IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 WP(C).No. 16155 of 2008(W) --------------------------------------- PETITIONER: ------------------- MANAGER, ST.JOSEPH'S HIGHER SECONDARY SCHOOL, KOONAMMAVU, NORTH PARATUR. BY ADV. SRI.T.M.ABDUL LATHEEF. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DISTRICT EDUCATIONAL OFFICER, ALUVA. R1 TO R3 BY GOVERNMENT PLEADER SRI. P.K. RAVIKRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.16155/2008-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE G.O. (MS). NO. 221/2002/G. EDN. DTD. 23/07/2002. EXT.P.2: COPY OF THE LETTER NO. H4/28574/03/L. DIS. DTD. 29/04/2003 OF THE R.2. EXT.P.3: COPY OF THE ORDER NO. A4/1942/04/K. DIS. DTD. 03/07/2004 OF THE R.3. EXT.P.4: COPY OF THE APPLICATION DTD. 28/07/2004 SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.5: COPY OF THE APPLICATION DTD. 16/04/2004 SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. EXT.P.6: COPY OF THE ORDER NO. H4/06694/04/DPI,L. DIS. DTD. 07/09/2004 OF THE R.2. EXT.P.7: COPY OF THE JUDGMENT DTD. 08/02/2005 PASSED BY THIS HONOURABLE COURT IN W.P.(C). NO. 34208/2004. EXT.P.8: COPY OF THE G.O. (P). NO. 2344/05/G. EDN. DTD. 06/06/2005. EXT.P.9: COPY OF THE REVIEW PETITION SUBMITTED BY THE PETITIONER BEFORE THE R.1. DTD. 21/01/2006. EXT.P.10: COPY OF THE ORDER NO. A1-8619/07 DTD. 20/05/2008. EXT.P.11: COPY OF THE LETTER DTD. 22/05/2008 OF THE PRINCIPAL, ST. JOSEPH'S H.S.S. KOONNAMMAVU. EXT.P.12: COPY OF THE ORDER NO. D4.7585/50 DTD. 10/06/1950 OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRAVANCORE-COCHIN. EXT.P.13: COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE R.3. DTD. 12/07/2006. EXT.P.14: COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE R.3. DTD. 12/06/2007. EXT.P.15: COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE R.3. DTD. 12/06/2007. EXT.P.16: COPY OF THE LETTER NO. 40/07 DTD. 12/06/2007 SUBMITTED BY THE PETITIONER BEFORE THE R.3. EXT.P.17: COPY OF THE ORDER LIST CONTAINING THE NAMES OF THE BOY STUDENTS IN THE PETITIONER'S SCHOOL. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.16155/2008 ----------------------------------------------------------- Dated this the 28th day of October, 2008 JUDGMENT Manager of the St. Joseph's Higher Secondary School, Koonammavu is the petitioner. Challenge in this writ petition is against Exts.P6,P8 and P10. The petitioner also seeks directions to the respondents to permit him to admit boys also in standards VIII, IX and X and also to allow the existing male students to continue in the school. . 2. Briefly stated, facts of the case are that the petitioner's school was initially an Upper Primary Aided School with boys students. According to them, in 1950, an unaided Girls High School was also sanctioned. Subsequently, by Ext.P1 order issued on 23.7.2002, Higher Secondary Section was also sanctioned, permitting boys and girls to be admitted there also. It is stated that while so, by WP(c).No.16155/2008 2 Ext.P3 order dated 3.2.2004, the name of the school was changed from St. Joseph's Girls High School, Koonammavu to St. Joseph's High School, Koonammavu. 3. Petitioner submits that by Ext.P5, he sought permission to admit boys also in the High School Section. That was rejected by Ext.P6 order passed by the DPI on the ground that the conversion will affect the schools in the neighbourhood. Ext.P6 order was challenged before this court in WP(c).No.34208/2004 and that writ petition was disposed of by Ext.P7 permitting the petitioner to pursue the matter in revision before the Government. Accordingly a revision was filed and that resulted in Ext.P8 order dated 6.6.2005, in which the request for conversion of the school was rejected by the Government. The relevant portion of the order reads as follows. "Government have examined the matter in detail with reference to the facts of the case. There is an aided mixed Higher Secondary School namely St. Philominas Higher Secondary School, Koonammavu about 20 WP(c).No.16155/2008 3 meters away from the petitioner's school. This school has UP, HS and HSS sections and admission is open to both boys and girls. The petitioner's UP School is a feeder school to St. Philominas' High School, Kongarapally. The first one is 20 meters away and others are within 2 kms. Hence the boys from Standard VII of the petitioner's school have sufficient opportunities to continue their higher studies in the neighboring schools without hardship. If they are admitted in the petitioner's High School it will adversely affect the strength of neighbouring Aided/Government Schools especially St. Philominas' High School, Koonammavu and St. George High School, Puthanpally. It will also cause financial commitment to Government for paying salary to the protected teachers rendered surplus due to division fall in these institutions. Under these circumstances the appeal WP(c).No.16155/2008 4 petition submitted by the manager St. Joseph's Higher Secondary School, Koonammavu is rejected. The direction contained in the judgment dated 08-02-2005 is thus complied with." 4. Pursuant to Ext.P8, Ext.P10 order was issued by the DEO, Aluva, requiring the petitioner to issue transfer certificates to the boys who were studying in the school. Faced with this situation, this writ petition has been filed challenging Ext.P6 order passed by the DPI, Ext. P8 order passed by the Government and Ext.P10 order passed by the DEO, Aluva. 5. Counsel for the petitioner submits that the reason stated in Ext.P8 that if conversion is allowed that will affect the neighboring school is totally an invalid reason. It is also contended that as is evident from Ext.P13 to Ext.P15 they have been admitting boys in the school with the knowledge and permission of the Educational Authorities. Reliance is placed on the decision of the Apex court in Rt. Rev.Magr. Mark Netto V. Government of Kerala & Ors.( AIR 1979 WP(c).No.16155/2008 5 SC 83), where it was held that Chapter VI Rule 12(iii) of the KER is inapplicable to the minority educational institutions. 6. On the other hand the prayer made by the petitioner is sought to be resisted by the Government Pleader mainly contending that admittedly High School section was sanctioned only as a Girls High School and that by Ext.P8 order dated 6.6.2005 request for its conversion was turned down. It is submitted that despite this, the petitioner was admitting girls students and therefore not only Ext.P8 but also the provisions of Chapter VI Rule 12 have been violated by the petitioner. 7. Having considered the submissions made by both sides, I am inclined to think that the issue raised by the petitioner did not receive a proper consideration at the hands of the Government while dealing with the petitioner's representation. Though, High School was sanctioned as a Girls High School and by Ext.P8 their request was rejected, the fact remains that male students were admitted and this is evident from Exts.P13 to P15. Petitioner also has a case WP(c).No.16155/2008 6 that, neighboring school mentioned in Ext.P8, was sanctioned as a Boys High School and that girls are being admitted and that the authorities are well aware of this fact. This contention is raised by the learned counsel for the petitioner referring to Ext.P12 order of the DPI dated 10.6.1950. 8. Though, in the case reported in Rt. Rev.Magr. Mark Netto V. Government of Kerala & Ors.( AIR 1979 SC 83)the situation was that the management wanted to admit girls in boys school, in this case, the petitioner wants to admit boys in girls school. Prima facie I am inclined to think that the reasoning adopted by the Apex court to order restricted application of Rule 12(iii) of Chapter VI applies to this case also. A reading of Ext.P8 order gives the impression that the Government had absolutely no material to conclude that the request if granted will adversely affect the neighboring aided/Government schools in the area. For all these reasons I set aside Ext.P8 and direct that the matter shall be reconsidered. This shall be done by the Ist respondent as expeditiously as possible. WP(c).No.16155/2008 7 9. As already noticed, the boys students are presently undergoing studies in the school. The uncertainty about the conversion of the school should cause prejudice to their future. Until the Government reconsider the matter and pass fresh orders, it is directed that the respondents 2 and 3 shall approve the list of students of the petitioner's school including that of boys in standards VIII,IX and X, so that their admission can be treated as regular for all purposes including for their appearance in the examinations that are to be held. Writ Petition is disposed of as above. ANTONY DOMINIC JUDGE vi. WP(c).No.16155/2008 8