Kerala High Court
Father Varghese Manavalan vs Government Of Kerala on 2 November, 2021
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
WP(C)NO.23846 OF 2021
PETITIONER:
FATHER VARGHESE MANAVALAN, AGED 70 YEARS, S/O. ANTHAPPAN, MANAGER, ST.
THOMAS HIGHER SECONDARY SCHOOL, MALAYATTOOR, ERNAKULAM DISTRICT-683587.
BY ADVS. M.A.ABDUL HAKHIM
JOSEPH GEORGE
RESPONDENTS:
1 GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014.
3 THE DEPUTY DIRECTOR OF EDUCATION, DEPUTY DIRECTORATE OF EDUCATION, SECOND
FLOOR, CIVIL STATION, KAKKANAD, ERNAKULAM-682 030.
4 THE DISTRICT EDUCATIONAL OFFICER, ALUVA, GENERAL EDUCATION DEPARTMENT, MINI
CIVIL STATION, ANNEXE, ALUVA, PIN-683101.
5 ASSISTANT EDUCATIONAL OFFICER, ANGAMALY, GENERAL EDUCATION DEPARTMENT, MINI
CIVIL STATION, ANGAMALY-683572.
6 MALAYATTOOR NELEESWARAM GRAMA PANCHAYAT,
MALAYATTOOR, ERNAKUYLAM DISTRICT-683587, REPRESENTED BY ITS SECRETARY.
7 THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
8 MUKESH JAIN, CC 6/850, MATTANCHERY, KOCHI-682002.
SRI.K.P.HARISH, SR. G.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C)NO.23846 OF 2021
:: 2 ::
JUDGMENT
Dated this the 2nd day of November 2021 S.MANIKUMAR, C.J.
Writ petition is filed by the Manager of St.Thomas Higher Secondary School, Malayattoor seeking direction to the respondents, the Government of Kerala, represented by Secretary; Director of General Education; Deputy Director of Education; District Educational Officer, Aluva; Assistant Educational Officer, Angamaly; Malayattoor Neleeswaram Grama Panchayat; Secretary, Local Self Government Department; Mukesh Jain, Mattanchery, to permit continuance of the existing asbestos roofing in the school buildings with sufficient false ceiling, pending consideration of the study on the subject.
2. According to Mr.M.A.Abdul Hakhim, learned counsel for the petitioner, total ban of the asbestos/aluminum/tin sheet roofings is not supported by any valid reason. Therefore, substitution of asbestos sheet roofing, without finalisation of study as to the suitable substitute material would serve no purpose and involve recurring heavy expenses to the school managements. Hence this writ petition. WP(C)NO.23846 OF 2021 :: 3 ::
3. Reliefs sought for in this writ petition are as follows:
(a) Issue a writ of mandamus or such other writ order or direction compelling the respondents to complete the study initiated as per Ext.P6 with reference to different types of roofings and false ceilings of school buildings after hearing all stake holders including the petitioner and to maintain status quo with respect to the roofings in the school buildings till then,
(b) Issue a writ of mandamus such other writ order or direction compelling the respondents to permit asbestos roofings with sufficient false ceilings, in the school buildings of the petitioner in his school [St. Thomas Higher Secondary School],
(c) Issue a writ of certiorari or such other writ order or direction setting aside Exts.P1, P2, P3 and P4 to the extent to which it is applicable to the petitioner.
4. Mr.M.A.Abdul Hakhim, learned counsel for the petitioner contended that St.Thomas Higher Secondary School, Malayattoor was established in the year 1965 and it is situated in 2.31 acres of land in Sy.No.276/7 of Malayattoor Village in Aluva Taluk. There are 1274 students in the said school in 31 divisions. The school is having two blocks of buildings. The original block is a two storied building with asbestos roofing on the top roof which is constructed in the year 1965. The second block is three storied building with asbestos roofing on the top roof, which is constructed in the year 2000. The school is having a total number of 43 class rooms in the said two blocks of buildings. The total area of roofing is WP(C)NO.23846 OF 2021 :: 4 ::
more than 20000 Sq.Ft. and the petitioner is in the process of making false ceiling made with fibre sheet below the asbestos sheet roofing as part of converting the class rooms to smart class rooms and the petitioner has completed false ceiling in a substantial area. The class rooms are provided with ceiling fans.
5. According to the learned counsel for the petitioner, students in this school have been comfortably undergoing their studies sitting in the classrooms with asbestos sheet roofing with false ceiling. The students are not affected by heat, dust or sound from the roofing. Neither the students nor the teachers have raised or reported any kind of disease or discomfort on account of sitting in class rooms with asbestos sheet roofing.
6. Material on record disclose that the Kerala State Human Rights Commission had considered similar issue with respect to the roofing of school buildings with asbestos sheets in HRMP No.126/2007 and connected cases, as it is claimed to be hazardous to the health of the children. By Ext.P1 order dated 31.1.2009 in HRMP No.126/2007, Kerala State Human Rights Commission has made the following recommendations to the first respondent/Government of Kerala:
WP(C)NO.23846 OF 2021 :: 5 ::
"1. The State Government will replace asbestos roofs of all school buildings under its control with country tiles in a phased manner.
2. The Government will take steps to see that the schools run under the private management also replace the asbestos roofs with country tiles by fixing a time frame.
3. The Government should see that in future no new school is allowed to commence its functions with asbestos roofing.
4. The Government will impress upon the management of all schools in the State the benefit of cotton, and through the management the parents of the children, and see to it that the children are made to wear uniform made of cotton fabrics.
5. The Government also will take steps to educate the people of Kerala about the benefits of wearing clothes made of cotton fabrics.
6. The Government may consider supplying cloth for uniform, manufactured by Kerala State Handloom Weavers Co-operative Society, to the school children who are studying in the schools which are under the Government management which in turn will improve the standard of living of the Handloom Weavers."
7. The Additional Director of Public Instructions has issued Ext.P2 circular dated 19.6.2017 on the basis of the order of the Kerala State Commission for Protection of Child Rights, directing to take steps to remove aluminium sheets causing serious health hazards to the students and to provide heat free class rooms for the students.
8. Ext.P2 Circular dated 19.6.2017 issued by the Additional Director of Public Instructions, (General) to all Deputy Directors of Education is reproduced:
WP(C)NO.23846 OF 2021 :: 6 ::
No.W1/39792/17/DPI Office of the Director of Public Instructions, Thiruvananthapuram Date:19/6/2017 CIRCULAR Sub: General Education - Substitution of roof of the School Buildings having Asbestos sheet with tile/concrete in the last year on the ground of serious health issues of the School children-regarding Ref: C.R.M.P No.4231/14/L.A.2/2017/K.E.S.C.P.C.R. Kerala State Commission for Protection of Child Rights On examining the petition submitted by Muhammed kunhi.P.A before the Kerala State Commission for Protection of Child Rights in detail, you are directed to implement the following directions by giving necessary instructions to all the School Headmasters within the area of your control.
1. Steps are to be taken to remove Aluminium sheets causing serious health issues to the children.
2. The attention of the School Headmasters, Panchayat, Block and District Panchayat Officers are to be invited for providing a healthy study atmosphere to the children by removing aluminium sheets and by providing heat proof class rooms on an emergent basis.
Sd/ Jessy Josseph, Additional Director of Public Instructions, (General)
9. On the basis of the interim order dated 3.9.2019 in W.P. (C)No.22457/2019, the first respondent issued Ext.P3 Government Order dated 9.10.2019 directing to remove asbestos sheet roofings from all the schools functioning under the education department within a period of two years from the date of the said Government Order, which reads as under:
File No.GEDN-M1/188/2019-G.EDN WP(C)NO.23846 OF 2021 :: 7 ::
Administration Language - Mother Tongue Government of Kerala Summary General Education Department-Interim Order of the Hon'ble High Court in W.P. (C) 22457/2019 - Order is issued prohibiting Asbestos Sheet Roofing and fixing time limit for removal of the same in Schools in the State under General Education Department.
General Education (M) Department G.O.(MS)No.162/2019/GEDN Date 9/10/2019 Thiruvananthapuram Ref: Interim Order dated 3/9/2019 of the Hon'ble High Court of Kerala in W.P. (C) 22457/2019.
ORDER In the interim order cited above in W.P.(C).22457/2019 filed by the School Manager of Thrissur, Koorikuzhi AMUP School before the Hon'ble High Court it is directed to remove Asbestos sheet roofing from the class rooms in the Schools of the State in a time bound manner by fixing suitable materials. Government has examined the matter in detail. On the basis of the Interim order of the Hon'ble High Court cited above, Order is passed prohibiting usage of asbestos sheet, which may cause health issues to the school children, for constructing the roof in all the schools in the State under General Education Department and issuing the following instructions.
1. In all the schools under General Education Department having Asbestos sheet roofing, the same have to be removed within two years from the date of this order by fixing other suitable roofings.
2. The Local Self Government Institutions have to take steps in this regard joining with managements for aided-unaided-approved Private Schools and with Education Department for Government Schools.
3. The Director of Public Instructions has to prepare a list of the Schools having asbestos sheet roofing in the State and to confirm removal of such sheets with suitable other roofings in a time bound manner and to make available monthly report in this regard to the Government.
4. The Director of Public Instructions and the Engineers of the Local Self Government Department have to confirm that no heat absorbing/flammable materials which are prohibited as per Chapter IV Rule 5 of Kerala Education Rules are used for substituting the roof or for constructing roof for the new school building.
WP(C)NO.23846 OF 2021 :: 8 ::
The interim order of the Hon'ble High Court cited above is complied in the above manner.
(Under Order of Government) P.S.Krishna Kumar, Additional Secretary
10. Material on record further discloses that the 7 th respondent/Secretary, Local Self Government Department issued Ext.P4 order to the Director of Panchayats, Director of Urban Affairs and Commissioner for Rural Development informing that issuance of Fitness Certificate for the schools and other educational institutions shall be made only after ensuring that the class rooms are constructed not using asbestos sheets, tin sheets and aluminium sheets.
11. Ext.P4 order reads as under:
File No.EPA4/302/2019-LSGD Administration Language - Mother Tongue Government of Kerala No EPA4/302/19/LSGD Local Self Goverment(EPA) Department, 17/10/2019 Thiruvananthapuram Secretary Director of Panchayats, Thiruvananthapuram Director of Urban Affairs, Thiruvananthapuram Commissioner for Rural Development, Thiruvananthapuram. Sir, Sub: Kerala State Commission for Protection of Child Rights-Prohibiting usage of asbestos sheet roofing to school buildings -regarding. WP(C)NO.23846 OF 2021 :: 9 ::
Ref: Proceedings C.R.M.P No 4231/14/LA2/217/KeSCPCR submitted by Sri. Muhammed Kunhi. P.A before the Kerala State Commission for Human Rights.
Your attention is invited to the recommendation (B) in the above cited order of Kerala State Commission for Protection of Child Rights in the Petition submitted by Sr. Muhammed Kunhi.P.A. It is ordered that while granting Building Fitness Certificates to crèches, Anganwadis, Nurseries, Schools and other Educational & Technical Institutions, the same have to be given only after ensuring that the class rooms in the said institutions are constructed not by asbestos tin sheets and aluminium sheets. Emergent action in this regard has to be taken under information to the Government.
Yours faithfully, Sheeba.B, Deputy Secretary For Secretary
12. On the basis of Ext.P4, the Director of Panchayats has issued an order dated 5.3.2020 to all the Deputy Director of Panchayats, which is marked as Ext.P5, directing all the Panchayats to issue fitness certificates to the schools and other educational institutions only after ensuring that the roofs of the buildings are not constructed with asbestos sheets, tin sheets and aluminium sheets.
13. Ext.P5 order reads as under:
PAN/15733/2019-J3(DP) Office of the Director of Panchayat Public Office P.O.-695033 Thiruvananthapuram [email protected] 0471-2786305 Date 5/3/2020 Director of Panchayats All Deputy Director of Panchayats WP(C)NO.23846 OF 2021 :: 10 ::
Sir, Sub:- Department of Panchayat-Kerala State Commission for Protection of Child Rights-Prohibition of using asbestos sheets for roofing of school buildings - regarding Ref: Letter No EPA/4302/19/LSGD dated 17/10/2019 of the Government.
Attention is invited to the letter cited above. The copy of the Letter cited above is enclosed herewith for directing all the Grama Panchayats to ensure that while granting Building Fitness Certificates to crèches, Anganwadis, Nurseries, Schools and other Educational &Technical Institutions, the same have to be given only after ensuring that the class rooms in the said institutions are constructed not by asbestos, tin sheets and aluminium sheets.
Yours faithfully For Director of Panchayat Meenakumari Amma. O Chief Registrar
14. It appears that certain school managements have brought the role of false ceiling to avoid the mischief caused asbestos/aluminium/tin sheet roofings to the notice of the Government. Accordingly, the Government of Kerala, represented by Secretary, General Education Department/first respondent has initiated steps to conduct a serious study regarding the effect of false ceiling to avoid the mischief caused by the aforesaid roofings inviting opinion from various stakeholders as per Ext.P6, which reads as under:
Office of the Chief Engineer, Phone:0471-2324951 LSG-Local Infrastructure Development and 0471-2325071 Engineering Wing, Revenue Complex, Tele Fax:0471-2324951 3rd Floor, Public Office [email protected]. Building, Thiruvananthapuram-33 WP(C)NO.23846 OF 2021 :: 11 ::
No.DB.1/DB.5/9495/09/CE/L.I.D&E.W Date : 16.8.2021 CIRCULAR Sub:Local Infrastructure Development & Engineering Wing-Granting of Fitness to School Buildings-Regarding Ref: 1. Letter No.E.W.A.3/261/2021-LSGD dated 11/8/2021 from the Government.
2. Order No.4231/14/LA2/217/KeSCPCR dated 21/6/2019 of the Kerala State Human Rights Commission.
3. Letters dated 29.3.2021, 28.6.2021 of this office to the Government.
Since the time period for removing asbestos roofing in school classes is fixed upto 8.10.2021 as per letter 1 st cited above, the Government has ordered to grant Partial Fitness Certificate till the said date and to grant Fitness Certificate for the period thereafter, after removal of asbestos sheet On the basis of the Order 2nd cited above, instead of removing GI/Aluminium sheet roofing fixation of ceiling providing sufficient number of fans is made mandatory. The letter 3 rd cited was submitted to the Government requesting to pass order permitting to issue fitness certificate on the basis of it. As per letter 1 st cited above it is required to submit a detailed report in this regard. Suggestions and opinions are invited for submitting detailed instructions to the Government for passing order compelling fixation of ceiling with sufficient ceiling fans after electrification instead of changing G.I.&Aluminium sheet roofings in the classes in school buildings and to give fitness certificate thereafter. The officers of the Engineering Department are requested to submit their suggestions and opinions in the official blog of Chief Engineer of Local Self Government Department. Celsgdofficial.blogspot.com.on or before 2.9.2021.
Sd/-
Chief Engineer
15. Thus from the materials on record, it could be deduced that Government have complied with the directions issued by this court dated 3.9.2019 in W.P.(C)No.22457/2019 to remove asbestos sheet roofings from all the schools functioning under the education department within a period of two years from the date of the Government Order. WP(C)NO.23846 OF 2021 :: 12 ::
16. However, it is not clear as to how the Chief Engineer of LSG-Local Infra Structure Development and Engineering Wing, Revenue Complex, Thiruvananthapuram can call for any directions/ suggestions/opinions from the officers of the Engineering Department. Such an attempt on the part of the Chief Engineer, LSG-Local Infra Structure Development and Engineering Wing would amount to deviating from the compliance of the directions issued on 3.9.2019 by this court in W.P.(C)No.22457/2019.
17. During the course of hearing, Mr.M.A.Abdul Hakhim, learned counsel for the petitioner brought to the notice of this court an interim order passed by the learned Single Judge on 3.9.2019 in W.P.(C)22457/2019.
Said writ petition has been filed by the school manager of Koorikuzhi A M U P School, Kaipamangalam, Thrissur against the removal of asbestos sheet roofing from the class rooms of the school.
18. Interim order dated 3.9.2019 in W.P.(C)No.22457/2019 reads as under:
"Petitioner, who is the manager of an aided school challenges Ext.P6 and P8 order rejecting his request for 3 years' time for replacing the asbestos roof of 5 class rooms of his school. Pointing out the large number of schools, as given in Ext.P9 to P10 lists, having asbestos roof petitioner alleges discrimination.
2. It is seen that the respondents have directed the petitioner to replace the asbestos roof in the light of the reports/recommendations WP(C)NO.23846 OF 2021 :: 13 ::
of Human Rights Commission, Child Rights Commission, World Health Organisation, etc. In order to protect the children from the possible health hazards. At the same time, it appears that respondents are not taking any effective action to see that such roof is replaced in all the schools and the children therein also are protected.
3. The 1st respondent shall therefore file an affidavit as to why no action is taken for prohibiting such roof for the buildings of schools in the state and why no action is taken to see that the asbestos roof of the class rooms in all the schools are replaced. The respondents shall also state why no action is taken to incorporate appropriate provisions providing for specifications for the roof also of the class rooms.
There shall be a direction to the respondents to see that the asbestos roof of the class rooms of all the schools are replaced in a time bound manner."
19. The Government have issued order complying with the interim order as stated supra and when the time limit for removal of asbestos sheet roofings specified in Ext.P3 Government Order dated 9.10.2019 has already expired, it is too late in the day to seek for quashing of Exts.P1, P2, P3 and P4 orders impugned in this writ petition. There are other orders issued by the Directorate.
20. Quashing of Ext.P3 and the consequential directions would amount to setting aside the interim order dated 3.9.2019, which this court cannot do at this distance of time.
WP(C)NO.23846 OF 2021 :: 14 ::
21. It is trite law that when the directions contained in a judgment is acted upon, appeal is not maintainable. Reference can be made to the following decisions:
12. In State of Nagaland and Another v. Toulvi Kibami and Another (cited supra), the Hon'ble Apex Court held as under:
"2. Having heard learned counsel for the parties, we are of the view that in view of the subsequent events that had taken place consequent upon the judgment of the Division Bench, the review petition filed by respondent No. 1 was not maintainable. In fact the judgment of Letters Patent Bench was acted upon and it stood exhausted and the review petition was futile. Under such circumstances, the review petition ought not to have been entertained and decided on merits.
3. For the aforesaid reasons, we set aside the order and judgment under challenge. The appeals are allowed. However, it will be open to respondent No. 1 to challenge the promotion of respondent No. 2 afresh by a separate petition under Article 226 of the Constitution of India if he is so advised. In case such a petition is filed, it shall be entertained and decided on merits. We leave all questions of law open to be decided in that case."
13. That apart, in Sh. C. Lawmzuala v. Mizoram University and Anr., reported in (2015) SCC Online Gau 803, a Hon'ble Division Bench of the High Court of Gauhati at Aizawl held as under:
"6. In the instant case also, during the pendency of the writ petition, acting upon the impugned order of this court, advertisement for the post in question was issued, in response whereof the petitioner also submitted his application, but he was not called for the interview as he did not qualify for the post. Under the circumstances, the impugned order has been exhausted and the review petition is futile. Therefore, in terms of the decision in Toulvi Kibami (supra), this review petition cannot be entertained and decided on merit. Since the review petition can be rejected WP(C)NO.23846 OF 2021 :: 15 ::
on the afore-stated ground, it is not necessary, to deal with the other contentions of the learned senior counsel for the petitioner since a court of law does not decide more than what is necessary."
14. Following the decision in Toulvi Kibami's case (cited supra), a learned single Judge of this Court in Plakkattu Granites (P) Limited v. State of Kerala [Judgment dated 14.08.2020 in R.P. No.326 of 2019 in W.P.(C) No.25012/2013], held as under:
"7...........................Therefore, I am also of the view that, since the directions contained in the common judgment rendered by this Court was acted upon, a review is not maintainable under law. The said issue was considered by the Apex Court in State of Nagaland and Ors. v. Toulvi Kibami and Ors. [(2003) 8 SCC 671] and held that when a judgment is acted upon a review petition cannot be sustained under law. ..........."
15. In P. Anil Kumar and Others v. Indian Red Cross Society, Represented by its Secretary General, National Headquarters and Others, reported in 2020 SCC Online Ker 3376, we held as under:
"12. ................Yet another reason that would weigh with us is that, already the judgment is acted upon and the committee constituted by the National Headquarters headed by a retired Judge of this Court has proceeded with the enquiry, and the enquiry is complete and the report is awaited.
13. In that view of the matter, since the judgment is acted upon, a review petition at a belated stage is not maintainable under law. The said issue was considered by the Apex Court in the State of Nagaland v. Toulvi Kibami [(2003) 8 SCC 671]."
22. Though the above cases are rendered with reference to implementation of judgments, the principle can be applied to implementation of interim orders, as well.
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23. In the light of the above decisions of the Hon'ble Supreme Court and another High Courts, writ appeal is also not permissible.
24. In the light of the above discussion and decisions, prayer sought for in the writ petitions cannot be granted. Accordingly, writ petition is dismissed.
25. Learned counsel for the petitioner prayed that liberty be granted to raise the issues before the Government. In as much we have dismissed the writ petition, we are not expressing any opinion on the above.
Writ petition is dismissed.
sd/-
S.MANIKUMAR CHIEF JUSTICE sd/-
SHAJI P. CHALY JUDGE jes WP(C)NO.23846 OF 2021 :: 17 ::
APPENDIX PETITIONER'S EXHIBITS:
Exhibit P1 A PHOTOSTAT COPY OF THE ORDER DATED 31/01/2009 OF THE KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM IN HRMP NO. 126/2007.
Exhibit P2 A PHOTOSTAT COPY OF THE CIRCULAR DATED 19/06/2017 ISSUED BY THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION WITH ENGLISH TRANSLATION.
Exhibit P3 A PHOTOSTAT COPY OF THE GOVERNMENT ORDER DATED 09/10/2019 ISSUED BY THE 1ST RESPONDENT WITH ENGLISH TRANSLATION. Exhibit P4 A PHOTOSTAT COPY OF THE ORDER DATED 17/10/2019 ISSUED BY THE 7TH RESPONDENT WITH ENGLISH TRANSLATION.
Exhibit P5 A PHOTOSTAT COPY OF THE ORDER DATED 05/03/2020 ISSUED BY THE DIRECTOR OF PANCHAYATS WITH ENGLISH TRANSLATION. Exhibit P6 A PHOTOSTAT COPY OF THE CIRCULAR DATED 16/08/2021 ISSUED BY THE CHIEF ENGINEER, LOCAL INFRASTRUCTURE DEVELOPMENT AND ENGINEERING WING, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM WITH ENGLISH TRANSLATION. Exhibit P7 A PHOTOSTAT COPY OF THE REPRESENTATION DATED 13/09/2021 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT WITH ENGLISH TRANSLATION.
Exhibit P8 A TRUE PHOTOGRAPH DATED NIL SHOWING THE FALSE CEILINGS UNDER THE ROOFINGS IN THE CLASS ROOMS OF THE PETITIONER'S SCHOOL. Exhibit P9 A PHOTOSTAT COPY OF THE NEWS ITEM REPORTED IN MATHRUBHOOMI DAILY NEWS PAPER DATED 26/10/2021 WITH ENGLISH TRANSLATION.
// True Copy // P.S. to Judge