IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 WP(C).No. 14321 of 2008(E) --------------------------------------- PETITIONER(S): ----------------------- THE CORPORATE MANAGER, CORPORATE MANAGEMENT OF SCHOOLS, ARCH DIOCESE OF CHENGANACHERY, CHENGANACHERRY.(THROUGH POWER OF ATTORNEY HOLDER, FR. MATHEW NADAMUKKATH) BY KURIAN GEORGE KANNAMTHANAM, SENIOR ADVOCATE BY ADV. MR.TONY GEORGE KANNANTHANAM MR.JOHNSON MANAYANI RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, TRIVANDRUM. 3. THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, TRIVANDRUM. 4. THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, EDAPPALLY,ERNAKULAM. ADDL. R5 & R6 IMPLEADED. 5. SEBASTIAN KURIAN, ADVOCATE, S/O. KURIAN, AGED 49, HOTEL AMBASSADOR COMPLEX, K.K.ROAD, KOTTAYAM. 6 ALBY K.ABRAHAM, AGED 15 YEARS, D/O. K.F.APRAM, KODAKKANAL HOUSE, VENKURINJI P.O., ERUMDY REP.BY FATHER GUARDIAN K.F.APREM. ADDL. R5 & R6 IMPLEADED VIDE ORDER DTD. 21.5.08 IN SA. 6011/2008. W.P.(C) NO.14321/2008 ADDL. R7 TO R9 ARE IMPLEADED 7. MUSLIM EDUCATIONAL SOCIETY (MES), CALICUT, REP.BY ITS SECRETARY,K.JAIN. 8. KERALA MUSLIM JAMA- ATH COUNCIL REP.BY ITS GEN. SECRETARY A. POOKUNJU. 9. MUSLIM EMPLOYEES CALTURAL ASSOCIATION,(MECA) ERNAKULAM , REP.BY ITS GENERAL SECRETARY, N.K.ALI. ADDL. R7 TO ADDL. R9 IMPLEADED VIDE ORDER DTD. 21.5.08 IN IA. NO.6007/08. R1 TO R4 BY GOVERNMENT PLEADER MR.HOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2009, ALONG WITH WPC NO. 14359 OF 2008 WPC NO. 14486 OF 2008 WPC NO. 14970 OF 2008 WPC NO. 15581 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.14321/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 25.10.07 ISSUED FROM THE DPI, TRIVANDRUM. P2:- COPY OF THE LIST OF AIDED HIGHER SECONDARY SCHOOLS. P3:- COPY OF THE PROSPECTUS FOR ADMISSION 2007-08. P4:- COPY OF THE GOVERNMENT ORDER DTD. 6.6.07 OF THE GENERAL EDUCATION (U) DEPARTMENT. P5:- COPY OF THE ORDER DTD. 23.6.07 OF GENERAL DO. DO. P6:- COPY OF THE ORDER DTD. 29.3.08 OF GENERAL EDUCATION (SPECIAL CELL) DEPARTMENT. P7:- COPY OF THE REPRESENTATION DTD. 10.4.08 TO THE CHIEF MINISTER OF KERALA. TRUE COPY P.A. TO JUDGE tss K.T.SANKARAN, J. -------------------------------------------- W.P.(C) NOs. 14321, 14359 14486, 14970 & 15581 OF 2008 -------------------------------------------- Dated this the 29th May, 2008 O R D E R In the above Writ Petitions the challenge is against the Government Order dated 29.3.2008 by which administrative sanction for the statewide introduction of “Single Window System” of admission for Plus One Course from the academic year 2008-09 onwards was accorded. According to the Government, by the introduction of “Single Window System”, admission to Plus One Course in Government and aided Higher Secondary Schools is sought to be made in a more effective and transparent manner. The Government Order is being challenged by aided school managements, parent teachers’ association of a school as well as by four individual students. 2. Writ Petition No.14321 of 2008 is filed by the Corporate Manager of the Schools under the Arch Diocese of Changanacherry. Writ Petition No.14359 of 2008 is filed by the Corporate Educational Agency under the Diocese of Idukki, belonging to the Roman Catholic Christian Community. Writ Petition No. 15581 of 2008 is filed by the corporate educational agency under the Diocese of Cochin, belonging to Latin Catholic community. Writ Petition No.14486 of 2008 is filed by the W.P.(C) NO.14321 OF 2008 AND CONNECTED CASES :: 2 :: President of the Parent Teachers’ Association of St.George Higher Secondary School, Vazhathoppu, Idukki District. Writ Petition No.14970 of 2008 is filed by four students, two of whom were students in P.K.Kunju Sahib Memmorial Higher Secondary School, Kayamkulam, while the two others were students of MSM Higher Secondary School, Kayamkulam. These students say that they are entitled to continue their study for Plus One Course in the same school in which they studied. 3. Consistent with the National Education Policy of 1986 Pre- Degree course was de-linked from colleges and Higher Secondary Schools were established in the State as per G.O.(MS) No.18/91/G.Edn. dated 1.2.1991. The System was introduced in a phased manner. By about the year 2000, the process of de-linking Pre-Degree course was completely achieved. As per the Government Order dated 1.12.1991, the mode of selection of pupils for Higher Secondary course was provided as follows: “Mode of Selection of Pupils – This will be fixed as follows: ------------------------------------------------------------------------------------------------- Government Private ------------------------ Aided Recognised Unaided ------------------------------------------------------------------------------------------------- Open Merit Percentage 80 60 40 Management quota “ .. 20 40 Scheduled Castes “ 12 12 12 Scheduled Tribes “ 8 8 6 --------------------------------------------------------------------“ W.P.(C) NO.14321 OF 2008 AND CONNECTED CASES :: 3 :: Subsequently, the percentage of quota was changed and at present in aided schools 50% of the students shall be in open merit quota, 30% in management quota, 12% in Scheduled Castes quota and 8% in Scheduled Tribes quota. In aided schools belonging to minority and backward class communities, 40% shall be in open merit, 40% in management quota, 12% for Scheduled Castes and 8% for Scheduled Tribes. In the management quota of 40%, 20% is earmarked for students belonging to the respective community on the basis of merit and 20% is earmarked for the management. As per the Government Order dated 1.2.1991, the selection of students will be on the basis of merit subject to the reservation for Scheduled Castes and Scheduled Tribes and the selection of candidates will be made by the Principals of the respective institutions as per the quota fixed. In the quota earmarked for open merit, admission was all through out in accordance with merit alone. The mode of selection of students in the Higher Secondary Schools hitherto followed was not under challenge either by the managements or by the students. 4. In Aided Higher Secondary Schools, the expenditure for the salary of teaching and non-teaching staff is met by the State. The direct payment system by the Government was introduced in the year 1972. It is submitted by the learned Advocate General that the total number of W.P.(C) NO.14321 OF 2008 AND CONNECTED CASES :: 4 :: Government Higher Secondary Schools in the State is 729 and that of Aided Higher Secondary Schools is 529. 5. The “Single Window System” of admission for Plus One Course was introduced for the first time in the State of Kerala in Thiruvananthapuram District alone for the academic year 2007-08. According to the State, it was a pilot project. G.O(Rt) No.1586/2008/Gl.Edn. dated 29.3.2008 was issued by the Government according administrative sanction for the State wide introduction of “Single Window System” of admission for Plus One Course from the academic year 2008-09 onwards. The Government Order reads as follows: “Government have introduced ‘Single Window System’ of Admission for Plus One Course in Thiruvananthapuram District as a pilot project during the academic year 2007-08. The Director, Higher Secondary Education as per the letter read has proposed to introduce the system statewide from the academic year 2008-09 onwards considering the successful accomplishment of the system and the resultant customer satisfaction. Government have examined the proposal and are pleased to accord administrative sanction for the state wide introduction of the Single Window System of Admission for Plus One Course from the academic year 2008-09 onwards.” This Government Order is under challenge in these Writ Petitions. As per Government Order, G.O.(Rt)No.1936/08/G.Edn. dated 23.4.2008, the Government approved the prospectus for “Single Window System” of Admission for Plus One Course for the academic year 2008-09. W.P.(C) NO.14321 OF 2008 AND CONNECTED CASES :: 5 :: 6. The contentions raised by the petitioners in the writ petitions can be summarized as follows: The educational institutions established by the religious minority are entitled to the protection under Article 30(1) of the Constitution of India. Without amending the Kerala Education Rules or withdrawing or superseding Government Orders in force, the “Single Window System” was introduced in Thiruvananthapuram District. As per the new system, the right of admission of the managements is confined to management/community quotas only. The method of allotment of seats is vague and lacks clarity. There is no mechanism to check or verify whether the admissions are really done in the order of merit. The system was a total failure in Thiruvananthapuram District. While in other districts the admissions for Plus One Course were over in the month of July, admissions were over in Thiruvananthapuram District only in November, thereby students in that District lost three months in their course of study. The system introduced in Thiruvananthapuram District proved to have caused lot of difficulties and untold miseries to the students. Because of the several rounds in the admission process, many students were shifted from school to school on several occasions and the candidates were not sure in which school they would get admission. There is no hostel facility in any of the Government or Aided Higher Secondary Schools in the State and it would cause great difficulty to the students if they get admission in far away schools. The “Single Window System” of Admission is directly W.P.(C) NO.14321 OF 2008 AND CONNECTED CASES :: 6 :: against the provisions of Chapter VI of the Kerala Education Rules, particularly, Rule 1 of Chapter VI of the Kerala Education Rules. Rule 1 of Chapter VI of the Kerala Education Rules cannot be bypassed by an executive order. There is not even an executive order laying down the new system. It is also contended that the system is violative of Article 19 (1)(g) and 30 (1) of the Constitution. 7. In the writ petition filed by the corporate education agency of Cochin, it is stated that a Committee was appointed by the Government as per G.O. dated 31-1-12007 to study and report about the changes to be made in the Kerala Education Act and Rules. Exhibit P5 is the terms of reference. The Committee submitted its report in February 2008. It is contended that though the terms of reference included all aspects of school administration, the Committee did not recommend ‘Single Window System’ of admission for higher secondary classes. 8. In the Writ Petition filed by the Parent Teachers’ Association of St.George Higher Secondary School, they have highlighted the practical difficulties if the “Single Window System” were to be introduced. It is pointed out that in Districts like Idukki, allotment of students in schools situated in far away places will cause extreme hardship and difficulties to the students and their parents. The parents will have to find additional resources for accommodation and other facilities of the students. In the W.P.(C) NO.14321 OF 2008 AND CONNECTED CASES :: 7 :: Writ Petition filed by the four students, it is contended that Plus One Course is not a separate course divorced from the school education and therefore, there cannot be a separate admission or a separate procedure for admission for Plus One Course. They have also stated that the system introduced in Thiruvananthapuram District was “a colossal failure”. The “Single Window System” sought to be introduced now is against the interest of poor segments of the society. It is against the National Education Policy and the concept of continuation of school education up to standard XII. 9. In W.P.(C) No.14321 of 2008, filed by the Corporate Management of the Schools of Arch Diocese of Changanacherry, two petitions for impleading were filed and those petitions were allowed, As per I.A.No.6011 of 2008, an advocate who is also a PTA activist, and a student who passed the SSLC examination have got themselves impleaded as respondents 5 and 6. In the affidavit accompanying the application for impleading, it is complained by them that since the Writ Petition was entertained, the admission process is stalled, which causes difficulties to the student community. The petitioners therein say that whatever may be the method of admission,it should be completed without delay. They also raised a contention that the system was sought to be introduced without consulting the PTA or their representative, but only after consulting with the managements. In the counter affidavit filed by W.P.(C) NO.14321 OF 2008 AND CONNECTED CASES :: 8 :: them, it is stated that the management quota seats of minority community institutions “are sold out to other community members for donations.” Respondents 5 and 6 also stated that the real intention of the writ petitioner or the Inter Church Council is not to preserve minority rights but to preserve their financial interests. I.A.No.6007 of 2008 is filed by the Muslim Educational Society, Kerala Muslim Jama-ath Council and Muslim Employees Cultural Association. In the application for impleading, they have not disclosed as to whether they are in support of the “Single Window System” or they are against it. However, Sri.Babu Karukapadath, who appeared for the petitioners in I.A.No.6007 of 2008, on instructions, whole heartedly supported the introduction of the “Single Window System” and submitted that the challenge against the same is without merit. 10. The first respondent State has filed a counter affidavit in W.P. (C) No.14321 of 2008. The contentions raised in the counter affidavit are summarized as follows: The “Single Window System” is not against any of the existing orders and Rules. Chapter VI of the Kerala Education Rules governs admissions up to secondary level of school education and it has nothing to do with the admission to Plus One Course. Chapter XXXII of the Kerala Education Rules was introduced by G.O.(P) No.331/2001/G.Edn. dated 9.11.2001 and it was published in the Gazette dated 12.11.2001. Chapter XXXII of the Kerala Education Rules is the only chapter which governs the Higher Secondary section and the other W.P.(C) NO.14321 OF 2008 AND CONNECTED CASES :: 9 :: provisions in the Kerala Education Rules are not applicable to the Higher Secondary Education. This Court has held that the provisions other than Chapter XXXII of the Kerala Education Rules are not applicable to the Higher Secondary Section. After de-linking of Pre-Degree from the colleges, the admission to Plus One Course is governed by orders issued by the Government from time to time. Government Order dated 1.2.1991 prescribed the mode of selection of pupils including various quotas earmarked for open merit, management, community etc. That Government Order underwent many changes and the quota earmarked for various categories was also changed. In the quota earmarked for open merit, admission of pupils is to be made in accordance with merit. There has never been any dispute regarding the same at any point of time. The Director of Higher Secondary Education has laid down elaborate procedure prescribing the norms to be followed in fixing the score of the students. Earlier, the selection for admission was to be made by the Principal and the Admission Committee of the Higher Secondary Schools from the rank list prepared on the basis of merit subject to reservation for various categories. The admission of pupils in the merit quota “has never been within the authority of the management”. The higher secondary course is a replica of the Pre-Degree course which was being conducted as part of collegiate education. At the Pre-Degree level also there was distribution of seats between merit quota and management quota and there was no objection for the same at the instance of the W.P.(C) NO.14321 OF 2008 AND CONNECTED CASES :: 10 :: managements. That system was accepted by the managements as the expenditure towards salary of the teaching and non-teaching staff of the Aided Higher Secondary Schools was met by the Government. There is a duty on the part of the management who receive aid from the Government to admit students in accordance with merit in the merit quota. The Government has to ensure that the right of a student who completes the 10th standard is protected while seeking admission to Plus One Course. The system has to be transparent at the various stages of the admission process. It is further stated in the counter affidavit thus: “Thus it was after elaborate deliberations with the representatives of various groups, such as students, teachers, educationalists, managements that the Government decided to introduce single-window system for plus one admission. The scheme of single window online method of admission was introduced in Thiruvananthapuram for the first time on orders of the Government in the academic year 2007-08. At this point, it may be noted that the petitioner has also got schools in Thiruvananthapuram District and there was no objection from the part of the management of the petitioner’s school against the introduction of the new scheme in Thiruvananthapuram District. 9. It is further submitted that in the single window system the ranked list is published in the website in all the schools in which admissions are made. The preparation and publication of the ranked list and allotment of pupils to Plus One course is done at district level taking district as the unit. The seats in the merit quota both in aided and Government Schools in the entire districts come within the purview of the single window system. It is once again submitted that the single window system is not made applicable so far as the admission of the pupils to management quota and community quota is concerned. It is done by the concerned schools. By the above single window system the students get a chance to make options W.P.(C) NO.14321 OF 2008 AND CONNECTED CASES :: 11 :: and they get a chance to cancel the higher options or to retain them in accordance with their desire to learn in the school of his priority. The website is verifiable by anybody and students could check, in which schools, he would get admission. Hence the single window system ensures that the admission is made on the basis of merit alone and in accordance with the option in the application. There is also provision in software to register and redress errors and complaints. 10, When the single window system was tried in the Thiruvananthapuram District, it proved to be a complete success and there had been no complaints from any quarters. Thus admissions were completed in Thiruvananthapuram District on September 2007 and in other districts on August 31st 2007. All the students who applied got admission in Thiruvananthapuram District. Those who could not apply and those whose applications were rejected for valid reasons were given chances for making fresh applications or for filing corrected applications. Hence it may be noted that there was only a delay of 10 days in completing the entire process. Thus through Single Window System the students were offered higher options by the Government. The Government has a constitutional duty to provide the students with adequate facility for educating him at the place of his choice based on his merit. 11. In fact, the Government has received several complaints regarding manipulation in Plus One admissions. Many meritorious students were denied admissions by unscrupulous methods. It was in order to overcome such practices that the present system of single window admission was introduced in Thiruvananthapuram District on an experimental basis. The above experiment proved to be highly successful and this was the reason for taking a decision to accord sanction for statewide introduction of Single Window System of admission. 12. It is most respectfully submitted that the whole programme of Single Window System was implemented after holding elaborate discussions with the representatives of students, teachers, managements and educationalists. The concerns raised by various groups were elaborately considered, discussed and reviewed in detail at various forums before the present scheme was finalized. Hence it is W.P.(C) NO.14321 OF 2008 AND CONNECTED CASES :: 12 :: not correct to say that the decision reflected in Ext.P6 is an arbitrary one. The above decision was taken after proper application of mind and it is a well-considered one.” 11. The State also has denied the contention that the “Single Window System” is against Rule 1 of Chapter VI of the Kerala Education Rules and that it infringes the rights under Article 30(1) and 19(1)(g) of the Constitution. The prospectus for the “Single Window System” of admission was approved by G.O.(Rt) No.1936/08/Gl.Edn. dated 23.4.2008. It is contended that this is an executive order of the Government and that it is constitutional in all respects. Therefore, the prospectus issued is equally a valid one. The Government has got authority to manage and administer admission of pupils in aided schools governed by the provisions of the Kerala Education Rules. The admission of pupils in aided schools under the various minority managements are also governed by the Government orders issued from time to time. So far as the aided Higher Secondary Schools are concerned, apart from Chapter XXXII of the Kerala Education Rules, there are no other statutory Rules governing the field. Matters such as admission of pupils, fixation of staff strength etc. are governed by executive orders. No illegality could be attributed to the present State action on the ground of competence and jurisdiction. The “Single Window System” was introduced only to ensure social justice and equal opportunities in the education sector. It is never intended to curtail the rights of private management. The rights and privileges enjoyed by the management in the matter of admission of W.P.(C) NO.14321 OF 2008 AND CONNECTED CASES :: 13 :: students in the management quota are still there and there is no governmental interference to curtail those rights. 30% of the seats are reserved for management quota in private aided schools and 40% of the seats are reserved as management quota for schools belonging to private aided minority or backward management. Out of the said 40%, 20% is for the concerned minority/backward class of students and the remaining 20% is for the management on merit basis. In the prospectus issued for the year 2007-08 for Thiruvananthapuram District, the distribution of seats in the manner indicated above is disclosed. The only change effected is the additional 1% seats earmarked for Latin/S.I.U.C., by G.O.(MS) 144/07/Gen. dated 24.7.2007. 12. It is further stated in the counter affidavit of the first respondent, thus: “Hence it is respectfully submitted earlier also admissions in merit quota were being done only on pure merit. The Single Window System has only introduced elaborate procedure for distribution of seats under the merit quota on district basis. Prior to the introduction of Single Window System, students and parents were forced to run from school to school seeking admission putting mental pressure and physical stress on the students especially because of the fact that the admissions were carried out in all the schools on the same date. After the introduction of Single Window System only one application need be filed by the student and his admission is ensured depending on his merits. It is also submitted that Delhi University has also adopted the Single Window System for admission to under graduate courses. W.P.(C) NO.14321 OF 2008 AND CONNECTED CASES :: 14 :: 16. It is submitted that a student could be admitted to the plus one course only if he produces conduct certificate from the concerned institution. Hence the pupils who are undesirable could be denied admission by the management if they so wish. So far as the student community is concerned the present system is most advantageous since they get bonus points for same school panchayat and Taluk and because there is every chance to get admission in a school which is near to their residence.” 13. The Government also stated that they took the decision to introduce “Single Window System” to ensure transparency in the system of admission to Plus One Course. By the Single Window System it is ensured that the process of admission is effective and it is in accordance with the norms laid down by the Government from time to time. 14. Heard Senior Advocate Sri.Kurian George Kannanthanam, Sri.George Poonthottam, Sri; V. Jayakumar, Sri.Baby Issac Illikal and Sri.K.T.Thomas for the petitioners, learned Advocate General Sri.C.P.Sudhakara Prasad for the State and Sri.Johnson Manayani and Sri.Babu Karukapadath for the interveners. In the nature of the contentions put forward by the parties, and since the pleadings are not apparently complete and also in view of the urgency of the situation, for the time being, I am considering only the