IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.V.K.BALI & THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 5TH JANUARY 2007 / 15TH POUSHA 1928 WA.No. 1325 of 2006(C) ---------------------- AGAINST THE JUDGEMENT IN WPC.6636/2006 Dated 05/05/2006 .................... APPELLANTS: RESPONDENTS ---------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, GENERAL EDUCATION (P) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, ATTINGAL. BY ADVOCATE GENERAL SRI. C.P. SUDHAKARA PRASAD GOVERNMENT PLEADER SRI. M.R. SABU RESPONDENTS: PETITIONER ----------------------- SCHEDULED CASTE-SCHEDULED TRIBE WELFARE SOCIETY OF KERALA, REP. BY ITS PRESIDENT, C.SADASIVAN, S/O.CHATHAN, MANGALASSERY HOUSE, KEEZHAYKONAM, NELYANAD.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.ANIL THOMAS(T) SMT.K.V.RESHMI SRI.SHINOD, ADV.COMMISSIONER THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20/12/2006 A/W. W.A.NO. 1326/2006, THE COURT, ON 05/01/2007, DELIVERED THE FOLLOWING: V.K. Bali, C.J. & S. Siri Jagan, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W. A. Nos. 1325 & 1326 of 2006 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this, the 5th January, 2006. J U D G M E N T Siri Jagan, J. Ten years before the Parliament decided to include Right to Education as a fundamental right under Part III of the Constitution of India by introducing Article 21A through the Constitution (86th Amendment) Act, 2002, the Supreme Court had considered the scope of right to education in the Indian context in the decision of Mohini Jain (Miss) v. State of Karnataka and others, reported in (1992) 3 SCC 666. In that case, the Supreme Court inter alia considered the question as to whether there is a “right to education guaranteed to the people of India under the Constitution” and held as follows in respect of that issue: “6. In order to appreciate the first point posed by us it is necessary to refer to various provisions of the Constitution of India. The Preamble promises to secure to all citizens of India “justice, social, economic and political” and “liberty of thought, expression, belief,faith and worship”. It further provides “equality of status and of opportunity” and assures dignity of the individual. Articles 21, 38, 39(a) and (f), 41 and 45 of the Constitution are reproduced hereunder: “21. Protection of life and personal liberty:- No person shall be deprived of his life or personal liberty except according to procedure established by law. 38. State to secure a social order for the promotion of welfare of the people:- (1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. (2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. W.A. Nos. 1325 & 1326/2006. -: 2 :- 39. Certain principles of policy to be followed by the State: - The State shall, in particular, direct its policy towards securing-- (a) that the citizens, men and women equally, have the right to an adequate means of livelihood. xx xx xx (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. 41. Right to work, to education and to public assistance in certain cases:- The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other areas of undeserved want. 45. Provision for free and compulsory education for children:- The State shall endeavour to provide within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.” 7. It is no doubt correct that “right to education” as such has not been guaranteed as a fundamental right under Part III of the Constitution but reading the above-quoted provisions cumulatively it becomes clear that the framers of the Constitution made it obligatory for the State to provide education for its citizens. 8. The Preamble promises to secure justice “social, economic and political' for the citizens. A peculiar feature of the Indian Constitution is that it combines social and economic right along with political and justiciable legal rights. The Preamble embodies the goal which the State has to achieve in order to establish social justice and to make the masses free in the positive sense. The securing of social justice has been specifically enjoined an object of the State under Article 38 of the Constitution. Can the objective which has been so prominently pronounced in the Preamble and Article 38 of the Constitution be achieved without providing eduction to the large majority of citizen who are illiterate. The objectives flowing from the Preamble cannot be achieved and shall remain on paper unless the people in this country are educated. The three-pronged justice promised by the Preamble is only an illusion to the teaming millions who are illiterate. It is only education which equips a citizen to W.A. Nos. 1325 & 1326/2006. -: 3 :- participate in achieving the objectives enshrined in the Preamble. The Preamble further assures the dignity of the individual. The Constitution seeks to achieve this object by guaranteeing fundamental rights to each individual which he can enforce through court of law if necessary. The Directive Principles in Part IV of the Constitution are also with the same objective. The dignity of man is inviolable. It is the duty of the State to respect and protect the same. It is primarily education which brings forth the dignity of a man. The framers of the Constitution were aware that more than seventy per cent of the people, to whom they were giving the Constitution of India, were illiterate. They were also hopeful that within a period of ten years illiteracy would be wiped out from the country. It was with that hope that Articles 41 and 45 were brought in Chapter IV of the Constitution. An individual cannot be assured of human dignity unless his personality is developed and the only way to do that is to educate him. This is why the Universal Declaration of Human Rights 1948 emphasises: “Education shall be directed to the full development of the human personality . . . . .” Article 41 in Chapter IV of the Constitution recognises an individual's right “to education”. It says that “the State shall, within the limits of its economic capacity and development, make effective provision for securing the right . . . to education . . . . .” Although a citizen cannot enforce the Directive Principles contained in Chapter IV of the Constitution but these were not intended to be mere pious declarations. We may quote the words of Dr. Ambedkar in that respect: “In Enacting this Part of the Constitution, the Assembly is giving certain directions to the future legislature and the future executive to show in what manner they are to exercise the legislative legislative and the executive power they will have. Surely it is not the intention to introduce in this Part these principles as mere pious declarations. It is the intention of the Assembly that in future both the legislature and the executive should not merely pay lip service to these principles but that they should be made the basis of all legislative and executive action that they may be taking hereafter in the matter of the governance of the country.” (C.A.D. Vol. VII, p. 476) 9. The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making “right to education” under Article 41 of the Constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate. W.A. Nos. 1325 & 1326/2006. -: 4 :- xx xx xx 12. “Right to life” is the compendious expression for all those rights which the courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens. 13. The fundamental rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity. 14. The “right to education” therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society. . . . . .” As is clear from the above judgment, even prior to the introduction of Article 21A in the Constitution of India, although the right to education was only a Directive Principle of State Policy included in Articles 41 and 45 of the Constitution of India, the Supreme Court held that right to education is concomitant to the fundamental rights enshrined under Part III of the Constitution. By the above said Constitution Amendment Act, right to education has been expressly made a fundamental right by introducing Article 21A in Part III of the Constitution of India. Article 21A reads thus: “21A. Right to education:- The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.” 2. Since, in these cases, another Directive Principle of State Policy also comes into play, we shall extract that also hereunder W.A. Nos. 1325 & 1326/2006. -: 5 :- before discussing the issues involved. The same is contained in Article 46, which reads thus: “46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections:- The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.” 3. The question involved in these writ appeals is whether the action of the Government of Kerala in the matter of refusing to consider the application submitted by the 1st respondent-Sabarmathi Charitable Society (for short 'the Society”) in W.A.No. 1326/2006 for permission to start a school in Ward No. V of Pulimath Panchayat within the Attingal Educational District, offends the mandates in the above said Articles of the Constitution of India. 4. The facts are very simple. The Society applied to the Government for sanctioning of an aided school with standards I to X and Higher Secondary classes in the aided sector in Ward No. V of Pulimath Panchayat. The same was originally declined by Ext. P30 order directing the Society to submit the application to the proper authority at the appropriate time when the Government takes a policy decision to open/upgrade new aided/Government schools in the State. The Society approached this Court challenging Ext. P30 order in W.P (C) No. 31976/2005, which was disposed of by Ext. P31 judgment directing the Government to reconsider the issue after hearing the petitioner and taking into account orders of the Government allowing similar applications in respect of other areas in Kerala and in the light of the recommendation of the District Educational Officer, Attingal. In accordance with the said judgment, the Government re- considered the application of the Society and by Ext. P33 order, rejected the same again holding that the case of the Society can be W.A. Nos. 1325 & 1326/2006. -: 6 :- considered as and when Government takes a general policy decision to open/upgrade aided schools in the State. Ext. P33 order was challenged in W.P(C) No. 6706/2006 by the Society. A Society, by name, Scheduled Caste, Scheduled Tribe Welfare Society of Kerala also filed W.P(C) No. 6636/2006 challenging the very same order and seeking a direction to the Government to grant an aided school with classes I to XII in Pulimath Panchayat in Kilimanoor Constituency, considering the educational need of that locality. These two writ petitions were heard together by a learned Single Judge of this Court who, by the impugned common judgment, allowed the writ petitions and issued a direction to the Government of Kerala to accord sanction to the 1st respondent-Society in W.A.No. 1326/2006 to start a new school in Ward No. V of Pulimath Panchayat in Attingal Educational District and to issue orders sanctioning the school with primary and secondary classes forthwith so that the Society can start functioning of the school during the ensuing academic year 2006-207 itself. The said judgment is under challenge in these two writ appeals at the instance of the State of Kerala. 5. Originally, the appellant-State contested the writ petitions on two grounds. They are: (a) Sanctioning of a new school or upgradation of an existing one is dependent on the policy decision of the Government and such a decision has not been taken so far by the Government. (b) There is no provision in the Kerala Educational Rules to sanction a school directly to a person and a trust and the same can be sanctioned only after issuance of a notification calling for objections. At that time, it was practically conceded by the Government that there was educational need in Ward No. V of Pulimath Panchayath and the area in question is educationally, socially and economically backward as the area is mostly inhabited by W.A. Nos. 1325 & 1326/2006. -: 7 :- scheduled caste families and there is a tribal colony spread over 900 acres in the said area. The learned Single Judge, after noting that the educational need of the locality is conceded and that the area is a socially and educationally backward area, repelled the contentions of the State regarding the Government policy and want of necessity to comply with the procedure prescribed under the Kerala Education Rules. Thereafter, the State filed two review petitions taking a new stand that there is no educational need, based upon two reports obtained after the passing of the judgment by the learned Single Judge. The said review petitions, namely, R.P.Nos. 410 and 404 of 2006 in W.P(C) Nos. 6636/2006 and 6706/2006, respectively were also dismissed by the learned Single Judge. It is under the above said circumstances that the State has filed these writ appeals against the said common judgment in the two writ petitions. 6. Of course, in these writ appeals, in addition to the two grounds on which the State contested the writ petitions, an additional ground of lack of educational need also has been pressed into service. 7. Before going into the issues involved, we may also note the provisions of the Kerala Education Rules regarding the opening and recognition of schools contained in Chapter V of the Kerala Education Rules. Rules 2 and 2A are the relevant Rules based on which the 2nd contention of the appellant has been built up. They read as under: “2. Procedure for determining the areas where new schools are to be opened or existing schools upgraded:- (1) The Director may, from time to time, prepare two lists, one in respect of aided schools and the other in respect of recognised schools, indicating the localities were new schools of any or all grades are to be opened and existing Lower Primary School or Upper Primary Schools or both are to be upgraded. In preparing such lists he shall take into consideration the following: (a) the existing schools in and around the locality in which new schools are to be opened or existing schools are to be upgraded; (b) the strength of the several standards and the W.A. Nos. 1325 & 1326/2006. -: 8 :- accommodation available in each of the existing schools in that locality; (c) the distance from each of the existing schools to the area where new schools are proposed to be opened or to the area where existing schools are to be upgraded; (d) the educational needs of the locality with reference to the habitation and backwardness of the area; and (e) other matters which he considers relevant and necessary in this connection. Explanation:- For the removal of doubts it is hereby clarified that it shall not be necessary to prepare the two lists simultaneously and that it shall be open to the Director to prepare only one of the lists. (2) A list prepared by the Director under Sub-rule (1) shall be published in the Gazette, inviting objections or representations against such list. Objections, if any, can be filed against the list published within one month from the date of publication of the list. Such objection shall be filed before the Assistant Educational Officers or the District Educational Officers as the case may be. Every objection filed shall be accompanied by chalan for Rs. 10/- remitted into the Treasury. Objections filed without the necessary Chalan receipt shall be summarily rejected. (3) The Assistant Educational Officer and the District Educational Officer may thereafter conduct enquiries, hear the parties, visit the areas and sent their report with their views on the objections raised to the Director within two months from the last date of receipt of the objections. The Director, if found necessary, may also hear the parties and finalise the list and send his recommendations with the final list to Government within two months from the last date of the receipt of the report from the Educational Officers. (4) The Government after scrutinising all the records may approve the list with or without modification and forward the same to the Director within one month from the last date for the receipt of the recommendations of the Director. The list as approved by the Government shall be published by the Director in the Gazette. (5) No appeal or revision shall lie against the final list published by the Director. Provided that the Government may either suo motu or on application by any person objecting to the list published by the Director under sub-rule (4) made before the expiry of thirty days from W.A. Nos. 1325 & 1326/2006. -: 9 :- the date of such publication review their order finalising such list and make such modifications in that list as they deem fit by way of additions or omissions, if they are satisfied that any relevant ground has not been taken into consideration or any irrelevant ground has been taken into consideration or any relevant fact has not been taken into account while finalising the said list: Provided further that no modification shall be made under the preceding proviso without giving any person likely to be affected thereby an opportunity to make representation against such modifications. (5A) The proviso added to sub-rule (5) by the Kerala Education (Amendment) Rules, 1981 published in the Kerala Gazette extraordinary No. 667, dated the 19th August 1981, shall be deemed to have been added to that sub-rule with effect on and from the 1st day of June 1981. (6) The Govt. may, by notification in the Gazette, extend any period specified in sub-rules (3) and (4) for reasons to be stated in the notification. 2A. Applications for opening of new schools and upgrading of existing schools:- (1) After the publication of the final list of the areas where new school o of any or all grades are to be opened or existing Lower Primary Schools or Upper Primary schools or both are to be upgraded the Director shall, by a notification in the Gazette call for applications for the opening of New schools of any or all grades and for raising of the grade of existing Lower Primary schools or Upper Primary Schools or both in the areas specified. (2) Applications for opening of new schools or for raising of grade of existing schools shall be submitted only in response to the notification published by the Director. Applications received otherwise shall not be considered. The applications shall be submitted to the District Educational Officer of the area concerned in form No. 1 with 4 copies of the application and enclosures within one month from the date of publication of the notification under sub-rule (1). (3) On receipt of the applications for permission to open new schools or for upgrading of existing schools, the District Educational Officer shall make such enquiries as he may deem fit as to the correctness of the statements made in the application and other relevant matters regarding such applications and forward the applications with his report thereon to the Director within one month from the last date for submitting applications under sub--rule (2). (4) The Director on receipt of the applications wit the report of the District Educational Officer shall forward the applications with his W.A. Nos. 1325 & 1326/2006. -: 10 :- report to Government within one month from the last date for forwarding the report by the District Educational Officer. (5) The Government shall consider the applications in the light of the report of the District Educational Officer and the Director and other relevant matters which the Government think necessary to be considered in this connection and shall take a final decision and publish their decision in the Gazette with the list containing necessary particulars within one month from the last date for forwarding the report by the Director. (6) Applications for permission to open a new standard in an existing school during any school year not involving the raising of the grade of the school shall be submitted to the District Educational Officer in charge of the area in form 1 in triplicate. (7) x x x x (8) The Government may, by notification in the Gazette, extend any period specified in sub-rules (3), (4) and (5) for reasons to be stated in the notification.” 8. Since educational need has been brought up as an issue now by the State of Kerala, although the same was absent in the counter affidavit filed in the writ petitions and since without educational need, no school can be sanctioned in any area, we deem it fit to consider that question first. 9. For proving educational need, the Society relied on Ext. P21 field report of the District Educational Officer. The DEO recommended that the proposed site of the school in question is in a remote area in Ward No. V of Pulimath Panchayat in Kilimanoor Constituency where there are no schools, both private and Government, since the existing schools are at a distance ranging between 4 to 8 kms. The report of the DEO stated that a child above 5 years in the area has to travel 4 kms. for his primary education and 6 kms. for his High School education. It was the further opinion of the DEO that the proposed area is educationally, socially and economically backward. The 1st respondent also relied upon certain W.A. Nos. 1325 & 1326/2006. -: 11 :- Government Orders by which the Government itself had sanctioned new schools in some other areas in the State the reasons for granting which, according to the petitioners in the writ petitions,