P6 Government Order, Ext.P7 notification and Ext.P12 application in view of Ext.P11 order.
2. Issue a writ declaring that the Government is estopped from considering any other applications for the grant of plus two course to any other school from Ayyankunnu Grama Panchayat without granting the plus two course to St.Thomas High School, Karikkottakkary in view of Ext.P11.
3. Issue a writ declaring that the application of the 3rd respondent pursuant to Ext.P6 and P7 cannot be considered for the grant of plus two course as the Government is bound by Ext.P11 when plus two courses are sanctioned subsequent to Ext.P11 in Kannur District.
4. Pass such other order or direction as this Court may deem fit and proper in the interest of justice.
2. Impugned in this writ appeal is a common interim order passed by the learned single Judge in writ petition No. 21169/10 and in five other connected writ petitions, viz., writ petition Nos. 22235/10, 23347/10, 23351/10, WA. 1364/10 -6- 23616/10, and 23499/10. The learned single Judge has by the impugned order declined stay of Ext.P8 Government Order produced in WP(C) No. 22235/10, G.O.(MS) No.128/10/G.Edn. dated 20-7-2010. Under that G.O. the Government has sanctioned Higher Secondary Courses to 178 Schools in the State including the third respondent Sacred Heart School. Under the impugned order the learned single Judge has noticed the contention of the petitioners that clause 10 in G.O.(MS) No. 91/10/G.Edn. dated 3-6- 2010 (Ext.P6) provides the essential accommodation in an applicant school and clause 11 therein provides the matters to be considered by the concerned committee for deciding the eligibility. The learned single Judge also noticed the specific contention of the petitioners that in terms of clauses 10 and 11 of Ext.P6 it is absolutely essential that an applicant school should have atleast 1.2 hectares of land. However, under G.O.(MS) No. 128/10/G.Edn. dated 20-7- 2010 by which Higher Secondary Courses are sanctioned to WA. 1364/10 -7- 178 schools including the Sacred Heart High School, but excluding St.Thomas High School, it is sufficient that the above essential qualification is acquired by the Schools within a period of three years and an affidavit to that effect is submitted by the School Manager to the Higher Secondary Director. The learned single Judge nevertheless, did not become inclined to stay G.O.(MS) No. 128/10/G.Edn. dated 20-7-2010. One of the reasons which weighed with the learned single Judge is that all the 178 Schools enlisted in the impugned order who will be affected by the decision in the writ petition have not been arrayed as parties. Another reason is that as classes had already started in the existing Higher Secondary Schools, utmost expedition was found necessary, lest more than 20000 students should fail to get admission to the Higher Secondary Course. According to the learned single Judge, further delay in the matter of starting Higher Secondary Courses in the new Schools would hamper the future of a considerably large student WA. 1364/10 -8- community and the learned single Judge accepted the submission of the Advocate General that an interim order staying Ext.P8 G.O.(MS) No. 128/10/G.Edn. dated 20-7- 2010 would virtually doom the very future of the students. Accordingly, the order of stay sought for was declined.
3. The order of the learned single Judge is impugned on various grounds in this writ appeal. Sri.P.Raveendran, learned senior counsel addressed as in detail in support of those grounds. We have also heard Sri.KRB Kaimal, learned senior counsel representing the Corporate Manager of Thalassery Arch Diocese who is significantly the Manager of the petitioner's School as well as the third respondent School. In fact, the Corporate Manager filed IA. No. 625/10 seeking his impleadment in the writ appeal as additional 4th respondent and also IA. No. 624/10 to vacate the interim order passed by this court on 11-8-2010 granting stay of the operation of the impugned order. IA. No. 661/10 for impleadment is filed by 10 students who have already WA. 1364/10 -9- secured admission to the Higher Secondary Course in the third respondent School seeking their impleadment as additional respondents 4 to 13 in the appeal. The above IA is opposed by the appellant. IA. No. 653/10 is filed by three inhabitants of Angadikadavu area of Ayyankunnu Panchayat, the area where Sacred Heart High School is situated, whose children have been admitted to various groups in the newly sanctioned Higher secondary Course in Sacred Heart High School. They seek their impleadment as additional respondents 5 to 7 in the writ appeal and in IA. 654/10 they pray that the interim order passed by this court be kept in abeyance to the extent the same pertains to the third respondent School. In view of these applications we have heard Sri. George Thomas, senior counsel for the petitioners in IA.653/10 and 654/10 as well as Sri.Mohammed Mustaque for the petitioners in IA. 661/10. On behalf of the Government Sri.T.B.Hood, learned Senior Govt. Pleader would address us generally supporting the submissions of WA. 1364/10 -10- Sri.KRB Kaimal.
4. Sri.P.Raveendran, senior counsel would draw our attention to Ext.P11 and argue that the Government being bound by Ext.P11 ought to have sanctioned Plus Two Courses for St. Thomas High School and not for the third respondent School which lacks in essential facilities in terms of the requirements of Exts.P7 and P9. According to the learned senior counsel, it is not open to the Government to ignore the right of St.Thomas High School and to consider any other application from the Grama Panchayath area. The senior counsel submitted that the third respondent School lacks in the requisite extent of land as well as the buildings which are essential criteria for sanctioning Plus Two Courses. The decision making process adopted by the Government in sanctioning Plus Two Courses to third respondent School ignoring the legitimate claim of St.Thomas High School recognised by the Government itself in Ext.P11 which was issued on the strength of judgments WA. 1364/10 -11- and orders passed by this Court is tainted. Anticipating the argument that PTA does not have locus standi to institute the writ petition, the learned senior Counsel referred to instructions issued by the Government to various Schools for the organisation of PTAs on the basis of G.O.(P) 138/69/Edn. dated 31-3-69 amended as per GO(P) 178/81/G.Edn. dated 13-10-1981 and also circular No. H1- 72607 dated 7-4-1985 and H1/51568/98 dated 18-8-1998 of the DPI. The senior counsel highlighted that the PTA is expected to form the corner stone of all school improvement programmes and that "no other body of the Government can function more effectively than the PTAs in the School". Mr. Raveendran would rely on the Constitution Bench decision of the Supreme Court in Fertilizer Corporation Kamgar Union v. Union of India, (1981) 1 SCC 568 and the judgment of the Supreme Court in Meera Massey v. S.R.Mehrotra, AIR 1998 SC 1153 and also the judgment in Ghulam Qadir v. Special Tribunal and others, (2002) 1 SCC WA. 1364/10 -12- 33 to argue that the locus standi of the PTA to institute the present proceedings cannot be in doubt. Sri.Raveendran referred to the interim order dated 11-8-2010 passed by this Court keeping in abeyance Ext.P6 Government order. The learned senior counsel submitted that as this Court has already found under that interim order that the impugned Government Order does not reveal application of mind or any assessment of the relative merit of the applicant schools it may not be proper on the part of another Bench of this Court to vary that interim order as the same would amount to sitting in judgment over finding entered by a Bench of co-ordinate jurisdiction. Mr.Raveendran submitted that the impugned interim order was passed by the learned single Judge even before pleadings had been raised by the respondents. According to him, no material has been produced by the third respondent to show that the third respondent school is qualified for being sanctioned with Plus Two Schools. In the absence of any such material, the WA. 1364/10 -13- impugned interim order is to be vacated. Counsel submitted that the ideal course to be done is that this Court calls for the writ petition and decides the writ petition itself after inviting counter affidavits from the respondents.
5. Sri.KRB Kaimal, learned senior counsel for the third respondent Manager submitted that both St. Thomas High School as well as Sacred Heart High School belong to the same management. The management applied for Higher Secondary Course for both the schools which are situated within the area of the same Panchayat. The Government chose to grant the application only in respect of Sacred Heart High School. Mr. Kaimal took exception to the submission of Mr.Raveendran that Sacred Heart High School unlike St. Thomas High School does not satisfy the eligibility criteria. According to Mr. Kaimal, both the Schools satisfy all the essential criteria including availability of 1.2 hactares of land at the time of the application itself. Even if there is any irregularity in the Government's action of giving three WA. 1364/10 -14- years time to the allottee schools for acquiring the minimum extent of land required such irregularity does not vitiate the present grant in favour of St. Thomas High School. Single Window Allotment has been resorted to and the students to be admitted to the School have also been identified as per Annexures 1 to 3 lists produced along with IA. No. 624/10. In fact, at the time when the School Management was informed about the order passed by this Court the admission process was on. The admission process was to be completed by 5.00 p.m. on 11-8-2010. The process had to be stopped abruptly at 11.50 a.m. on that day at the time when many students along with their parents was waiting in the queue for admission. In the whole State of Kerala admission process in respect of Plus Two Courses is over by 11-8-2010. Hence unless the order of stay is vacated, the students who have been alloted by the Director to Sacred Heart High School will be put to irreparable injury. Mr. Kaimal would question the locus standi of the appellant who WA. 1364/10 -15- at best is the President of the PTA of one of the Schools under the same management to question the grant given to Sacred Heart School. According to the learned senior counsel, judicial discretion has been rightly exercised by the learned single Judge who kept in mind all relevant considerations while deciding to decline the stay sought for.
6. Sri.T.B.Hood, senior Govt. Pleader would support all the submissions of Mr.KRB Kaimal. He would explain the procedure for allotment of students to various schools which is done centrally and submit that it will be practically impossible to accommodate the students allotted to Sacred Heart High School in any other school. According to him, balance of convenience is against the continuance of the interim order of stay passed in this case. If ultimately the writ petition comes to be allowed there will not be any difficulty for accommodating the students as both the schools come under the same management. He also submitted that most of the students who could have aspired WA. 1364/10 -16- for getting admission in St.Thomas High School have already been allotted to Sacred Heart High School as both the schools are in the same Panchayat. Mr. Hood submitted that between the two schools the Government took into account all relevant considerations including the number of students passing the SSLC Examination and the locational advantages through the perspective of the entire Panchayat and took the decision to grant Higher Secondary Course to Sacred Heart High School. It is open to the management to apply in respect of St.Thomas High School in future and if the policy of the Government changes and if relevant criteria are satisfied there may not be objection to grant the application in respect of St. Thomas High School also. Mr. Hood would place strong reliance on the judgment of the Supreme Court in Vinoy Kumar v. State of UP and others, (2001) 4 SCC 734 and submit that the appellant who at best is the President of PTA of one school which has not been granted Higher Secondary Course does not have locus WA. 1364/10 -17- standi to file the writ petition. Appellant is not the person affected nor is any fundamental right of the appellant directly or substantially affected nor there is any danger of such right being affected by the grant of Higher Secondary Course to Sacred Heart High School. Mr. Hood also referred to the judgment of the Supreme Court in D.Nagaraj and others v. State of Karnataka and others, (1977) 2 SCC 148 for the same proposition.
7. Sri.George Thomas, counsel for the impleadment petitioner would refer to annexures 2 and 3 lists produced along with IA.654/10 submit that as per those lists the children of petitioners 1 to 3 have been allotted by the Director to be admitted to the Higher Secondary Division in Sacred Heart High School. He referred to annexure 1 notice which will show that inauguration of the School was fixed by the management on 13-8-2010. He submitted that the admission process started on 10th August 2010 and had to be stopped abruptly by around 11.50 a.m. on 11-8-2010 WA. 1364/10 -18- upon intimation regarding the interim order passed by this Court in this appeal keeping in abeyance Ext.P13 in so far as third respondent school is concerned. He argued that the continuance of the stay order adversely affected the future of the students admitted in the school. The students including the children of the impleading petitioners are put to to extreme hardship and prejudice. They have already taken TCs. from other Schools for the purpose of joining the third respondent school. Mr. George Thomas would attack the locus standi of the appellant to challenge the allotment to Sacred Heart School. He pointed out that in this case both the schools are under one and the same corporate management and when the management has no grievance the President of the PTA cannot step into the shoes of the management and challenge an order which is in favour of the management, though in respect of another School.
8. We have very anxiously considered all the WA. 1364/10 -19- submissions addressed at the Bar in the light of the judicial precedents which were cited before us by the learned counsel for the appellant and the learned Senior Govt. Pleader. The submission of Sri.P.Raveendran, learned senior counsel for the appellant that the decision making process adopted by the Government leading to the Government Order impugned in the writ petition suffers from infirmities justifying exercise of judicial review is not liable to be brushed aside lightly. In fact, the learned single Judge also has observed that the action of the Government in allowing three years time to the allottee Schools for acquiring eligibility in terms of land extent is questionable. Nevertheless, the learned single Judge declined stay of the impugned order giving reasons, which in our opinion, reveals a judicious application of judicial discretion. According to us, apart from the reasons stated by the learned single Judge, there are more reasons for justifying the decision taken by the learned single Judge. The WA. 1364/10 -20- appellant school as well as Sacred Heart School are situated in the same Grama Panchayat which presently does not have even a single Higher Secondary School. Both the Schools are under the same Corporate Educational Agency. It appears to us from the materials placed before us and from the submissions addressed at the Bar that both the Schools satisfy the eligibility criteria, including the criterion of possessing 1.2 hectares of land. It also appears to us that in terms of the number of students who appeared for SSLC Examination, during the previous academic year, which is one of the criteria, the Sacred Heart School is better placed. In terms of the location in relation to the other parts of the Panchayat, Sacred Heart School is evidently situated more centrally than St. Thomas School, which indicates that Sacred Heart School has an edge over St. Thomas School as regards locational advantages. The stand taken by the management is that they would have been happy if the Government had sanctioned their WA. 1364/10 -21- applications in respect of both the Schools. But now that the Government sanctioned their application only in respect of Sacred Heart School, they are contended for the time being, though they may think in terms of applying again in respect of St. Thomas School in future. Whether the Parent Teacher Association of St. Thomas High School, a School under the same management has the locus standi to question the grant in favour of Sacred Heart School, another School under the same management, necessarily has to be answered in favour of the management. This means that relief Nos. 2 and 3 sought for in the writ petition may not be easy to grant at the instance of the appellant writ petitioner. Annexures 1, 2 and 3 produced along with IA. No. 624/10 will show that allotment process has been completed by the Director of Higher Secondary Education and students have been allotted for admission in Sacred Heart School. The allotment process and admissions are completed all over the State. It is also clear that from out of the total number of WA. 1364/10 -22- students in Annexures 1, 2 and 3 lists, 34 were already admitted in Sacred Heart School by noon on the 11th of August 2010. It is obvious that if the admission process is not allowed to be completed in Sacred Heart School, the academic career of those 67 students allotted to that School by the Director will be in jeopardy. We are of the view that considerations of balance of convenience and irreparable injury are in favour of continuing the impugned order and vacating the interim order of stay passed in this appeal.
9. We also notice that many of the students who could have been potential applicants to St. Thomas School are getting admission in Sacred Heart School. Even if the writ petition is ultimately allowed, it will be possible to secure the career of the students presently admitted in Sacred Heart School by making appropriate shifting as both the Schools are under the same corporate management. The interim order of stay was passed in this appeal without hearing the third respondent management and at any rate, WA. 1364/10 -23- the same is only an interim order which is liable to be superseded by the final judgment in the appeal.
10. The result of the above discussion is that the writ appeal fails and will stand dismissed. The applications for impleadment are made over to the learned single Judge to be considered as applications in the writ petition. The learned single Judge will invite counter affidavits from the respondents and dispose of the writ petition early. The admissions of students to Sacred Heart School on the basis of the impugned order and this judgment will be subject to the final outcome of the writ petition. The students who are being admitted to Sacred Heart School should be informed about the pendency of the writ petition.
(PIUS C.KURIAKOSE, JUDGE) (P.S.GOPINATHAN, JUDGE) ksv/-