IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 WA.No. 2400 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.13676/2008 Dated 03/10/2008 APPELLANT(S): PETITIONER ------------------------ K.PRASAD, MANAGER, A.J.B.SCHOOL, PARAYAKOD, KIZHAKUMPURAM.P.O, MANNUR, PALAKKAD DISTRICT. BY ADVS. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN RESPONDENT(S): RESPONDENTS ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 4. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. 5. THE ASSISTANT EDUCATIONAL OFFICER, PARLI, PALAKKAD. ADDL.R6.SANTHOSHITHA M.S., PRESIDENT, PARENT TEACHERS ASSOCIATION OF THE A J B SCHOOL, PARAYAKAD, KIZHAUMPURAM P.O., PALAKKAD DISTRICT, RESIDING AT KANNAMPARIYARAM, MANKARA P.O., PALAKKAD DISTRICT. ADDL.R7.MUKUNDAN K., SON OF KANNAN, KUNNAKKAD, KIZHAKKUMPURAM, MANNUR, PALAKKAD DISTRICT. ADDL.R8.BEENA K., WIFE OF SUDEVAN, KANNAMPARIYARAM, MANKARA P.O., PALAKKAD DISTRICT. ADDL.R9.MINI P.S., WIFE OF MURALEEDHARAN, PARAYANKAD, KIZHAKKUMPURAM, MANNUR, PALAKKAD DISTRICT. (ADDITIONAL RESPONDENTS 6 TO 9 IMPLEADED AS PER ORDER DATED 21.5.2009 IN I.A. NO. 278 OF 2009) BY GOVERNMENT PLEADER SRI.BENNY GERVASIS FOR R1 TO R5 SRI. K. RAMAKUMAR (SR.), SRI.T.RAMPRASAD UNNI FOR ADDL.R6-9 SMT.SMITHA GEORGE FOR ADDL.R6-9 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO.2400 OF 2008 --------------------------------------------- Dated this the 21st day of May, 2009 JUDGMENT Balakrishnan Nair, J. The appellant is the writ petitioner. The respondents herein were the respondents in the Writ Petition. The brief facts of the case are the following: 2. The appellant is the Manager of a Lower Primary School. According to him, there is educational need in the area to upgrade his school. He moved for upgradation of it , though there was no list published by the Director under Rule 2(2) of Chapter V of the Kerala Education Rules, 1959 (hereinafter referred to as “the Rules”) or invitation of application under Rule 2A. Since his application was not sanctioned, he moved this Court. A Division Bench of this Court, by Ext.P3 judgment, allowed the Writ Petition and directed to upgrade the school of the petitioner as Upper Primary School. The State took up the matter in W.A. NO. 2400/2008 2 appeal. The appeal was allowed by Ext.P4 judgment of the Apex Court dated 9.7.2007. The Apex Court held that the application of the petitioner for upgradation itself was incompetent as the same was submitted de hors Rules 2 and 2A of Chapter V of the Rules. 3. In the meantime, the petitioner submitted Ext.P1 application dated 3.5.2006 and Ext.P2 application dated 18.4.2007 before the District Educational Officer, Palakkad to sanction the opening of standards 5 and 6 respectively for his school. The appellant claimed that those applications were submitted under Rule 2A(6) of Chapter V of the Rules. According to him, the District Educational Officer is competent to sanction those applications in view of the provisions contained in Rule 3(b)(iv) of Chapter V of the Rules. The appellant contended that he is running an incomplete primary school and, therefore, Exts.P1 and P2 were submitted validly and they are liable to be allowed by the District Educational Officer. But, the District Educational Officer passed Ext.P5 order holding that he requires appropriate clarificatory orders from the State Government for considering the applications of the petitioner. The appellant, aggrieved by Ext.P5 order filed the present Writ Petition. 4. The State Government filed a statement disputing the claim of W.A. NO. 2400/2008 3 the petitioner. According to the respondents, to get over the decision of the Apex Court in Ext.P4, the present application was filed. If the petitioner has got upgradation of his school as Upper Primary School, then only the District Educational Officer will be competent to receive applications under Rule 2A(6) of Chapter V of the Rules and pass orders thereon under Rule 3(b)(iv) thereof. Accepting the contentions of the respondents, the learned Single Judge dismissed the Writ Petition. Hence, this appeal. 5. We heard the learned counsel for the appellant. He submitted that going by Rule 2(2) of Chapter II of the Rules, the schools are classified into Primary and Secondary. The appellant is running a Primary School which will become complete only if standards 5, 6 and 7 are sanctioned. Therefore, he submitted applications for the same under Rule 2A(6) of Chapter V of the Rules. The District Educational Officer is empowered under Rule 3(b) thereof to sanction those applications. So, the appellant, being a person running an incomplete Primary School, is entitled to have Exts.P1 and P2 applications considered and allowed, it is submitted. 6. We heard the learned Senior Government Pleader for the official W.A. NO. 2400/2008 4 respondents. He pointed out that under Rule 2(2) of Chapter II of the Rules, Primary Schools are further divided into Lower Primary and Upper Primary Schools. Sub-rule (1) of Rule 2 and sub-rule (2) of Rule 2A of Chapter V of the Rules would show that for the purpose of upgradation of schools, Lower Primary and Upper Primary schools are treated separately. A Lower Primary School can have only standards 1 to 4. If further standards are to be added, permission for upgradation as Upper Primary School should be obtained. The appellant correctly understood the legal position and, therefore, he applied for upgradation. That application was allowed by Ext.P3 judgment. The said judgment was reversed by the Apex Court by Ext.P4 judgment. The Apex Court also added that there cannot be any application independent of Rules 2 and 2A of Chapter V of the Rules. Therefore, the present motion made is barred by the decision of the Apex Court. To get over that judgment, the present Writ Petition is filed. Only if the appellant gets upgradation of his school as Upper Primary School, he can start standard 5. For further adding standards 6 and 7 to the upgraded Upper Primary School, he can move the District Educational Officer under Rule 2A(6) of Chapter V of the Rules and the District Educational Officer can sanction the same under Rule 3(b)(iv) thereof. So, the present applications, Exts.P1 and P2, are not sustainable, it is submitted. W.A. NO. 2400/2008 5 7. We went through the pleadings and materials on record and also considered the rival submissions made at the Bar. We feel that the learned Single Judge accepted the contentions of the respondents rightly. The Lower Primary section consists of standards 1 to 4 and the Upper Primary section consists of standards 5, 6 and 7. These two sections are treated separately for the purpose of establishment, recognition and upgradation, as evident from the relevant provisions contained in Rule 2A and Rule 23C of Chapter V of the Rules. Chapter XXIII dealing with staff fixation and Chapter XXXI dealing with qualification for various posts also deals with Lower Primary Schools and Upper Primary Schools separately. So, the sanction of Lower Primary School will not itself enable the Manager to start standards 5, 6 and 7 without upgradation. So, the appellant does not have any legal right to start standards 5 and 6. Therefore, Exts.P1 and P2 applications are not maintainable in law. In the absence of any legal right in the appellant and corresponding duty in the District Educational Officer, this Court cannot issue any mandamus to consider Exts.P1 and P2. Therefore, we find that the learned Single Judge has rightly declined to interfere with Ext.P5 order under which the District Educational Officer thought that he requires clarification of the Government to deal with Exts.P1 and P2. We also notice that the present motion made by the W.A. NO. 2400/2008 6 Manager is a clever attempt to get over the adverse judgment of the Apex Court, Ext.P4. In the result, the appeal fails and it is accordingly dismissed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 2400/2008 7 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A.NO.2400/2008 JUDGMENT 21st May, 2009