Kerala High Court
The Manager vs The State Of Kerala on 25 May, 2016
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 27TH DAY OF SEPTEMBER 2017/5TH ASWINA, 1939
WP(C).No. 16219 of 2017 (B)
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PETITIONER :
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THE MANAGER,
AM L P SCHOOL, MATTATHUR NORTH,
P.O. MATTATHUR, OTHUKKUNGAL, VENGARA,
MALAPPURAM DISTRICT-676 528.
BY ADVS.SRI.V.A.MUHAMMED
SRI.M.SAJJAD
RESPONDENT(S):
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1. THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR OF PUBLIC INSTRUCTION,
JAGATHY, THIRUVANANTHAPURAM-695 014.
3. THE DEPUTY DIRECTOR OF EDUCATION,
DOWN HILL, MALAPPURAM DISTRICT-676 519.
4. THE DISTRICT EDUCATIONAL OFFICER,
THIRURANGADI, MALAPPURAM DISTRICT-676 306.
5. THE ASSISTANT EDUCATIONAL OFFICER,
VENGARA, MALAPPURAM DISTRICT-676 304.
R1 TO R5 BY ADVOCATE GENERAL SRI. C.P.SUDHAKARA PRASAD
SR GOVERNMENT PLEADER SMT. NISHA BOSE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 31-08-2017, ALONG WITH WPC.NO. 16221/2017 AND CONNECTED
CASES, THE COURT ON 27-09-2017 DELIVERED THE FOLLOWING:
sts
WP(C).No. 16219 of 2017 (B)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WPC NO. 17702/2016-K
DATED 25.05.2016.
EXHIBIT P2 TRUE COPY OF THE DECISION REPORTED IN 2015 (3) KHC 703
DATED 18.06.2015.
RESPONDENT(S)' EXHIBITS
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EXHIBIT R1(A) TRUE COPY OF G.O(MS) NO.154/2013 DATED 03/05/2013
EXHIBIT R1(B) TRUE COPY OF JUSTIFICATION FOR INCLUSION OF 3 LOCALITIES
FOR NOTIFICATION FORWARDED BY DPI
EXHIBIT R1(C) TRUE COPY OF NOTIFICATION DATED 20/05/2017
EXHIBIT R1(D) TRUE COPY OF THE GO(RT) NO.1813/2017/G.EDN DATED 09/06/2017
EXHIBIT R1(E) TRUE COPY OF JUDGMENT IN WP(C) NO.4188/2016.
/TRUE COPY/
P.A.TO JUDGE
sts
P.V.ASHA, J.
W.P.(C) Nos.16219, 16221, 16313, 16343, 16357,
16730, 16731, 16850, 16990, 17148, 17175, 17179,
17183, 17340, 17391, 17415, 17437, 17448,
17483, 17490, 17499, 17512, 17515, 17560, 17615,
17625, 17626, 17627, 17637, 17638, 17766, 17769,
17776, 17778, 17790, 17791, 17796, 17797, 17846,
17969, 18004, 18017, 18018, 18032, 18041, 18085,
18151, 18152, 18153, 18154, 18155, 18159, 18160,
18414, 18669, 18701, 18704, 18744, 19333, 19341,
19529, 20009, 21463, 22156, 23842, 26442, 27565,
27566, 27613 & 27755 of 2017
Dated this the 27th day of September, 2017
JUDGMENT
Petitioners in all these cases submit that in implementation of the provisions contained in section 19(2) of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) the managements/PTAs have taken steps to equip their Schools to provide elementary education to the pupils of the respective Schools ie. to start class V in their Lower Primary Schools and Class VIII in their Upper Primary Schools. Petitioners claim that there are no neighborhood Schools within the prescribed distance from their Schools. It is claimed that it is the fundamental right of the children of standard IV of the School to continue in the same School in standard V also. According to them the respondents are bound to permit the pupils studying in class IV in their Schools to pursue their studies in class V in the same School and those studying in class VII in the UP W.P.(C) No.16219/17 & c/cases :2: Schools to pursue their studies in class VIII also in the same school, restructuring the LP schools with class V also and the UP Schools with class VIII also. As the three year period provided in the Act is already over, they allege that the respondents are abdicating their duty to impart elementary education to the pupils by restructuring the schools in conformity with the definition of elementary education under Section 2(f) and school under section 2(n)(ii) of the RTE Act by including class V in LP schools and class VIII in UP Schools. It is alleged that Rule 6(2) of the Kerala RTE Rules, 2011 mandates the Government to restructure the Schools with classes I to V and VI to VIII. They allege that since the Government failed to implement the provisions in the Act and rules within the time limit prescribed in the statute and fixed and extended by this Court, they should be allowed to run class V and VIII in the LP schools and UP schools respectively.
2. In the judgment dated 18.06.2015 in Manager, LPGS, Veliyam, Kollam v. State of Kerala and Others : 2015 (3)KHC 703, a learned single Judge of this Court considered the very same issue in a batch of writ petitions, where similar directions were sought, raising similar contentions, as evident from Paragraph 1 of the judgment which read as follows:
"The petitioners seek a direction to the State Government to pass orders upgrading their existing Schools so as to bring within their fold additional classes (Standard V in the case of existing Lower Primary W.P.(C) No.16219/17 & c/cases :3: Schools and Standard 8 in the case of existing Upper Primary Schools). It is revealed from the pleadings in the writ petitions that the petitioners have all preferred applications before the State Government for the said purpose and that the said applications, though in the form prescribed under the RTE rules, do not contain the recommendation/countersignature of the educational authority concerned, which is a mandatory requirement under the Rules to maintain an application."
The learned Single Judge disposed of the writ petitions with the following directions:
"3. On a perusal of the provisions of the RTE Act and Rules framed thereunder, it is clear that for the satisfactory discharge of its obligations under the Act, the State Government is obliged to do the following in connection with the setting up of the necessary infrastructure for imparting elementary education:
(i) Collect data regarding children up to the age of 14 years within the State of Kerala.
(ii) Identify an authority that will analyse the said data so as to earmark the areas where the children reside. The demarcation of areas would have to be aligned with the territorial limits of a local authority, and the number of children who are beneficiaries under the Act, and who reside in the said area, would represent the educational need of that area.
(iii) An inventory will then have to be drawn up, of the existing Schools within each demarked area, and a study done to ascertain the infrastructural availability in the said Schools. Any deficit noticed in servicing the educational need of a particular area, using the existing infrastructural availability, would then have to be remedied through the introduction of new infrastructure brought about either by establishing new Schools or by upgrading existing Schools in that area.
(iv) Necessary yardsticks / criteria will have to be formulated so as to determine the manner of choosing an existing School in a given area that will be considered for upgrading. While formulating the said criteria, due consideration must be given to the aspects noted in R.6 of the RTE Rules. These criteria will then have to be published so as to ensure transparency in the selection process of Schools for upgradation. The chosen Schools must also be those that adhere to the norms and standards prescribed for Schools under the Schedule to the Act.
(v) Government has to constitute an academic authority, by notification, so as to draw up the curriculum and evaluation procedure for elementary education.
(vi) Government has also to constitute a State Advisory Committee to advise the State Government on implementation of the W.P.(C) No.16219/17 & c/cases :4: provisions of the Act in an effective manner.
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5. On a consideration of the steps taken by the State Government thus far, in the light of its obligation to give effect to the provisions of the RTE Act in the State, I find that the State Government will now need to complete the following tasks so as to put itself in a position where it will be able to effectively consider the applications preferred by the petitioners herein for upgradation of their Schools.
(i) The data with regard to children up to the age of 14 years will have to be gathered and analysed, and a report drawn up showing the educational need of each area within the territorial limits of the various local authorities in the State.
(ii) Based on a comparison of the aforesaid data, with the data obtained with regard to the current infrastructural facility available in the said areas, a decision will have to be taken as regards the sanctioning of new Schools / upgradation of existing Schools in the area concerned. The progress report dated 13/05/2015 prepared by the State Project Director, SSA, Kerala indicates that steps are well underway towards collection of the aforesaid data and preparation of the necessary software that will process the same.
Specific time schedules between June 15th and July 15th, 2015 have also been indicated for completing the process.
(iii) The State Government will also need to evolve suitable criteria that will determine which, among the many applications for sanction of new Schools / upgradation of existing Schools, will be preferred for the said grant.
(iv) It is only thereafter, that the State Government can call for and consider the applications for the grant of new Schools / upgradation of existing Schools in each area.
6. When queried on the time that would be required by the State Government for completing the aforesaid exercise, the learned Additional Advocate General would submit that the State would require eight months time for the same. On a consideration of the task that the State Government is expected to undertake, I am of the view that the time of eight months, requested for by the State Government, is excessive. In my view, taking into account the time frame indicated by the State Project Director, SSA, Kerala in the progress report referred to above, as well as the time required for incidental activities, a time frame of four months from today should suffice for the State Government to put itself in a position to call for applications for sanction of new Schools / upgradation of existing Schools. Accordingly, I direct the State Government to ensure that the necessary steps required for processing applications for opening new Schools / upgradation of existing Schools, in accordance with the provisions of the RTE Act, is put in place within four months from today ie. on or before 31/10/2015. W.P.(C) No.16219/17 & c/cases :5: Thereafter, the State Government shall complete the process of calling for applications for sanction of new Schools / upgrading existing Schools, considering them and taking an appropriate decision thereon, within a further period of two months, so that the said process is completed on or before 31/12/2015. It will be open to the petitioners herein to respond to any notice inviting applications that is published by the State Government pursuant to the directions in this judgment. In view of the directions issued above, I am of the view that till such time as the process of consideration of applications is completed by the State Government, existing Schools need not be permitted to admit students to standards which have not been sanctioned in the said Schools through a formal process of upgradation. This observation is made in the light of IA No. 7592/2015, preferred in WP ) No. 14814/2015, wherein the petitioner seeks permission to admit students in Standard V in his School where, currently, only classes upto standard IV have been sanctioned. To similar effect are the prayers in WP (C) No. 14833/2015 and WP (C) No. 15219/2015 where the petitioners seek a direction to the Educational Authorities to sanction Standard V and VIII respectively in their Schools which, at present, have only classes up to Standard IV and VII respectively. My findings above would necessitate a dismissal of IA No. 7592/2015 in WP (C) No. 14814/2015 and WP (C) Nos. 14833/2015 and 15219/2015. I do so.
3. Thereafter in the judgment dated 15.12.2015 in Kerala Aided L.P. and U.P. School, Kollam v. State of Kerala and Another : ILR2016(1)Ker 590, another learned Single Judge declined to pass any further orders in the light of the aforesaid judgment, observing the following.
"13. A reading of the definition clause clearly stipulates that elementary education means, education from first class to eighth class and a School, as defined under the RTE Act, is one imparting elementary education. S.16 is a prohibition from holding back and expulsion. The contention of the petitioners is that a LP School which does not have Class V and an UP School which does not have Class VIII would be faced with the threat of withdrawal of recognition under S.18, since a necessary consequence would be that a student studying in Standard IV or Standard VII would be expelled for reason only of the next higher standard not being available in the School. This Court is unable to accept the extreme W.P.(C) No.16219/17 & c/cases :6: contention of the petitioners, especially looking at S.5 of the RTE Act, as pointed out by the learned Additional Advocate General. S.5 contemplates a situation where; in a School, there is no provision for completion of elementary education, then, a child shall have a right to seek for transfer to any School excluding those specified in sub-clauses (iii) and (iv) of Clause (n) of S.2. Hence, it cannot be said that by not upgrading a LP or UP School or by not granting a higher standard of Class V and Class VIII, it would entail withdrawal of recognition. What is contemplated in S16 is a deliberate, conscious act of expulsion.
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16. There were a batch of writ petitions which dealt with the specific issue of such re-structuring of classes. The said batch of writ petitions were disposed of by judgment dated 18/06/2015 in WP (C) No. 3060 of 2014 and connected cases. The said batch consisted of Writ Petitions which sought consideration of individual applications for up-gradation and higher standards . The learned Single Judge noticed the steps taken by the Government to bring in the changes contemplated by the RTE Act and listed out what remained to be done, which future action was in the nature of the data to be collected and the decisions to be taken based on the educational need, to be determined with reference to the data collected. The Government was also granted time of four months to carry out the reforms, which time is not yet over. This Court would not pre-empt the State by making any declaration on that aspect, as the State, has been granted time to bring in such re-structuring in WP (C) 3060 of 2014 and connected matters. All would have to wait for the re-structuring to happen and as of now there could be no infirmity found in Clause-2 of GO (MS) No. 154/2013."
4. All these writ petitions are filed complaining that Government have not complied with the directions contained in the judgment dated 15.06.2015 in Manager, LPGS, Veliyam, Kollam (supra), even after the expiry of the time granted by this Court.
5. Government filed a counter affidavit which is adopted in all the cases. According to Government, the duties and obligations of concerned Government, local authorities and parents are to provide access to elementary education to children within reasonable reach of W.P.(C) No.16219/17 & c/cases :7: children. The Act does not envisage such access in the single premise. It need be made available in the neighborhood. Government have therefore framed the Right of Children to Free and Compulsory Education to Children Rules, 2011 (RTE Rules), in exercise of its powers conferred under Section 38 of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act). Rule 6 provides for elementary education within the neighborhood to children of class I to V within 1 km and to those of class VI to VIII within 3 kms. Rule 6 is not challenged by petitioners. The Act and Rules provide that the neighborhood Schools shall be identified by School mapping carried out by Government. Rule 6(2) provides that Government should endeavour to upgrade existing Schools in a phased manner adding class V along with classes I to IV and plucking class VIII from high School along with classes VI and VII. That should be after considering the availability of such classes in the existing Schools in the neighborhood. Relying on the judgment of the Division Bench of this Court in Kum. Sreya Vinod V Director of Public Instructions:
2012(4) KHC 49, it is stated that this Court had directed Government to locate Schools in such a way that Schools are run with the required number of students instead of going by distance rule, by making alternate arrangements for safe travel of students free of cost. It is W.P.(C) No.16219/17 & c/cases :8: stated that Government have to see that the opening of new Schools or upgradation does not result in increasing the number of uneconomic Schools. G.O.(Ms) No.154.2013/G.Edn dated 3.5.2013 was issued in tune with the provisions in RTE Act while directing to retain class V and class VIII in the existing premise while restructuring UP Schools with class V in LP section and class VIII in UP section. It is stated that the requirement of funds would be larger, for a complete re-structuring which will require construction of buildings, deployment of teachers, etc. Ext.R1(a) was not interfered with in the judgment in Kerala Aided L. P. and U. P. School case (supra) in the light of the directions in the judgment in Manager, LPGS, Veliyam's case (supra). Government have in paragraphs 9 to 14 of the counter affidavit, explained further proceedings taken by Government, based on which Exts.R1(b) and (c) notifications were issued followed by Ext.R1(d) order. It is stated that Government directed the authorities to verify the educational need in the State. The DPI had to notify the list of localities identified to have educational need in terms of Rules 1 (1) and (2) of chapter V read with Rule 14(14) of RTE Rules. The SSA mapped the Schools and multi-grade learning centres in the State through GPS. A list of 62 localities in 4 schedules was notified in gazette dated 25.5.2016; objections were heard and thereafter based W.P.(C) No.16219/17 & c/cases :9: on the hearing a list of 81 localities in 5 schedules were submitted to Government. Government after conducting local verification, considering objections against draft notifications, constituted a combined team of officers of DPI and SSA, to conduct an integrated and scientific study about the localities and thereafter issued Ext.R1(b) notification with 88 localities. Therefore, the contention of the Government is that they have taken all steps to ensure compliance of the judgment. Ext.R1(c) was issued on 20.5.2017, notifying three more localities, in implementation of the provisions in RTE Act and Rules. Government found that it is not necessary to upgrade all the Schools, as claimed by the petitioners, as facilities to complete elementary education for those students who completed standard IV and standard VII are available in the neighborhood Schools within walkable distance or by providing them transportation facilities. It is pointed out that most of the petitioners have approached this Court without even submitting an application for upgradation. The respondents rely on Ext.R1(e) judgment dated 03.02.2016 in W.P(C) No.4188 of 2016, by which the writ petitions seeking re-structuring were dismissed observing that there is no provision in RTE Act to upgrade the existing Schools. The Act only provides for making available the facilities to have free elementary education and it is not W.P.(C) No.16219/17 & c/cases :10: necessary to upgrade every LP School to have Vth standard or every UP School to have VIIIth standard. There is already a judgment directing the Government that the Government have to prescribe the norms under which upgradation can be permitted.
6. Interim orders were passed in all these cases on 19.05.2017, and 14.07.2017, allowing the petitioners to admit students in standard V/VIII on conditions stipulated therein, seeing that Government was not issuing orders in tune with the directions in the judgment in Manager, LPGS, Veliyam's case (supra). The main ground based on which interim orders were passed in these cases was that Government had been seeking extension of time without complying the directions.
7. When the writ petitions were brought up for hearing at the instance of respondents after filing the counter affidavits, the learned Counsel appearing for all the petitioners pointed out that the educational officers were not opening the Sampoorna Portal and were disobeying the directions of this Court. Thereupon, this Court, as per order dated 21.08.2017, directed compliance of the orders. After getting report of compliance from the respective officers through the learned Government Pleader, this Court had directed the petitioners to file affidavits pointing out the number of pupils they admitted on the basis of interim orders. Except in one or two cases, none of the W.P.(C) No.16219/17 & c/cases :11: petitioners filed such affidavits as directed, pointing out the number of students they admitted.
8. The contention of the petitioners in all these writ petitions are that as per the provisions contained in RTE Act, 2009, they are entitled to be granted permission to conduct class V in the LP Schools and class VIII in the UP Schools and Government's action in not re- structuring the School in such a manner is in gross violation of the statute.
9. On the other hand the learned Advocate General and the learned Senior Government Pleader argued that Government has taken every steps to comply with the provisions contained in the RTE Act, Rules and the judgments of this Court.
10. It is pertinent to note that very same contention was raised in Manager, LPGS, Veliyam, Kollam's case (supra) as well as Kerala Aided LP& UP School Managers case (supra), as can be seen from the relevant paragraphs of the judgments extracted in paragraph 2 and 3 above. This Court issued several directions, to Government while rejecting the prayers for re-structuring of all the Schools.
11. Government thereafter issued orders based on the directions in those judgments. Ext.R1(d) order was passed as early as on W.P.(C) No.16219/17 & c/cases :12: 9.6.2017. Notifications were also issued as per Exts.R1 (c) and (d) on the basis of School mapping in tune with sub rule (14) of rule 14 of the Kerala Right of Children to Free and Compulsory Education Rules, 2011. It appears that petitioners do not have any complaint over the action taken/orders passed by Government in Exts. R1(c) or (d), though those orders were produced in June 2017. They stick on seeking reliefs, on the very same grounds, which this Court has already declined in the two judgments mentioned above. The Act or rules do not provide that the children should be given facilities to study in the same School from class I to V or VI to VIII or class I to VIII. The duty of the respondents is only to see that facilities to undergo elementary education is available in the neighborhood.
In the above circumstances, these writ petitions are disposed of, giving liberty to the petitioners to move appropriate proceedings against the orders passed by the Government, in case they are aggrieved. It is made clear that the interim orders passed in these cases permitting class V/VIII in the Schools of petitioners would be confined to the academic year 2017-18 only.
P.V.ASHA JUDGE rkc