IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 WA.No. 1812 of 2010() --------------------- AGAINST THE ORDER IN WPC.24416/2010 Dated 10/08/2010 .................... APPELLANT(S): 4TH RESPONDENT:- -------------- THE MANAGER, PVS BOYS HIGH SCHOOL,ERANHIKKAL,KOZHIKODE BY ADV. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR RESPONDENT(S): PETITIONR & RESPONDENTS 1 TO 3:- --------------- 1. THE MANAGER,CMC BOYS HIGH SCHOOL, ELATHUR,KOZHIKODE DISTRICT. 2. THE STATE OF KERALA, REP.BY THE SECRETARY,GENERAL EDUCATION DEPARTMENT GOVT.SECRETARIAT,THIRUVANANTHAPURAM 3. THE DIRECTOR OF HIGHER SECONDARY EDUCATION,DIRECTORATE OF HIGHER SECONDARY EDUCATION,HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR, EDUCATION, KOZHIKODE. SENIOR GOVERNMENT PLEADER SRI T..B. HOOD FOR R2 TO R4 ADV, SRI.SRINATH GIRISH FOR R1 ADV, SMT.M.LISHA FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.A.No. 1812 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 9th day of December, 2010 JUDGMENT Basheer, J. This appeal is directed against an interim order passed by a learned Single Judge by which the order of sanction to start Higher Secondary Course for the current academic year in the institution run by the appellant has been kept in abeyance. 2. Respondent No.1, the rival aspirant, contended before the learned Single Judge that the order of sanction is ex facie illegal, irregular and vitiated for reasons more than one. It was primarily contended that the appellant's institution did not have the minimum requisite area/land, as prescribed under the Rules and that the proposed play- ground is situated about half a kilometre away and that too across the road running along the school compound. The other contention was that the appellant suppressed the fact that more than three other Higher Secondary Schools were WA 1812/2010 2 situated within a radius of 5 kilometres. Respondent No.1 pointed out that going by clause (viii)(c) in Ext.P1 notification issued by the Government, availability of other Higher Secondary/Vocational Higher Secondary Schools within a radius of 5 k.mtrs. of the applicant's school is a very valid and crucial criterion. 3. The above allegations were refuted by the appellant before the learned Single Judge while seeking to vacate the ex parte interim order. Appellant pointed out that the departmental authorities had placed before the Scrutiny Committee all the relevant inputs which prima facie satisfied the committee. It was also asserted that the appellant's institution is well equipped to start the course. It was further pointed out that excellent track record was being maintained by the appellant's institution as compared to that of respondent No.1, which had apparently impressed the committee. The percentage of pass in the S.S.L.C. Examination and student strength in the school etc. were highlighted. WA 1812/2010 3 4. The learned Single Judge however took the view that there was no reason to vacate the interim order, particularly, since a Division Bench of this Court in W.A. No.1306 of 2010 had refused to interfere with the order of interim stay passed in a similar case. It is in the above circumstances, the appellant has come up in appeal impugning the above order passed by the learned Single Judge refusing to vacate the interim order of stay. 5. When the appeal was taken up on an earlier occasion, we had heard learned counsel for the parties elaborately. We had taken note of the fact that classes in other institutions, which had been sanctioned Higher Secondary Courses, had already been commenced some time in September/October, 2010 and that any uncertainty will cause more harm to the student community. But still, having regard to certain apparent ambiguity or lack of clarity on two or three aspects, we deemed it fit to issue a direction to the Committee Constituted by the Government for Recommendation of Higher Secondary Schools to take a WA 1812/2010 4 fresh look at the matter and to submit a report before this Court. We directed the committee to consider the rival claims of the parties and take a decision in terms of the criteria laid down by the Government in Ext.R2(a) and also keeping in view the relevant aspects germane to the issue. 6. Accordingly, the committee consisting of Director, Higher Secondary Education as the Chairperson and Director, SCERT and Director, SIEMAT as Members has filed its report. The committee has found that the appellant institution is eligible to conduct the Higher Secondary Course. More importantly, the committee found that respondent No.1 is not eligible to start the course. 7. We do not propose to refer or deal with the reasons or grounds on which the committee has come to the above conclusion at this stage. However, one glaring flow/omission, which is palpable on the face of the report, is the failure of the committee to mention about the number of Higher Secondary/Vocational Higher Secondary Schools within a radius of 5 k.mtrs.. In this context, it may be WA 1812/2010 5 noticed that in the interim order passed by us on November 12, 2010 we had specifically referred to this aspect. Even assuming the availability of two or more Higher Secondary Schools within a radius of 5 k.ms. may or may not have a vital impact on the issue, still, going by clause (viii) (c) this was in fact a crucial input which could not have been overlooked by the committee, especially when this Court had specifically referred to the said aspect in the interim order referred to above. Curiously this is what the committee had to say about the above aspect:- “6. The Headmaster of PVS High School has reported that there is no Higher Secondary/VHSS within a radius of 5 KM where as the Headmaster of CMC Boys High School has reported that there are two Higher Secondary/VHSS within 5 KM of the CMC Boys High School.” 8. The main ground on which respondent No.1 has been found ineligible is that the management has failed to provide necessary infrastructure facility required for starting the course. The report states that laboratory, library, toilet facilities etc. are not available in the school. WA 1812/2010 6 The report further states that necessary furniture has also not been provided and that fitness certificate for the existing school building is also not obtained and salary of the staff has been withheld by the District Educational Officer for not producing the fitness certificate for the school. 9. Learned counsel for respondent No.1 has taken exception to the report vehemently and vociferously. According to the learned counsel, the report is totally biased and absolutely partisan and contrary to the materials, which were produced before the committee at the time of hearing. For instance learned counsel for the appellant points out that in Annexure-3 format, which was presented by respondent No.1 before the Chairperson of the Committee, all the infrastructural facilities in the school were itemized and described with full details. Interestingly, the District Educational Officer countersigned the format and certified that he had verified the above information furnished in the format and found them to be correct. WA 1812/2010 7 Learned counsel points out the certification of the District Educational officer must have been definitely placed before the Chairperson and other members of the committee. He submits that the observations made by the committee in the report, as regards the non availability of infrastructure facilities in the school, is therefore apparently contradictory to what the District Educational officer has vouchsafed in the format itself. We do not propose to elaborate. 10. The fact remains that many of the students who have been allotted to the school of the appellant under the Common Admission Process are still in a quandary, though we were informed earlier that the parents of these 80 students have put them in some other private institutions for the time being awaiting the outcome of this case. 11. Learned senior Government Pleader submits that in view of the undertaking given by the appellant that the parents of those 80 students have expressed their willingness to put their wards in the appellant's institution, there may not be any difficulty to start the course. Learned WA 1812/2010 8 counsel for the appellant maintains that the students who have been allotted to the appellant's institution are still prepared to join the course once it is started. 12. Having given our anxious consideration to the entire facts and circumstances of the case, we are of the view that the interim order passed by the learned Single Judge is liable to be vacated and we do so. However, we make it clear that the sanction accorded shall be provisional and subject to the result of the writ petition. 13. It will be open to respondent No.1 to pursue his prayer for issue of a commission before the learned Single Judge. We further make it clear that the observations made in this judgment are only our prima facie impressions and they need not be treated as expressions of our views in the matter. The appeal is disposed of as above. Keeping in view of the urgency of the matter, registry shall obtain appropriate orders from the Honourable the Chief Justice and place this matter before a non-admission WA 1812/2010 9 court, as requested by the learned counsel for the parties, so that the hearing of the case can be expedited. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.