IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 WP(C).No. 13676 of 2008(C) -------------------------------------- PETITIONER: ----------------- K.PRASAD,MANAGER A.J.B, SCHOOL, PARAYAKOD, KIZHAKUMPURAM P.O., MANNUR PALAKKAD DISTRICT. BY ADV. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN RESPONDENTS: ---------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT GENERAL EDUCATION DPARTMENT,GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM 3. THE DEPUTY DIRECTOR OF EDUCATION PALAKKAD 4. THE DISTRICT EDUCATIONAL OFFICER PALAKKAD. 5. THE ASSISTANT EDUCATIONAL OFFICER PARLI, PALAKKAD. GOVERNMENT PLEADER SRI.A.J.VARGHESE FOR R1 TO R5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/10/2008, ALONG WITH WPC NO. 26091 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).Nos.13676 & 26091 of 2008 ----------------------------------------------------------- Dated this the 3rd day of October, 2008 The challenge in these writ petitions is against Ext.P5 order passed by the District Educational Officer, rejecting the applications made by the petitioners for opening 5th and 6th standards in the schools of which the petitioners are the Managers. Since the issues raised in these writ petitions are identical they are disposal by this common judgment and I shall refer to the facts as pleaded in W.P.(C)No.13676/08. 2. The petitioners are the Managers of Primary Schools known as A.J.B. School, Parayakod and ALP School, Thekkemuri, both in Palakkad District. During the year 2005 petitioners applied for upgradation of the school into a High School. That was rejected and the order was challenged before this Court in writ petitions. On the dismissal of the writ petitions, Writ Appeals were filed WP(c).Nos.13676/08&26091/08 2 before the Division Bench. The appeals were disposed of by Ext.P3 judgment in W.A. No.545/04 along with W.A.No.546/04, filed by the petitioner in W.P.(C)No. 26091/08 whose request was also rejected in similar circumstances. The writ appeals were allowed and this Court held that the petitioner's school cannot be discriminated with the other schools which were granted upgradation. It was stated that since other schools were allowed upgradation, the request of the petitioner cannot be declined on the ground of financial stringencies. 3. Ext.P3 common judgment rendered by the Division Bench was challenged before the Apex Court in S.L.P.(C) No. 2913/07. The Apex Court disposed of the Special Leave Petition by Ext.P4 judgment. In Ext.P4 the Apex Court held that in the absence of gazatte notification, calling for applications for raising of the grade of an existing school, the question of consideration of applications/ representations filed by the petitioners did not arise. It was held that sub rule (2) of Rule 2A puts a complete embargo on consideration of an application which is submitted WP(c).Nos.13676/08&26091/08 3 otherwise than in response to notification under sub rule (1) of Rule 2A. The plea of discrimination was also repelled on the ground that concept of equality being a positive one an illegality or irregularity committed in favour of an individual cannot be the basis for invoking jurisdiction of the writ courts for enforcement of the same irregularity on the reasoning that the similar benefit has been denied to the petitioners. Thus with Ext.P4 judgment rendered by the Apex Court in the SLP referred to above, the claim of the petitioners for upgradation of their schools as High School rejected and that issue has become final. 4. Subsequent to Ext.P4 judgment of the Apex Court, the petitioners herein filed Exts.P1 and P2 applications, before the 4th respondent, the District Educational Officer, concerned for permission to open 5th and 6th standards to their schools. 5. In so far as WP(c).No.13676/2008 is concerned, the application was rejected by Ext.P5 orders passed by the District Educational Officer, Palakkad. The view taken by the DEO is that, though KER empowers the DEOto grant WP(c).Nos.13676/08&26091/08 4 permission to open next higher standard in an incomplete primary school, further clarification from the Government are required. In so far as Ext.P5 order in WP(c). No.26091/08 is concerned, the DEO, Ottapalam has taken the view that, as per the existing provisions in the KER , the DEO is incompetent to pass orders for opening of higher standards without the orders of the Government to upgrade the school. It is these orders which are under challenge in these writ petitions. 6. The main contention that is raised by the learned Senior Counsel appearing for the petitioners is that, in terms of Sub Rule (6) of Rule 2A of Chapter V KER, application for permission to open a new standard in an existing school during any school year not involving raising of the grade of the school shall be submitted to the District Educational Officer in charge of the area in form No.1 in triplicate. According to him, this position is also clarified by the provision contained in Rule 3(b)(vi). It is contended that what was applied for was only additional standards in the existing schools of the petitioners which are of primary WP(c).Nos.13676/08&26091/08 5 grade and as it does not involve any upgradation of the school, it is for the DEO and DEO alone to consider the application independently. 7. This contention of the learned Senior Counsel for the petitioner is contradicted by the learned Government Pleader contending that the power of the DEO is only for granting permission to open additional standards to an incomplete primary school and that as far as the petitioners are concerned, their schools are not incomplete primary schools to invoke the power of the DEO conferred by Rule 2A(6) or Rule 3(b)(iv) Chapter V KER. 8. I have considered the submissions made by the Senior Counsel for the petitioners and also the learned Government Pleader and I am inclined to agree with the learned Government Pleader. 9. Chapter II KER deals with classification of schools. Rule 2 provides that the schools for general education shall be of two grades, viz, primary and secondary grades. Sub Rule (2)provides that standards 1 to 7 shall be collectively known as primary grade and shall be sub divided into lower WP(c).Nos.13676/08&26091/08 6 primary and upper primary. The standards 1 to 4 fall under lower primary section and standards 5 to 7, fall under upper primary section. A reading of Rule 2(A)(i) of Chapter V shows that, after the publication of the final list of the areas where the new schools or grades are to be opened or existing lower primary schools or upper primary schools or both are to be upgraded, the Director shall by a notification in the gazette invite applications. In so far as the opening of the new standard in an existing school during any school year not involving raising of the grade of the school is concerned, sub rule 6 provides that application shall be made to the DEO in form 1, in triplicate. 10. A reading of rules referred to above shows that within the primary category, if any more standards are to be added to an LP school as sought for by the petitioners, that involves an upgradation of the school within the meaning of the sub rule. On the other hand, if the application is to permit to open an additional standard to an incomplete LP or UP school, that does not involve any upgradation and such application is to be made to the DEO concerned, as WP(c).Nos.13676/08&26091/08 7 provided in sub rule (6) of Rule 2A, Chapter V KER. The petitioners' schools are not incomplete Primary Schools. If that be so, necessarily application can be made only in response to a notification as contemplated in sub rule (2) of Rule 2A, Chapeter V KER. This position stands concluded by Ext.P4 judgment of the Apex Court(2000(3)KLT 531). 11. In so far as the power of the DEO as conferred under rule 3(b) (iv) is concerned, that power is only to sanction opening of next higher standard in an incomplete primary school. Since the petitioners' school is having standards 1 to 4, the school cannot be treated as an incomplete primary school to invoke the power of DEO as conferred under Rule 3(b)(iv) referred above. If that be the position, in the absence of compliance with the procedure laid down by Rule 2(A) (1) to (5), the DEO cannot be faulted for rejecting the applications made by the petitioners, by the impugned orders. Writ Petitions fail and are dismissed. ANTONY DOMINIC vi JUDGE WP(c).Nos.13676/08&26091/08 8