Kerala High Court
K.S.Muhammed Roshan vs The State Of Kerala on 27 May, 2017
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY,THE 23RD DAY OF JUNE 2017/2ND ASHADHA, 1939
WP(C).No. 20170 of 2017 (U)
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PETITIONER :
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K.S.MUHAMMED ROSHAN, SON OF SALIM, AGED 16 YEARS,
(MINOR) NOW RESIDING AT MULLAPPILLY HOUSE,
THANDEKKAD, PERUMBAVOOR,
REPRESENTED BY HIS MOTHER T.A.JESNA,
D/O. ABDUL RAHMAN, AGED 44 YEARS,
IVTH MILE, ALUVA (TEMPORARILY RESIDING AT MULLAPPILLY HOUSE,
THANDEKKADU, PERUMBAVOOR, ERNAKULAM DISTRICT).
BY ADVS.SRI.V.A.MUHAMMED
SRI.K.A.MANZOOR ALI
RESPONDENT(S):
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1. THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEX II,
THIRUVANANTHAPURAM, PIN-695 001
2. THE DIRECTOR OF PUBLIC INSTRUCTION,
JAGATHY, THIRUVANANTHAPURAM, PIN-695 014
3. THE DEPUTY DIRECTOR FO EDUCATION,
ERNAKULAM AT KAKKANAD, PIN-682 030
4. THE DISTRICT EDUCATIONAL OFFICER,
KOTHAMANGALAM, ERNAKULAM, PIN-686 691
5. THE HEADMASTER,
JAMA-ATH HIGHER SECONDARY SCHOOL,
THANDEKKADU PERUMBAVOOR, ERNAKULAM, PIN-683 542
R1 TO R4 BY SR GOVERNMENT PLEADER SMT. NISHA BOSE
R5 BY ADV. SRI.P.M.PAREETH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 23-06-2017,ALONG WITH WPC.NO.20591 OF 2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
WP(C).No. 20170 of 2017 (U)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE COPY OF THE TRANSFER CERTIFICATE
EXHIBIT P2: TRUE COPY OF THE REQUEST BEFORE THE DISTRICT EDUCATIONAL
OFFICER DATED 27.05.2017 ALONG WITH THE REMARKS DATED
27.05.2017
EXHIBIT P3: TRUE COPY OF THE ORDER OF THE DEPUTY DIRECTOR OF
EDUCATION DATED 08.06.2017
EXHIBIT P4: TRUE COPY OF THE REQUEST OF THE PETITIONER BEFORE THE
DIRECTOR DATED 09.06.2017 AND REMARKS THEREON BY THE
DIRECTOR DATED 12.06.2017
EXHIBIT P5: TRUE COPY OF THE LETTER DATED 13.06.2017 ALONG WITH ORDER
CRMP NO.5815/071/2014/KESCPCR DATED 12.06.2017 OF THE KERALA
STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS
RESPONDENT(S)' EXHIBITS: NIL
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/TRUE COPY/
P.A.TO JUDGE
sts
P.V.ASHA, J.
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W.P.(C). Nos. 20170 & 20591 of 2017
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Dated this the 23rd day of June, 2017
JUDGMENT
W.P.(C) No. 20170/2017 is filed by a minor through his mother seeking directions to respondent No.5-the Headmaster of Jama-ath Higher Secondary School, Thandekkadu, to grant admission to the petitioner to Std.X. W.P.(C) No. 20591/2017 is filed by the Manager and the Headmaster challenging the orders issued by the educational authorities as well as the State Commission for Protection of Child Rights ('Commission' for short), Kerala directing them to admit the minor child in Standard X. The parties and documents referrred to in this judgment are as described in the W.P.(C) 20170 of 2017 unless otherwise specified.
2. The case of the petitioner is that he was a studying in S.N Public School, Poothotta in Std.IX and after clearing Std.IX in 2016-17, he obtained transfer certificate from that School on 29.05.2017. It is stated that the grandfather of the petitioner had by that time applied for admission in Std.X in the 5th respondent School, in the year 2017-18. Since the 5th respondent did not grant admission, the grandfather of petitioner, Sri. Abdurahman, approached the District W.P.(C). Nos. 20170 & 20591 of 2017 2 Educational Officer (DEO) with a compalint Ext P2 and DEO, as per endorsement dated 27.05.2017 on Ext.P2, directed the Headmaster/5th respondent to take appropriate steps for admitting the petitioner. Since the petitioner was not admitted, the grandfather approached the Deputy Director of Education and by Ext.P3 order dated 08.06.2017, the Deputy Director of Education has also directed the 5th respondent to grant admission to the petitioner in accordance with Rule 19 of Chapter VI of KER. Simultaneously, the Headmaster was also asked to furnish explanation for not granting admission to petitioner. Immediately thereafter the petitioner submits Ext P4 representation before the Director of Public Instructions on 12.06.2017 and the Director of Public Instructions as per endorsement on Ext.P4 on the same day directed the Headmaster to admit the petitioner in accordance with the provisions in the KER and Right to Education Act and Rules at the earliest. On the very same day the Commission for Protection of Child Rights, also passes Ext.P5 order dated 12.06.2017, on a complaint from the petitioner, directing the 5th respondent to grant admission, emergently, pointing out the obligation of the 5th respondent to admit a pupil seeking admission to a school, after obtaining TC, under Rule 5 of W.P.(C). Nos. 20170 & 20591 of 2017 3 chapter V KER and Section 15 of Right of Children to Free and Compulsory Education Act 2009 ('RTE Act' for short). The DEO is directed to ensure the admission of the petitioner. A report on the follow up action is called for on Ext P5 under Rule 45 of the Kerala State Protection of Child Rights Commission Rules, within a period of one week.
3. In the above circumstances, the Manager Jama-ath Higher Secondary School, Thandekkadu along with Headmaster has filed W.P.(C) No. 20591/2017, challenging the orders passed by the DEO, DDE and the Commission and the action initiated against the 5th respondent by the DEO and the DDE for not granting admission to the petitioner.
4. The 5th respondent and the Manager point out that the management could not arrange sufficient accommodation for additional intake of students in standard X and not only the petitioner but about 45 students also who sought admission in standard X in the School with TC from other Schools could not be admitted for want of sufficient accommodation. It is pointed out that there are 2235 students who are enrolled in this School during the academic year 2017-18 in standards I to X, out of which 430 are newly admitted students. The 5th respondent submits that about 45 W.P.(C). Nos. 20170 & 20591 of 2017 4 students had to be sent back denying admission in the absence of sufficient accommodation as prescribed in KER, producing the details of students already enrolled in each divisions, as Ext P1. He further states that considering the insufficiency in accommodation, infrastructure and the enhanced number of students already available in standard X, this year the Managing Committee had in its meeting held on 12.04.2017, taken a decision that no fresh admission need to be granted to the 10th standard. The Managing Committee had by Ext P2 letter dated 20.04.2017 communicated that decision to the 5th respondent.
5. Sri.Abdul Rahiman, who is one of the members of the Managing Committee itself, approached the 5th respondent and thereafter the District Educational Officer with a request that his grandchild should be admitted in the School. The 5th respondent points out that Sri.Abdul Rahman had enquired about admission to petitioner, when the 5th respondent expressed his inability to grant admission. It is his case that the Transfer Certificate (TC) was not shown to him and the father who is the guardian of the petitioner never approached him. 5th respondent submits that the DEO issued a show cause notice Ext P4 calling for his explanation for not granting W.P.(C). Nos. 20170 & 20591 of 2017 5 admission to the petitioner. As per Ext.P5 reply he explained the circumstances under which admission could not be granted. Thereafter the DDE as per Ext P3 called for his explanation for denying admission to the petitioner. The 5th respondent thereupon submitted an explanation to it on 12.06.2017. The order Ext P5 comes immediately thereafter. 5th respondent submits that the direction of the DPI was yet to be communicated to him. At any rate all these orders were passed and explanations were called for without hearing the 5th respondent.
6. The 5th respondent and the Manager submit that the transfer certificate mentioned in Rule 19 of Chapter VI KER is not one issued from a school affiliated to CBSE. The TC said to be produced from a CBSE School is different from the TC mentioned in rules 17 and 19 of Chapter VI KER. Therefore the directions issued by the respondents to admit the petitioner with a TC from a CBSE school invoking the provisions contained in Chapter VI of KER is unreasonable. It is also pointed out that the petitioner who sought admission to standard X does not come under the purview of the Right of Children for Free and Compulsory Education Act or Rules, as the Act 2009 is not applicable to standard X. Moreover the W.P.(C). Nos. 20170 & 20591 of 2017 6 RTE Act 2009 does not apply to minority Educational Instructions.
7. In the above circumstances, the inability to grant admission to the petitioner or any other students to Std.X was not feasible. Moreover, the Managing Committee had asked the Headmaster not to give admission to any students in the above circumstances. The Headmaster and the Manager therefore seek to quash the orders passed by the DEO,DDE and the State Commission for Protection of Child Rights directing to grant admission to petitioner and the action initiated against the 5th respondent for not granting admission.
8. Heard the learned Counsel for the petitioners in both the cases and the learned Govt Pleader and considered the contentions raised on either side.
9. The DEO, DDE as well as DPI and the Commission directs the Headmaster to grant admission to the petitioner reminding him of the obligation under the RTE Act 2009. The Commission has called for a report also. Petitioner also relies on RTE Rules 2011 to enforce his right to get admission in standard X.
10. In this context it is relevant to note that the petitioner is a minor aged 16 years, as described by him in the W.P.(C). Nos. 20170 & 20591 of 2017 7 cause title. A child is defined under Section 2(c) of the RTE Act 2009 as
(c) "child" means a male or female child of the age of six to fourteen years;
Moreover the right of the chidren under the Act is for elementary education. Section 3 reads as follows:
3. Right of child to free and compulsory education.--[(1) Every child of the age of six to fourteen years, including a child referred to in clause (d) or clause (e) of Section 2, shall have the right to free and compulsory education in a neighbourhood school till the completion of his or her elementary education.
Elementary education is defined under Section 2(f) as follows:
(f) "elementary education" means the education from first class to eighth class;
11. The right to seek transfer to other school and the obligation to admit a child on production of TC is also confined to children aged below the age of fourteen and for completing elementary education. Any action against the headmaster can be taken only in such cases. The petitioner is not a child coming under the purview of the RTE Act 2009 and he is not seeking admission to complete elementary education. Therefore the order of the Commission is absolutely unsustainable and vitiated by absolute non-application of W.P.(C). Nos. 20170 & 20591 of 2017 8 mind. The directions of the DPI referring to the provisions in the RTE Act also is unsustainable for the very same reason.
12. Next question is whether the 5th respondent was duty bound to grant admission to petitioner under the rules in Chapter IX of the KER. The case of the 5th respondent is that the petitioner or his guardian did not approach him with the transfer certificate. Anyway even without going into those factual aspects the legal position can be determined. The petitioner was studying in an English Medium School affiliated to the CBSE, as can be seen from Ext P1 transfer certificate. The DEO directed to take action to admit the petitioner in standard X; the DDE directed to grant admission as provided under Rule 19 of Chapter VI and sought explanation from 5th respondent for denying admission. The 5th respondent has submitted his explanations in reply to the show cause notices , which he has produced as Ext P5 and P7, in which he has explained the deficiency to accommodate any more children in standard X and the fact that admission was declined to 45 students who sought admissions to standard X. The DEO or DDE have not looked into the factual circumstances either before they recommended/directed grant of admission or before initiating action against the headmaster. According to W.P.(C). Nos. 20170 & 20591 of 2017 9 the DEO admission shall not be denied to any student who comes with a TC to a School under the General Education Department.
13. The obligation to grant admission cannot be imposed on the 5th respondent in the absence of sufficient infrastructure or accommodation. When such admission was declined to 45 students on such reasons the action of the educational authorities in issuing show cause notices or initiating action against the 5th respondent is illegal. A student with a TC from a CBSE school cannot be a student who is to be granted admission under the provisions in Chapter VI. The educational authorities are not justified in insisting the headmasters to admit any student who comes with a transfer certificate from any School without ascertaining the availability of accommodation and infrastructure. Moreover, the transfer certificate envisaged in Chapter VI can only be a transfer certificate from a school governed by KER. The recommendations of the educational authorities cannot be directed to be acted upon, except after ascertaining infrastructure or accommodation and the reasons for denial of admission. The number of students and accommodation available are explained by the Manager and the headmaster, W.P.(C). Nos. 20170 & 20591 of 2017 10 and it is stated that there are 430 newly admitted students. The petitioner got the transfer certificate from a CBSE School on 29.05.2017 and seeks admission to standard X in a School with state syllabus that too at a time when already 45 students were declined admission for want of accommodation. The School in which petitioner was studying is having X standard. There are other Schools in between that School and the 5th respondent School where he can seek admission. Even under the RTE Act, the obligation to grant admission arises only if the School in which the student was studying does not have the facilities for the children to complete the education in higher classes. Even that obligation is for the neighbourhood schools.
14. In view of the fact that, there is no sufficient accommodation in the School, the orders passed by the District Educational Officer, Deputy Director of Education, Director of Public Instructions as well as the Kerala State Commission for Protection of Child Rights without considering the accommodation or facilities available in the School can only be said to be illegal.
15. In the above circumstances and on consideration of the provisions contained in the rules contained in Chapter VI W.P.(C). Nos. 20170 & 20591 of 2017 11 of KER and the RTE Act 2009, it is seen that the petitioner does not have any legal right to get admission in the 5th respondent School.
W.P.(C) No. 20170/2017 is dismissed.
Therefore the proceedings produced as Ext P4, P6 and P8 of the respondents 3 to 6 in W.P.(C) No. 20591 of 2017 and the order of the 2nd respondent produced as Ext P4 in W.P.(C) No. 20170/2017 are dismissed.
Accordingly these orders are quashed.
Sd/-P.V.ASHA, Judge lsn