IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 WP(C).No. 2766 of 2008(D) ------------------------- PETITIONER: ------------ K.J.VINCENT, AGED 57, S/O. KUNHIRAMAN, MANAGER, OUR LADY ASSUMPTION HIGH SCHOOL, ULATHANKARA, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. BY ADV. SRI.JOHNSON GOMEZ FR.JOHNY THOTTAM RESPONDENTS: ------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. DIRECTOR OF PUBLIC INSTRUCTIONS, D.P.I., THIRUVANANTHAPURAM. 4. DISTRICT EDUCATION OFFICER, NEYYATTINKARA, THIRUVANANTHAPURAM. ADDL. R5: THE MANAGER, VRINDAVAN HIGH SCHOOL, VLATHANKARA, CHENKAL P.O., TRIVANDRUM (IMPLEADED AS PER ORDER IN I.A.2090/08 IN W.P.(C) NO.2766/08 DT. 11.2.2008) BY ADV. SRI.K.JAJU BABU SRI.T.S.SHYAM PRASANTH GOVERNMENT PLEADER SRI. A.J. VARGHESE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ALONG WITH W.P.(C) NOS.3322/08, 3939/08 AND 4771/08 ON 11/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. ------------------------------------ W.P.(C)Nos.2766,3322,3939 & 4771 OF 2008 ---------------------------------------- Dated this the 11 th day of February, 2008 JUDGMENT W.P. (C) No.2766/08 is filed by the manager of an unrecognised School challenging condition No.1 in Ext.P4 Government Order dated 17.1.2008, wherein 97 students of the SSLC class studying in the said unrecognised School were permitted to write SSLC examination subject to conditions stipulated therein. W.P. (C) No. 3322/08 is filed by the manager of a School and the President of the Parent-Teachers' Association of that School situated nearby to the unrecognised School challenging Ext.P4 order in W.P.(C) No. 2766/08. 2. It appears that out of 97 students, only 69 students were given the benefit of that notification. W.P. (C) No.3939/08 is filed by one of the parents of the students of that School seeking the benefit granted by the said Government Order to the other 28 students governed by that order also. Subsequently that order itself was withdrawn by the Government by another order dated 31.1.2008. That order is challenged by the Manager W.P.(c) No.2766/08 & Con.cases 2 of the School and the petitioner in W.P. (C) No.3939/08 in W.P.(C) No. 4771/08. Since all these writ petitions relate to the same subject matter they are being disposed of by this common judgment. 3. The contention of the School and the parents is that the withdrawal of the earlier benefit granted without hearing the parents of the beneficiaries of the order is unjust and unreasonable. They would further submit that a Division Bench of this Court had by judgment in W.P.(C) Nos. 17864 and 20029/07 directed the DPI to consider the application filed by the School for recognition and to pass orders thereon. According to them the DPI has not yet passed any orders on the application for recognition. Therefore without passing orders on that application, it is unjust to take away even the concession granted to the students by the Government order is the submission made before me. 4. Learned counsel in W.P.(C) No.3322/08 as well as the learned Government pleader would stoutly oppose the prayers of the petitioners in other three writ petitions. According to them, the School had no right whatsoever to admit students to write the examination without obtaining W.P.(c) No.2766/08 & Con.cases 3 recognition. That being so, going by the Supreme Court decision on the subject, the students are not entitled to write the examination on the strength of such illegal admission. The learned Government pleader also points out that as is clear from the documents produced by the petitioner in W.P.(C) No.3939/08 and the petitioners in W.P.(C) No.47471/08, one of whom is the petitioner in W.P.(C) No.2766/08, it is evident that under aged students have been admitted in the School and therefore those students are not yet fit to write the examination at all. He also submits that this Court shall not exercise its discretionary jurisdiction in favour of the petitioners who have admitted underaged students by falsely declaring the age of the students contrary to the actual date of birth. 5. I have considered the rival contentions in detail. The question of allowing students admitted by the unrecognised Schools to write examination was considered by the Supreme Court in more than one decision. In the decision of C.B.S.E. AND ANOTHER V. P. SUNIL KUMAR AND OTHERS [(1998) 5 SCC 377], the Supreme Court held thus: W.P.(c) No.2766/08 & Con.cases 4 “We are unable to apply the reasoning given in the aforesaid case, inasmuch as there is no iota of material placed before us to indicate that the Central Board of Secondary Education, the appellants herein, either directly or indirectly had held out to the students at any point of time that the institutions in which they are prosecuting their studies have been affiliated or are going to be affiliated in the near future. We are conscious of the fact that our order setting aside the impugned directions of the High Court would cause injustice to these students. But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students. In view of the aforesaid premises, we set aside the impugned judgment of the Division Bench of the Kerala High Court as well as the interim orders issued by the Single Judge in several petitions out of which the writ appeals arose and the writ petitions filed by the respondents stand dismissed. These appeals are allowed but in the circumstances, there will be no order as to costs” (underlining supplied) In a more recent decision namely, Minor Sunil Oraon Tr. Guardian & Ors. V. C.B.S.E. & Ors. [JT 2006 (10) SC 375], the Supreme Court again held thus in paragraph 15: W.P.(c) No.2766/08 & Con.cases 5 “Time and again, therefore, this Court had deprecated the practice of educational institution admitting the students without requisite recognition or affiliation. In all such cases the usual plea is the career of innocent children who have fallen in the hands of the mischievous designated school authorities. As the factual scenario delineated against goes to show the school has shown scant regards to the requirements for affiliation and as rightly highlighed by learned counsel for the CBSE, the infraction was of very serious nature. Though the ultimate victims are innocent students that cannot be a ground for granting relief to the appellant. Even after filing the undertakings the School non-challantly continued the violations.” (underlining supplied) These decisions are authorities for proposition that the consideration of sympathy for the innocent children are not factors which can be taken into account to permit the students of unrecognised institutions to appear in the examination and then to compel the Government to issue certificates in favour of those who have undertaken examination, which the Supreme Court has termed as tantamount to subversion of law. That being so, the School and the students and their parents cannot as of right claim that the students be permitted to write the examination notwithstanding the fact that the W.P.(c) No.2766/08 & Con.cases 6 School has not been given recognition by the Government. 6. As far as W.P. (C) Nos.3939/08 and 4771/08 are concerned, I am inclined to deny jurisdiction of this Court under Article 226 of the Constitution of India to these students because demonstrably the School has admitted the students, who are under aged. In page Nos.40,43,49,53, 66 and 84 in W.P.(C) No.4771/08 the dates of birth shown in the extract from the Register of Births shows a different date of births than in the extract from admission register produced by the petitioner in W.P.(C) No.3939/08 correspondingly in page Nos. 33, 23, 29, 22, 12 and 20 thereof. Therefore the petitioners themselves have demonstrated before this Court that the students have been admitted to the School on the basis of incorrect declaration of the dates of birth of the students. Such persons are not entitled to any sympathetic consideration from this Court. Further I find that in the order of the Government cancelling the earlier order, it has been specifically stated that any action taken in good faith in obedience of the earlier order shall not be rescinded. Further it is stated in Ext.P7 that the remaining 28 students without proper birth certificates issued by the Panchayat cannot be W.P.(c) No.2766/08 & Con.cases 7 admitted as the Government order itself is withdrawn for valid reasons. In so far as the petitioners themselves have demonstrated that they are guilty of supplying incorrect information regarding the dates of birth of the students, I am not inclined to exercise my discretionary jurisdiction in their favour to grant any reliefs to those petitioners in these writ petitions. Further except one of the parents styling himself as the President of the Parent Teacher Association of the School, none of the other students of their parents have come forward seeking reliefs. Accordingly, W.P. (C) Nos. 2766/08, 3939/08, and 4771/08 are dismissed. As far as W.P.(C) No. 3322/08 is concerned, since the Government itself has withdrawn the order challenged in the writ petition, no separate orders are necessary in that writ petition. However, I make it clear that the manager of the School would be liable to satisfy the condition No.1 in the Government order in so far what has been saved is only action taken in good faith in obedience to the earlier Government Order. S. SIRI JAGAN, JUDGE Acd W.P.(c) No.2766/08 & Con.cases 8