A. Abdul Rasheed v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` THURSDAY, THE 7[TH] DAY OF SEPTEMBER 2023 / 16TH BHADRA, 1945 ``` # **`W.P.(C) NO.3184 OF 2020`** ## **`PETITIONER:`** ``` A.ABDUL RASHEED, AGED 59 YEARS, MANAGING TRUSTEE, BADARIYA EDUCATIONAL TRUST AND MANAGER, BADHARIYA U.P. SCHOOL, VELICHIKKALA, KOLLAM. BY ADVS. R.KRISHNA RAJ SMT.E.S.SONI SMT.KUMARI SANGEETHA S.NAIR ``` ## **`RESPONDENTS:`** ``` 1.STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM, PIN - 695 001. 2.DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM, PIN - 695 001, (NOW DIRECTOR OF GENERAL EDUCATION) JAGATHY, THIRUVANANTHAPURAM-695 014. 3.DEPUTY DIRECTOR OF EDUCATION, KOLLAM, PIN - 691 009 4.DISTRICT EDUCATIONAL OFFICER, KOLLAM, PIN – 691 113 5.ASSISTANT EDUCATIONAL OFFICER, KUNDARA, KOLLAM-691 572 BY GOVERNMENT PLEADER, SRI.V.VENUGOPAL ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.08.2023, THE COURT ON 07.09.2023 DELIVERED THE FOLLOWING: ``` 2 _W.P.(C) No.3184 /2020_ ## JUDGMENT ( _Dated: 7[th] September, 2023)_ The petitioner who is the Managing Trustee of the Badhiriya Educational Trust applied for a Higher Secondary School in 1998, when the Government invited applications for starting new higher secondary schools in connection with the de-linking of Pre-degree courses. The application was for the addition of L.Ps and starting of High school divisions. When the application was not being considered, the petitioner approached this Court by filing O.P.No.22789 of 2000 and this Court directed the Government to consider and pass orders on the application. Accordingly, by order dated 21.12.2000, the District Educational Officer, Kollam, took the stand that since the Government has no policy to upgrade any schools, the request of the petitioner cannot be conceded. 2. In 2003, when the Government invited application under Rule 2 A, the petitioner applied again, thereafter, a list was published in which new unaided LPS and HS were granted. In the preliminary list published by the 2[nd] respondent, the school of the petitioner was 3 _W.P.(C) No.3184 /2020_ included, thereafter the Government heard the petitioner and by order dated 06.02.2004, again rejected the request for starting the school as there was no policy for upgrading or sanctioning of the new aided schools. The petitioner therefore filed W.P.(C)No.10118 of 2004 to consider the request of the petitioner again, and this Court directed the Government to consider the request of the petitioner. The 2[nd] respondent submitted a report after verifying the school of the petitioner stating that the petitioner’s school is situated in a remote and backward area, the people passing out of the school are compelled to go distance schools for higher studies and the education needs of the locality will be satisfied by upgrading the school and by sanctioning a new LPS. The Government considered the report and again rejected the request on the grounds that the writ petition filed by Adichanellore Panchayath against the upgradation of the school was pending before the High Court. The writ petition filed by the Grama Panchayath was dismissed by this Court and confirmed in appeal by the Division Bench. The petitioner filed a review petition against the decision 4 _W.P.(C) No.3184 /2020_ of the Government rejecting the application and filed W.P.(C)No.7343 of 2004 for directions to the Government to consider the review petition. The writ petition was taken along with W.P.(C)No.25070 of 2004 filed by Adichanellore Grama Panchayath against the upgradation of the petitioner’s school. The learned single Judge by judgment dated 15.03.2006 directed the Government to dispose of the review petition with notice to Adichanellore Grama Panchayath. An appeal was taken as Writ Appeal No.852 of 2007, and it was on the submission of the counsel for the Panchayath, the Government has already passed an order upgrading the school of the petitioner and with liberty to the Panchayath to challenge the order, the writ appeal was dismissed. Thereafter, the Government heard the petitioner but again rejected it. The stand of the Government was that a person could not directly approach the Government to start school and only on the basis of notification, calling for applications, the petitioner could apply afresh. This was challenged again by filing Writ Petition No.3225 of 2007, and this Court again quashed the order of the Government dated 18.09.2006 rejecting the 5 _W.P.(C) No.3184 /2020_ claim of the petitioner and directing the Government to reconsider the case and take a fresh decision. The request was again dismissed on 16.10.2007 on the grounds that the application of the petitioner was not submitted in response to any Government notification issued as per Rule 2 A of Chapter V of Kerala Education Rules. Still aggrieved, the petitioner challenged it before this Court by filing W.P.(C)No.3466 of 2008, and this Court took the stand that the Government is correct, and the petitioner’s application can only be considered when a notification is issued by the Government and the writ appeal filed was also rejected. In the meanwhile, the Government issued G.O.PNo.107/07/G.Edn./13.06.2007 issuing guidelines for sanctioning and upgrading Government or aided schools. The petitioner therefore again submitted a report before the Government with supporting documents. 3. Another writ petition was filed as W.P.(C).9862 of 2012, for a direction to the Government to take a decision on the representation submitted by the petitioner. This Court by judgment dated 24.04.2012 directed the Government to consider the representation on merits, 6 _W.P.(C) No.3184 /2020_ though the extension of time was sought, this Court allowed the application and extended the time for compliance with the judgment by three months. After hearing the petitioner and obtaining a report from the Educational Officer, as per order dated 10.07.2014 again rejected the request of the petitioner on the ground that the Government has not taken any policy decision to upgrade the education institutions in the area in which the petitioner’s school is situated and directed the petitioner to approach the Government as and when the Government issues notification. In the meanwhile, on 13.06.2013, applications were invited under Rule 2 A for the establishment of Higher Secondary Schools in Kollam district pursuant to notification and the petitioner submitted an application, and a list was published in which the petitioner’s school was not included. Another writ petition was filed by the petitioner as W.P.(C)No.21032 of 2014, in which the State had filed a counter stating that there was no notification issued by the Government for new L.P schools or upgradation of High Schools and therefore, the petitioner is not entitled to claim the relief. 7 _W.P.(C) No.3184 /2020_ 4. The learned single Judge by judgment dated 15.03.2017 allowed the writ petition and directed the competent among the respondents to issue appropriate orders granting a new L.P. School and to upgrade the petitioner’s school as expeditiously as possible but not later than two months from the date of receipt of a copy of the judgment. The State took up the matter in appeal and this Court by judgment dated 23.10.2017 in Writ Appeal No.1504 of 2017 set aside the judgment of the learned single judge, quashing Ext.P10 and allowed the appeal. The petitioner took the matter before the Hon’ble Supreme Court of India in Special Leave No.D12383/2018 and the Hon’ble Apex Court by order dated 27.04.2018 dismissed the Special Leave Petition, however, liberty was granted to the petitioner to make a representation to the respondents/state pointing out the need for a school under Rule 2 of the Kerala Education Rules, 1959. Thereafter, Ext.P16 representation was filed, and the Government passed Ext.P17 rejecting the request. Aggrieved by Ext.P17, this writ petition is filed to quash the 8 _W.P.(C) No.3184 /2020_ same and to direct the Government to grant L.P and Higher Secondary School to the petitioner. 5. A counter affidavit is filed on behalf of the 1[st] respondent, wherein the stand taken is in the absence of a notification under Rule 2 A and Chapter V of KER, the petitioner cannot apply for a grant of L.P. School or upgradation of the existing U.P. School to High School. Though a positive direction was issued by this Court in W.P.(C)No.21032 of 2014, the same was set aside by the Division Bench of this Court. Though the judgment of the Division Bench was taken an appeal before the Hon’ble Apex Court, the Apex Court did not interfere with the judgment of the Division Bench and dismissed the Special Leave but liberty was given to the petitioner to approach the Government to point out the need of the locality for upgradation of the school as well as L.P. School. Therefore, prayed for the dismissal of the writ petition. 6. A reply has been filed by the petitioner reiterating the contention raised in the writ petition. The question to be looked into in 9 _W.P.(C) No.3184 /2020_ this writ petition is whether the petitioner can apply before the Government for a grant of L.P. School as well as the upgradation of High School without inviting application under Rule 2 A of Chapter V of KER. Though the petitioner was agitating before this Court right from 2000 onwards, the petitioner was not successful, and each time the Government rejected the application on the ground that the petitioner can only apply when there is a notification calling for application under Rule 2 A of Chapter V. It is true that as per Ext.P1 dated 28.06.2003, the 2[nd] respondent by notification has included the petitioner’s school for upgradation as High School and a new L.P. School, but the said list was not given effect to by the respondents for the reason that the Government has no policy for upgrading or sanctioning of new aided school. Rule 2 A of Chapter V KER deals with the application for the opening of new schools and the upgradation of existing schools, it reads as follows: _2A. Applications for opening of new schools and upgrading of existing schools -(1) After the publication of the final list of the areas where [new school of any or all grades] are to be opened or [existing Lower Primary_ 10 _W.P.(C) No.3184 /2020_ _Schools or Upper Primary schools or both] are to be upgraded the Director shall, by a notification in the Gazette [xxx] call for applications for the opening of [New schools of any or all grades] and for raising of the grade of [existing Lower Primary Schools or Upper Primary Schools or both] in the areas specified._ _(2) Applications for opening of new schools or for raising of grade of existing schools shall be submitted only in response to the notification published by the Director. Applications received otherwise shall not be considered. The applications shall be submitted to the District Educational Officer of the area concerned in form No.1 with 4 copies of the application and enclosures [within one month from the date of publication of the notification under sub-rule (1)]_ **==> picture [46 x 10] intentionally omitted <==** **==> picture [46 x 11] intentionally omitted <==** **==> picture [43 x 10] intentionally omitted <==** 7. Sub Rule (2) of Rule 2 A specifically states that the application for opening a new school or for raising the grade of existing schools shall be submitted only in response to the notification published by the Director. So, it contemplates that only on the basis of a notification, the application can be submitted by a school management for the upgradation of the school or starting of a new school. After the judgment of the Apex Court dated 27.04.2018 giving liberty to the petitioner to approach the State pointing out the need for the school 11 _W.P.(C) No.3184 /2020_ under Rule 2 of Kerala Education Rules, 1959. There was no notification issued by the Government calling for applications under Rule 2 A of Chapter V of KER. The Apex Court in _State of Kerala and Others v. K.Prasad and Another (2007 (3) KHC 154)_ has held in paragraph 10 of the judgment as follows: _“10. The two Rules, quoted above, lay down a comprehensive procedure for opening of new schools in particular areas; their recognition and upgradation. It is manifest that a decision in this behalf has to be primarily by the government on an application made for that purpose under R.2A. The Rules also lay down the guidelines which are to be taken into consideration for preparing the list in terms of sub-rule (1) of R.2. On the lists being finalized, after their publication and consideration of objections, if any, the same have to be sent to the government for its approval, with or without modification. Nevertheless the decision by the government whether opening of new school is to be sanctioned or whether an existing school is to be allowed to be upgraded has to be taken on consideration of the matters enumerated in clauses (a) to (e) of R.2(1) of the Rules. Similarly, an application for either opening of new school or for upgradation of an existing aided school can be submitted only after the Director publishes a final list of areas where new schools are to be opened or existing schools are to be upgraded under sub-rule (4) of R.2. Any application received otherwise cannot be considered. In view of such comprehensive procedure laid down in the statute, an application for upgradation has necessarily to be made and considered strictly in a manner in consonance with the Rules. It needs little emphasis that Rules are meant to be and have to be complied with and enforced scrupulously. Waiver or even relaxation of any Rule, unless such power exists under the Rules, is bound to provide scope for discrimination, arbitrariness and favouritism, which is totally opposed to the rule of law and our constitutional values. It goes without saying that even an executive order is required to be made strictly in consonance with the Rules. Therefore, when an executive order is called in question, while exercising the power of judicial review the Court is required to see whether the government has_ 12 _W.P.(C) No.3184 /2020_ _departed from such Rules and if so, the action, of the government is liable to be struck down”._ Even though the Apex Court has granted liberty to the petitioner to approach the Government with representation pointing out the need for a school, the Government has not issued any notification under Rule 2 of Chapter V of KER. Therefore, relying on the dictum laid down by the Apex Court cited _(supra)_ , and also the strict compliance to be made under Rule 2 A of Chapter V, the petitioner cannot apply individually for the upgradation of a school and for sanctioning of L.P School. The relief sought in the writ petition is to direct the Government to grant Lower Primary and Higher Secondary Schools to the petitioner and upgrade the U.P.School of the petitioner to a High School by issuing a writ of mandamus. The relief cannot be granted in view of the strict provisions to be complied with under Rule 2 A and also as per the dictum laid down by the Apex Court cited _(supra)_ . Therefore, the writ petition fails and the same is dismissed. It is also made clear that the petitioner is free to apply for the grant of Lower Primary School as well as the High School or 13 _W.P.(C) No.3184 /2020_ Higher Secondary School, whenever the Government issues notification under Rule 2 A of Chapter V of KER. The writ petition is dismissed. _Sd/-_ BASANT BALAJI, JUDGE ss 14 _W.P.(C) No.3184 /2020_ ## **`APPENDIX OF WP(C) 3184/2020`** ``` RESPONDENT ANNEXURES: ``` ``` Annexure C-1True copy of the Notice dated 05.05.2023 Annexure C-2True copy of the work memo dated 02.05.2023 given by the Petitioner Annexure C-3True copy of the work memo dated 08.05.2023 given by the Counsel for the Respondents ``` ``` PETITIONER EXHIBITS: ``` ``` EXHIBIT P1 COPY OF THE NOTIFICATION ``` ``` EXHIBIT P2 COPY OF THE REPORT OF AEO ``` ``` EXHIBIT P3 COPY OF THE JUDGMENT IN W.A. NO.852/06 EXHIBIT P4COPY OF THE AFFIDAVIT OF THE SECRETARY EXHIBIT P5COPY OF THE LETTER OF THE SECRETARY EXHIBIT P6COPY OF THE JUDGMENT IN W.P. NO.9862/12 EXHIBIT P7COPY OF THE ORDER IN I.A.10464/2012 EXHIBIT P8COPY OF THE REPORT OF THE D.E.O., KOLLAM EXHIBIT P9COPY OF THE REPORT OF THE D.P.I. EXHIBIT P10COPY OF THE ORDER OF THE GOVERNMENT EXHIBIT P11COPY OF THE NOTIFICATION EXHIBIT P12COPY OF THE APPLICATION EXHIBIT P13COPY OF THE JUDGMENT IN WPC NO.21032/14 EXHIBIT P14COPY OF THE JUDGMENT IN WA NO.1504/17 EXHIBIT P15COPY OF THE ORDER IN SLP NO.12383/18 EXHIBIT P16COPY OF THE REPRESENTATION EXHIBIT P17COPY OF THE GOVERNMENT ORDER EXHIBIT P18COPY OF THE GOVERNMENT LETTER ```