IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 WP(C).No. 25865 of 2007(D) -------------------------------------------- PETITIONER(S): ----------------------- THEKKAN GURUVAYOOR ENGLISH MEDIUM SCHOOL, THEVALAKKARA P.O., KOLLAM DISTRICT, REPRESENTED BY ITS MANAGER N.GOPALAKRISHNA PILLAI. BY ADVS. MR.P.B.SAHASRANAMAN, MR.K.JAGADEESH, MR.T.S.HARIKUMAR. RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SMT. N.SUDHADEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.25865/2007 D APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER OF THE G.O.(RT) NO.792/07/G.EDN. DTD. 21/02/2007. P2: COPY OF THE judgment IN WP.32487/2006 AND CONNECTED CASES, DTD. 06/03/2007. P3: COPY OF THE ORDER G.O.(P) NO.107/07/G.EDN. DTD. 13/06/2007 ISSUED BY THE 1ST RESPONDENT. P4: COPY OF THE REQUEST SUBMITTED BY THE PETITIONER TO THE MINISTER FOR EDUCATION. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 25865 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 3rd June, 2009. J U D G M E N T The petitioner is a school represented by its manager. That school was established in 1978. It has classes up to High School. The lower primary section of the school was recognised by the Government in 1991. Thereafter, the school applied for recognition of its U.P. and High School Sections. It was not favourably considered by the Government. Therefore, the petitioner approached this Court by filing W.P(C) No. 18146/2006. In that writ petition, this Court directed the Government to consider the claim of the petitioner for recognition to the U.P and High School Sections also. Pursuant thereto, Ext. P1 order was passed holding that upgradation of schools in the State is made on the basis of the policy decisions of the Government and at present there is no policy decision. It is further stated therein that the Government have constituted a high level committee to formulate the guidelines to be followed for sanctioning/upgradation/recognition of schools and only after finalisation of such guidelines, the policy decision to this effect can be taken by the Government. Therefore, the Government held that the request of the petitioner cannot be considered at present and hence rejected the same. It was further stated therein that the petitioner can apply afresh, when the Government takes a policy decision after finalisation of the guidelines. Thereafter, the Government issued Ext. P3 Government Order regarding the opening of new schools, upgradation of existing schools, recognition of unaided schools, grant of NOC for CBSE/ICSE schools and sanctioning of Secondary schools. In the same, it has been stated that as a policy, unaided unrecognised schools will not be given recognition. But, at the same time, allegedly, to overcome the educational backwardness of the Muslim community, it was decided W.P.C. No. 25865/07 -: 2 :- to grant recognition to schools in the area of Malabar, Kozhikode, Kasaragod, Kannur and Wyanad districts. The petitioner is challenging Ext. P3 order in so far as it restricts the recognition of unaided schools in five districts and seeks a direction to the respondents to grant recognition to the U.P and High School Sections of the petitioner's school. 2. The contention of the petitioner is that as is clear from Ext. P1 order itself that all the authorities concerned had categorically recommended the educational need of the area where the petitioner's school is situated and the eligibility. He would further submit that in Ext. P3 itself, which is the recommendation of the high level committee in this regard, granting of recognition to English medium schools is recommended if the local bodies also recommend recognition of a school acknowledging the need for such a school in the local body's jurisdiction. In so far as the local body and all the educational authorities had recommended upgradation of the petitioner's school, the educational need is clearly established. The petitioner contends that the validity of Ext. P3 order of the Government had been subjected to challenge by some schools in a batch of writ petitions, which were allowed by a learned Single Judge and was taken in appeal by the Government before the Division Bench in W.A.No. 2497/2007 and connected cases. In that, it has been held that Ext. P3 order of the Government is discriminatory, arbitrary, irrational and violative of the constitutional mandates of Articles 14, 15, 19(1)(g) and 30 of the Constitution upholding the quashing of the same by the learned Single Judge. In the above circumstances, the petitioner would submit that now that the policy decision has been set aside, the Government is bound to grant recognition of the petitioner's school in so far as all other formalities W.P.C. No. 25865/07 -: 3 :- have been completed and the educational need has been clearly established. 3. With the help of a counter affidavit on behalf of the 2nd respondent, the learned Government Pleader would stoutly oppose the prayers in the writ petition. The learned Government Pleader would primarily contend that the decision of the Government being a policy decision, this Court cannot lightly interfere with the same. The learned Government Pleader would raise a further contention that the petitioner cannot claim recognition for the school without complying with the procedure prescribed in the Kerala Education Act and Rules. According to the learned Government Pleader, unless and until the Government invites applications for opening of new schools and upgradation of existing schools as provided under Rule 2A of Chapter V of the Kerala Education Rules, the petitioner cannot claim that his application for upgradation of the school should be considered and recognition granted. In support of that contention, the learned Government Pleader relies on the decision of State of Kerala v. Prasad, 2007 (3) KLT 531. 4. I have considered the rival contentions in detail. 5. I am spared of the task of considering the validity of Ext. P3 Government Order in so far as a Division Bench had in the decision reported in State of Kerala v. Nirmala Public School, 2008 (3) KLT 47, has held that Ext. P3 order is discriminatory, arbitrary, irrational and violative of constitutional mandates of Articles 14, 15, 19(1)(g) and 30 of the Constitution. The Division Bench had also upheld the judgment of the learned Single Judge quashing that order. I think that for our purpose, it would be advantageous to extract the relevant portion from that judgment which read thus: W.P.C. No. 25865/07 -: 4 :- “5. We agree with the leaned Advocate General that the policy decision cannot be quashed by this Court unless it is violative of the constitutional provision or statutory provision. It is well settled that in policy matters Courts have very limited scope of interference vide Union of India v. International Trading Co., J.T.2003(4) SC 549 (paragraph 17), State of Punjab v. Ram Ludhaya, 1998(4) SCC 117; Krishnan Kakkant v. Government of Kerala 1997(9) SCC 495, G.B.Mahajan v. Jalgoan Municipal Council AIR 1991 SC 1153 and Federation of Railway Officers Association v. Union of India 2003(4)SCC 289. In Union of India v. International Trading Co. 2003(51) ALR 598 the Honourable Supreme Court observed: “The court as observed in G.P.Mahajan v. Jalgaon Municipal Council, AIR 1994 SC 988 are kept out of the lush field of administration policy except where the policy is inconsistent with the express or implied provision of a statute which creates the power to which the policy relates, or where a decision made in purported exercise of power is such that a repository of the power acting reasonably and in good faith could not have made it. But there has to be a word of caution. Something overwhelming must appear before the Court will intervene. That is and ought to be difficult onus for an applicant to discharge. The Courts are not very good at formulating or evaluating policy. Sometimes when the Courts have intervened on policy grounds the Court's view of the range of policies open under the statute or of what is unreasonable policy has not got public acceptance. On the contrary, curial views of policy have been subjected to stringent criticism. As Professor Wade points out (in Administrative Law by HWR Wade, 6th Edition), there is ample room within the legal boundaries for radical differences of opinion in which neither side is unreasonable. The reasonableness in administrative law must therefore distinguish between proper course and improper abuse of power. Nor is the test the Court's own standard of reasonableness as it might conceive it in a given situation. The point to note is that the thing is not unreasonable in the legal sense merely because the Court things it to be unwise”. In Netai Bag and Ors. v. State of West Bengal and Ors. (2000)8 SCC 262 the Supreme Court observed:- “The Court cannot strike down a policy decision taken by the government merely because it feels that another decision would have been fairer or wiser or more scientific or logical”. In State of Himachal Pradesh and Anr. v. Padam Dev and Ors. (2002)4 SCC 510, the Supreme Court held that unless a policy decision is demonstrably capricious or arbitrary and not informed by any reason or discriminatory or infringing any statute or the Constitution it cannot be a subject of judicial interference under the provisions of Articles 32, 226 and 136 of the Constitution. Similar view, has been reiterated in State of Rajasthan and Ors. v. Lata Arun (2002)6 SCC 252. At the same time, it is also well settled that a Government order or circular issued on the basis of policy decision must pass the test of Articles W.P.C. No. 25865/07 -: 5 :- 14, 15 and 16 of the Constitution. It should be free from the vice of arbitrariness and conform to the well-settled norms underlying constitutional mandate (See Kailash Chand Sharma v. State of Rajasthan (2002(6) SCC 562 (para 11), Bijoe Emmanual and others v. State of Kerala (1986 KLT 1037) (paras 14 to 17), Kharak Singh v. State of U.P (AIR 1963 SC 1295). Here the contention of the petitioners is that impugned Government order is not only discriminatory, arbitrary and irrational, it is violative of Articles 14, 15, 19(1)(g) and 30 of the Constitution. Even reasonable restrictions can be placed on these rights only by a law having statutory force, but not by a Government order (See Kharak Singh's case) (supra). As per Constitutional mandate under Article 13, all laws inconsistent with the fundamental rights are void. If the Government order is discriminatory and arbitrary, it is also violative of Article 14 of the Constitution of India. The condition laid down in the policy that there should be Xth standard in the schools for getting NOC shows that it is a total ban imposed for starting CBSE schools because after Vth standard, without recognition under KER or after VIIIth standard without affiliation from CBSE no school can be started. Hence the Government order is irrational and hit by Wednesbury's unreasonableness and no authority can pass such an order as it is completely unworkable and violative of constitutional mandate. It is certainly violative of Article 19(1)(g) of the Constitution. As far as minority communities are concerned, Article 30 of the Constitution protect their right to start educational institution. In this connection, we refer to the following Constitution Bench decisions In Re: Kerala Education Bill, 1957, AIR 1958 KLT 465 (paragraph 34) = AIR 1958 SC 956); Rev. Sidhrajbhai Sabbai and others v. State of Gujarath and another (AIR 1963 SC 540); State of Kerala v. V. Rev. Mother Provincial (1970 KLT 630) = 1970 (2) SCC 417 – paragraph 8 to 10); The Ahmedabad St. Xavier's College Society and another v. State of Gujarath and another (AIR 1974 SC 1389 at page 1415); St. Stephen's College v. University of Delhi (AIR 1992 SC 1630 – paragraph 34). There are many religious and linguistic minority communities in Kerala State. Their right to start schools in private sector is virtually taken over by the impugned Government order. The right to establish school is not only vested in minority communities, but for others also in view of the right guaranteed under Article 19 (1) (g) as held by the 11 member bench of the Hon'ble Supreme Court in T.M.A. Pai Foundation and others v. State of Karnataka and others (2002(8) SCC 481) paragraph 125 and 11 and findings in pages 587 to 591. A total ban to establish schools in private sector beyond Class V is violative of the fundamental rights guaranteed under article 19 (1) (g) of Constitution. The above right is further protected in the case of minority communities by article 30 (1) of the Constitution. This has been explained by the Hon'ble Supreme Court in seven member bench decision of the Supreme Court in W.P.C. No. 25865/07 -: 6 :- P.A.Inamdar and others v. State of Maharashtra and others (AIR 2005 SC 3226). Further, high level expert committee report itself shows that there are demand for quality education. Especially in a State like Kerala where there is 100% literacy and large number of people are working abroad, receiving quality education is a must. There are also parents who have got transferable jobs to other States. It is true that under Article 12-A, it is the duty of the State to provide compulsory education. If the Government schools and aided schools provide quality education, there need not be any fear that the pupil who are getting free education will go to unaided institutions, if the Government school or aided school are giving good education. Even if they are giving standard education, poor people who cannot afford to spend any money for education to their children will not send them to unaided institutions. It is not necessary that because of the reduction in the students strength, all the Government and aided schools will be closed. If those who can afford to go to unaided schools, funds now spent can be utilised for quality and better education to students who are unable to go to unaided institutions staff strength ratio can be reduced so that teachers will not become surplus. Therefore, Government funds set apart for compulsory education can be utilised for education for the needy without closing the institutions for lack of students. The reason that new schools can be started only where there is concentration of Muslim population as they are socially and economically backward is also discriminatory. Apart from Muslim community, there are many backward communities in the State. There are areas where scheduled tribes are concentrated. It is true that in Idukki district, Pthanamthitta district etc. where there are concentration of scheduled caste and scheduled tribes there are number of schools in the town areas, but in the areas where backward communities are living there are no adequate number of schools. They are in hilly areas where travelling to the schools is very difficult. It cannot be stated that only in the areas where Muslim community is concentrated CBSE schools can be started. Even in Wayanad and Pathanamthitta districts there are areas where scheduled caste and scheduled tribes people are living lacking educational institution. But a reading of the impugned Government order shows that CBSE schools can be started only in the areas where there is concentration of Muslim population. Hence, the Government order is discriminatory and violative of Article 14 of the Constitution. At one breath learned Advocate General argued that Muslim population is economically educationally and socially backward and hence CBSE schools can be started in the area where there are concentration of Muslim population. On the next breath it is argued that CBSE schools are very costly and economically backward communities cannot study in those schools. There are contradicting and self defeating arguments. It is argued by the petitioners that if people who can afford to send their children to developed areas are going to CBSE schools, in backward areas W.P.C. No. 25865/07 -: 7 :- where there are less number of schools, Government or aided institutions can be started as the Government expenditure in other areas will be reduced. These are matters to be considered by the Government and we are not expressing any opinion in those matters. But we have no doubt that the impugned Government order is discriminatory, arbitrary, irrational and violative of constitutional mandates of Articles 14, 15, 19(1)(g) and 30 of the Constitution and the learned Single Judge rightly set aside the same. That being so, Ext. P3 is no longer in existence and therefore it is unnecessary to separately quash the same. 6. The next question is as to whether the petitioner is entitled to have his application for upgradation of his school recognising the U.P and High School Section also allowed. In paragraph 4 of Ext. P1 order, it has been stated thus: “4. Sri. N. Gopalakrishna Pillai, the petitioner, explained his pathoes as follows: He is the manager of an unaided English Medium School at Thevalakkara in Kollam District named Thekken Guruvayoor English Medium School, run by Thekken Guruvayoor Sreekrishna Swamy Temple Devaswam. This school was established in the year 1978. The LP Session of the school was recognised in the year 1991. Since then, the institution is catering educational need of the locality in a prestigious manner. There are no English Medium Schools within a radius of 3 Kms. At present, there are 500 students in the LP school and more than 300 students in the UP and HS session. The Management is in possession of more than 3 acres of land. 5. The Manager has submitted records to show that the school is functioning in 11 RCC rooms of 20 X 20” feet and 8 A/c sheet rooms of 20 X 20 feet and a computer room. 6. The management had requested for upgradation of their school as UP school and High School during 2004 along with a resolution of the Thevalakkara Panchayat dated 31-05-2004. The request of the management was recommended by the Assistant Educational Officer, Chavara, District Educational Officer, Kollam and Deputy Director of Education, Kollam to the Director of Public Instruction, Thiruvananthapuram. W.P.C. No. 25865/07 -: 8 :- 7. The Manager further explained that even though the Assistant Educational officer, District Educational Officer and Deputy Director of Education had furnished favouroable Survey reports, their request was unresponded by Government that they were bitter constrained to approach the Hon'ble High Court with the present writ petition. 8. The survey report furnished by the Deputy Director of Education, Kollam to the Director of Public Instruction reveals the following. The proposed school is situated in Ward No. 9 of Thevalakkara Panchayat. The area is Educationally backward. More than 5000 families are benefited by the upgradation of the school. The school has provided sufficient accommodation for the upgradation as a UP School and a High School. There are no other English Medium UPS and HS in the area. The survey report also shows that there are no other English Medium Schools in the area. Hence the Deputy Director of Education, Kollam has recommended the upgradation of this school as a UPS and HS. 9. Sanctioning/Upgradation/Recognition of schools in the State is made on the basis of Government Policy decisions and at present there is no such Government Policy decision. However, Government have vide G.O (Rt) no. 3691/06/G.Edn. dated 19-08- 06 constituted a High Level Committee to formulate guidelines to be followed in sanctioning/upgradation/recognition of schools and only after finalisation of such guidelines, a policy decision to this effect can be taken by the Government.” In Ext. P1 order, the Government do not say that those facts are not correct. All what the Government says is that for want of policy decision, the Government is not in a position to consider the application of the petitioner at present. The petitioner was also given an opportunity to apply afresh when the Government takes a policy decision after finalising the guidelines. That contingency has already arisen resulting in Ext. P3, which has been quashed by this Court. Therefore, Government is now bound to consider the petitioner's application again, especially in view of the fact that it has been reported in the newspapers that the Government is taking very stringent action against unrecognised schools including initiation of criminal proceedings . W.P.C. No. 25865/07 -: 9 :- 7. Admittedly, the school has been functioning ever since 1978. The Government themselves had found it necessary to give recognition to the L.P. Section of the school. The students passing out from the L.P. Sections in English Medium should necessarily have opportunity to continue their studies in English Medium in that area itself. Admittedly, all authorities, namely, the Educational Officers and the Local Authority have certified the educational need. In fact, in Ext. P3 Government Order, the recommendation of the High Level Committee appointed by the Government in respect of recognition of unaided schools has been quoted. One of the recommendations reads as follows: “Since many of them may be answering to the demand for English medium and better quality education in the rural area, those having facilities as per Kerala Education Rules and maintaining better academic standards may be considered for recognition, if the local bodies also recommend recognition of a school acknowledging the need for such a school in the local body's jurisdiction. Further steps can be as in Chapter V Kerala Education Rules, which also envisages the setting up recognized schools.” Here, the local body had recommended the upgradation of the petitioner's school. As such, except the will of the Government in the matter, every other circumstances are in favour of granting recognition to the U.P and High School Sections of the school. 8. In State of Kerala and another v. Scheduled Caste- Scheduled Tribe Welfare Society of Kerala and others, ILR 2007 (1) Ker. 334, a Division Bench of this Court had occasion to consider a situation similar to this. In the same, after quoting extensively from the decision of the Supreme Court in Mohini Fain v. State of Karnataka & Others, (1992) 3 SCC 666 and various provisions of the Constitution of India, particularly Article 21A thereof relating to right W.P.C. No. 25865/07 -: 10 :- to education, the Division Bench has held thus, in paragraph 16: “16. Apart from the same, we doubt very much as to whether, after finding educational need in a locality, the Government can by taking refuge under a policy decision or lack of it refuse to sanction a school in an area where there is admitted educational need. If that is permitted, then that would amount to defeating the constitutional mandates of articles 21A, 41, 45 and 46 of the Constitution of India. It is like saying that although people of an area is suffering from acute scarcity of water, because of a policy decision, Government will not provide water to the people of that area. When Constitution mandates that citizens have a fundamental right for something, the Government cannot simply refuse them their constitutional rights in the name of a Government policy or lack of it. The right to education is a fundamental right guaranteed by the Constitution of India. When educational need in an area is found as a matter of fact, we are of opinion that the Government cannot deny that fundamental right to the citizens of the locality on the ground that Government have not taken a policy decision to grant new schools in the State or have taken a policy decision not to grant. Further, even as admitted by the appellant-State itself, the area in question is a socially, economically and educationally backward area wherein 1/3rd of the population consists of scheduled castes and scheduled tribes. When Article 46 mandates that State shall promote with special care the educational and economic interests of the weaker sections of the society, and in particular, scheduled castes and scheduled tribes, the denial of right to education to the people of that area