IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 WP(C).No. 32534 of 2005(W) ----------------------------------------- PETITIONER(S): ------------------------ THE MANAGER, P.M.S.A.M.U.P. SCHOOL, VENGARA, KUTTOOR, MALAPPURAM DISTRICT. BY ADV. SRI.GOVIND K.BHARATHAN (SR.) SRI.MANU MOHAN RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT. 5. THE ASSISTANT EDUCATIONAL OFFICER, VENGARA, MALAPPURAM. 6. MAMBAHUL HUDA HIGH SCHOOL, REPRESENTED BY ITS MANAGER, KUZHICHINA, VENGARA, MALAPPURAM. *ADDL.R7 IS IMPLEADED: R7. UMMER KAPPEN, S/O.LATE MUHAMMED, KAPPEN HOUSE, POOCHOLAMADU, CHEROOR POST, MALAPPURAM DISTRICT. (*ADDL.R7 IS IMPLEADED AS PER ORDER DTD. 16/10/2006 IN I.A.NO.14299/06) Kss ..2/- ...2..... WPC.N.32534 OF 2005 W *ADDL.R8 IS IMPLEADED: R8. THE PRESIDENT, PARENT TEACHER ASSOCIATION, PUTHEN MALIAKKAL SAYYED ALAVI MEMORIAL UPPER PRIMARY SCHOOL, VENGARA, KUTTOOR, MALAPPURAM. (*ADDL.R8 IS IMPLEADED AS PER ORDER DTD. 26/11/2008 IN I.A.NO.16506/2006) GOVERNMENT PLEADER SRI. T.T.MOHAMOODFOR R1 TO 5 ADV. SRI.R.RAMADAS FOR R6 SRI.M.GOPIKRISHNAN NAMBIAR FOR ADDL.R7 SRI.N.RATHEESH FOR ADDL.R8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.32534/2005 W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION PUBLISHED BY THE 1ST RESPONDENT DTD. 27/06/2003. EXT.P2: COPY OF THE OBJECTION FILED BEFORE THE 4TH RESPONDENT BY THE PETITIONER DTD. 12/07/2003. EXT.P3: COPY OF THE OBJECTION FILED BEFORE THE 4TH RESPONDENT BY THE PETITIONER DTD. 20/07/2003. EXT.P4: COPY OF THE OBJECTION SUBMITTED BY THE TEACHERS OF THE 1ST PETITIONER'S SCHOOL TO THE 5TH RESPONDENT. EXT.P5: COPY OF THE NOTIFICATION NO.NS(1)-45875/02/DPI DTD. 29/10/2003 AND THE RELEVANT PAGES OF FINAL LIST APPENDED ALONG WITH THE NOTIFICATION. EXT.P6: COPY OF THE JUDGMENT DTD. 27/07/2003 IN WP(C) NO.37605/2003 OF THIS HONOURABLE COURT. EXT.P7: COPY OF THE COMMUNICATION NO.8496/F2/04/G.EDN. DTD. 23/08/2004. EXT.P8: COPY OF THE G.O.(RT) NO.4594/04/G.EDN. DTD. 21/10/2004. EXT.P9: COPY OF THE G.O.(RT) NO.5136/04/G.EDN. DTD. 01/12/2004. EXT.P10: COPY OF THE INTERIM ORDER DTD. 16/12/2004 OF THIS HONOURABLE COURT. EXT.P11A: COPY OF THE JUDGMENT IN O.S.NO.85/80 DTD. 08/03/1984. EXT.P11B: COPY OF THE JUDGMENT DTD. 31/05/1990 IN A.S.NO.43/84. EXT.P11C: COPY OF THE JUDGMENT DTD. 09/03/2001 IN S.A.N.923/1990. EXT.P11D: COPY OF THE JUDGMENT IN WP(C) 33154/2004 DTD. 29/11/2004 OF THIS HONOURABLE COURT. EXT.P12: COPY OF THE JUDGMENT IN WP(C) NO.36202/2004 DTD. 09/08/2005 OF THIS HONOURABLE COURT. EXT.P13: COPY OF THE NEWS PAPER REPORT PUBLISHED IN CHANDRIKA DAILY DTD. 18/08/2005. EXT.P14: COPY OF THE NOTES OF ARGUMENTS FILED BY THE COUNSEL FOR THE PETITIONER. EXT.P15: COPY OF THE ORDER DTD. 19/10/2005 OF THE FIRST RESPONDENT. Kss .2/- ...2... WPC.NO.32534/2005 W RESPONDENT'S EXHIBITS: EXT.R6(A): COPY OF THE PROCEEDINGS NO.K.DIS.B5 5151/2005 DTD. 18/11/2005. EXT.R6(B): COPY OF THE PROCEEDINGS NO.C.G1(1)34200/2005/CGE OF THE SECRETARY TO THE COMMISSIONER FOR GOVERNMENT EXAMINATIONS DTD. 12/12/2005. EXT.R6(C): COPY OF THE LIST OF CANDIDATES APPEARING FOR THE S.S.L.C. EXAMINATION – 2007. EXT.R6(D): COPY OF THE LETTER NO.B5/6061/2006 DTD. 18/08/2006 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, TIRUR. EXT.R6(E): COPY OF THE RELEVANT PAGES OF THE NOTIFICATION DTD. 24/08/2006. EXT.R6(F): COPY OF THE CHELANS DTD. 4/10/2006 SHOWING THE REMITTANCE OF THE EXAMINATION FEE BY THE HEADMASTER OF MAMBAHUL HUDA HIGH SCHOOL. EXT.R6(G): COPY OF THE LETTER DTD. 29/09/2007 ISSUED BY THE SECRETARY TO GOVERNMENT TO THE DISTRICT EDUCATIONAL OFFICER, TIRUR. EXT.R6(H): COPY OF THE LETTER DTD. 1/10/2007 ISSUED BY D.E.O., TIRUR TO THE MANAGER, MAMBAHUL HUDA H.S.S. EXT.R6(I): COPY OF THE ORDER DTD. 16/10/2006 IN WP(C) NO.32534/2005 OF THIS HON'BLE COURT. EXT.R6(I) (IA.NO.13708/2008) COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY DTD. 23/10/2008. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. -------------------------- W.P.(C) No.32534 OF 2005 ------------------------------------- Dated this the 26th day of November 2008 J U D G M E N T The petitioner is the Manager of an aided school. In this writ petition, the petitioner seeks a declaration that the grant of recognition to the new unaided Lower Primary School, Upper Primary School and High School to the 6th respondent is in violation of the statutory provisions contained in the Kerala Education Act and the Rules. They are also seeking to quash Ext.P5 to the extent it granted recognition to the 6th respondent school. 2. Briefly stated the facts of the case are that the 2nd respondent published Ext.P1 preliminary list of new unaided LPS/UPS/HS to be recognized and to be upgraded during the year 2003-04, in terms of the provisions contained under Chapter V Rule 2 of the K.E.R. The 6th respondent school has been included, at serial Nos.33 & 79 of Ext.P1. The W.P.(C) No.32534/2005 -2- petitioner filed objections vide Exts.P2 and P3, and Ext.P4 is yet another objection filed by the teachers of the petitioner's school. According to the petitioner, the parties were heard by the 5th respondent and it is stated that the 3rd respondent was also against the grant of recognition to the 6th respondent. It is stated that thereafter, Ext.P5 final list of schools was published by the 2nd respondent in terms of the provisions contained in Chapter 5 Rule 2(4), K.E.R, after considering the objections that were filed in response to Ext.P1. The 6th respondent school was included in Ext.P5 at serial No.31. 3. Against Ext.P5, the petitioner filed a writ petition before this Court as WP(C) No.37605/2003, and Ext.P5 to the extent it granted recognition to the 6th respondent school was stayed by this Court. When the writ petition was pending, a fresh notification was issued by the 2nd respondent on 20/02/2004, containing the list of schools to be recognized and upgraded and this notification, however, W.P.(C) No.32534/2005 -3- excluded the school of the 6th respondent. Taking note of this development, the writ petition was disposed of by Ext.P6 judgment dated 27/07/2004 giving liberty to the 6th respondent to seek review of the notification dated 20/02/2004. The petitioner’s objection that in the issuance of Ext.P5 and notification dated 20/02/2004, the procedure laid down in Chapter V Rule 2, K.E.R. was not complied with, was also left to be urged and decided by the Government. 4. It is stated that in pursuance to Ext.P6 judgment, the 6th respondent filed a review petition invoking the provisions contained in Chapter V Rule 2(5) of K.E.R. On the review petition, parties were heard by the Government and by Ext.P8 order, the review was rejected. 5. However, again, the Government issued Ext.P9 on 01/12/2004 granting recognition to the 6th respondent school. Though the learned counsel for the petitioner contends that once the power of review has been exercised W.P.(C) No.32534/2005 -4- by the Government and issued Ext.P8, the Government could not exercise the power of review for a second time, this argument is contradicted by the learned counsel for the 6th respondent by referring to Chapter V Rule 2B, K.E.R., conferring power of review on the Government. 6. Be that as it may, challenging Ext.P9 the petitioner filed a writ petition before this Court as WP(C) No.36202/2004, in which by Ext.P10 order, this Court stayed Ext.P9. Finally by Ext.P12 judgment, Ext.P9 order was quashed on the ground that the same was passed without hearing the petitioner, and on that basis the Government was directed to reconsider the matter. Accordingly, the matter was reconsidered and Ext.P15 order was issued granting recognition to the school of the 6th respondent, and challenging Ext.P15 this writ petition has filed seeking the prayers mentioned above. In this writ petition also, an interim order of stay has been passed and as a result of which Ext.P15 remain stayed even as of now. W.P.(C) No.32534/2005 -5- 7. The learned counsel for the petitioner contends that Ext.P1 is invalid for the reason that though under Chapter V Rule 2, list published should be that of the locality where the schools is to be opened and upgraded, that was not done and that what was published was a list of the Schools. It is also contended that no applications were invited pursuant to Ext.P5, and that the extent of land provided is inadequate, that there is a grave yard which lies in close proximity to the school campus, and that the Government could not have reviewed Ext.P8, its own order passed in exercise of its review power under the proviso to Rule 2(5) of Chapter V, K.E.R. 8. However, having regard to the admitted factual position that even as per the case of the 6th respondent the application made by it was prior to Ext.P1, and that no applications were invited or submitted after Ext.P5 final list was published, I am satisfied that the issue is covered against the 6th respondent in view of the law laid down by W.P.(C) No.32534/2005 -6- the Apex Court in State of Kerala v. Prasad (2007(3) KLT 531). Since I am deciding the issue only with reference to the contention of the petitioner with regard to the non-compliance of the provisions contained in Chapter V Rule 2 and 2A, K.E.R., I do not think it necessary to deal with the other contentions raised. 9. Chapter V Rule 2 provides for publication of a preliminary list and after considering objections, a final list. Once such a final list has been published a notification in terms of Rule 2A inviting applications for opening of new schools and upgrading of existing schools are to be invited by the 2nd respondent. In the Apex Court judgment referred to above, this very aspect has been considered and it has been held that only in terms of Rule 2 and 2A of Chapter V, new schools can be opened and existing schools upgraded. The relevant portion of the Apex Court judgment, which concludes the issue against the 6th respondent, is extracted below for reference. W.P.(C) No.32534/2005 -7- “12. Having examined the instant matter on the touchstone of the aforementioned settled principles, we find it difficult to hold that the decision of the appellant not to sanction upgradation of respondent schools because of paucity of funds was either arbitrary or unreasonable or manifestly erroneous to warrant interference by the Court. There is no denying the fact that opening of new schools or upgradation of aided schools does involve considerable financial commitment for the State. Moreover, insofar as the present cases are concerned, indubitably, applications for upgrading the existing schools had not been invited by the Director as stipulated in sub-r.(2) of R.2A and, therefore, the representations made by the respondents for upgrading their schools could not be considered by the Government unless it was shown that the Director or the State Government were not finalizing the list in terms of R.2A for some extraneous considerations, which was not the case of the respondents. Thus, in the absence of Gazette notification, calling for applications for raising of the grade of an existing school, the question of consideration of respondents applications / representations did not arise. In fact, sub-r.(2) of R.2A puts a complete embargo on consideration of an application which is submitted otherwise than in response to notification under sub-r.(1) of R.2A. We are constrained to observe that the Division Bench of the High Court has failed to keep all these aspects in mind while issuing the impugned directions.” W.P.(C) No.32534/2005 -8- 10. Apparently to wriggle out of this situation, the learned counsel for the 6th respondent contended that since Ext.P5 notification contains 71 schools and the challenge is confined only to the school granted to the 6th respondent, the challenge raised is liable to be repelled. According to him, since uniform procedure has been followed in respect of all the schools and as all the schools are included in one composite notification, the whole notification alone can be challenged. In support of this contention, the learned counsel for the 6th respondent relied on the judgments of the Apex Court in R.M.D.Chamarbaugwalla and another v. Union of India and another (AIR 1957 SC 628), State of Orissa and another v. Binode Kishore Mahapatra (AIR 1969 SC 1249) and Siraj v. High Court of Kerala (2006(2) KLT 923). 11. In the judgment in R.M.D.Chamarbaugwalla and another v. Union of India and another (AIR 1957 SC 628), the Apex Court was concerned with the validity of W.P.(C) No.32534/2005 -9- a statute and dealt with the competence of the legislature to enact the law. The Court held that with reference to the particular statute it has to be ascertained as to whether the invalid portion of the statute can be segregated from the valid portion of the statute. This necessarily means that if in a given case, the invalid part of the statute can be separated, remaining will continue to be in force. 12. In the judgments in State of Orissa and another v. Binode Kishore Mahapatra (AIR 1969 SC 1249) and Siraj v. High Court of Kerala (2006(2) KLT 923), the Apex Court was concerned with the validity of a seniority list and a select list. On the reasoning that interference with the seniority list or the select list would result in its recasting, affecting others, it was held that all persons, who are included in the seniority list and the select list, being affected parties, ought to have made parties to the litigation. 13. However, in this case, I must consider each grant W.P.(C) No.32534/2005 -10- as a separate one. At any rate even the Government have no contention that invalidation of the grant in favour of the 6th respondent will, in any manner, affect the recognition granted in favour of the remaining grantees. Therefore, the invalidation of the recognition granted to the 6th respondent will not affect other grantees in any manner. If that be so, I cannot accept the plea of the learned counsel for the 6th respondent that for the reason that the petitioner has not challenged the notification in its entirety, the challenge is liable to be repelled. 14. Since, admittedly, the procedure contemplated in Chapter V Rule 2 & 2A has not been complied with in this case, Ext.P5 to the extent it grants recognition to the school of the 6th respondent has to be invalidated, and I do so. The writ petition will stand allowed as above. (ANTONY DOMINIC, JUDGE) jg