Kerala High Court
Sethumadhavan.P.K vs State Of Kerala
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY,THE 22ND DAY OF FEBRUARY 2016/3RD PHALGUNA, 1937
WP(C).No. 20027 of 2015 (C)
----------------------------
PETITIONER(S):
--------------------------
SETHUMADHAVAN.P.K., AGED 57 YEARS
MANAGER, CHIRAMANGALAM AUP SCHOOL, PARAPPANANGADI
MALAPPURAM 676303
BY ADVS.SRI.M.V.BOSE
SRI.VINOD MADHAVAN
SMT.NISHA BOSE
RESPONDENT(S):
----------------------------
1. STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT
GENERAL EDUCATION DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM 695001
2. THE DIRECTOR OF PUBLIC INSTRUCTION
JAGATHY, THIRUVNANTHAPURAM 695001
3. THE DEPUTY DIRECTOR OF EDUCATION
MALAPPURAM, PIN 676505
4. THE ASSISTANT EDUCATIONAL OFFICER
PARAPPANAMGADI, MALAPPURAM 676303
5. THE MANAGER
PALATHINGAL M.L.P.SCHOOL, PARAPPANANGADI
MALAPPURAM 676303
ADDL. R6 THE PRESIDENT
PARENT TEACHERS ASSOCIATION
PALATHINKAL, AMLP SCHOOL
PO ULLANAM, PARAPPANANGADI
(ADDL.R6 IS IMPLEADED AS PER ORDER DATED 21.7.15 IN I.A
NO.10048/2015)
RADDL. BY ADV. SRI.T.H.ABDUL AZEEZ
R5 BY ADV. SRI.TONY GEORGE KANNANTHANAM
R5 BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (SR.)
R(ADDL.R6) BY ADV. SMT.SHAMEENA SALAHUDHEEN
R1-R4 BY ADV. SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL
R BY GOVERNMENT PLEADER SRI. M.A FAYAZ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 22-02-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 20027 of 2015 (C)
--------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-------------------------------------
EXT.P1: TRUE COPY OF THE ORDER BY WHICH THE PETITIONER HAS
BEEN ALLOWED TO CONTINUE AS MANAGER OF THE SCHOOL
EXT.P2: TRUE COPY OF GOVERNMENT ORDER DATED 16.06.2015
EXT.P3: TRUE COPY OF GOVERNMENT ORDER DATED 13.06.2007
EXT.P4: COPY OF THE INFORMATION RECEIVED UNDER RIGHT TO
INFORMATION.
RESPONDENT(S)' EXHIBITS
---------------------------------------
EXT.R5(A) COPY OF THE CHART SHOWING THE PRESENT STUDENT
STRENGTH IN THE SCHOOL
EXT.R5(B) COPY OF THE JUDGMENT DATED 10.4.15 IN WP(C) NO.12273/2015
OF THIS HON'BLE COURT
EXT.R5(C) COPY OF THE SKETCH SHOWING THE NEAR BY SCHOOLS.
// TRUE COPY //
P.A TO JUDGE
SB
K. VINOD CHANDRAN, J.
=====================
W.P.(C) No.20027 of 2015 - C
======================
Dated this the 22nd day of February, 2016
J U D G M E N T
The petitioner, the Manager of an aided school, is concerned with Ext.P2, up-gradation made of the 5th respondent school, making it a complete U.P. School in violation of the provisions of the Kerala Education Rules (for brevity, 'the K.E.R'), 1959. The school was up-graded, in the present academic year, with a Vth standard. Students are also said to have been admitted, which according to the interim order dated 03.07.2015, is subject to the result of the writ petition.
2. The learned Counsel for the petitioner submits that Ext.P2 is in total violation of Chapter V of K.E.R and cannot be sustained. The learned Senior Counsel appearing for the 5th respondent would seek to sustain the order, at least under the 2 W.P.(C) No.20027 of 2015 - C Right of Children to Free and Compulsory Education Act, 2009 (for brevity, 'the R.T.E Act) and would also take up a contention that the writ petition not being a public interest litigation, the petitioner would have no locus standi to challenge Ext.P2 order, for reason of the Government having considered the public interest involved and granted up-gradation to the 5th respondent school.
3. Going by Ext.P2, it is seen that the Government has given a complete go-by to Rule 2 of Chapter V of K.E.R. Rule 2 of Chapter V of K.E.R provides a comprehensive procedure, by which a notification has to be brought out by the Government, looking at the educational need of particular areas, which has an amount of finality going by sub-Rule (5) of Rule 2 of Chapter V of K.E.R. A reading of Rule 2 would indicate that the comprehensive procedure provided also requires an invitation of application and also objections, after the list prepared by the Director under sub-Rule (1) is published in the Gazette. The 3 W.P.(C) No.20027 of 2015 - C petitioner, a school coming within the locality, hence would be entitled to file an objection, when a Gazette publication is made on that count. It is the valuable right of the petitioner to file such an objection, which has been taken away by the Government in passing Ext.P2 order, without a Gazette publication and without invitation of any objections, on the basis of the publication. The challenge to the locus standi of the petitioner hence cannot be countenanced.
4. Herein, on the representation made by the the 5th respondent school, the Government has exempted the procedure contemplated under Chapter V to make the up-gradation, which power, the Government does not have going by the words employed in Rule 2 of Chapter V of K.E.R. The Government having no power to deviate from the provisions under the K.E.R and the procedure contemplated under Rule 2 of Chapter V of K.E.R, the order at Ext.P2 cannot be held to be one, which is sustainable under the provisions of the K.E.R. 4 W.P.(C) No.20027 of 2015 - C
5. The further contention raised by the petitioner, is on the basis of the R.T.E Act and the stipulation therein that classes I to V and classes VIII to X would be considered as separate common entities, coming within the fold of elementary education, as prescribed in the said statute. The learned Counsel would also rely on the decision of this Court in W.P.(C) No. 19008 of 2013 dated 17.12.2015. A reading of the judgment does not necessarily indicate that this Court had directed that up-gradation has to be made as contemplated under the R.T.E Act. After noticing the classification made by the R.T.E Act, bringing in classes I to VIII within the fold of elementary education, this Court had merely observed that the State Government would have to do more home work and considering the educational need, the up-gradations would have to be made in accordance with the R.T.E Act, if the same is thought fit.
6. This Court also did not interfere with the procedure, followed by the Government, insofar as retaining the 5 W.P.(C) No.20027 of 2015 - C Vth standard in the Upper Primary section and re-categorising such schools as Lower and Upper Primary Schools, or the likewise re-classification made of the High Schools, in which VIIIth standard was retained, as Upper Primary and High School.
7. In this context, it is also to be noticed that another learned Single judge of this Court had in W.P.(C) No.30107 of 2013 dated 15.01.2015 directed the Government to finalise the decision on the up-gradations sought for under the RTE Act by 31.12.2015. True, the finalisation has not yet been made, but however, that does not confer any right on the schools to get an up-gradation to the Vth standard without looking at the educational need. As far as the up-gradation in accordance with the K.E.R is concerned, there is a procedure prescribed, which has to be scrupulously followed and the Government has not been conferred with any powers to deviate from such procedure contemplated. The up-gradation, now the subject matter of the writ petition, has also not been made under the R.T.E Act. 6 W.P.(C) No.20027 of 2015 - C
8. In such circumstance, this Court is unable to sustain Ext.P2 order and the same would stand set aside. However, noticing the fact that considerable number of students have been admitted, the said students would be continued till the end of the academic year and the up-gradation, if at all in the next year, would depend upon the orders passed by the Government, following the procedure contemplated in Chapter V of K.E.R or under the R.T.E Act.
The writ petition hence would stand allowed, setting aside Ext.P2, but however permitting the students to be continued in the Vth standard for the present academic year. No costs.
Sd/-
K. VINOD CHANDRAN, JUDGE SB/22/02/2016 // true copy // P.A to Judge.