IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 WP(C).No. 1424 of 2007(T) ------------------------------------ PETITIONER: ------------------- K.R. SUKUMARAN NAIR, MANAGER, SREE KRISHNA VILASOM LOWER PRIMARY SCHOOL, MANNAM, CHOLATHADAM P.O., KOTTAYAM DISTRICT. BY ADV. MR.R.SUDHIR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 5. THE ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, ERATTUPETTA, KOTTAYAM DISTRICT. R1 TO R5 BY GOVERNMENT PLEADER MR. V. TEKCHAND. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.1424/2007-T: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE G.O.(MS).NO.278/2001/G./EDN. DTD. 12/09/2001. EXT.P.2: COPY OF THE REPRESENTATION DTD. 26/08/2002 ADDRESSED TO THE R.1. WITH COPY TO THE R.2. EXT.P.3: COPY OF THE JUDGMENT DTD. 04/11/2003 IN O.P. NO. 7631/2003 OF THIS HONOURABLE COURT. EXT.P.4: COPY OF THE JUDGMENT DTD. 03/08/2005 IN W.P.(C).NO.23042/2005 OF THIS HONOURABLE COURT. EXT.P.5: COPY OF THE GOVERNMENT ORDER, G.O.(RT).NO.5197/05/G. EDN. DTD. 02/11/2005. EXT.P.6: COPY OF THE PROCEEDINGS NO. 17532/F3/06/G. EDN. DTD. 12/05/2006. EXT.P.7: COPY OF THE LETTER NO. B6-1248/99 DTD. 08/03/1999. EXT.P.8: COPY OF THE COVERING LETTER NO. F-1603/99 DTD. 07/04/1999. EXT.P.9: COPY OF THE LETTER NO. F-1603/99 OF THE R.5. DTD. 09/04/1999. EXT.P.10: COPY OF THE DETAILS ALONG WITH THE COVERING LETTER NO.B6-2711/99 DT. 07/10/1999. EXT.P.11: COPY OF THE PROCEEDINGS NO. NS2/73301/92/DPI DTD. 10/04/2002 ALONG WITH THE EXTRACT OF THE RELEVANT PAGE OF THE LIST APPENDED THERETO. EXT.P.12: COPY OF THE LETTER NO. NS2/73301/98 DTD. 06/05/2000 ISSUED BY THE R.3. TO THE R.2. ALONG WITH THE EXTRACT OF THE RELEVANT PAGE OF THE PROFORMA. EXT.P.13: COPY OF THE LETTER NO. NS2/93567/04/DIRECTOR OF PUBLIC INSTRUCTION DTD. 05/04/2005. EXT.P.14: COPY OF THE REPORT DTD. 19/04/2005 ALONG WITH THE COVERING LETTER NO.B6-5248/2005. EXT.P.15: COPY OF THE LETTER NO. NS2/93567/2004/DIRECTOR OF PUBLIC INSTRUCTION DTD. 15/07/2005. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 1424 Of 2007 ~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 1st day of April, 2009 JUDGMENT The petitioner is aggrieved of the closure of the aided lower primary school run by him as per the orders passed by the departmental authorities and the Government stating it as uneconomic. 2. The petitioner is the Manager of Sree Krishna Vilasam Lower Primary School, Mannam in Kottayam district which is situated in a hilly scheduled tribe area, where there are no sufficient road facilities and the school is stated as very much beneficial to the people and students belonging to lower strata of the society, particularly when the nearest other school available is situated at 3.5 Kms. away. 3. The decision to close down the school was originally taken with respect to 105 schools, which invited wide protest from different corners including teachers, local public, students and their parents, which made the Government and the departmental authorities to have a liberalised view whereby the second respondent passed Ext.P11 order bringing down the number of schools to be closed down from 105 to 48, The yardsticks for closing down the schools mentioned in Ext.P11 are as follows: i. Schools in which L.P. Schools having less than 50 students, U.P having schools having less than 100 WP( C) No. 1424 of 2007 : 2 : students, high schools having less than 50 students. ii. Schools in the SC/ST area, even such schools do not satisfy the above minimum number of students, are ordered to retained. iii. Schools which are situated at a distance of more than 2 Kms. from the nearest school where the students are continuing their studies are not ordered to be closed down. iv. xxxxxxxxx 4. The petitioner relied on condition No.3 to assert that his school is situated more than 3.5 Kms. away from the nearest school, under which circumstances, even by going the admitted reasoning and yard sticks given by the second respondent in Ext.P11, the petitioner's school could not have been ordered to be closed down. More so, when the petitioner, placing reliance on Ext.P1 Policy, submits that the mere fall in the numerical strength of the students shall not be a reason to close down the school and that educational need for the existence of the school has to be considered before the closure, which according to the petitioner has not been considered or implemented by the first and second respondents while passing the impugned order. 5. Pointing out the grievance of the petitioner, several representations including Ext.P2 were filed and finally, it was directed to be considered as per Ext.P3 judgment passed in O.P. 7631 of 2003. WP( C) No. 1424 of 2007 : 3 : Because of the alleged inaction, the petitioner was compelled to approach this Court once again by filing WP(C) No. 23042 of 2005, which led to Ext.P4 judgment, directing the second respondent to have the matter considered in the manner specified therein and this culminated in Ext.P5 order rejecting the application filed by the petitioner to reopen the school, mainly observing that the distance rule as pointed out by the petitioner had also been taken into consideration while passing Ext.P11 order and further that the students, who were studying in the school of the petitioner had already joined in other schools. 6. Aggrieved by Ext. P5, the petitioner preferred a review petition before the Government which was also dismissed as per Ext.P6 and this made the petitioner to approach this Court by filing the present writ petition. The learned counsel for the petitioner, referring to the Annexure forming part of Ext.P11 (wherein the petitioner's school is cited as serial No. 30 and stated as of 1.5 Kms. away from the St. Joseph UPS Malayinchipara) submits that it is on the basis of this mistaken motion, that the school was ordered to be closed down (being within the prohibited distance of 2 Kms.); whereas the petitioner's school was actually 3.5 Kms. away from the nearest school. Ext.P13 letter dated 5.4.2005 issued by the third respondent directed the fourth respondent (presumably in furtherance to Ext.P3 judgment) to ascertain WP( C) No. 1424 of 2007 : 4 : the factual position as to the distance between the school of the petitioner and the nearest school and to submit a report. In the report filed by the Assistant Educational Officer, Erattupettah, he had conveyed the position that the school of the petitioner is situated more than 2 Km. away from the nearest school. After effecting the inspection, the fourth respondent by Ext.P14 reported before the third respondent that the nearest school namely St. Joseph U.P. School, Malayinchipara is situated 3.5 Km. away from petitioner's school; that the petitioner's school is situated in a hilly and tribal area; that other nearby school as stated in paragraph 3 of the said report was situated more than 7 kilometres away from the petitioner's school and further that the roads in the area in and around the petitioner's school are not having good facilities but are muddy Panchayath roads. In spite of the crystal-clear facts mentioned in the said report, the third respondent simply chose to deal with the issue in an evasive manner and sent Ext.P15 report to the second respondent/Government stating that the distance aspect as to the nearest school situated at 3.5 Km away was also taken into consideration when Ext.P11 order was passed and that only such schools having less than 50 pupils were ordered to be closed down. Believing the words of the third respondent to be true, the Government passed Exts.P5 and P6 orders which are stated as not correct or sustainable. WP( C) No. 1424 of 2007 : 5 : 7. Obviously, the report called for by the third respondent from the Deputy Director/fourth respondent and the entries made by the second respondent in the Annexure to Ext.P11 as to the actual distance, do not reconcile with each other. In other words, the entry in Ext.P11 showing that petitioner's school was situated only '1.5 km.' away from the school can only be a factual mistake in view Ext.P14 statement prepared after conducting the local inspection by the fourth respondent pursuant to Ext.P13 direction given by third respondent, confirming that the nearest school was 3.5 km. away from the petitioner's school. This being the position, the reasoning given for closure of the petitioner's school by the third respondent as per Ext.P11 does not appear to be correct or proper. 8. Learned Government Pleader referring to the contents of the counter affidavit submits that the Government, while passing Ext.P5 and Ext.P6, have very much considered all the relevant aspects including the guidelines as to the distance and only such schools having a strength less than 50 students have been ordered to be closed down. But this assertion does not appear to be correct as well, for the reason that the 48 schools mentioned in Ext.P11 order issued by the third respondent were admittedly closed down and all such 48 schools need not necessarily be the schools having a student strength of less than 50 since the list has been admittedly prepared by the third WP( C) No. 1424 of 2007 : 6 : respondent, reckoning the “four criteria” independently. In other words, the above 48 schools may also include the schools which are situated within the distance of 2 km. away from the nearest school. It appears that this vital aspect, on the basis of the report given by the fourth respondent, has not been considered by the second respondent while passing Ext.P5 and Ext.P6 which hence require to be reconsidered. 9. In the above facts and circumstances, Ext.P5 and Ext.P6 orders are set aside and the second respondent is directed to reconsider Ext.P2 representation preferred, which was directed to be considered as per Ext.P3 and Ext.P4 judgments, taking note of the above vital facts and the discrepancies brought to light. Final orders shall be passed after giving an opportunity of hearing to the petitioner as expeditiously as possible, at any rate within a period of three months from the date of receipt of copy of this judgment. The petitioner shall produce copy of this judgment before the second respondent for enabling the second respondent to pursue further steps. Writ Petition is disposed as above. P. R. RAMACHANDRA MENON, JUDGE kmd