High Court of KeralaSingle Judge2019-01-07Writ petition dismissed.

P. Subash Chandran v. State of Kerala and Others

Case / Petition Number:WP(C).No. 11860 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. MUHAMED MUSTAQUE
Judgment Date: 2019-01-07
Court Decision / Holding: Writ petition dismissed. No costs.
Final Disposition: Writ petition dismissed.

Parties to the Case

Appellants / Petitioners

P. Subash Chandran S/o Late Pundarikashan, aged 49 years, Manager, Shri Chithira Vilasam Boys High School, Chirayinkeezhu, Thiruvananthapuram, residing at Sree Nivas, Venjaramood P.O., Thiruvananthapuram-695607

Respondents

State of Kerala represented by the Principal Secretary to Government, General Education Department, Government Secretariat, Thiruvananthapuram
Director of Higher Secondary Education, Housing Board Building, Santhi Nagar, Thiruvananthapuram-695001
State Level Committee to Determine the Educational Need in Each District in the Field of Higher Secondary Education, constituted as per G.O(MS) 75/2016/G.EDN dated 5.4.2016, represented by its Chairman, the Director, Higher Secondary Education, Housing Board Building, Santhi Nagar, Thiruvananthapuram-695001

Legal Representation & Advocates

Counsels for Petitioners

• Sri. O.V. Radhakrishnan (Sr.)
• Smt. Reny Anto
• Sri. K. Siju
• Sri. S. Abhilash

Counsels for Respondents

• Smt. Nisha Bose (Senior Government Pleader)
• S. Gopinathan (SRGP)

Case Synopsis & Summary

The petitioner, P. Subash Chandran, Manager of Shri Chithira Vilasam Boys High School, Chirayinkeezhu, seeks sanction to upgrade his school to Higher Secondary status. He argues that sanctioning higher secondary education is essential for providing access and that the right to establish a school is a fundamental right of the manager, which, under statutory provisions and the Right to Education Act, can be exercised with government backing. The government refused the request for the academic years 2015-16 and 2017-18 after evaluating the educational need through two-tier committees: regional and state level. The regional committee found that only government schools should be upgraded to Higher Secondary status, noting that Chirayinkeezhu Panchayat had no Higher Secondary School and thus there was a stated educational need. The state level committee, and the government, concluded that no Higher Secondary Schools or additional batches would be sanctioned, as the school mapping under the Right to Education Act did not show inhabited areas without a nearby HSS within five kilometers, and the educational need could not be determined in reference to neighborhood criteria. The petitioner relies on judgments asserting a fundamental right to establish a school; the respondents contend such rights are subject to statutory restrictions and financial implications. The court ultimately held that the right is not unbounded and that policy decisions and financial considerations justify non-sanction, dismissing the petition with no costs.

Provisions of Law Cited

Right to Education Act

Legal Doctrines & Maxims

Right to establish a Higher Secondary School as a fundamental right available to a manager is subject to reasonable statutory restrictions.
Judicial review cannot substitute the wisdom of the Government; the Government's policy decisions, including financial implications, are controlling in sanction decisions.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that there is a fundamental right to establish a Higher Secondary School for the manager and points to Exts showing prior determinations and judgments recognizing the right to education and its expansion. He asserts that the two-level committee mechanism and the mapping exercise show an educational need that warrants upgrading; the investment already made in infrastructure should thus be sanctioned. He relies on cases stating that the right to education is fundamental and can be exercised by managements in appropriate circumstances, and argues that the government must act within statutory provisions and budgetary constraints but cannot deny the right on purely discretionary grounds.

Contentions of Respondents

The respondents contend that the right to establish a school is not absolute and is subject to statutory restrictions and policy considerations. They argue that even where a need exists, the government must assess financial viability and compliance with statutory procedures before sanctioning HSS or additional batches. They emphasize that the decision-making process involves policy choices and financial obligations, and cannot be compelled by judicial fiat to sanction an HSS in the aided sector.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
State of Karnataka and another v. Associated Management of English Medium Primary and Secondary Schools and Others	2014 (9) SCC 485	Mentioned Only	Cited to discuss the nature of the right to education and its fundamental aspect, but the court ultimately bases its decision on statutory restrictions and financial implications rather than following this case's outcome.
Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & Etio and Others	2007 (5) SCC 447	Mentioned Only	Cited in the context of the broader jurisprudence on rights vs. regulatory action, without adopting its ruling as controlling for the decision in this case.
Modern Dental College and Research Centre and others v. State of Madhya Pradesh and others	2009 (7) SCC 751	Mentioned Only	Cited to illustrate the discussion around the role of education and rights; not treated as a governing authority for the judgment's outcome.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY ,THE 07TH DAY OF JANUARY 2019 / 17TH POUSHA, 1940** ## **WP(C).No. 11860 of 2017** ## **PETITIONER:** **P.SUBASH CHANDRAN S/O LATE PUNDARIKASHAN, AGED 49 YEARS, MANAGER, SREE CHITHIRA VILASOM BOYS HIGH SCHOOL,CHIRAYINKEEZHU, THIRUVANANTHAPURAM, RESIDING AT SREE NIVAS, VENJARAMOOD P.O., THIRUVANANTHAPURAM695607.** **BY ADVS.** **SRI.O.V.RADHAKRISHNAN (SR.) SMT.RENY ANTO SRI.K.SIJU SRI.S.ABHILASH** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TOGOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN:695001.** **2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695001.** **3 STATE LEVEL COMMITTEE TO DETERMINE THE EDUCATIONAL NEED IN EACH DISTRICTS INTERSTATE IN THE FIELD OF HIGHER SECONDARY EDUCATION,CONSTITUTED AS PER G.O(MS) 75/2016/G.EDN DATED 5.4.2016, REPRESENTED BY ITS CHAIRMAN, THE DIRECTOR, HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING,SANTHI NAGAR, THIRUVANANTHAPURAM-695001.** **BY ADV. SENIOR GOVERNMENT PLEADER-SMT.NISHA BOSE** ## **S.GOPINATHAN- SRGP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.09.2018, THE COURT ON 7.1.2019 DELIVERED THE FOLLOWING:** ``` Wpc 11860/2017 ``` ## **-:2:-** ## **JUDGMENT** The petitioner is the Manager of Shri Chithira Vilasam Boys' High school, Chirayinkeezhu, Thiruvananthapuram. The petitioner's request for sanctioning Higher Secondary School for Boys have been turned down by the Government. The petitioner challenges the decision of the Government in this writ petition. 2. The petitioner appears to have invested additional infrastructure in anticipation of sanctioning Higher Secondary School. The petitioner, apart from seeking judicial review of the decision, also seeks to establish Higher Secondary School on the ground of fundamental rights. 3. A learned Single Judge of this Court has succinctly laid down criteria to sanction Higher Secondary courses in Ext.P16 judgment. In the said judgment, this Court directed the State Government to determine the educational need based on periodical assessment of educational need. This Court also directed the State to evolve suitable machinery to determine ## **`Wpc 11860/2017`** **-:3:-** educational needs in the State. It was also directed that the Government shall complete the exercise of determination of educational need by 31[st] of March of each academic year. Consequently, the petitioner moved the Government by Ext.17. The Government in compliance with the directions in Ext.16 judgment had constituted two level committees to determine educational need in each district in the field of Higher Secondary educational. The two committees are at regional level which has to furnish its report in state Committee. The duty of the State Committee to scrutinize the report of Regional Committee and to submit final report to the Government. 4. The Regional Committee prepared a report. Ext.21 is the report. In the report it is stated that only Government school alone will be considered for upgradation as Higher Secondary School. The Regional Committee was also of the view that in Chirayinkeezhu Panchayat there are no Higher Secondary Schools and therefore, there is an educational need in the Chirayinkeezhu Panchayat. ## **`Wpc 11860/2017`** ## **-:4:-** 5. The petitioner's application was considered for the academic year 2015-16. The Government after examining the report of the Regional level Committee and the State Level Committee observed that the school mapping was conducted for implementation of the Right to Education Act and no normal inhabited area has been found out without availability of Higher Secondary Schools within the distance of 5 kms. Further, the Government noted that the State Level committee had not assessed educational need of particular area with reference to its neighbourhood. The Government, therefore, decided not to sanction Higher Secondary Schools and additional Higher Secondary batches for the academic year 2015-16. The Government appears to have undertaken similar exercise for the year 2017-18. After adverting to the report of the State Level Committee as well as the reports of the Regional level Committee, it was decided that no Higher Secondary Schools and additional batches shall be sanctioned for the academic year 2017-18. These orders are not challenged in these writ petitions. Anyhow, after going through these orders, I find no reason to interfere with the ## **`Wpc 11860/2017`** ## **-:5:-** decision of the Government. The Regional Level Committee report only has recommended establishing of Higher Secondary Schools in Government schools. The Government also decided not to sanction Higher Secondary Schools or additional batches. Taking note of the fact that in school mapping it was found that there are no inhabited area without availability of Higher Secondary Schools within a distance of 5 kms, this Court cannot interfere with such a decision of the Government. There is no scope for exercising power of judicial review to substitute the wisdom of the Government. 6. The learned Senior Counsel, placing reliance on various judgments, argued that right to establish Higher Secondary School is a fundamental right and therefore, the Government cannot restrict establishment of Higher Secondary School. He relied upon the following judgments: **i. State of Karnataka and another v. Associated Management of English Medium Primary and Secondary Schools and Others [(2014) 9 SCC 485]** ## **`Wpc 11860/2017`** ## **-:6:-** **ii. Southern Petrochemical Industries Co.Ltd. v. Electricity Inspector & Etio and Others [(2007) 5 SCC 447]** **iii. Modern Dental College and Research Centre and others v. State of Madhya Pradesh and others [(2009) 7 SCC 751]** 7. The right to establish a school is subject to reasonable restrictions. Those restrictions are statutory regulated restrictions. Therefore, the right can be claimed only in accordance with statutory provisions. The petitioner seeks to establish an aided Higher Secondary School. No Court can compel a Government to sanction a Higher Secondary School in an aided sector except in accordance with the statutory provisions. There cannot be any dispute to the fact that assessment of educational need is one of the requisite to recognize such right. Assuming that educational need exist, recognition of the right would further depend upon financial obligations of the Government. The Court cannot compel the Government, at the instance of the Manager of a School, to sanction Higher Secondary School without adverting to the financial implications. The right to establish a Higher Secondary ``` Wpc 11860/2017 ``` ## **-:7:-** School as a fundamental right available to a manager, is different from the fundamental right claimed by the students. The right of the students cannot be avoided citing financial implications. However, the right of the manager to sanction aided school can be avoided by the Government on the account of financial implications because it is relatable to policy decision of the Government as well. Therefore, on all grounds the petitioner is not entitled for any reliefs. The writ petition is only to be dismissed. Accordingly, the writ petition is dismissed. No costs. Sd/- A.MUHAMED MUSTAQUE, JUDGE ## ms ## **`Wpc 11860/2017`** ## **-:8:-** ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1:** **A PHOTO COPY OF THE APPLICATION DATED 25.3.2012 ADDRESSED TO THE 2ND RESPONDENT.** **EXHIBIT P2: A PHOTOCPY OF THE LETTER DATED 22.5.2012 ADDRESSED TO THE GENERAL EDUCATION (T) DEPARTMENT.** **EXHIBIT P3: THE COPY OF JUDGMENT DATED 8.6.2012 IN WRIT PETITION (CIVIL) NO.13261/2012.** **EXHIBIT P4: A PHOTO COPY OF G.O. NO.4230/2012 G.EDN. DATED 10.9.2012.** **EXHIBIT P5: A PHOTO COPY OF G.O. NO.185/2013 G.EDN DATED 11.6.2013.** **EXHIBIT P6: A PHOTO COPY OF THE APPLICATION DATED 21.6.2013 ALONG WITH THE COVERING LETTER.** **EXHIBIT P7: A PHOTO COPY OF LETTER DATED 22.6.2013 OF THE DEO, ATTINGAL.** **EXHIBIT P8: A PHOTOCOPY OF REPORT OF THE COMMITTEE CONSTITUTED AS PER G.O(MS)NO.194/2013/G.EDN. DATED 25.6.2013.** **EXHIBIT P9: THE COPY OF VALUATION REPORT PREPARED BY SRI.M.KRISHNAN, CHARGERED ENGINEER AND FELLOW VALUER & REGISTERED VALUER OF INCOME TAX GOVERNMENT OF INDIA REGARDING THE ADDITIONAL CONSTRUCTION MADE BY THE PETITIONER.** **EXHIBIT P10: THE PHOTOCOPY OF THE INTERIM ORDER DATED 6.4.2015 IN WPC NO.34129 OF 2014 OF THE HON'BLE HIGH COURT OF KERALA.** ## **`Wpc 11860/2017`** ## **-:9:-** **EXHIBIT P11: THE PHOTOCOPY OF THE FORWARDING LETTER ISSUED BY THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM.** **EXHIBIT P12: A PHOTOCOPY OF THE G.O. NO.86/2014/G.EDN. DATED 24.5.2014.** - **EXHIBIT P13: THE PHOTOCOPY OF THE COMMON JUDGMENT DATGED 10.7.2014 IN WPC NO.13851/2014 OF THE HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P14: A PHOTOCOPY OF THE G.O.NO.247/14 G.EDN. DATED 24.11.2014.** - **EXHIBIT P15: A PHOTO COPY OF THE G.O.(RT)1974/2015 G.EDN. DATED 23.5.2015.** - **EXHIBIT P16: A PHOTO COPY OF THE JUDGMENT DATED 20.8.2015 IN WPC NO.34129/2014 OF THE HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P17: A PHOTOCOPY OF THE REPRESENTATION DATED 3.12.2015 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P18: A TRUE COPY OF THE G.O(MS)NO.75/2016 G.EDN. DATED 5.4.2016.** - **EXHIBIT P19: THE COPY OF JUDGMENT IN WPC NO.14813 OF 2016 OF THE HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P20: THE COPY OF JUDGMENT IN W.A.NO.940/2016 OF THE HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P21: A PHOTOCOPY OF THE REPORT 2015-16 OF THE REGIONAL COMMITTEE AND THE REPORT OF THE 3RD RESPONDENT.** **RESPONDENT'S EXHIBITS** **EXHIBIT R1(a): True copy of GO(MS).No.212/2016/G.Edn. DATED 31.12.2016 EXHIBIT R1(b): TRUE COPY OF GO(MS)NO.49/2017/G.EDN DATED 14.06.2017** ## **`Wpc 11860/2017`** ## **-:10:-** **EXHIBIT R1(c): TRUE COPY OF GO(MS)NO.53/2018/G.EDN DATED 7.5.2018** **\\True copy//** **ms** **PS TO JUDGE**