K.R. Shaji v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 19[TH] DAY OF OCTOBER 2022 / 27TH ASWINA, 1944** ## **WP(C) NO. 38062 OF 2010** ## **PETITIONER:** K.R.SHAJI, S/O.RAMANKUTTY NAIR, TALUK BOUDHIK PRAMUK, RASHTREEYA SWAYAM SEVAK SANGH, KALLIVALAPPIL HOUSE, KUMARAPPANAL, VARAVOOR, THRISSUR- 680585. BY ADV SRI.C.B.SREEKUMAR ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM – 695 001. 2 THE DISTRICT EDUCATIONAL OFFICER, D.E.OFFICE, CHAVAKKAD, THRISSUR – 680 585. 3 THE HEAD MISTRESS, GOVT.HIGHER SECONDARY SCHOOL, VARAVOOR, THRISSUR-680585. BY ADV SRI. K.M.FAISAL, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 38062 OF 2010 2 ## **P.V.KUNHIKRISHNAN, J.** # **-----------------------------W.P.(C).No. 38062 of 2010** **---------------------------------------------Dated this the 19[th] day of October, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) Call for records relating to Ext.P4 & P5 and quash the same._ _(ii) Issue a writ of mandamus or other appropriate writs orders or directions commanding the 3[rd] respondent to permit the petitioner to conduct the study camp as permitted as per Ext.P1._ _(iii) grant such other reliefs which the petitioner may seek from time to time.”[SIC]_ ## 2. When this writ petition came up for admission ## on 22.12.2010, this Court passed the following order: _“Admit._ _Issue urgent notice._ _The petitioner filed an application to the Headmistress of Government Higher Secondary School, Varavoor in Thrissur District for permission to conduct a 'Padana Sibiram' for school children for the period from 25.12.2010 to 2.01.2011 in the school_ WP(C) NO. 38062 OF 2010 3 _premises. Permission was sought to make use of the class rooms and play ground for that purpose. The Headmistress granted permission, as per the order dated 16.11.2010. The petitioner paid the necessary charges for the same, as evidenced by Ext.P2 Chalan dated 30.11.2010._ _2. Later, on 18.12.2010, the Headmistress issued Ext.P4 stating that the school and compound cannot be permitted to be used for the purpose for which permission was granted earlier. The reason stated in Ext.P4 for issuing such a direction is that strict instruction was issued by the higher authority not to give permission. Ext.P4 is under challenge in the Writ Petition. Ext.P5 Circular dated 14.11.2005 issued by the Director of Public Instruction is also under challenge in this Writ Petition. As an interim measure, the petitioner has prayed for stay of the order issued by the Headmistress._ _3. The petitioner raised a contention that, as evident from Ext. P3 dated 1.12.2010, it is clear that the purposes for which the school premises would be used are essentially educational in nature and therefore, Ext.P5 Circular would not stand in the way of permission being granted. The petitioner also states that in view of the recent judgment of the Division Bench in_ _**Khalid Mundapally v. Executive Engineer & others (2010 (2) KLT 86)** , public meetings should be permitted only in stadiums, public grounds and grounds of Educational Institutions and that too on_ WP(C) NO. 38062 OF 2010 4 _holidays. It is submitted that Ext.P5 Circular, to the extent to which it goes against the Division Bench Decision, is liable to be struck down._ _4. The petitioner points out that in January, 2009, the premises of Government Higher Secondary School, Cheruthuruthy were permitted to be used for the District Level meeting of DYFI and the petitioner is discriminated in the matter of granting permission to use the school premises for a purpose which would advance the cause of education among the school children._ _5. The learned Government Pleader submitted that the authority to grant permission to use the school premises for any purpose is the District Educational Officer, under Rule 15 of Chapter IV K.E.R. In the present case, the Headmistress had granted permission, which is contrary to the specific provision in the Kerala Education Rules. The Headmistress having illegally granted the permission, it was sought to be withdrawn, as per Ext.P4. It is also submitted that a Writ will not issue to perpetuate illegality, pointing out a similar illegality committed earlier in point of time._ _6. The learned counsel for the petitioner relied on the Division Bench decision in_ _**Hariharan v. State of Kerala (1995 (1) KLT 453)** ,wherein the Division Bench considered Rule 15 of Chapter IV KER and held thus:_ _"From this it is clear that in the case of a Government School, the District Education_ WP(C) NO. 38062 OF 2010 5 _Officer can grant permission for the use of the school premises for any pupose. This power vested with District Educational Officer under Rule 15 (1), it is conceded, has now become vested in the Headmasters of Government schools"._ _The Division Bench found that the Headmaster of the Government school was empowered to grant permission to use the school premises for conducting a 'Padana Sibiram'._ _7. The learned Government Pleader pointed out that the Division Bench expressed the above view with reference to GO (MS) 68/84/G.Edn. Dated 5.4.1984 wherein the Headmasters were directed to strictly follow the instructions in the Government Order. It is submitted that the said Government Order would not in any way empower the Headmaster to issue an order granting permission to use the school premises for any purpose other than educational purpose._ _8. Learned counsel for the petitioner submitted that the purpose for which the application was submitted is an educational purpose, though it is not included in the curriculum and part of the regular study in the schools. It is submitted that education in any form would be education and it does not cease to be educational purpose simply on the ground that it is not the regular curriculum of study that is being imparted._ _9. The above matters require deeper analysis and deeper consideration. At present, the question to_ WP(C) NO. 38062 OF 2010 6 _be considered is whether the withdrawal of permission made by the Headmistress is liable to be stayed. The balance of convenience is also a relevant factor to be taken note of. The mischief, if any, that would be caused by conducting the 'Padana Sibiram' would also become relevant. That in a nearby school permission was granted in January, 2009 to conduct the District Level meeting of DYFI is also a relevant factor to be taken note of._ _10. Considering the above facts and circumstances of the case, I am inclined to grant the interim order prayed for by the petitioner. Accordingly, the order dated 18.12.2010 issued by the Headmistress(Ext.P4) will stand stayed. Necessarily, the permission granted as per order dated 16.11.2010 issued by the Headmistress would be in operation._ _Handover copy to the learned counsel for the petitioner and the learned Government Pleader.”_ 3. Subsequently, in the judgment dated 25.08.2014 in Writ Appeal No.2136 of 2010, the interim order was vacated. This writ petition is filed mainly for challenging Ext.P4 and for issuing a direction commanding the 3[rd] respondent to permit the petitioner to conduct the study camp as permitted as per Ext.P1. The study camp was for the period from 25.12.2010 to WP(C) NO. 38062 OF 2010 7 02.01.2011. That period is already over. Therefore, the prayers in the writ petition are virtually infructuous. The question raised in this writ petition are left open. With the above observation, this writ petition is closed. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO. 38062 OF 2010 8 ## **APPENDIX OF WP(C) 38062/2010** PETITIONER EXHIBITS EXHIBIT P1 PHOTOCOPY OF THE APPLICATION AND PERMISSION OF THE 3RD RESPONDENT DATED 16-11-2010 EXHIBIT P2 PHOTOCOPY OF THE RECEIPT IN CHALAN FORM TR12 DATED 30-11-2010. EXHIBIT P3 PHOTOCOPY OF THE NOTICE PUBLISHED BY THE ORGANIZATION DATED 1-12-2010. EXHIBIT P4 PHOTOCOPY OF THE LETTER DATED 18-122010 OF THE 3RD RESPONDENT CANCELING PERMISSION . EXHIBIT P5 PHOTOCOPY OF THE CIRCULAR NO.(4) 365292/DPI DATED 3-6-2005. EXHIBIT P6 PHOTOCOPY OF THE REPORT PUBLISHED BY THE PROGRAMME IN MALAYALA MANORAMA DAILY DATED 9-1-2009. EXHIBIT P7 PHOTOCOPY OF THE REPRESENTATION DATED 18-12-2010. RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE