IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 WP(C).No. 26946 of 2003(G) ---------------------------------------- PETITIONER(S): ------------------------ T.K.MOHAMMED, MANAGER, K.M.HIGH SCHOOL, KARULAY, MALAPPURAM DISTRICT, RESIDING AT SHANI MANZIL, KARULAI P.O., MALAPPURAM 679 344. BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT(S): -------------------------- 1. STATE OF KERALA REP.BY THE SECRTARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM. 4. THE MANAGER, KARULAI YATHIM KHANA L.P.SCHOOL, KARULAI, MALAPPURAM DISTRICT. R1 TO R3 BY GOVT. PLEADER SMT.M.R.SREELATHA R4 BY ADVS.SRI.V.G.ARUN, SRI.T.R.HARIKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 26946/2003 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTIFICATION NO.NSI-81222/2002 DTD. 27.6.2003 BY R2. P2:- COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE R2 ON 25.7.2003. P3:- COPY OF THE NOTIFICATION PUBLISHED IN THE MADHYAMAM DAILY DTD. 6.7.2003. TRUE COPY P.A TO JUDGE tss C.T. RAVIKUMAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No. 26946 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of July, 2010 J U D G M E N T The petitioner is the Manager of K.M High School, Karulai in Malappuram District. This writ petition has been filed challenging Exts.P1 and P3 and also with a prayer to issue a writ of mandamus forbearing the respondents from sanctioning of the upgradation of the existing L.P. School belonging to the 4th respondent as a High School. 2. Ext.P1 is a notification published by the Director of Public Instruction on 27.6.2003 inviting objections against the preliminary list of unaided L.P. Schools/U.P.Schools/High Schools to be recognized and existing L.P Schools/U.P Schools to be upgraded during the year 2003-2004. In Ext.P1 preliminary list, the name of the 4th respondent school figures at Sl.No.68 in the list of schools in Malappuram District. The entry thereunder reads thus:- Karulayi Yatheem Khana Upgradation as (Karulayi Orphanage English School) High School LP The petitioner has submitted objections to the said proposal for upgradation of the school run by the 4th respondent as per WPC.26946/2003 : 2 : Ext.P2. In Ext.P2 the petitioner has stated that K.M High School, Karulai is facing a threat of division fall due to the fall in student strength and it has already lost one division in standard VIII and further gave the data with respect to the total strength in standard VIII and the number of divisions from 2000-2001 to 2003-2004. The said data given in Ext.P2 would show the steady fall in the students strength in the K.M High School. After giving such datas and details in Ext.P2, the petitioner had contended that the upgradation of the 4th respondent school situated within the vicinity of 1KM from the petitioner's school would definitely result in closure of the petitioner's school. After considering Ext.P2 objection, list of schools intended to be given recognition pursuant to Ext.P1 notification has been published. Ext.P3 is the copy of the said list published in Madhyamam Daily dated 6.7.2003. In fact this writ petition has been filed challenging Exts.P1 and P3. In this writ petition, the petitioner has taken up certain other contentions as well. It is contended that a Lower Primary School cannot directly be upgraded as High School without first making it an Upper Primary School. Further it is contended that the proposed school site is situated in the premises belonging to a Mosque and therefore, its sanctioning WPC.26946/2003 : 3 : would violate Rule 17(2) of Chapter IV of the Kerala Education Rules. A counter affidavit has been filed by the 4th respondent. Para 4 and 5(sic 5 and 6) reads as follows:- “The objections raised by the petitioner are totally unsustainable. The educational need of the area required upgradation of the School. The application for upgradation as U.P. and High School submitted by us is therefore justified. The writ petition is not maintainable. The notification, Exts.P1 and P3 are the same. The final notification has been published under Rule 2(4). The challenge against the preliminary notification is therefore is not sustainable.” It would reveal that as per the 4th respondent, he had submitted an application for upgradation of the school, but his contention is that since the final notification has been published under Rule 2(4) of Chapter V the challenge in this writ petition against Exts.P1 and P3 are unsustainable. A counter affidavit has been filed on behalf of the first respondent in this writ petition. Paragraph 3 thereunder reads thus:- “The management has been directed to submit application for opening the school. If the School has no High School classes the question of upgradation of the Lower Primary School as High School does not arise.” (Emphasis supplied) In Paragraph 5 it has been stated thus:- “With regard to ground A of the writ petition, Ext.P1 notification issued is under Rule 2 of Chapter V of KER as specified therein. The list of school indicating localities also WPC.26946/2003 : 4 : was published in the said notification after all formalities and inviting objections against the list. After considering the objections and representations filed against the Ext.P1 notification the second respondent published final list of new unaided LPS/UPS/HS to be recognized and existing LP/UP Schools to be upgraded subjects to the decision in Original Petitions and Writ Petitions pending before this Honorable High Court.” A perusal of the averments in the counter affidavit would reveal the stand of the first respondent that Ext.P1 list was published after complying with all the formalities under Rule 2 of Chapter V of the Kerala Education Rules. However, in paragraph 7 of the said counter affidavit it has been stated thus: “Upgradation of a Lower Primary School will be considered only if the requirements are satisfied.” 2. The specific contention of the petitioner is that the 4th respondent has applied only for upgradation of the LP School. The fact that the 4th respondent is running the LP School with class I and 2 has not been disputed and virtually it is admitted by the 4th respondent. It is also not in dispute that as per Ext.P1 what was published is a list of new schools as also the list of schools proposed to be upgraded. In Ext.P1, admittedly, the name of the 4th respondent's school is included as a Lower Primary school proposed to be upgraded. In short, there is nothing in Ext.P1 which would reveal that the 4th respondent has submitted an application for sanctioning a new school and WPC.26946/2003 : 5 : a new school has been sanctioned based on an application for that purpose by the 4th respondent after following all the prescribed procedures. Even the 4th respondent did not have a case that an application has been submitted for starting a new school. In fact, as already noticed the very case of the 4th respondent as revealed from the counter affidavit is that in response to Ext.P1 notification he had applied only for getting upgradation of his LP School. Though in the counter affidavit filed by the first respondent, it has been stated that a direction was given to the 4th respondent to submit an application for opening a new school it is not discernible from the counter affidavit as to whether subsequent to such a direction, the 4th respondent had in fact submitted such an application. In fact, as already noticed, the 4th respondent did not raise any such contention either in the counter affidavit or even, at the time of argument. In the context of the rival contentions a specific statement made by the first respondent in the counter affidavit also assumes relevance and the same reads thus: “ Karulai Yatheem Khana(Karulai) Orphanage English Medium School has been functioning as an unaided/English Medium unrecognized school for the last so many years. The third respondent has reported that the school has standard I and II at present and management has requested for High School section also. If the school is having Standards I and II recognition will be granted as Lower Primary School only” (Emphasis supplied) WPC.26946/2003 : 6 : As already noticed, the 4th respondent himself admitted the fact that his school was having Standards I and II only. The said fact is evident from paragraph 2 of the Counter Affidavit filed by the 4th respondent. In the said circumstances, going by the contentions of the petitioner and also the 4th respondent as also in terms of Ext.P1, I cannot uphold the contentions of the first respondent. It is stated by the first respondent in the Counter Affidavit that the upgradation of LP Schools will be considered only if the requirements are satisfied. There is nothing in the counter affidavits filed by the first respondent and by the 4th respondent to show that the question of upgradation of LP School of the 4th respondent as High School was considered in accordance with the relevant provisions under the KER. The first respondent cannot contend that sanction for opening a new school was granted to the 4th respondent based on an application for upgradation of LP School especially, in the light of Ext.P1. The first respondent has only stated in the Counter Affidavit that the publication of final list based on Ext.P1 was made subject to the decision in the Original Petitions and writ petitions pending before this court and therefore, the 4th respondent cannot contend that this writ petition is not maintainable WPC.26946/2003 : 7 : since the petitioner has not challenged the list published in terms of Rule 2(4) of Chapter V of KER. In troth, the rival contentions would suggest that what was challenged and defended was only the list appended to Ext.P1 notification. True that in Paragraph 5 of the counter affidavit it has been stated that in exercise of powers of Rule 2A of Chapter V of KER, the second respondent invited application for opening/upgrading the aided school as per notification No. NS (1) 45875/02/DPI dated 13.11.2003 which was published in the Gazette dated 20.11.2003. Ext.P1 notification produced in this writ petition is dated 28.6.2003. At the same time, in the counter affidavit filed by the 4th respondent, there is no whisper as to whether the 4th respondent has submitted an application pursuant to the notification issued on 13.11.2003. In the absence of any such averments either by the petitioner or by the respondents, I think there is no need to go into such questions. On the contrary, the specific case of the petitioner and also the 4th respondent is that the 4th respondent had applied for upgradation of LP School and consequently got included in Ext.P1 list. 3. In view of the facts obtained in this case it can only be taken that as per Ext.P1 sanction was accorded only for the WPC.26946/2003 : 8 : upgradation of LP School belonging to the 4th respondent. However, Government now disown the same. As per the first respondent, upgradation of LP School was not at all considered in the case of the 4th respondent. If that be so, the inclusion of the petitioner in Ext.P1 cannot confer a right to the 4th respondent to start a new school. But, it is made clear that it will not stand in the way of the first respondent considering an application from the 4th respondent if already submitted pursuant to the notification dated 13.11.2003, for starting of a new school. But, going by the rival pleadings in this case, it cannot be taken that pursuant to notification dated 13.11.2003 and based on a direction to submit the application for opening a new school, the 4th respondent has submitted an application for starting a new school, especially in view of the specific contention of the 4th respondent in paragraphs 4 and 5(Sic. 5 and 6) of the counter affidavit. 4. In the totality of the circumstances thus obtained in this case, I think there is no need to look into the entitlement of the petitioner to the reliefs sought for in this writ petition in view of the specific stand of the first respondent that sanction for the upgradation of existing LP Schools of the 4th respondent as a High School was not granted. If that be so, WPC.26946/2003 : 9 : there is no basis for the grievance of the petitioner. On 22.8.2003 this court passed an interim order as hereunder. “Notice. If the 4th respondent's school is upgraded, the same will be subject to the result of the writ petition.” In view of the statement made on behalf of the first respondent that the upgradation of the 4th respondent's was not considered and no such order was issued there is no need to probe in to the matter any further. However, in view of the fact that in the list appended to Ext.P1 notification the 4th respondent was included and that the petitioner has raised his objection against the same it will only be appropriate for the first respondent to consider the objection of the petitioner for such upgradation made in response to Ext.P1 notification, in accordance with law, in case it is decided to proceed with the claim of the petitioner for upgradation as a High School. In such eventuality a decision shall be taken only with notice to the petitioner and the 4th respondent. This writ petition is disposed of accordingly. Sd/- (C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A to Judge