IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 WP(C).No. 20474 of 2010(H) -------------------------- PETITIONER(S): --------------- G.GOPIMOHANAN NAIR, CORPORATE MANAGER, MAHATMA HIGH SCHOOL, CHENNITHALA, MAVELIKKARA, ALAPPUZHA DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM SRI.SUJITH MATHEW JOSE RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. SR. G.P. SRI.T.B.HOOD FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ALONG WITH W.A. NO.1149/2010 ON 10/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (WPC 20474/2010) PETITIONER'S EXHIBITS: P1: TRUE COPY OF APPLICATION DT.21.4.97. P2: TRUE COPY OF G.O.(MS)NO.107/2000/G.EDN. DT.30.3.2000. P3: TRUE COPY OF GO.(MS)NO.107/2002/G.EDN. DT.18.5.2002. P4: TRUE COPY OF G.O.(MS)NO.218/2003/G.EDN. DT.2.8.2003. P5: TRUE COPY OF JUDGMENT IN W.A. NO.1255/2001 DT.10.8.2004. P6: TRUE COPY OF NOTIFICATION NO.ACD.B1/12141/HSE/2005 DT.28.1.2006. P7: TRUE COPY OF JUDGMENT IN W.P.(C) NO.3481/2006 DT.5.4.2006. P8: TRUE COPY OF INTERIM ORDER IN W.P.(C) NO.3481/06 DT.6.2.2006. P9: TRUE COPY OF G.O.(P).NO.107/07/G.EDN. DT.13.6.2007. P10: TRUE COPY OF G.O.(MS)NO.91/10/G.EDN. DT.3.6.2010. P11: TRUE COPY OF NOTIFICATION NO.ACD.B5/18803/HSE/2010 DT.7.6.2010. P12: TRUE COPY OF G.O.(MS)NO.94/10/G.EDN. DT.10.6.2010. P13: TRUE COPY OF NOTIFICATION NO.ACD.B5/20726/2010/HSE DT.16.6.2010. P14: TRUE COPY OF APPLICATION DT.1.6.2010. RESPONDENT'S EXHIBITS: R1(a): TRUE COPY OF A DISTRICT VICE BREAK UP OF NUMBER OF SEATS AVAILABLE FOR VARIOUS COURSES AND THE NUMBER OF STUDENTS ELIGIBLE FOR HIGHER STUDIES. TRUE COPY PS TO JUDGE C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... W.P.(C) No.20474 & Writ Appeal No.1149 of 2010 .................................................................... Dated this the 10th day of August, 2010. JUDGMENT Ramachandran Nair, J. The petitioner is the corporate manager of two High Schools located in Chennithala Thripperumthura Panchayat in Alleppey District. The petitioner's case is that both the High Schools are 50 years old and since there is no Higher Secondary School within the Panchayat in which these Schools are located, petitioner applied to the Government for permission to start Higher Secondary School in the Boys High School. Since no decision was taken by the Government, the petitioner approached this court with Writ Petition. Pursuant to direction contained in Division Bench judgment of this court in three Writ Appeals, Government constituted a committee for identifying eligible High Schools for granting permission to start Higher Secondary School. Based on the recommendation of the expert committee, Government considered the claim for Higher Secondary School of 14 High Schools and from among these schools, petitioner's W.P.C.20474&W.A.1149/2010 2 Boys' School namely, Mahatma High School for Boys, Chennithala was identified as the only School eligible to be granted Higher Secondary School. However, the decision taken vide Ext.P3 was to permit petitioner to start the school as and when Plus Two Schools are granted in Alleppey District. Even though 8 years have passed after the Government decided to grant Plus Two to petitioner's Boys' High School in the Panchayat wherein there is no other Higher Secondary School and another judgment was obtained by the petitioner vide Ext.P5 directing the Government to consider the petitioner's case along with others in terms of preference, so far Government did not grant permission to start Higher Secondary School in petitioner's School. The finding in Ext.P3 is as follows: "On verifying and examining the documents produced by and points raised at the time of hearing, Secretary, General Education upheld the views in respect of all Schools except M.H.S. for Boys, Chennithala and in the case of this School recommended grant of +2 Course." W.P.C.20474&W.A.1149/2010 3 Besides the decision vide Ext.P3, the Panchayat passed a resolution which is produced along with petitioner's application for grant of Plus Two School, wherein the Panchayat Council has recommended to the Government to grant Higher Secondary School in petitioner's school for the reason that students of the Panchayat who belong to ordinary class of people, students from SC/ST community etc. have to travel around 10 kilometres to reach Higher Secondary Schools located in Municipality and other Panchayats. Government issued it's policy guidelines for commencement of Plus Two Schools for 2010-2011 vide Ext.P10 dated 3.6.2010. Under this, Government has stated that the proposal of the Government is to grant atleast one Higher Secondary School in each Grama Panchayat in a phased manner. However, for the year 2010-2011, Government excluded the entire southern Districts of Kerala for consideration, but granted approval for opening Higher Secondary Schools in the 7 northern Districts of Kerala starting from W.P.C.20474&W.A.1149/2010 4 Trichur and ending with Kasargode District. The reason for this, is lack of higher education facilities to the students in the northern Districts. It is the finding of the Government that on an average, in the southern Districts there are excess seats available in the Higher Secondary Schools. Consequently no school in the Districts in the Southern Zone is considered for upgradation as Higher Secondary School. It is this Government Order that is under challenge before this court. Pursuant to Ext.P10 order, Government has granted Higher Secondary Schools in 178 High Schools in the northern Districts. Besides this, 6 Schools are granted Higher Secondary facility in the Idukki District. With the approval of new schools, there are altogether 1188 Higher Secondary Schools in the State. By virtue of Ext.P10 policy decision excluding southern Districts from consideration for grant of Higher Secondary Schools, the petitioner's school is not permitted to start Higher Secondary School, though it was identified as W.P.C.20474&W.A.1149/2010 5 a school eligible for starting Higher Secondary School way back in 2002 vide Ext.P3. Therefore, the petitioner has challenged Ext.P10 and along with it Ext.P13, the follow-up order issued by the Government inviting application for Higher Secondary School only from the 7 northern Districts. 2. The learned Single Judge declined stay against operation of Exts.P10 and P13 and hence this Writ Appeal. However, since we feel that there is no justification to block granting Higher Secondary Schools in backward areas, we called for the Writ Petition for considering whether petitioner's case could be considered for approval. We have heard counsel for the petitioner and Senior Government Pleader appearing for the respondents. 3. Besides challenging Exts.P10 and P13, counsel for the petitioner has relied on the provision in Ext.P10 which is the policy decision of the Government to grant one Higher Secondary School in W.P.C.20474&W.A.1149/2010 6 each Panchayat and Ext.P3 decision taken by the Government based on Expert Committee recommendation on 18.5.2002 to support petitioner's claim for Higher Secondary School in the Boys' High School. He has placed heavy reliance on the Panchayat's resolution produced along with Ext.P14 application wherein the Panchayat has also requested for upgradation of petitioner's school as a Higher Secondary School. Government Pleader on the other hand furnished statistics from the Mavelikkara Educational District which shows that three Higher Secondary Schools are available within Mavelikkara Municipality and three Higher Secondary Schools in nearby Panchayats. However, admittedly there is no Higher Secondary School in the Panchayat in which petitioner's High Schools are located. It is seen from the details furnished by the Government Pleader that two Higher Secondary Schools are located around 10 kilometres away and three Higher Secondary Schools are located around 15 kilometres away W.P.C.20474&W.A.1149/2010 7 from the petitioner's school. So far as the two Higher Secondary Schools which are located around 5 kilometres are concerned, one is in the Municipality with 700 Plus One and Plus Two students and the other in another Panchayat with 960 students in the Higher Secondary section. Petitioner's case supported by resolution of the Panchayat is that it is extremely difficult for the students of two High Schools under the management of petitioner to seek admission and pursue studies in distant schools located in the Municipality and the other Panchayat. Government Pleader relied on Division Bench judgment of this court in STATE OF KERALA VS. THE MANAGER, ST. ROCH'S H.S.VALLAKKADAVU reported in 2003(1) KLT 561 and decisions of the Supreme Court reported in M.P.OIL EXTRACTION AND ANOTHER V. STATE OF MADHYA PRADESH AND OTHERS (1997)7 SCC 592, EKTA SHAKTI FOUNDATION V. GOVERNMENT OF NCT OF DELHI (2006)10 SCC 337, W.P.C.20474&W.A.1149/2010 8 L.N.MISHRA INSTITUTE OF ECONOMIC DEVELOPMENT AND SOCIAL CHANGE, PATNA V. STATE OF BIHAR AND OTHERS (1988)2 SCC 433, and RAMRAO AND OTHERS V. ALL INDIA BACKWARD CLASS BANK EMPLOYEES WELFARE ASSOCIATION AND OTHERS (2004)2 SCC 76 for the proposition that the court should not interfere with the policy decision of the Government and policy can also be implemented in a phased manner. In the first place, we do not think there is any need to consider petitioner's challenge against Ext.P10 policy decision and Ext.P13 order issued by the Government inviting application for Higher Secondary Schools in the northern Districts because in our view, petitioner's claim can be considered consistent with Ext.P10 policy decision of the Government, which among other things lays down the policy of the Government to start atleast one Higher Secondary School in each Panchayat. Going by the total number of Higher Secondary W.P.C.20474&W.A.1149/2010 9 Schools approved in the State which is 1188 and since State has only 990 Panchayats, certainly some Panchayats will have more than one school and most of the Panchayats in Kerala will have atleast one Higher Secondary School. Government Pleader has stated that 96 Panchayats in the southern Districts did not have Higher Secondary School facility. It is common knowledge that several Panchayats in the Southern Districts are located in hilly terrain, sparsely populated. Admittedly the petitioner's Schools are located in a highly populated area and from the two High Schools of the petitioner alone, more than 300 students pass out Xth Standard for admission to Higher Secondary School. Further, it is not known whether any school in any of the Panchayats which does not have Higher Secondary School is identified by the Government to be eligible for grant of Higher Secondary School facility like the petitioner under Ext.P3. In any case there is no need for us to consider the case of schools in those Panchayats based on W.P.C.20474&W.A.1149/2010 10 Ext.P10 guideline because no such school is before us for direction to the Government to consider grant of Higher Secondary Schools in any such Panchayat. The object of providing one Higher Secondary School in each Panchayat is to ensure that local facility is available to poor students to seek higher education. In fact, very many students on account of poverty may not be able to go in buses to other Panchayats or to distant places for Higher Secondary School studies. The resolution of the Panchayat produced along with petitioner's application, Ext.P14, genuineness of which is not contested by the respondents, prove beyond doubt that the Panchayat deserves to have a Higher Secondary School and the students generally hail from poor families and from SC/ST community. Further, the petitioner's two High Schools have a total strength of above 300 students seeking higher studies in Higher Secondary Schools and the pass in the 10th Standard as disclosed by Ext.P14 is 100%. Even though we accept the W.P.C.20474&W.A.1149/2010 11 position canvassed by the Government Pleader that it is for the Government to implement the policy in a phased manner, we do not find any justification to delay the implementation of the approval granted vide Ext.P3 eight years back to grant Higher Secondary School in petitioner's school in the Panchayat which does not have a Higher Secondary School. Government Pleader submitted that in Alleppey Revenue District there are 1200 surplus seats in Plus Two course and as a matter of policy, Government has decided not to start any more Higher Secondary Schools in the District. Government Pleader also contended that the financial commitment is to the tune of Rs.30 lakhs to permit a Higher Secondary School in the aided sector. However, counsel for the petitioner submitted that Government has this year granted Plus Two course in as many as 178 schools in northern Districts of Kerala and in 6 schools in the Idukki District. We are of the view that since petitioner's school is identified by the Government W.P.C.20474&W.A.1149/2010 12 vide Ext.P3 as one eligible for commencement of Higher Secondary School 8 years back and since the Panchayat has recommended for commencement of the Higher Secondary School for the benefit of the residents of the Panchayat and since Ext.P3 decision of the Government in favour of the petitioner is consistent with Ext.P10 policy of the Government to permit one Higher Secondary School in one Panchayat and since 184 Higher Secondary Schools in the aided sector are granted by the Government this year, the State's objection against petitioner's school on ground of financial constraints is unacceptable. We, therefore, allow the Writ Petition by directing the Government to consider Ext.P14 application and grant Higher Secondary School to petitioner's Boys' High School subject to the norms in regard to number of divisions, subjects, etc. at the earliest so that petitioner can commence Higher Secondary School in this academic year itself. W.P.C.20474&W.A.1149/2010 13 Since the Writ Petition itself is disposed of, Writ Appeal is dismissed as infructuous. C.N.RAMACHANDRAN NAIR Judge P.S.GOPINATHAN Judge pms