Moonniyur Higher Secondary School, Parakkadavu v. State of Kerala & Others (W.P.(C). Nos 16743 & 25585 of 2021)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V ``` ``` WEDNESDAY, THE 5[TH]DAY OF JANUARY 2022 / 15TH POUSHA,1943 WP(C) NO. 16743 OF 2021 ``` ## **`PETITIONER/S:`** ``` THE MANAGER, MOONNIYOOR HSSS, PARAKADAVU, MOONNIYOOR, MALAPPURAM 676 311. ``` ``` BY ADVS. T.T.MUHAMOOD V.E.ABDUL GAFOOR A.MOHAMMED SAVAD T.R.VISHNU ``` ## **`RESPONDENT/S:`** ``` 1THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 2THE DIRECTOR OF HIGHER SECONDARY EDUCATION, DIRECTORATE OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM-695 001 ``` ``` 3THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION REGIONAL OFFICE, MALAPPURAM-676 505 ``` ``` BY ADV SHRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 05.01.2022,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` W.P.(C).Nos 16743 & 25585 of 2021 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 5[TH]DAY OF JANUARY 2022 / 15TH POUSHA,1943 ``` ## **`WP(C) NO. 25585 OF 2021`** ## **`PETITIONER/S:`** |**`1`**|**`SREELAL K.V. (MINOR),`**| |---|---| ||**`AGED 16 YEARS`**| ||**`S/O.PUSHPA, KIZHAKKUPURAKKAL HOUSE, PARAKADAVU,`**| ||**`MOONNIYUR P.O., MALAPPPURAM-676 311 (REPRESENTED BY`**| ||**`HIS MOTHER GUARDIAN SMT.PUSHPA, W/O.VELAYUDHAN,`**| ||**`KIZHAKKUPURAKKAL HOUSE, PARAKADAVU, MOONNIYUR P.O.,`**| ||**`MALAPPPURAM-676 311).`**| |**`2`**|**`SHIFA NASRIN.C. (MINOR)`**| ||**`AGED 16 YEARS`**| ||**`D/O.MUHAMMED ASHRAF, CHAND HOUSE, PARAKKAVU,`**| ||**`MOONNIYUR SOUTH P.O., MALAPPURAM-676 311.`**| ||**`(REPRESENTED BY HER FATHER AND GUARDIAN`**| ||**`SRI.MUHAMMED ASHRAF, CHAND HOUSE, PARAKKAVU,`**| ||**`MOONNIYUR SOUTH P.O., MALAPPURAM-676 311).`**| |**`3`**|**`FATHIMA FIDHA.P.P. (MINOR),`**| ||**`AGED 16 YEARS`**| ||**`D/O.JASEERA,`**| ||**`NAMBRATH HOUSE, KALIYATTAMUKKU,`**| ||**`MOONNIYUR P.O., MALAPPURAM-676 311`**| ||**`(REPRESENTED BY HER MOTHER AND GUARDIAN`**| ||**`SMT.JASEERA, NAMBRATH HOUSE, KALIYATTAMUKKU,`**| ||**`MOONNIYUR P.O., MALAPPURAM-676 311.`**| W.P.(C).Nos 16743 & 25585 of 2021 3 ``` 4SURYAKRISHNA.A.(MINOR), AGED 16 YEARS S/O.PRAKASH.A., AZHUPARAMBATHU HOUSE, PARAKADAVU, MOONNIYUR P.O., MALAPPURAM-676 311, REPRESENTED BY HIS FATHER AND GUARDIAN SRI.PRAKASH.A., AZHUPARAMBATHU HOUSE, PARAKADAVU, MOONNIYUR P.O., MALAPPURAM-676 311. ``` ``` 5MUHAMMED RAFI (MINOR), AGED 16 YEARS S/O.MAIMOONA, PANGATT HOUSE, ALINCHUVADU, MOONNIYUR, MALAPPURAM-676 311, REPRESENTED BY HIS MOTHER AND GUARDIAN SMT.MAIMOONA, PANGATT HOUSE, ALINCHUVADU, MOONNIYUR, MALAPPURAM-676 311. ``` ``` 6SAFEELA CHERICHIYIL, (MINOR), AGED 17 YEARS D/O.JAMEELA, KALATHINGAL HOUSE, ALINCHUVADU, MOONNIYUR P.O., MALAPPURAM-676 311, REPRESENTED BY HER MOTHER AND GUARDIAN SMT.JAMEELA, KALATHINGAL HOUSE, ALINCHUVADU, MOONNIYUR P.O., MALAPPURAM-676 311. ``` ``` 7SAFVANA.K.(MINOR), AGED 16 YEARS D/O.MAIMOONATH., KANHIRALUNGAL HOUSE, ALINCHUVADU, MOONNIYUR P.O., MALAPPURAM-676 311, REPRESENTED BY HER MOTHER AND GUARDIAN SMT.MAIMOONATH, KANHIRALUNGAL HOUSE, ALINCHUVADU, MOONNIYUR P.O., MALAPPURAM-676 311. ``` W.P.(C).Nos 16743 & 25585 of 2021 4 ``` 8MUHAMMED RASAL.C. (MINOR), AGED 16 YEARS S/O.SUBAIDA, CHULLIYIL HOUSE, ALINCHUVADU, MOONNIYUR P.O., MALAPPURAM-676 311, REPRESENTED BY HIS MOTHER AND GUARDIAN SMT.SUBAIDA, CHULLIYIL HOUSE, ALINCHUVADU, MOONNIYUR P.O., MALAPPURAM-676 311. ``` ``` 9MUHAMMED ARSHAD.K. (MINOR), AGED 16 YEARS S/O.SHARJULA.K., KANHIRALUNGAL HOUSE, ALINCHUVADU, MOONNIYUR P.O., MALAPPURAM-676 311, REPRESENTED BY HIS MOTHER AND GUARDIAN SMT.SHARJULA.K., KANHIRALUNGAL HOUSE, ALINCHUVADU, MOONNIYUR P.O., MALAPPURAM-676 311. ``` ``` 10DILSHANA SHERI.C. (MINOR), AGED 16 YEARS D/O.SUNEERA, CHAND HOUSE, PARAKKAVU, MOONNIYUR SOUTH P.O., MALAPPURAM-676 311, REPRESENTED BY HER MOTHER AND GUARDIAN SMT.SUNEERA, CHAND HOUSE, PARAKKAVU, MOONNIYUR SOUTH P.O., MALAPPURAM-676 311. ``` ``` BY ADVS. T.T.MUHAMOOD A.RENJIT V.E.ABDUL GAFOOR A.MOHAMMED SAVAD NAZEER HUZAIN.H T.R.VISHNU ``` W.P.(C).Nos 16743 & 25585 of 2021 5 ## **`RESPONDENT/S:`** - **`1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.`** - **`2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION, DIRECTORATE OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM-695 001.`** - **`3 THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, REGIONAL OFFICE, MALAPPURAM-676 505.`** - **`4 THE MANAGER, MOONNIYOOR HSS, PARAKADAVU, MOONNIYOOR, MALAPPURAM-0676 311.`** ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON05.01.2022,ALONGWITHWP(C).16743/2021,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C).Nos 16743 & 25585 of 2021 6 ## **J U D G M E N T “CR” ~~~~~~~~** W.P.(C) No. 16743/2021 is filed by the Manager, Moonniyur, Higher Secondary School, seeking to quash Ext.P7 Government Order by which, the request made by the petitioner for sanctioning three additional Higher Secondary batches to the school was declined by the 1st respondent. 2. W.P.(C) No.25585/2021 is filed by students of the Moonniyur Higher Secondary school highlighting that they are deprived of the rights to pursue higher education due to the lack of facilities and their prayer is for direction to the respondents 1 and 2 to sanction additional Higher Secondary batches in the Moonniyur Higher Secondary School in Commerce, Humanities and Science so as to ensure that they get an opportunity to pursue higher education. 3. As common issues are involved, both these writ petitions are taken up and disposed of by a common judgment. Reference to parties and Exhibits shall be as described in W.P.(C) No.16743/2021 unless otherwise mentioned. 4. The brief facts are as under:- The Moonniyur Higher Secondary School, Parakkadavu, is an aided Higher Secondary School, governed by the provisions of the Kerala Education W.P.(C).Nos 16743 & 25585 of 2021 7 Act and the Rules. Taking note of the educational need in the locality and the infrastructure available in the school, the respondents permitted the petitioner to commence Higher Secondary course in the School. Since then, the school has been admitting students in 2 Science batches, 1 Humanities batch and 1 Commerce batch. 5. The petitioner contends that the school is situated in Parakkadavu within the limits of Moonniyur Grama Panchayat, which area is recognized as an educationally, socially and economically backward area. The Moonniyur HSS is the only Higher Secondary School within the limits of the Panchayat. About 2000 students are studying in class V to XII and as many as 750 students have passed the SSLC examination from the school during the last academic year. The 4 batches granted to the petitioner in the year 2011 can only accommodate 200 students. According to the petitioner, more than 650 students will be deprived of the facility to pursue higher education for want of Plus One seats. It is contended that the nearest Higher Secondary Schools are situated far away and it would be detrimental to the interest of the children and the parents to force them to undertake long journeys to pursue their education. Moreover, a substantial number of girl students do not pursue their education after class X. W.P.(C).Nos 16743 & 25585 of 2021 8 6. It is contended that the petitioner had been submitting numerous representations before the authorities since the year 2018 seeking to sanction additional batches. Though the Government had conducted a survey that showed that there is a scarcity of seats in Malappuram District, the request made by the petitioner was not considered. The school authorities approached this Court and filed a writ petition and pursuant to Ext.P2 judgment rendered on 9.7.2019, the Government issued Ext.P3 order on 27.6.2020 wherein it is stated that no additional batches can be sanctioned as it is against the stipulations of the Government Order dated 5.4.2016. The petitioner was granted the liberty to apply for additional batches as and when the Government formulates a policy. 7. The petitioner contends that the stand of the Government is clearly against the principles laid down by this Court in **Manager, St. Sebastian’s High School, Thrissur District v. State of Kerala and Ors.** [2015 KHC 725], wherein this Court directed the Government to set up a machinery to determine the educational need on an ongoing basis and based on such determination to call for applications from eligible educational agencies and sanction Higher Secondary Courses in such Districts. 8. The petitioner contends that in terms of the directions issued by W.P.(C).Nos 16743 & 25585 of 2021 9 this Court, the Government constituted a two-level committee as per Ext.P4 order. The Regional Committee so constituted has submitted a report pointing out that there is an acute shortage of seats for Plus One course in the Moonniyur Grama Panchayat in Malappuram District and highlighted the educational need of the locality. 9. The petitioner contends that Ext.P3 order was challenged before this Court and by Ext.P5 judgment, this Court directed the Government to reconsider the request made by the petitioner for starting additional batches taking note of the reports forwarded by the State Level Committee. The petitioner asserts that Ext.P6 is the report of the State Level Committee and Sl.No. 72 under Malappuram District category, refers to the Moonniyur area and the same has been highlighted as a place where there is an acute shortage of seats. Additional batches have been recommended by the State Level Committee. Instead of sanctioning additional batches in terms of the directions issued by this Court and the report of the Committee constituted by the Government, the 1st respondent proceeded to reject the application on the ground that the Government has not taken a policy decision to sanction additional Higher Secondary batches to aided schools. The petitioner contends that there is an acute shortage of seats in the Moonniyur area and particularly W.P.(C).Nos 16743 & 25585 of 2021 10 in Tirurangadi Taluk and contends that the order of rejection cannot be sustained. 10. A counter affidavit has been filed by the 2nd respondent in W.P. (C) No.16743/2021. It is contended that additional batches cannot be allowed to an aided Higher Secondary School without taking into account the relevant factors as sanctioning of additional batches entails huge financial commitment for the Government. The Government has formulated a policy on education to cater to the needs of students who aspire to pursue Higher Secondary courses during every academic year through schools directly managed by the Government, School and Private Sector run without any aid of the Government. It is further stated that while rejecting the request made by the petitioner for sanctioning of additional batches, the report of the committee constituted by the Government as directed by this Court was not considered. The Government, however, as per Ext.R2(a) order took a policy decision not to sanction new/additional batches in Higher Secondary Sector in the current academic year. It is further stated that sanctioning of new schools/ additional batches in Higher Secondary Sector is purely a policy decision of the Government. It is further stated that the Government, after considering the pass percentage in the SSLC exams held during the current academic year has W.P.(C).Nos 16743 & 25585 of 2021 11 issued Ext.R2(b) order as per which, an increase of 20% seats have been granted in all Higher Secondary Schools, both in Government and aided sector, in 7 Districts including Malappuram. The Government has also taken a stand that more seats will be allowed, if required, in existing batches. It is further contended that the finances of the Government is facing a crunch and it is in the said circumstances that a policy decision not to sanction new/additional batches was taken. It is further stated that the students have the option of getting themselves admitted in other courses like ITC, ITI, Polytechnic etc. which would cater to the educational needs of those children who are so inclined. It cannot be said, according to the respondent, that all students who are qualified for higher studies after SSLC will only opt for Higher Secondary Education. It is also stated that it would not be possible to make provisions to provide seats in a school situated in the same Grama Panchayat as it would not be financially feasible. It is stated that the total number of students who have passed SSLC in the current academic year in the Moonniyur Grama Panchayat is 748 and the total number of Plus One seats available for Plus One course in State Syllabus in the said Grama Panchayat is 340. It is stated that during the previous academic year though the total number of students who had passed SSLC in Malappuram District was 77370 and though there were W.P.(C).Nos 16743 & 25585 of 2021 12 60495 seats available for Higher Secondary courses, only 56459 students joined the course. In the current academic year, the total number of pass in SSLC in Malappuram District is 75554 and the total number of seats has been increased by 20%, as per the policy of the Government. It is further stated that the Government would take all necessary steps to ensure that all students who aspire to join Higher Secondary courses during the current academic year will secure seats. 11. During the course of proceedings, order dated 2.9.2021 issued by the Government was placed on record. In the said order, it is mentioned that after the close of the main allotment, the Government realized that there is a shortage of plus one seats and in the said circumstances, the Government decided to enhance the capacity by increasing the seats, shifting of batches and permitting temporary batches by ensuring that the Government do not incur any financial liability. It is stated that in the Districts of Trivandrum, Palakkad, Malappuram, Wayanad, Kannur and Kasaragod in addition to the 20% enhancement already granted, an additional 10% enhancement would be granted in Government schools as well as aided schools. Provisions were also made for the shifting of batches where student strength was low in schools in other districts. If the need for additional seats is not satisfied even by these W.P.(C).Nos 16743 & 25585 of 2021 13 measures, steps would be taken to sanction batches in Government Higher Secondary schools. 12. In the course of proceedings, this Court, by order dated 1.11.2021, directed the respondents to place before this Court the number of students who have passed SSLC, the total number of seats available for Plus One course in Government Schools, Aided school, Unaided schools, the total number of students who have submitted applications for admission to Plus One course, the additional seats which would be available if 30 % enhancement of seats is granted in Government as well as aided schools and also the seats available for aspiring students to get admission for courses such as ITI, ITC, VHSE, Polytechnic etc. Later, by order dated 14.12.2021, this Court had directed the learned Additional Advocate General to place on record a chart showing the Taluk wise details of Plus One seats available in the Districts of Malappuram, Palakkad and Thrissur. 13. A copy of the District wise details of students who had passed SSLC, the number of seats and application received was produced in W.P.(C) No.9042/2021, which is filed seeking more or less the same prayers. 14. The petitioner has filed an additional affidavit producing a copy of the District wise admission in the Government, Aided, Unaided and W.P.(C).Nos 16743 & 25585 of 2021 14 consolidated seat list in order to contradict the contention of the respondents that there are enough seats in the Malappuram District. In the statement so produced, it appears that the waiting list of applicants after the second supplementary allotment is 5277 in the Malappuram District, which incidentally is the highest in the State. 15. Sri.T.T.Muhamood, the learned counsel appearing for the petitioner submitted that the Government has issued Ext.P7 order without understanding the spirit of the various judgments rendered by this Court. According to the learned counsel, the District Level Committee and the State Level Committee constituted by the Government pursuant to directions issued by this Court in **St. Sebastian** (supra) had concluded that there is an acute shortage of Plus One seat in the area where the school is situated. However, even in the counter, it is admitted that the report of the committee was not adverted to before rejecting the request. According to the learned counsel, in Ext.P6 report of the State Committee it is clearly stated that the total number of students who can be accommodated in one Higher Secondary batch shall not be more than 50. However, instead of sanctioning additional batches in areas where acute shortage was noted, the Government has proceeded to increase the seats in Government schools by 30%. This would mean that W.P.(C).Nos 16743 & 25585 of 2021 15 instead of 50 students in each of the classes, there would be 65 students. This, according to the learned counsel, would be detrimental to the interest of the students. The learned counsel would refer to the judgment of the learned Single Judge in **St. Sebastian** (supra) and it is submitted that the request for additional batches in needy areas cannot be declined on the ground that sanction of additional batches would involve financial implication. The learned counsel would also rely on the directions issued by this Court and it is urged that the State Government was required to periodically call for applications from educational agencies in each of the districts and take steps to sanction new courses taking into account the socially, educationally and economically backward areas in each district. According to the learned counsel, the Moonniyur HSS, Parakkadavu, is equipped with all amenities and infrastructural facilities and the denial of Higher Secondary batch to the school on untenable grounds cannot be sustained under law. 16. Sri. Asok M.Cherian, the learned Additional Advocate General reiterated the stand taken by the Government in the counter affidavit. It is submitted that the grant of additional batches would place a huge financial burden on the State Government and it is in the said circumstances that a decision was taken not to sanction additional batches. It is submitted that W.P.(C).Nos 16743 & 25585 of 2021 16 during the current academic year, the number of students who had passed SSLC was unprecedented and in view of the above, there was some shortage of seats. It was found necessary to increase the number of seats after assessing the local needs. It is in the said circumstances that the Government had come out with orders increasing the number of seats by 30% in the existing batches in the schools and the schools were permitted to admit 65 students instead of 50. When insufficiency of seats was again noticed in certain Districts, the Government took a decision to provide the required number of seats in Government schools by temporarily sanctioning additional batches or by shifting excess batches in areas where there were requirements for additional batches. It is further submitted that the Government has taken a decision to take all necessary action including sanctioning of temporary batches to address any deficiencies in Plus one seats in any region to protect the interest of the student community. 17. I have considered the submissions advanced and have gone through the records. 18. The records reveal that the Moonniyoor Higher Secondary School is situated in Parakkadavu. Moonniyur is situated within the limits of Tirurangadi Taluk. There is no dispute from the side of the respondents to the W.P.(C).Nos 16743 & 25585 of 2021 17 assertion made by the petitioner that the aforesaid school is situated in an educationally, socially and economically backward area. About 2000 students are studying in the said school and it is undisputed that about 750 students have passed SSLC during the previous academic year. There are four Plus One batches and about 200 students can be accommodated. By virtue of the marginal increase granted by the Government, about 40 more students can be admitted to the Plus One course. It is borne out from the records that the petitioner had submitted Ext.P1 representation in the year 2019 seeking additional batches. However, the request was rejected by Ext.P3 order on the sole ground that the request for additional batches cannot be considered in view of the Government order issued in the year 2016. The said order was issued pursuant to the judgment issued by this Court in **St Sebastian** . Liberty was however granted to the petitioner to apply for additional batches as and when the Government formulates a policy for upgradation of the Higher Secondary School based on educational need. 19. I find that in terms of the directions issued by this Court in **St.Sebastian** (supra) the Government constituted two committees, one at a Regional Leval and the other at the State Level, to determine the educational need in each district in the State in the field of Higher Secondary education. W.P.(C).Nos 16743 & 25585 of 2021 18 Ext.P6 is the report submitted by the State Level Committee after considering the report of the Regional Level Committee. What is discernible from Ext.P6 is that about 82 local areas within the limits of Malappuram District have been identified for sanction of additional batches. Out of the said 82 local areas Vandoor (Sl. No. 10), Parappanangadi (Sl. No. 11), Pulpetta (Sl. No. 14), Pulickal (Sl. No. 17), Nediyirippu (Sl. No. 18), Kannamangalam (Sl. No.25), Thrikkalangodu (Sl. No. 28), Valavannur (Sl. No. 37), Irumbiliyam (Sl. No. 43), Morayur (Sl. No. 47), Edarikkodu (Sl. No. 50), Malappuram Municipality (Sl. No. 55), Melattur (Sl. No. 61), Thazhekkadu (Sl. No. 62), Parappur (Sl. No. 63), Thirunavaya (Sl. No. 70), Thrippanangodu (Sl. No. 71), Munniyur (Sl. No. 72), Vallikkunnu (Sl. No. 74) have been identified as areas where there is acute shortage of seats. Munniyur, the place where the petitioner school is situated is also included in the acute shortage list. 20. Pursuant to directions issued by this Court, the respondents have placed before this Court a chart showing the District wise details of students who had passed SSLC, the number of seats and the applications received. A perusal of the list in the light of the report of the State Level Committee would shed a lot of light on the paucity of seats, particularly in the Malappuram District. W.P.(C).Nos 16743 & 25585 of 2021 19 ## **2021-22 SSLC PASSED COUNT, HIGHER SECONDARY AND VHSE, ITI, POLYTECHNIC SEATS DETAILS** |**District**|**Total**<br>**applicants**<br>**(A)**|**Duplicate**<br>**applications**<br>**from other**<br>**districts (B)**|**Actual**<br>**applicatio**<br>**ns within**<br>**Districts**<br>**(A-B)**|**Expected**<br>**percentage**<br>**of admission**<br>**based on**<br>**last 5 year**<br>**Enrollment**|**Expected**<br>**number of**<br>**applicants**<br>**who can**<br>**join Higher**<br>**Secondary**|**SSLC**<br>**Passed**<br>**count**|**Govt.**<br>**seats**|**Aided**<br>**seats**|**Unaided**<br>**seats**|**Total**<br>**Higher**<br>**Secondary**<br>**seats**| |---|---|---|---|---|---|---|---|---|---|---| |**Thiruvananthapuram**|**35949**|**1431**|**34518**|**93**|**32102**|**34447**|**16900**|**14445**|**6495**|**37840**| |**Kollam**|**34644**|**3251**|**31393**|**91**|**28568**|**30547**|**12240**|**14540**|**4022**|**30802**| |**Pathanamthitta**|**14515**|**3220**|**11295**|**75**|**8471**|**10341**|**4980**|**9210**|**1931**|**16121**| |**Alappuzha**|**26753**|**2501**|**24252**|**89**|**21584**|**21917**|**8280**|**15740**|**1979**|**25999**| |**Kottayam**|**23689**|**2461**|**21228**|**86**|**18256**|**19636**|**6420**|**14550**|**3178**|**24148**| |**Idukki**|**12998**|**1209**|**11789**|**84**|**9903**|**11197**|**4980**|**6520**|**1597**|**13093**| |**Ernakulam**|**37375**|**3998**|**33377**|**89**|**29706**|**32098**|**11640**|**19030**|**5979**|**36649**| |**Thrissur**|**40486**|**3012**|**37474**|**90**|**33727**|**35158**|**13200**|**18710**|**5141**|**37051**| |**Palakkad**|**43010**|**5667**|**37343**|**92**|**34356**|**38518**|**16770**|**14010**|**4187**|**34967**| |**Kozhikode**|**48606**|**3595**|**45011**|**93**|**41860**|**44432**|**16900**|**20095**|**5342**|**42337**| |**Malappuram**|**77837**|**6212**|**71625**|**92**|**65895**|**75554**|**29380**|**24265**|**11390**|**65035**| |**Wayanad**|**12415**|**103**|**12312**|**95**|**11696**|**11518**|**6500**|**3595**|**761**|**10856**| |**Kannur**|**37289**|**2057**|**35232**|**92**|**32413**|**35003**|**18915**|**13340**|**2447**|**34702**| |**Kasaragod**|**19653**|**772**|**18881**|**90**|**16993**|**19287**|**11115**|**4490**|**2103**|**17708**| |**Total**|**465219**|**39489**|**425730**||**385530**|**419653**|**178220**|**192540**|**56552**|**427312**| W.P.(C).Nos 16743 & 25585 of 2021 20 21. From the chart it can be seen that the total number of applicants in Malappuram District is 77837 and after deducting the duplicate applications, the actual applicants is numbered at 71625. The expected number of applicants for the Higher Secondary course is 65895 whereas the SSLC pass count is 75554. The number of Government seats is 29380, the number of aided seats is 24265 and the number of unaided seats is 11390. The total number of Higher Secondary seats in the District is 65035. It is clear from the chart that there is a deficiency of seats in the District. It is also very pertinent to note that the actual applications in Malappuram is far far more than any of the Districts. For instance, when the number of actual applicants in Malappuram is 71622, the applicants in Ernakulam is just 33377, that in Thiruvananthapuram is 34518 and in Alappuzha, it is just 24252. That is obviously the reason as to why the State Level Committee had recommended that there is acute shortage of seats in several local areas in Malappuram District. 22. It is obvious from the orders passed by the Government that the attempt is to get over the severe dearth of seats at Malappuram and other Districts by increasing the seats in Govt. Schools as well as Aided schools by some percentage. These orders were passed by the Government sometime in W.P.(C).Nos 16743 & 25585 of 2021 21 the month of October and November, 2021. From the order, it is obvious that the Government was labouring under the apprehension that the restrictions in connection with the pandemic would continue and it would be next to impossible to fully commence physical classes. However, things have changed for the better and most of the restrictions have now been lifted. Classes are being conducted in hybrid mode and people have started to live with COVID. 23. In the report of the State Level Committee, they have stated in unequivocal terms that under no circumstances, student strength in a class shall be more than 50. However, it is clearly against the said recommendation that the Government has passed orders, permitting 30% increase in strength of students in each class. This would mean that instead of 50 students in a class, there would be 65 students. The contention of the students and the petitioners that such an increase in strength in a particular batch would be detrimental to the interest of the students cannot be brushed aside. 24. Furthermore, what is more striking is that in the counter affidavit filed by the respondent, it is stated that while rejecting the request made by the petitioner for additional batches, the Government have not taken a decision on Ext.P6 report prepared and submitted by the State Level Committee in terms of the directions issued by this Court. W.P.(C).Nos 16743 & 25585 of 2021 22 25. It would be apposite to bear in mind that the Regional as well as State Level Committee which prepared Ext.P6 report was constituted pursuant to directions issued by this Court in St. Sebastian (supra). It would be advantageous to refer to paragraph Nos 10 and 11 in St. Sebastian (supra). “10. I must now turn to the issue of whether the representations preferred by the petitioners in these writ petitions, for sanctioning of higher secondary courses in their schools, can be considered by the State Government de hors the provisions of Government Order dated 11/06/2013. In this connection, it must be recalled that a Division Bench of this Court had, while disposing WA No. 1341 of 2013, found that, after giving effect to the policy decision dated 11/06/2013, the Government should also consider the grant of Higher Secondary Courses in other areas where there was an educational need. This does, however, necessitate an exercise to be done by the State Government to ascertain the educational need in the State. Although, - in a counter affidavit filed by the State Government in these writ petitions, certain figures have been furnished showing the number of students who have cleared the SSLC examinations in the current academic year and the total number of seats available in each district to accommodate students for the higher secondary courses in the said districts, the said exercise appears to be a very myopic one in terms of the vision that is expected of the State Government in such matters. This Court is of the view that the determination of - - educational need in the State vis à vis the higher secondary courses must be an ongoing exercise that is undertaken by a suitable machinery set up by the State Government to monitor the educational need in the State. It may not be out of place to notice that the State Government has set up a body to monitor the implementation of the W.P.(C).Nos 16743 & 25585 of 2021 23 provisions of the Right to Children to Free and Compulsory Education Act, 2009 in the State. Setting up a similar machinery for monitoring the educational need for higher secondary education in the State may not be a cumbersome task for the State Government that is even otherwise obliged to cater to the educational interests of students in the State. What is important, however, is that the State Government adheres to a consistent policy in such matters, ensuring transparency that can be brought about by furnishing timely information as regards the educational need in any area of the State so that applications, for the sanction of new schools or additional batches, can be called for from educational agencies in such areas so as to fill the perceived educational need of that area. While calling for such applications, the State Government would also do well in fixing criteria that would govern the selection of educational agencies for the grant, taking care to make adequate provisions to address the educational needs in such areas as are educationally, socially and economically backward. 11. While this Court would ordinarily be loath to making suggestions as regards the policy to be formulated by the State Government in the field of education, the observations above are deemed necessary taking note of the past experience that has seen a flood of litigation permeating this Court every time the State Government comes out with a policy with regard to the sanctioning of higher secondary courses in the State. The State Government ought to remind itself that consistency and transparency go a long way in sustaining policy decisions, apart from inspiring confidence in the people, in matters of governance. Thus, while disposing these writ petitions, this Court also deems it necessary to issue the following directions to the State Government in the matter of consideration of applications for the grant of higher secondary courses; W.P.(C).Nos 16743 & 25585 of 2021 24 - (i) The State Government shall evolve and put in place suitable machinery to determine the educational need in each district in the State in the field of higher secondary education; - (ii) The machinery to be set up by the State Government must be one that determines such educational need on an ongoing basis so that the educational need for any academic year is estimated at least a year in advance. - (iii) Based on the determination of educational need, the State Government must periodically call for applications from educational agencies in the district concerned and take steps to sanction higher secondary courses in such districts. - (iv) The criteria evolved by the State Government for sanctioning higher secondary courses must, inter alia, take into account the socially, educationally and economically backward areas in each district. - (v) While considering applications in areas where an educational need has been determined as existing, the State Government shall give preference to those applicants who have been recommended for the grant of higher secondary course in the past, either through Government Orders or through judgments of this Court, but were not sanctioned Higher Secondary Courses only because there was no policy decision then taken by the State Government to sanction Higher Secondary Courses in the State, or on account of the then Government facing financial constraints. Such cases would have to be considered favourably for a grant, subject to the applicant concerned complying with the infrastructural and other requirements mandated by the Kerala Education Act and Rules. - (vi) Insofar as I have directed that the State Government shall call for applications, based on the perceived educational need determined in any area, before considering a grant of higher secondary course to any educational agency in the said area, it would be open to the W.P.(C).Nos 16743 & 25585 of 2021 25 petitioners herein to respond to any call for applications by the Government, as and when made, and the fact that they have preferred applications in the past or that any such application preferred has been rejected in the past shall be of no relevance in a consideration by the State Government of the merit of the fresh applications so preferred by the petitioners. - (vii) The State Government shall endeavour to complete the above exercise by 31/03/2016 for the next academic year and thereafter, sanction courses based on educational need by 31st March of every succeeding year so that no student is prejudicially affected in the pursuit of his higher secondary education in the State during the academic year 2016-17 or thereafter.” 26. This Court, while issuing directions, had reminded the Government that consistency and transparency go a long way in sustaining policy decisions apart from inspiring confidence in the people, in the matter of governance. It was in accordance with the directions so issued that G.O. No. 75/2016 dated 5.4.2016 was issued by the Government constituting the Regional and State Level committee. The Committee has submitted a report recommending the grant of additional batches in the petitioner’s school. In that view of the matter, there is no justification on the part of the respondents in ignoring Ext.P8 and in declining to grant additional batches on the ground of the financial position of the Government. The Government cannot by taking refuge under a policy decision or lack of it, refuse to sanction additional W.P.(C).Nos 16743 & 25585 of 2021 26 batches when there are materials to show that there is admitted educational need. 27. A Division Bench of this Court in **State of Kerala v. Scheduled Caste and Scheduled Tribe Welfare Society of Kerala and Ors** . [2007 (1) KLT Suppl.21], while repelling the objection of the Government in the matter of sanctioning of new schools had occasion to observe that when educational need in an area is found, as a matter of fact, the Government cannot deny that fundamental right to the citizens of the locality on the ground that Government has not taken a policy decision to grant new schools in the State or have taken a policy decision not to grant. It was observed as follows: 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 Art.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 W.P.(C).Nos 16743 & 25585 of 2021 27 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 Art.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 would be a social injustice to them and would amount to violation of the constitutional mandate. It is in this context we chose to start this judgment by extracting the relevant paragraphs from the judgment of Supreme Court in Mohini Jain's case (supra) wherein the Supreme Court had categorically held that Directive Principles are mandates to the State to eradicate poverty so that the poor of this country can enjoy the right guaranteed under the Constitution. As held in Mohini Jain's case, when the Preamble promises to secure justice, social, economic and political for the citizens, the objectives flowing from the Preamble cannot be achieved and shall remain on paper unless the people of this country are educated. The directive principles are also framed with the same objective. The Directive Principles, which are fundamental in the governance of this country, cannot be isolated from the fundamental rights guaranteed under Part III of the Constitution of India and therefore these principles are to be read into the fundamental rights. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. As such, the citizens of the locality in question have been evidently deprived of both the benefits of Art.21A as well as Art.45 and 46 of the Constitution………….. 28. I am of the considered opinion that when the educational need of W.P.(C).Nos 16743 & 25585 of 2021 28 an area is established and the same is supported by the findings of a Committee constituted by the Government itself, the Government cannot be heard to contend that the application for additional batches shall not be considered until the Government takes a decision in that regard. By taking such a stand, the Government would be abdicating its constitutional responsibility of providing education to a citizen. As held by this Court in St. **Sebastian** (supra), the determination of educational need in the State insofar as higher education is concerned is to be an ongoing exercise that is to be undertaken by the Government for which a Committee has been constituted. Whenever the educational need in an area is established, the Government is expected to act with swiftness and alacrity to satisfy the need. In the case on hand, there are clear materials to suggest that there is a serious dearth of seats in Malappuram District and in Tirurangadi Taluk where the petitioner school is situated. The Committee constituted, after evaluation of the entire data, has concluded that there is acute shortage of seats in the area. Therefore, I am of the opinion that the respondents were not justified in ignoring the request of the petitioner for additional batches on the ground of policy or otherwise. I do not think that it would be proper for this Court to direct reconsideration of the entire issue by the Government as it is borne out W.P.(C).Nos 16743 & 25585 of 2021 29 from materials that there is a dearth of Plus One seats in the local area where the school is situated. 29. In view of the discussion above, I hold that the petitioner is entitled to succeed. Ext.P7 will stand quashed. There will be a direction to the respondents 1 and 2 to sanction three additional Higher Secondary batches to the petitioner school in Commerce, Humanities and Science. Orders shall be passed expeditiously, in any event, within a period of two months from the date of receipt of a copy of this judgment. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** PS/05/01/2022 W.P.(C).Nos 16743 & 25585 of 2021 30 ## **`APPENDIX OF WP(C) 25585/2021`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF GO(MS) NO.75/2016/G.EDN. DATED 05.04.2016. Exhibit P2TRUE COPY OF GO(RT) NO.3446/2021/G.EDN. DATED 22.07.2021. ``` W.P.(C).Nos 16743 & 25585 of 2021 31 ## **`APPENDIX OF WP(C) 16743/2021`** ## **`PETITIONER EXHIBITS`** |`Exhibit P1`|`TRUE COPY OF REPRESENTATION DATED 20.05.2019`| |---|---| ||`SUBMITTED BY THE PETITIONER BEFORE THE 1ST`| ||`RESPONDENT.`| |`Exhibit P2`|`TRUE COPY OF JUDGMENT DATED 09.07.2019 IN`| ||`W.P.C NO. 18095/2019 PASSED BY THE HON'BLE`| ||`HIGH COURT OF KERALA.`| |`Exhibit P3`|`TRUE COPY OF G.O(RT) NO. 2200/2020/G.EDN.`| ||`DATED 27.06.2020.`| |`Exhibit P4`|`TRUE COPY OF GO(MS) NO. 75/2016/G.EDN DATED`| ||`05.04.2016.`| |`Exhibit P5`|`TRUE COPY OF JUDGMENT DATED 13.01.2021 IN`| ||`W.P.C NO. 28512/2020`| |`Exhibit P6`|`TRUE COPY OF RELEVANT PAGES OF THE REPORT OF`| ||`THE STATE LEVEL COMMITTEE.`| |`Exhibit P7`|`TRUE COPY OF GO(RT) NO. 3446/2021/G.EDN. DATED`| ||`22.07.2021.`| |`Exhibit P10`|`TRUE COPY OF PAPER REPORT IN SUPRABHATHAM`| ||`DAILY PUBLISHED ON 15-07-2021 SHOWING THE`| ||`ACTUAL STATE OF AFFAIRS.`| |`Exhibit P11`|`TRUE COPY LETTER NO.ICT`| ||`CELL/210900042/DGE-HSE/2021 DATED 04-09-2021.`| |`Exhibit P12`|`TRUE COPY LR.NO.ICT`| ||`CELL/210800014/DGE-HSE/2021 DATED 16-09-2021.`|