IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 WP(C).No. 20892 of 2007(K) -------------------------- PETITIONER(S): --------------- THE MANAGER, LITTLE FLOWER CONVENT GIRLS HIGH SCHOOL, KORATTY, THRISSUR DISTRICT. BY ADV. SRI.A.X.VARGHESE SRI.A.V.JOJO RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DIRECTORATE, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2011. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20892 of 2007(K) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE GOVERNMENT ORDER DTD.23.7.2002 EXT.P2: COPY OF THE NOTIFICATION DTD..1.2006 EXT.P3: COPY OF THE APPLICATION EXT.P4: COPY OF THE REPRESENTATION DTD.4.2.2006 EXT.P5: COPY OF THE JUDGMENT IN W.P(C) NO.24851/2004 DTD.12.6.2006 EXT.P6: COPY OF THE GOVERNMENT ORDER DTD.5.1.2007 EXT.P7: COPY OF THE REPRESENTATION DTD.1.6.2007 EXT.P8: COPY OF THE RESOLUTION PASSED BY THE KORATTI PANCHAYAT EXT.P9: COPY OF THE APPLICATION DTD.22.6.2007 EXT.P10: COPY OF THE UNANIMOUS RESOLUTION OF THE PARENT-TEACHER ASSOCIATION EXT.P11: COPY OF THE PAPER REPORT DTD.3.7.2007 EXT.P12: COPY OF THE NOTIFICATION DTD.7.6.2010 EXT.P13: COPY OF THE APPLICATION DTD.8.6.2010 EXT.P14: COPY OF THE REPRESENTATION DTD.3.6.2010 EXT.P15: COPY OF THE REPORT SUBMITTED BY THE ASSISTANT EDUCATIONAL OFFICER DTD.28.6.2010 EXT.P16: COPY OF THE LIST OF HIGH SCHOOLS RECOMMENDED FOR BEGINNING HIGHER SECONDARY SECTION. EXT.P17: COPY OF THE GOVERNMENT ORDER DTD.20.7.2010. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A TO JUDGE ab S.SIRI JAGAN, J ------------------------------------------------- W.P(C) No.20892 of 2007 -------------------------------------------------- Dated this the 24th day of October, 2011 J U D G M E N T This is the second round of litigation by the Manager of an Aided High School seeking direction to the Government to sanction a Higher Secondary Course in the petitioner's school in the aided stream. Already an unaided higher secondary section has been granted to the school. The petitioner applied for an aided higher secondary course in his school in 1998. That was not sanctioned. The petitioner approached this Court by filing W.P(C) No.24851/2004. In that writ petition on 12.6.2006 I passed the following judgment: “The petitioner is the manager of a Girls' High School. The petitioner claims that the school is a highly reputed school and every year percentage of pass for the SSLC examination is almost 100 per cent. According to the petitioner, there is no Higher Secondary School near where the school is situated. The students of the school have to travel more than 7 kilometers to study for higher secondary course. In the above circumstances, the petitioner applied for sanction of a higher secondary course in the petitioner's school. The petitioner submits that one batch has been sanctioned in the unaided sector and the school requires a higher secondary course in the aided sector because many poor students are studying in the school and the locality generally consists of people who are not able to afford schooling for their children in the unaided sector. The petitioner originally submitted Ext.P5 application. Thereafter obtaining all necessary documents, the petitioner W.P(C) No.20892 of 2007 2 filed a comprehensive application as per Ext.P14. The petitioner prays that the 1st respondent may be directed to consider the application of the petitioner for a second higher secondary course in the aided sector in the petitioner's school expeditiously. 2. I have heard the learned counsel for the petitioner as also the learned Government Pleader. 3. When the petitioner submitted an application for higher secondary course the 1st respondent should have considered the same and passed appropriate orders in accordance with law, expeditiously. Ext.P14 is seen filed on 4.2.2006. In the above circumstances, it is only just and fair that the 1st respondent considers and passes appropriate orders on Ext.P14 expeditiously. This, the 1st respondent shall do within a period of three months from the date of receipt of a copy of this judgment.” 2. At that time the school was a Girls High School and subsequently it was converted into a mixed high school. Pursuant to the direction in W.P(C) No.24851/2004, the Government passed Ext.P6 order on 5.1.2007 directing that the petitioner can apply afresh on the basis of a new guidelines to be formulated and announced by the Government, which application would be considered on merits. Accordingly, the petitioner applied again. On 7.6.2010 the Directorate of Higher Secondary Education issued Ext.P12 guidelines for sanctioning of higher secondary course in 2010-2011. Pursuant to the same also the petitioner applied by Ext.P13 application. That application was verified by the Assistant Educational Officer who W.P(C) No.20892 of 2007 3 submitted Ext.P15 report, which according to the petitioner would support the claim of the petitioner. But when the Government published Ext.P16 list of High Schools recommended for grant of Higher Secondary courses, the petitioner's school was not included therein. The Government finally published Ext.P17 list in which also the name of the petitioner's school was not included. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: “i) Issue a writ of mandamus directing the Respondents to allot aided Plus Two course to the petitioner's school. ii) To declare that the non inclusion of the petitioner's school in Exhibit P17 is arbitrary, erroneous and illegal. iii) Issue a writ of Mandamus or any other writ, order or direction, commanding the respondents to grant an aided higher secondary to the petitioner's school. iv) Such other reliefs that this Hon'ble Court deems fit and proper.” 3. The contention of the petitioner is that, the petitioner has satisfied all the requirements for grant of higher secondary section in the aided stream in the school as per the guidelines issued by the Government in that regard. It is submitted that the W.P(C) No.20892 of 2007 4 petitioner's high school is one which turns out almost 100% result for S.S.L.C for the past so many years. The school was started in the year 1947. The school caters to mainly socially and economically backward students who forms majority of the population of the locality. Although there is an unaided course sanctioned, the students of the locality cannot afford to join the unaided stream by paying higher fees. Further there are no other higher secondary schools within 5 kms. Therefore, the petitioner's school was eminently qualified for sanctioning of a higher secondary section in the aided stream. Disregarding the superior claim of the petitioner another comparatively new school has been sanctioned higher secondary section in the aided sector, without granting the same benefit to the petitioner, which amounts to discrimination. The petitioner submits that the only ground on which this benefit was denied to the petitioner's school is that already a higher secondary section in the unaided sector has been sanctioned to the school. According to the petitioner the guidelines did not prohibit granting of aided section when there is already an unaided section functioning in the same school. In the amended writ petition, the petitioner has pointed out schools to which aided section has been sanctioned, W.P(C) No.20892 of 2007 5 despite existence of an unaided section as well. The petitioner also points out the fact that an aided higher secondary section has been sanctioned to another less qualified school in the Panchayat, is no ground to deny the same benefit to the petitioner's school. He has quoted many incidents where despite existence of another higher secondary school in the same Panchayat aided higher secondary section has been granted to another school in the same Panchayat. Therefore, according to the petitioner on any count the respondent could not have validly denied the aided higher secondary section to the petitioner's school. 4. A counter affidavit and additional counter affidavit have been filed by the respondents. In the additional counter affidavit dated 22.11.2010 filed on 25.11.2010, the only reason mentioned for non-sanctioning of aided higher secondary course to the petitioner's school is that the committee appointed by the Government for recommending the names of schools for sanctioning of higher secondary course did not recommend the petitioner's school for sanctioning higher secondary course, mainly for the reason that the school already has an unaided higher secondary section. W.P(C) No.20892 of 2007 6 5. I have considered the rival contentions in detail. It is not disputed before me that the petitioner's school satisfies all the eligibility conditions for sanctioning of aided higher secondary section. The only reason put forward by the respondent for denying the said benefit to the petitioner is that an unaided higher secondary section is already existing in the school. But there is no answer to the petitioner's averments in the amended writ petition that in other schools where unaided higher secondary section is already existing, aided higher secondary section has also been sanctioned. As I have already mentioned, the petitioner's school started functioning in the year 1947. The school to which aided higher secondary section was granted is a comparatively new school. It is not disputed before me that the petitioner's school is one turning out almost 100% results for S.S.L.C for the past so many years. It is also not disputed before me that the majority of the students of the locality are socially and economically backward. As such it cannot be disputed that the parents of such students will not be in a financial position to educate their children in an unaided higher secondary school paying higher fees. 6. In the above circumstances, I am of the opinion that W.P(C) No.20892 of 2007 7 the respondents could not put forward before me any reason why the petitioner's school could not have been sanctioned an aided higher secondary section. Of course, the learned Government Pleader would point out that the petitioner has not chosen to challenge the grant of aided higher secondary section to the other school. The petitioner is not exactly aggrieved by the grant of higher secondary section to the other school. The petitioner only wants similar benefit to the petitioner's school as well. For that, I do not think that the failure on the part of the petitioner to challenge the grant of aided higher secondary section to the other school would fatally affect the claim of the petitioner. 7. In view of the above findings, I am of the opinion that the petitioner's school is entitled to a higher secondary section in the aided sector. But I am of the opinion that the Government can allow the petitioner to convert the unaided higher secondary section already granted to the school into an aided higher secondary section. Accordingly, the writ petition is allowed to the extent of directing the respondents to sanction conversion of the unaided higher secondary section existing in the school to an aided W.P(C) No.20892 of 2007 8 higher secondary section. The petitioner undertakes that the teachers and staff already existing in the unaided higher secondary section, who possess all the qualifications prescribed under the Special Rules applicable will be absorbed as teachers and staff in the aided sector. The respondents shall permit the petitioner to do so. Orders in this regard shall be issued as expeditiously as possible, before 31.3.2012 so as to enable the petitioner to start higher secondary course in the aided sector for the academic year 2012-2013 onwards. S.SIRI JAGAN JUDGE ab