MujeeB Rahman T.K. v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 4TH DAY OF JULY 2013/13TH ASHADHA, 1935 WP(C).No. 15603 of 2013 (A) ---------------------------- PETITIONER(S): ----------------- MUJEEB RAHMAN T.K., AGED 40 YEARS S/O.IMBICHALI, SOBHITHA MANZIL, PANNIYANKARA P.O.KALLAI, KOZHIKODE - 673 003. BY ADVS.SRI.R.SUDHISH SMT.M.MANJU RESPONDENTS: ------------------ 1. STATE OF KERALA REPRESENTED BY THE SECRETARY GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM - 695 001. 3. ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION (ACADEMIC) DIRECTORATE OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM - 14. 4. DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE - 673 029. 5. DISTRICT EDUCATIONAL OFFICER, KOZHIKODE - 673001. 6. THE HEAD MASTER, ST.JOSEPH'S BOYS HIGHER SECONDARY SCHOOL KOZHIKODE.- R6 BY ADV. SRI.BABY ISSAC ILLICKAL R6 BY ADV. SRI.ISAAC KURUVILLA ILLIKAL R1 TO R5 BY GOVERNMENT PLEADER SMT.LOWSY.A. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15603 of 2013 (A) ---------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS ----------------------------- - EXT.P-1: PHOTOCOPY OF THE REPRESENTATION DATED 5/6/2013 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. - EXT.P-2: PHOTOCOPY OF THE LETTER DATED 12/6/2013 ISSUED BY THE 3RD RESPONDENT. - EXT.P3: DOWNLOADED COPY OF KERALA JESUITS WHICH SHOWS THE SCHOOLS COMING UNDER THE JESUIT INSTITUTIONS. RESPONDENT(S)' EXHIBITS: ------------------------------- EXT.R6(a): PHOTOCOPY OF THE ORDER OF THE GOVERNMENT OF KERALA DATED 19.4.2005. EXT.R6)b): PHOTOCOPY OF THE LETTER OF THE 6TH RESPONDENT TO THE 3RD RESPONDENT DATED 27.06.2013. // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ---------------------------- W.P.(C)No.15603 of 2013 ---------------------------Dated 4[th] July, 2013 ## **JUDGMENT** The petitioner is the parent of a 10 year old boy namely Sheez Ali who sought for admission to the 5[th] standard in St.Joseph's Boys Higher Secondary School, Kozhikode which is an aided school. This writ petition has been filed mainly with the prayer to issue a writ of mandamus commanding respondents 2 and 3 to reconsider Ext.P1 representation and pass appropriate orders thereon and to issue a writ of mandamus commanding the 6[th] respondent, the Headmaster of St.Joseph's Boys Higher Secondary School to admit the petitioner's son Sheez Ali in the said school. Ext.P1 is a representation submitted by the petitioner before the second respondent on being aggrieved by the denial of admission to his son in the said school. According to the petitioner, the third respondent directed the 6[th] respondent to consider Ext.P1 representation submitted by the petitioner. It is apprehending delay in the matter of consideration of Ext.P1 and contending that such delay, if occurs, would adversely affect the prospects of the petitioner's son that this writ petition has been filed with the aforesaid prayers. 2. The contention of the petitioner is that in terms of the provisions under the Right of Children to Free and Compulsory WP(C).No.15603/2013 2 Education Act (for short `the Act') every child belonging to the age group of 6 to 14 have a right of free and compulsory education in a neighbourhood school till completion of elementary education. It is further submitted that in the light of Section 13 of the Act no school or person shall, while admitting a child, collect any capitation fee and subject the child or his/her parents/guardian to any screening procedure. 3. A counter affidavit has been filed on behalf of the 6[th] respondent. Firstly, it is contended that this writ petition is not maintainable in the light of the decision of this Court in **Jeemon V.R. And Others** v. **State of Kerala and Others (2012 (1) KHC 397)** . In that decision it was held that a writ of mandamus to an authority would be issued only on establishment of failure to exercise duty on the part of that authority and creation of a corresponding right on the applicant for seeking performance of that duty. It is further contended that the school in question being a minority institution the right of admission is vested with the management and since the Manager of the institution is an essential party and since he is not arrayed as a party to this writ petition on that sole ground this writ petition is liable to fail. That apart, it is contended therein that during the current academic year for getting WP(C).No.15603/2013 3 admission to the 5[th] standard 514 applications were received and that there are only three divisions in the 5[th] standard English medium and altogether only 150 students could have been admitted to the fifth standard for the academic year 2013-2014. Already 150 students have been admitted to the 5[th] standard from the list that was published on 13.4.2013 and that the name of the petitioner's son is not included in the said list, it is further submitted. When this matter was taken up for hearing on 2.7.2013 this Court directed the learned Government Pleader to get instructions from the District Educational Officer regarding the number of students admitted to the 5[th] standard in the school belonging to the 6[th] respondent and also with respect to the number of applications received for admission to the 5[th] standard during the academic year 2013-2014. Instructions thereon, in writing, was given to the learned Government Pleader and it was made available for perusal of this Court. It is evident from the said instruction dated 2.7.2013 that the total strength of students in 5[th] standard English Medium Divisions in St.Joseph's Boys High School, Kozhikode is 150. In fact, there are three divisions in the English Medium and each division has 50 pupils. It is also stated therein that 514 applications were received for admission to the 5[th] standard English Medium during this academic year. Further it is WP(C).No.15603/2013 4 stated therein that five pupils are seated on one bench and 10 benches and desks are provided in one class room. In the circumstances, it is reported that it is not possible to accommodate one more pupil. 4. It is evident from the counter affidavit filed by the 6[th] respondent and also from the aforesaid instructions that for getting admission to the 5[th] standard during the academic year 2013-2014 the management had received 514 applications. In the counter affidavit filed by the 6[th] respondent it is categorically stated that in the 5[th] standard in English medium only 150 students were admitted. Virtually that fact is also fully endorsed by the District Educational Officer. Going by the provisions under Section 2(o) of the Act a random method can be adopted in the matter of admission of students. However, what is the random method contemplated under the Act is not given anywhere in the Act. Therefore, the meaning of the word 'random' has to be looked into to understand the meaning of the expression 'random method'. The word 'random' means 'left to chance' and therefore, random method has to be understood as a method adopted for giving admission to students wherein all concerned are left to chance in the matter of admission. In other words, if opportunity or chance was given to all WP(C).No.15603/2013 5 applicants to take the chance for getting admission by whatsoever method, it cannot be interfered with holding that it is screening which is prohibited under the Act. When 140 applications were received for admission as against the total available 150 seats, a random method is to be adopted by the authorities. In such circumstances, it is up to the petitioner to establish that the respondents had adopted a method which was impermissible and prohibited under the Act. In this case, the contention of the petitioner is that a written examination was conducted on 6.4.2013 and the result was published on 16.4.2013. Even according to the petitioner, his son failed in the examination and therefore, admission was declined to him. In view of the factual situation obtained in this case as above, I do not think that the question of maintainability of this writ petition on the ground of jurisdiction need not be gone into in detail. As already noticed hereinbefore, instructions furnished by the District Educational Officer would reveal that 514 applications were received as stated by the sixth respondent as against 150 seats available for admission to fifth standard. The fact that there are only three divisions in the school in fifth standard English Medium is not disputed. In fact, it is indisputable in the light of the instructions furnished by the District Educational Officer. When that be so, all the WP(C).No.15603/2013 6 applicants could not be admitted into fifth standard in the English Medium in the concerned school and in fact, they were to adopt a method to identify the students who could be admitted against 150 seats available in the fifth standard. In such circumstances, I do not find any reason to interfere with the admissions effected to the fifth standard in English Medium of St.Joseph's Boys High School, Kozhikode. As noticed hereinbefore, it is specifically stated that a list of persons eligible for admission was published on 13.4.2013. In such circumstances, if the petitioner is aggrieved by non-inclusion of the name of his son in the said list he should have challenged the same. No provision has been brought to my notice that over and above the total strength of pupils who could be admitted and accommodated in a school in a particular standard the school authorities are bound to admit all applicants disregarding such aspects. The fact that no such situation is contemplated even under `the Act' is evident from the very Act itself as Section 2(o) provides for resorting to random method for admission. The students who got admission from the list are not impleaded in this writ petition. The petitioner had not identified the student from among the 150 students who is to be ousted on the ground of obtaining admission based on a wrong preference given over the petitioner's son. None of them has WP(C).No.15603/2013 7 been made a party to this writ petition. That apart, the Manager of the school was also not made a party to this writ petition. The petitioner contends that since the admission is to be effected by the 6[th] respondent there is no need to bring the Manager as a party to this writ petition. Even then the persons who are likely to be affected are not made parties to this writ petition. I am not inclined either to unsettle the admission already effected or to give a direction to admit the petitioner's son in the 6[th] respondent's school ignoring the claim of the 363 similar applicants. In other words, merely because the petitioner alone has approached this Court claiming a direction to admit his son in the absence of any reason to hold that his son is to be preferred to the 363 applicants who too, could not get admission, I do not find any justification to give any direction as sought for. For all the above reasons, I am of the view that this writ petition is liable to fail and accordingly, it is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS