State of Kerala & Others v. Vivekananda English Medium School, Mullassery

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MRS. JUSTICE SHIRCY V. TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938 WA.No. 1928 of 2016 IN WP(C).9947/2010 ------------------------------------------AGAINST THE JUDGMENT IN WP(C) 9947/2010 of HIGH COURT OF KERALA DATED 03-09-2015 ---------- ## APPELLANTS/RESPONDENTS IN WPC: ----------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANNATHAPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, MULLASSERY, THRISSUR DISTRICT. BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL ## RESPONDENT/PETITIONER IN WPC: --------------------------------------- THE MANAGER, VIVEKANANDA ENGLISH MEDIUM SCHOOL MULLASSERY, THRISSUR DISTRICT. R1 BY ADV. SRI.ELVIN PETER P.J. R1 BY ADV. SRI.T.G.SUNIL (PRANAVAM) R1 BY ADV. SRI.K.R.GANESH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & SHIRCY V., JJ.** -----------------------------------------------W. A. No.1928 of 2016 -----------------------------------------------Dated this the 22[nd] day of November, 2016 ## **JUDGMENT** ## **Antony Dominic, J.** 1. aW.P.(C) No.9947 of 2010 was filed by the respondent herein, the Manager of Vivekananda English Medium School, Mullassery in Thrissur District, seeking to quash Ext.P8 order issued by the second appellant withdrawing the temporary recognition granted to the school and to direct appellants 2 and 3 to grant permanent recognition to the school. By the judgment under appeal, the writ petition was allowed and permanent recognition ordered to be granted to the school, without treating such order as a precedent. It is this judgment which is under challenge before us. 2. Ext.P1 is a preliminary list of LP Schools and UP Schools published by the Director of Public Instructions on W. A. No.1928 of 2016 -2- 27.06.2003 inviting objections against sanctioning the schools. The respondent's school is included in the list attached thereto at Serial No.34. Having considered the objections that were received, the list was finally approved by the second appellant and in Ext.P2, the approved list also, the respondent's school was included at Serial No.31. Finally the Government issued Ext.P3 order dated 20.02.2004 according sanction to open schools under Rule 2A(5) of Chapter V KER. In the list attached, respondent's school is included at Serial No.30, which shows that the grant of recognition under the Kerala Education Act and Rules is made expressly subject to the conditions specified in the Act and the Rules. 3. Pursuant to Ext.P3, when the recognition was granted, the third appellant issued Ext.P4 order dated 31.03.2004 granting only temporary recognition for the year 2003-04. Such temporary recognition was granted for the reason that the area of land acquired was not sufficient to W. A. No.1928 of 2016 -3- function the school as a UP school as specified in Rule 1 of Chapter IV KER. Temporary recognition was again granted annually till 2007-08 by Exts.P5, P6 and P7 orders. Even during this period, the school did not comply with the area requirements specified in Rule 1 of Chapter IV KER and therefore, the DPI issued Ext.P8 order dated 29.01.2010 withdrawing the temporary recognition. It was in this background, respondent filed the writ petition seeking to quash Ext.P8 and to direct the appellants to grant permanent recognition to the school. 4. In the judgment under appeal, after recording the fact that the school was having only 60 cents of land and buildings therein and that the same was insufficient in terms of Rule 1 of Chapter IV KER, the learned single Judge held that once Government granted recognition to the school under Rule 11 of Chapter V KER, it has to be presumed that the requirements of site area, stand exempted and that appellants 2 and 3 cannot turn around and contend that W. A. No.1928 of 2016 -4- recognition cannot be continued on account of the shortcoming of physical requirements specified. Learned single Judge also held that Rule 1(1) of Chapter IV KER specifically lays down that the area requirement should be complied with only in normal circumstances and that it meant that in an area where it is impossible to procure the site area laid down under Rule 1 for establishing a school, the requirements cannot be insisted. On that basis, the learned single Judge took the view that in such cases Rule 1 of Chapter IV KER need not be strictly enforced. It is this judgment which is challenged by the official respondents in this appeal. 5. We heard the learned Government Pleader appearing for the appellants and the learned counsel appearing for the respondent manager. 6. According to the learned Government Pleader, the physical requirements are laid down in Rule 1 of Chapter IV KER and the Government never waived those specifications. W. A. No.1928 of 2016 -5- It was contended that the permission was granted to the school subject to satisfaction of these requirements also and that it was taking note of the shortcomings that temporary recognition was granted by the AEO. It was also contended that having regard to the fact that despite temporary recognition granted, the mandatory requirements were not satisfied, the second appellant issued Ext.P8 order. This, according to the learned Government Pleader, was perfectly in terms of the provisions of Chapters IV and V of KER. He also specifically impugned the reasoning of the learned singe Judge. 7. On the other hand, learned counsel appearing for the respondent manager contended that the requirement of site area specified in Rule 1 itself is not a mandatory requirement. In support of this submission, he relied not only on Rule 1 but also the language used in Rule 1 and the decision of this Court reported in **Kunhiraman v. State of Kerala [1976 KLT SN. 48]** . He also referred Exts.P1 to P3 W. A. No.1928 of 2016 -6- and contended that the Government granted permission to the school with the knowledge that the school did not satisfy the area requirements. According to him, Government having granted permission, such permission could not have been nullified by the AEO by granting either temporary recognitions or by the DPI by withdrawing the recognition. Learned counsel also placed reliance on Ext.R1(b) produced in this appeal, to contend that during the pendency of this litigation, more than 300 unrecognised schools were granted recognition and argued that there was no reason to discriminate the school of the respondent alone. 8. We have considered the submissions made. Chapter IV of KER provides for establishment and maintenance of schools. Site area requirements have been specified in Rule 1 which states that every school should normally have a minimum site area as specified in the schedule thereto. Insofar as lower primary schools and upper primary schools with or without lower primary schools are concerned, the W. A. No.1928 of 2016 -7- site area requirements specified in the schedule is .4 to .8 Hectares of land. Chapter V of the KER deals with opening and re-opening of schools. Rule 11 provides for grant of permission to open new schools. As per this Rule, if the Government are satisfied that permission to open new schools included in the development plan may be granted, they may issue an order to that effect through the Director specifying therein, the matters indicated in Sub Rules 1 to 6. Sub Rule 6 requires the Government to specify the conditions to be fulfilled by the education agency in respect of the site, area, building, equipments, staff, financial guarantee and such other matters. Rule 17 of Chapter V KER prescribes the conditions to be satisfied for grant of recognition. In terms of this rule, recognition shall be granted only to those schools which satisfy the conditions specified therein. First condition is that the school must have been opened with permission under Rule 11 and the sixth condition is that the school must be conducted in W. A. No.1928 of 2016 -8- accordance with the provisions of the Kerala Education Act, the Rules under it, and the directions issued by the Government or the Department from time to time. In terms of Rule 21(1), if any of the conditions specified in Rule 17 is not satisfied, DEO is authorised to grant temporary recognition for one year at a time. It is also provided that, previous approval of the Director shall be obtained to accord temporary recognition beyond three years and that permanent recognition shall be granted to schools satisfying all the prescribed conditions. Rule 22 provides for withdrawal of recognition and Rule 22(1) provides for withdrawal of recognition if a school does not conform to the conditions of recognition. 9. Insofar as this case is concerned, as per Rule 1 of Chapter IV KER, the area requirement is .4 to .8 Hectares of land. Admittedly the school has in its possession only 60 cents of land, which is much less than the area prescribed in Rule 1. Ext.P3 issued under Rule 11 of Chapter V KER, itself W. A. No.1928 of 2016 -9- provides that the grant of recognition shall be subject to specified conditions. The conditions which are specified are those incorporated in Rule 17 of Chapter V KER. One of the conditions specified in Sub Rule 6 thereof is that, the school shall be conducted in accordance with the provisions of Kerala Education Act and Rules. This means that the school should comply with the site area requirements specified in Rule 1 of Chapter IV KER also. 10. From the facts, it is obvious that at no stage did the Government waive any of the conditions specified in the KER either for opening of school or for recognizing the school. It was in such circumstances that for nonsatisfaction of the site area requirements, the AEO granted temporary recognition in terms of Rule 21 of Chapter V KER. Admittedly despite grant of temporary recognition from 2003-04 till 2007-08, the site area requirements were not satisfied by the respondent. This necessarily led to the issuance of Ext.P8 and this order cannot be faulted. W. A. No.1928 of 2016 -10- 11. From the judgment under appeal, we find that the learned single Judge has taken the view that once the Government granted recognition to petitioner's school under Rule 11, it has to be presumed that the requirements of site area, stand exempted and that appellants 2 and 3 cannot turn around and say that recognition cannot be continued on account of the shortcoming of physical requirements. First of all, Rule 11 does not talk about recognition and on the other hand, it talks only about permission to open new schools. Secondly, the fact that temporary recognition has been granted under Rule 21 of Chapter V KER, does not mean that either the Government had waived the requirements of Rule 1 of Chapter IV KER or any other rule or that the schools stand exempted from those requirements. On the other hand, temporary recognition is allowed in Rule 21 only to grant time to managers to satisfy the conditions for recognition including the one relating to site area requirements. Therefore, grant W. A. No.1928 of 2016 -11- of temporary recognition in terms of Rule 21 does not lead to a conclusion that the requirements of Rule 1 of Chapter IV KER or any other rule were exempted by the Government. 12. The learned single Judge also has laid emphasis to the language of Rule 1 of Chapter IV KER and according to the learned single Judge, since the requirements are to be complied with only in normal circumstances, the requirements cannot be insisted where its satisfaction is impossible. It is true that Rule 1 of Chapter IV KER provides that every school should normally have a minimum site area as specified in the schedule thereto. This Rule reads thus: “1. Site Area - Every School should normally have a minimum site area as specified in the following schedule: ## SCHEDULE Lower Primary Schools Upper Primary Schools with .4 to .8 our without Lower Primary Hectares Section } W. A. No.1928 of 2016 -12- Secondary Schools (High 1.2 to 2 Schools) with our without _**-**_ Hectares Primary Section _**-**_ Higher Secondary Schools 1.2 to 2 with or without Primary Hectares Section _**-**_ Training Schools with or 1.2 Hectares without Model Schools Note:- (1) The educational officers may examine the need for additional site in each case and order the provision of the same with the sanction of the Director. (2) In the case of Basic Schools the area of the site and the dimensions of the class rooms should be as prescribed by the Director. These schools are expected to have sufficient land for agricultural purposes.” 13. It is true that the rule making authority has consciously used the word “normally” in the Rule. However, the usage of that expression does not mean that where it is not possible for the manager to satisfy the requirements regarding site area, the prescription therein cannot be insisted or should be waived. In other words, this elasticity is not provided to enable the manager to establish and run their schools without satisfying the site area requirements. -13- W. A. No.1928 of 2016 On the other hand, this elasticity is provided to enable the Government to permit and recognise schools in areas where the educational needs of the students would suffer if the conditions are insisted. In other words, the question whether the benefit of elasticity should be extended or not in a particular case will depend upon the interest of the student community and not the interest of the manager in establishing and running his school. Therefore, the interpretation given by the learned single Judge, with respect to Rule 1 also, does not appeal to us. 14. For all these reasons, we are unable to sustain the judgment under appeal. However, we cannot ignore the contentions raised by the respondent with reference to Ext.R1(b), Government Order dated 14.05.2015. According to the learned counsel, by this order, Government have granted recognition to 308 unrecognized schools. He also referred to us the list of the 262 schools which according to him are the beneficiaries of Ext.R1(b) Government Order and specifically referred to the Aleemul Islam English -14- W. A. No.1928 of 2016 Medium school, Padoor, included at Serial No.75 of Ext.R1 (c) and contended that this school also did not satisfy the site area requirements, but still was granted recognition. 15. We do not want to say anything more about Exts.R1(b) and R1(c) except that if any of the beneficiaries of that order stand on a similar footing as the respondent herein, prima facie, we see no reason why the respondent also should not be treated on a par with such beneficiary. However, for dearth of materials before this Court and as factual examination of the issue is required, we feel that this is a matter for the Government to examine. Therefore, although the period specified by the Government while inviting applications from schools for recognition in terms of Rule R1(b) order has expired long ago, still having regard to the fact that this litigation was pending before this Court, we direct the respondent to make an application to the first appellant within four weeks from today claiming the benefit of Exts.R1(b). If a representation is filed as above, the first appellant will examine the claim of the respondent in the -15- W. A. No.1928 of 2016 light of Exts.R1(b) and (c) and pass orders thereon within a further period of eight weeks thereafter. 16. Although we have concluded that the judgment under appeal is unsustainable, having regard to the fact that immediate implementation of Ext.P8 would affect the future of the innocent students who are now undergoing studies in the school, we further direct that irrespective of the orders to be passed by the Government, Ext.P8 shall not be implemented till the end of the current academic year. Subject to the above the writ appeal is allowed. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **SHIRCY V. JUDGE** kns/- //TRUE COPY// P.S. TO JUDGE W. A. No.1928 of 2016 -16-