The Manager, A.U.P. School, Vazhikkadavu, Malappuram District v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 13TH DAY OF JUNE 2018 / 23RD JYAISHTA, 1940** **WP(C).No. 17363 of 2017** **----------------------** **PETITIONER:** **-----------** **THE MANAGER, A.U.P.SCHOOL, VAZHIKKADAVU, MALAPPURAM DISTRICT-679333.** **BY ADVS.SRI.V.A.MUHAMMED SRI.M.SAJJAD** **RESPONDENTS:** **------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-695014.** **3. THE ASSISTANT EDUCATIONAL OFFICER, NILAMBUR, MALAPPURAM DISTRICT-679329.** **BY SENIOR GOVERNMENT PLEADER SRI.T. RAJASEKHARAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 17363 of 2017 (U) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS: ---------------------** |**EXHIBIT P1**|**TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.17702/2016 -K**| |---|---| ||**DATED 25.05.2016.**| |**EXHIBIT P2**|**TRUE COPY OF THE DECISION REPORTED IN 2015(3)KHC 703**| ||**DATED 18.06.2015.**| |**EXHIBIT P3**|**TRUE COPY OF THE INTERIM ORDER IN**| ||**W.P.(C)NO.16221/2017-C DATED 19.05.2017.**| |**RESPONDENTS'**|**EXHIBITS & ANNEXURES:**| |**---------------------------------**|| |**ANNEXURE R1F**|**TRUE COPY OF JUDGMENT IN WPC.NO.16731/2017**| ||**AND CONNECTED MATTER.**| |**ANNEXURE R1G**|**TRUE COPY OF THE JUDGMENT DATED 251.2018 IN**| ||**W.A.NO.2487/2017 AND CONNECTED MATTERS.**| |**ANNEXURE R1H**|**TRUE COPY OF THE ORDER DATED 23.4.2018 IN**| ||**SLP(C)DIARY NO.12967/2018.**| ||**/TRUE COPY/**| ||**P.S.TO JUDGE**| |**mbr/**|| |**14.06.2018.**|| ## **ANIL K. NARENDRAN, J.** ## **------------------------------------------W.P.(C) No.17363 of 2017 ------------------------------------------Dated this the 13[th] day of June, 2018** ## **JUDGMENT** The petitioner, who is the Manager of A.U.P. School, Vazhikkadavu, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents to sanction Standard VIII in his school from the academic year 2017-18 onwards. The petitioner has also sought other consequential reliefs. 2. By the interim order dated 04.05.2018 the respondent State and the Educational Authorities were directed to provisionally permit the petitioner to commence admission to Class VIII pending disposal of this writ petition; and they were also directed to open 'Sampoorna Internet Portal' to facilitate such admission without further delay. The said order was granted on the ground that, last year, when similar matters were brought to the notice of this Court, interim order was given in favour of the petitioner and others. 3. On 23.05.2018, the respondents have filed I.A.No.8698/2018 seeking an order to vacate the interim order W.P.(C) No.17363 of 2017 :-2-: dated 04.05.2018. 4. Heard the learned counsel for the petitioner, and also the learned Senior Government Pleader for the respondents. 5. In paragraph 1 of the writ petition it is averred that the nearest High School is situated more than 2km away from the petitioner's school. The documents produced along with this writ petition are only copy of the application filed for upgradation, interim orders of this Court and also the orders of the Apex Court. 6. In this writ petition filed on 24.05.2017 the petitioner has not chosen to challenge notification issued by the Director of Public Instructions bearing No.NS(3)/21147/2016/DPI dated 19.05.2017 publishing the list of localities identified to have educational need, as revealed in the school mapping and further studies. As per the said notification dated 19.05.2017, educational need was found only in Ward No.2 of Cherekkad in Kunnamangalam Panchayat for Class I to V; and in Ward No.12 of Kunnankattupathy in Kozhinjampara Panchayat and Ward No.2 of Perunadu in Perunadu Panchayat for Class V, in the school mapping W.P.(C) No.17363 of 2017 :-3-: conducted in terms of the provisions under the Right of Children to Free and Compulsory Education Act, 2009 (for brevity, 'the Right to Education Act') and the Rules made thereunder, i.e., the Kerala Right of Children to Free and Compulsory Education Rules, 2011 (for brevity, 'the Kerala Rules'). The said notification was followed by Government order dated 09.06.2017, whereby the Government ordered that, transportation facility will be provided to the children of 82 areas mentioned in the list appended to that Government order, in order to reach the nearest school with the cooperation/assistance of the local bodies, as provided in subrule (4) of Rule 6 of the Kerala Rules. 7. Other writ petitions filed during May/June 2017, i.e., W.P.(C)Nos.16219 of 2017 and connected matters, in which this Court granted interim orders allowing admission for the academic year 2017-18, of students in Class V or Class VIII, as the case may be, were disposed of by the judgments dated 29.08.2017, 27.09.2017 and 06.10.2017, giving liberty to the petitioners therein to move appropriate proceedings against the notification issued by the Director of Public Instructions bearing No.NS(3)/21147/ 2016/DPI dated 19.05.2017 W.P.(C) No.17363 of 2017 :-4-: publishing the list of localities identified to have educational need as revealed in the school mapping and further studies and G.O.(Rt.)No.1813/ 2017/G.Edn. dated 09.06.2017, in case they are aggrieved. In the said judgment it was made clear that the interim orders passed in those cases permitting Class V/VIII in the schools of the petitioners would be confined to the academic year 2017-18 only. Without moving appropriate proceedings to challenge the aforesaid notification and the Government order, the petitioner obtained an interim order dated 27.04.2018 in this writ petition, directing the respondent State and the Educational Authorities to provisionally permit the petitioner to commence admission to Class VIII during the academic year 2018-19. 8. The issue raised in this writ petition is covered against the petitioner by the judgment of this Court dated 11.06.2018 in W.P.(C) No.23820 of 2016 and connected cases. In the said judgment, this Court held that, though the provisions of Rule 14 of the Kerala Rules have no application in the matter of establishment or upgradation of a school owned or controlled by the Central Government or the State Government or the local authority, in view of the provisions W.P.(C) No.17363 of 2017 :-5-: under sub-rule (2) of Rule 6 of the Kerala Rules, read with clause (q) of Rule 2, the basis for upgradation of such a school shall be the educational need for upgradation, found in the school mapping conducted by authorised agencies. Similarly, in view of the provisions under sub-rule (14) of Rule 14, read with clause (q) of Rule 2 and sub-rule (2) of Rule 6, the basis for upgradation of an existing school, other than a school established, owned or controlled by the Central Government or the State Government or the local authority shall be the educational need of the locality as revealed in the school mapping carried out by the authorised agency and certified by the local authority and the educational officer concerned. In that view of the matter, if no educational need is found in the locality in which a school rendering elementary education situates, no application for upgradation of such school by commencing Class V or Class VIII, as the case may be, can be made by the respective management. This Court has also found that, in none of the writ petitions, an effective challenge has been made against notification dated 19.05.2017 issued by the Director of Public Instructions regarding educational need and also the Government order dated 09.06.2017 W.P.(C) No.17363 of 2017 :-6-: whereby it was ordered to provide transportation facility to children of 82 areas. The procedure or the criteria adopted by the State for school mapping is not under challenge. The scientific study conducted by the officers from the Directorate of Public Instruction and Sarva Shiksha Abhiyan was based on 7 parameters, which include distance of the nearest school to the area specified in the draft notification, distance to the nearest available school from the residence of students, transportation facility available in the neighborhood school, details of children in the age group of 1-14 years in the feeder area; etc. Therefore, the petitioners cannot make out a case for interference merely on the basis the distance between the schools. Paragraphs 70 to 72, 90 to 92 and 95 to 107 of the said judgment read thus; “70. In the process of school mapping, geographic location of the schools have been collated and mapped on Geographic Information System Platform (GIS Platform) established by Sarva Shiksha Abhiyan Kerala. The school locations have been interlinked with the school report cards based on Unified District Information System for Education database (U-DISE database). The geographic locations of the schools provided by Sarva Shiksha Abhiyan, Kerala are available in its website http://ssakerala.in/gis. The web application comprises of W.P.(C) No.17363 of 2017 :-7-: base map services like street maps and high resolution satellite images for better understanding of the topography/terrain of the location, administrative boundaries, location information, etc. The geographic location of the schools collected by the State Education Departments has been collated and mapped on the GIS Platform established by National Informatics Centre. Further, the school locations have been interlinked with the school report cards based on U-DISE database, developed and hosted by National University of Educational Planning and Administration. 71. The geographic locations of the schools provided by each State Education Department is available in the website http://schoolgis.nic.in/ of the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India. By entering the name of the school or school code anyone can collect the details regarding geographic location of that school, which has been collated and mapped on GIS Platform and other details like the nearest L.P./U.P./Secondary/Higher Secondary schools, the aerial/ walkable/driving distance to such schools, the lowest and highest class available in such schools, the number of students enrolled, and also whether such schools are Government schools, aided schools or unaided schools. The distance between two schools can be viewed with street maps and high resolution satellite images by clicking the link 'find' against the name of each nearest school. 72. In none of these writ petitions an effective W.P.(C) No.17363 of 2017 :-8-: challenge has been made against notification No.NS(3)/21147/2016/DPI dated 19.05.2017 issued by the Director of Public Instructions regarding educational need and also G.O.(Rt.)No.1813/2017/G.Edn. dated 09.06.2017 to provide transportation facility to the children of 82 areas, with reference to the materials collected in school mapping, and the details regarding geographic location of the schools, availability of classes, etc. The file relating of notification No.NS(3)/21147/ 2016/DPI dated 19.05.2017 issued by the Director of Public Instructions, made available for the perusal of this Court, would show that the draft notification dated 25.05.2016 was published in the Official Gazette and also in the website of the Director of Public Instructions. Copy of the draft notification was made available through the office of all Deputy Directors of Education, District Educational Officers and Assistant Educational Officers. Press release was also issued in this regard through the Director of Information and Public Relations. Thereafter, a personal hearing was also conducted on 30.09.2016. xxx xxx xxx xxx 90. As already noticed, 'school mapping' as defined under clause (q) of Rule 2 of the Kerala Rules is the assessment of the availability of schooling facilities for elementary education, taking into account various factors mentioned in the said clause, which includes the distance matrix between schools and habitations. As per clause (t) of Rule 2, 'walking distance' is the maximum distance covered by a child from his residence to the W.P.(C) No.17363 of 2017 :-9-: school on the shortest, generally accepted path. As per clause (o) of Rule 2, 'neighbourhood' is the area near or within a walkable distance of an elementary school referred to in sub-clauses (i) and (ii) of clause (n) of Section 2 of the Right to Education Act and shall include areas of such schools in adjacent local bodies. The mandate of sub-rule (1) of Rule 6 is that, the area or limits of neighbourhood within which a school has to be established by the Government or the local authority shall be, within a walking distance of 1km of the neighbourhood, in respect of children in classes from I to V; and within a walking distance of 3km of the neighbourhood, in respect of children in classes from VI to VIII. 91. As per sub-rule (3) of Rule 6 of the Kerala Rules, in places with difficult terrain, risk of landslides, floods, lack of roads and in general, danger for young children in the approach from their homes to the school, the Government shall locate the school in such a manner as to avoid such dangers, by reducing the area or limits specified under sub-rule (1). Sub-rule (4) of Rule 6, which deals with transportation facility for children from small hamlets, provides that for children from small hamlets, as identified by the Government or the local authority, where no school exists within the area or limits of neighbourhood specified under sub-rule (1), the Government or the local authority shall make adequate arrangements, such as free transportation and residential facilities for providing elementary education in a school, in relaxation of the area or limits specified in W.P.(C) No.17363 of 2017 :-10-: - the sub rule (1) of Rule 6. Similarly, sub-rule (5) of Rule 6 mandates that, in places with high population density, the Government may consider establishment of more than one neighbourhood school having regard to the number of children in the age group of 6 to 14 years in such places based on the child census conducted by Sarva Siksha Abhiyan or the local authority. 92. In **Kum.Sreya Vinod's case (supra)** a Division Bench of this Court held that, there will be nothing wrong in the Government or the local authority providing transportation facility in discharge of its obligations under the Right to Education Act and the Kerala Rules. In the judgment in W.A.No.2487 of 2017 and connected cases, after adverting to the contention advanced by the learned counsel with reference to the law laid down in **Kum.Sreya Vinod's case** , another Division Bench held that, instead of establishing additional schools or providing additional infrastructural facilities, the provision of providing transportation facilities cannot be found fault with. xxx xxx xxx xxx 95. The guidelines issued by the Central Government on 25.07.2011 (F.No.1-12/2010-EE-4), in exercise of the powers conferred under sub-section (1) of Section 35 of the Right to Education Act, clarify the provisions under the said Act with reference to neighbourhood schools. The said guidelines would make it explicitly clear that, in providing for the right of every child to free and compulsory education in a neighbourhood school, the Right to Education Act does not restrict the choice of the W.P.(C) No.17363 of 2017 :-11-: child to seek admission in a school, which may not be in the immediate vicinity, or the neighbourhood of the ' child s residence. In other words, there is no compulsion on the child to seek admission only in the school in his or her neighbourhood. 96. As per the said guidelines, the State Government/Union Territories need to arrive at a clear picture of current availability of schools within the defined areas or limits of neighbourhoods. In order to do this, the State/Union Territories need to (i) define the neighbourhood norms keeping in view that all primary and upper primary schools and composite schools (with primary and upper primary sections) established by the State Government would be neighbourhood schools for the purpose of sub-section (1) of Section 3 and (ii) map the neighbourhoods or habitations and link them to specific schools. 97. The said guidelines would show that, it is possible that a neighbourhood may be linked to more than one school. Similarly, a school may be linked to more than one neighbourhood. The mapping exercise will help to identify gaps and areas where new schools need to be opened to ensure universal access. By undertaking mapping to determine the need, and planning for establishment of neighbourhood schools, the appropriate Government should factor in the intake capacity in all the schools within the area or limits of neighbourhood as prescribed under Section 6, i.e., Government or local body schools, aided schools, and unaided and specified category schools. Such planning will ensure that the W.P.(C) No.17363 of 2017 :-12-: ## Government uses its resources optimally in relation to the actual requirement of providing universal access to elementary education. 98. In the said guidelines, it has also been provided that, the provision under Section 10 of the Right to Education Act should be read together with the responsibilities of the appropriate Government and local authority to provide free and compulsory elementary education in a neighbourhood school. It is not the intention of Section 10 to compel parents/guardian and children/wards, who do not wish to avail of free and compulsory education, to necessarily admit their children/wards in the neighbourhood schools. 99. In this batch of writ petitions, neither the provisions under the Kerala Rules, nor the provisions of G.O.(Ms) No.154/2013/G.Edn. Dated 03.05.2013, which speaks of retaining Class V and Class VIII in the same premises by redesignating such schools as Lower and Upper Primary Schools and Upper Primary and High Schools is under challenge. The challenge made against clause (2) of the aforesaid Government order dated 03.05.2013, in the context of Article 254 of the Constitution of India, has already been dealt with by this Court in **Kerala Aided LP and UP School's case (supra)** . In the said judgment, the challenge to the conversion of elementary cycle, as brought out by clause (2) was negatived, however, leaving open the question of upgradation or grant of higher standards to be considered after the Government comes out with the comprehensive measures as directed by this Court in the ## W.P.(C) No.17363 of 2017 :-13-: ## judgment in **Manager, L.P.G.S., Veliyam's case (supra)** . 100. As already noticed, in none of these writ petitions, an effective challenge has been made against notification dated 19.05.2017 issued by the Director of Public Instructions regarding educational need and also the Government order dated 09.06.2017 whereby it was ordered to provide transportation facility to children of 82 areas. An effective challenge to the aforesaid notification and the Government order can be made only with reference to the materials collected in school mapping and the details regarding geographic location of the schools, availability of classes, etc. In the GIS platform established by Sarva Shiksha Abhiyan, Kerala, geographic locations of schools are provided and the web application comprises of base map services, like street maps and high resolution satellite images. The geographic locations of schools provided by Sarva Shiksha Abhiyan, Kerala and by each State Education Departments, is also available in the website of the Department of School Education and Literacy, Ministry of Human Resource Development. The details like the nearest L.P/U.P./Secondary/Higher Secondary Schools, the areal/walkable/ driving distance to such schools, etc. are also available on GIS platform and the distance between two schools can be viewed with street maps and high resolution satellite images by clicking the link 'find' against the name of each nearest school. Though such materials are very much available in the website maintained by Sarva Shikshan Abhiyan, Kerala and also W.P.(C) No.17363 of 2017 :-14-: the Ministry of Human Resource Development, the petitioners in this batch of writ petitions have not chosen to make use of those materials in order to challenge the notification dated 19.05.2017 of the Director of Public Instructions and the Government order dated 09.06.2017. In some of the writ petitions, during the course of arguments, statements have been handed over showing the distance to the nearby school, number of students, etc. 101. In **Bharat Singh v. State of Haryana (AIR 1988 SC 2181)** , the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the - counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter-affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the - counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. 102. In **Manager, L.P.G.S., Veliyam's case (supra)** , this Court had occasion to deal with the question as to W.P.(C) No.17363 of 2017 :-15-: whether applications filed before the State by the Managers of various aided schools seeking upgradation of existing aided schools, so as to bring within their fold additional classes, i.e., Class V or Class VIII, as the case may be, in their existing L.P./U.P. Schools can be entertained without the recommendation/counter signature of the educational authority concerned. In the said decision, this Court held that the State Government need to complete the tasks enumerated in paragraph 5 of the said judgment, so as to put itself in a position where it will be able to effectively consider the applications preferred by the petitioners therein for upgradation of their schools. It is only thereafter, that the State Government can call for and consider the applications for the grant of new schools/upgradation of existing schools in each area. 103. Pursuant to the direction contained in the said judgment, school mapping was conducted and in that process, the areas where the schools in this batch of writ petitions situate were not found to have educational need, vide the notification dated 19.05.2017 of the Director of Public Instructions. The Judges papers in W.P. (C)No.3060 of 2014 would show that various steps taken to comply with the directions contained in the judgment in **Manager, L.P.G.S., Veliyam's case (supra)** were placed before this Court while seeking extension of time and it was thereafter that the said notification and the Government order dated 09.06.2017 were issued. Once the areas where the schools in this batch of writ petitions were not found to have W.P.(C) No.17363 of 2017 :-16-: educational need, the permission sought for to have Class V or Class VIII, as the case may be, in the respective L.P. Schools/U.P. Schools cannot be granted unless the petitioners have made out a prima facie case for interference of the said notification and Government order. 104. As already held at paragraphs 48 and 49 hereinbefore, though the provisions of Rule 14 of the Kerala Rules have no application in the matter of establishment or upgradation of a school owned or controlled by the Central Government or the State Government or the local authority, in view of the provisions under sub-rule (2) of Rule 6 of the Kerala Rules, read with clause (q) of Rule 2, the basis for upgradation of such a school shall be educational need for upgradation, found in the school mapping conducted by authorised agencies. Similarly, in view of the provisions under sub-rule (14) of Rule 14, read with clause (q) of Rule 2 and sub-rule (2) of Rule 6, the basis for upgradation of an existing school, other than a school established, owned or controlled by the Central Government or the State Government or the local authority shall be educational need of the locality as revealed in the school mapping carried out by the authorised agency and certified by the local authority and the educational officer concerned. In that view of the matter, if no educational need is found in the locality in which a school rendering elementary education situates, no application for upgradation of such school by commencing Class V or Class VIII, as the case may W.P.(C) No.17363 of 2017 :-17-: be, can be made by the respective management. 105. The procedure or the criteria adopted by the State for school mapping is not under challenge. The scientific study conducted by the officers from the Directorate of Public Instruction and Sarva Shiksha Abhiyan was based on 7 parameters, which include distance of the nearest school to the area specified in the draft notification, distance to the nearest available school from the residence of students, transportation facility available in the neighborhood school, details of children in the age group of 1-14 years in the feeder area; etc. Therefore, the petitioners cannot make out a case for interference merely on the basis the distance between the schools. Despite the fact that the locality in which the elementary schools which are the subject matter of this batch of writ petition situates were not included in the draft/preliminary notification, none of the petitioners except one or two, objected the said notification. 106. The localities having educational need were identified in that process taking into consideration the availability of students, distance to from their residence to the nearest school, availability of transportation, etc. As per the guidelines (F.No.1-12/2010-EE-4) issued by the Central Government on 25.07.2011, the intake capacity in all the schools within the area or limits of neighbourhood, etc. are relevant considerations while undertaking mapping to determine the educational need and planning for establishment of neighbourhood schools, in order to ensure that the Government uses its resources optimally in relation to the actual requirement W.P.(C) No.17363 of 2017 :-18-: of providing universal access to elementary education. 107. In the absence of any valid and tenable challenge made against the notification dated 19.05.2017 of the Director of Public Instructions and the Government order dated 09.06.2017, the petitioners in this batch of writ petitions are not entitled for an order to make admission of students to Class V or Class VIII, as the case may be, in the respective Lower Primary Schools (with Class I to IV) and Upper Primary Schools (with Class V to VII) for the academic year 2018-19 or for consideration their requests for upgradation of the respective schools. Therefore, any students who are yet to be issued with transfer certificates in the respective L.P. Schools or U.P. Schools to seek admission to Class V or Class VIII, as the case may be, shall be issued with such transfer certificates forthwith, and the State and the Educational Authorities shall ensure that such students are admitted in other schools having Class V/Class VIII, without any delay. The effective strength of students on the sixth working day from the date of reopening in the respective schools shall be reckoned taking note of the transfer certificates so issued/admission of students based on such transfer certificates.” 9. In the instant case, the petitioner has not even challenged the notification dated 19.05.2017 of the Director of Public Instructions and the Government order dated 09.06.2017 and as such he is not entitled for an order to make admission of students to Class VIII in his Upper Primary School W.P.(C) No.17363 of 2017 :-19-: (with Class V to VII) for the academic year 2018-19. Therefore, any students who are yet to be issued with transfer certificates in the petitioners Upper Primary School to seek admission to Class VIII shall be issued with such transfer certificates forthwith, and the State and the Educational Authorities shall ensure that such students are admitted in other schools having Class VIII, without any delay. The effective strength of students on the sixth working day from the date of reopening in the respective schools shall be reckoned taking note of the transfer certificates so issued/admission of students based on such transfer certificates. In the result, this writ petition is dismissed following the judgment of this Court dated 11.06.2018 in W.P.(C)No.23820 of 2016 and connected cases. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr