The Manager, Ebenezer Higher Secondary School, Nellad, Nellad P.O., Veettoor, Muvattupuzha, Ernakulam District vs State of Kerala and Ors.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944`** ## **`WP(C) NO. 26227 OF 2022`** ## **`PETITIONER:`** ``` THE MANAGER EBENEZER HIGHER SECONDARY SCHOOL, NELLAD P.O, VEETTOOR, MUVATTUPUZHA, ERNAKULAM DISTRICT - 686661. BY ADVS. K.MOHANAKANNAN C.N.PRAKASH ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM - 695001. 2THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM - 695014. 3THE DISTRICT EDUCATIONAL OFFICER, SATHRAKUNNU, MUVATTUPUZHA, ERNAKULAM - 686673. 4THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, EDAPPALLY RAGHAVAN PILLAI ROAD, DEVANKULANGARA, EDAPPALLY, ERNAKULAM, KERALA - 682024. ``` ``` SMT.NISHA BOSE, SR GOVERNMENT PLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON16.08.2022,THECOURTONTHESAMEDAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.26227 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** The petitioner states that he is the Manager of the Ebenezer Higher Secondary School, Nellad, an aided Higher Secondary School governed by the provisions of the Kerala Education Act and Rules framed thereunder. 2. According to the petitioner, more than 352 students have passed the SSLC examination during the last academic year. However, only two plus one batches are sanctioned in the school. In the said circumstances, the petitioner is stated to have preferred Exhibit P3 representation as early as 1.8.2022 before the 1st respondent. Being aggrieved by the inaction on the part of the respondent in considering the representation preferred by the Manager, this writ petition is filed seeking the following reliefs: (i) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent to consider Ext.P3 and pass appropriate orders within a time frame to be fixed by this Hon’ble Court. 3. I have heard Sri.K Mohanakannan, the learned counsel appearing for the petitioner and the learned Government Pleader. ``` WP(C) NO.26227 OF 2022 ``` ``` 3 ``` 4. I find that in **Manager, St.Sebastian’s High School, Thrissur v. State of Kerala and Ors.** [2015 (1) KHC 725], this Court, taking note that there is no proper system in place in the State for the assessment of educational needs in the field of Secondary Education, had issued various directions to the Government in the matter of consideration of applications for the grant of Higher Secondary courses. The Government has accepted the directions contained in **St. Sebastian** (supra) and issued orders constituting Regional Level Committees and a State Level Committee for assessment of the educational need of the State in the field of Higher Secondary Education. As per the said order, the Regional Level Committee is required to furnish a report to the State Level Committee for the next academic year, and the State Level Committee is to scrutinize the report of the Regional Committee and submit a final report to the Government before 31st of October every year. The Government is required to examine the report of the State Level Committee and take a decision by calling for applications, and the entire exercise is to be completed before the 31st of March of the succeeding year. ``` WP(C) NO.26227 OF 2022 ``` ``` 4 ``` 5. Against the judgment rendered by this Court as per which directions were issued to the Government to sanction additional Batches, the State had preferred an appeal before the Division Bench, and this Court had disposed of the matter by observing as follows. 13. Before dealing with the writ petition filed by the Manager, it is necessary to remind ourselves the principles to be kept in mind while dealing with a writ petition of this nature. Every citizen has a right to education under the Constitution and the State is under an obligation to establish educational institutions so as to enable citizens to enjoy the said right. The State may discharge the said obligation either through State owned educational institutions or through private educational institutions recognised and regulated by the State [See **Mohini Jain v. State of Karnataka and Ors** , 1992 KHC 898]. If the State is not able to discharge the said obligation for reasons beyond its control through the State owned educational institutions, no doubt, the State is certainly entitled to discharge the said obligation through State recognised and regulated educational institutions including aided institutions. It is necessary to clarify in this context that the obligation of the State as enshrined in the Constitution is only to take necessary steps to cater to the educational needs of the citizens within the limits of its economic capacity, and it cannot be said that in the matter of evolving a policy and in the matter implementing the policy so evolved, the Government cannot take note of the financial implications involved [See **Unni Krishnan J.P. v. State of Andhra Pradesh** , (1993) 1 SCC 645 and **Modern School v. Union of India** , (2004) 5 SCC 583]. Needless to say, what is ``` WP(C) NO.26227 OF 2022 ``` ``` 5 ``` expected from the Government is that there has to be a fair decision in the matter of discharging the said constitutional obligation. 14. It is seen that this Court has noticed in **St.Sebastian's High School,** that there is no proper system in place in the State for assessment of educational need in the field of secondary education, and in the absence of a consistent and transparent policy, the allotment process of fresh and additional batches of higher secondary courses is always entangled in litigations. In the aforesaid circumstances, this Court issued the following directions to the Government in the matter of consideration of applications for the grant of higher secondary courses: (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. ``` WP(C) NO.26227 OF 2022 ``` ``` 6 ``` (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 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 ``` WP(C) NO.26227 OF 2022 ``` ``` 7 ``` ## academic year 2016-17 or thereafter. It is seen that the Government has accepted the directions contained in the judgment of this Court in **St.Sebastian's High School,** and issued Ext.P4 order on 05.04.2016 constituting Regional Level Committees covering two Districts and a State Level Committee for assessment of the educational need of the State in the field of higher secondary education. It is directed in the said order that the Regional Level Committee shall furnish a report to the State Level Committee for the next academic year before 30[th] September every year and the State Level Committee shall scrutinize the report of the Regional Level Committees and submit a final report to the Government before 31[st] October every year. It was also stated in the said order that the Government will examine the report of the State Level Committee and take a decision for calling for applications to be set out in the detailed guidelines to be issued later and the entire exercise on the basis of the educational needs shall be completed within 31[st] March of the succeeding year. We have perused the judgment of this court in **St.Sebastian's High School** and we are in complete agreement with the said decision. Having regard to the directions issued by this Court in the said case and the directions issued in Ext.P4 order issued by the Government in compliance with the directions of this court, we are also of the view that if the directions issued by this Court in the said case and the directions in Ext.P4 order are complied with, the process of allotment of higher secondary courses in the State would be consistent and transparent conforming to the constitutional requirements. 15. Now, let us deal with the writ petition filed by the Manager. At the outset, it is to be mentioned that in a situation of this nature, where there is educational need and shortage of facilities, if the Government is not taking any step to cater to the need, the right of persons who run educational institutions being one traceable only to Article ``` WP(C) NO.26227 OF 2022 ``` ``` 8 ``` 19(1)(g) of the Constitution, they can seek at the most only directions to the Government to comply with the guidelines framed in this regard and nothing more. 16. Be that as it may, Ext.P7 order which is impugned in the writ petition is one passed on Ext.P1 application preferred by the petitioner before the Government on 20.05.2019 seeking orders sanctioning additional batches of higher secondary courses in the School. A reading of Ext.P1 application would show that the very premise on which the application is filed is that on an average, 750 students pass SSLC examination from the School itself and the School is able to accommodate only 200 among them in the higher secondary courses. As indicated by us, while dealing with W.A.No.271 of 2022, there is absolutely no basis for the grievance attempted to be ventilated in the representation, for admission to higher secondary courses in the State is made through a district-wise centralised allotment process based on merits and one cannot aspire to get admission in the very same school from which he/she has passed the SSLC examination unless he/she is meritorious enough to get admission in the said school, as the system in place is such that if there are more meritorious applicants for admission to a particular school, they will be preferred over the applicants from the very same school. That apart, in **St.Sebastian's High School,** this Court deprecated the practice of the Government entertaining individual applications for grant of higher secondary batches, obviously, as it was found that such consideration of individual applications would jeopardise a consistent and transparent process of allotment of fresh or additional batches of higher secondary courses affecting the interests of the students as also rights of others. Again, as noted, pursuant to the direction issued by this court in **St.Sebastian's High School,** the Government issued Ext.P4 order prescribing the guidelines to be followed in the matter of granting higher secondary courses, and consideration of individual ``` WP(C) NO.26227 OF 2022 ``` ``` 9 ``` applications in the nature of one preferred by the petitioner would certainly derail the process initiated by the Government in terms of Ext.P4 order. In the said circumstances, we are of the view that there is no infirmity in the decision of the Government in rejecting the request of the petitioner for grant of additional batch of higher secondary courses in the school. 17. As noted, the main contention of the petitioner is that the Government is obliged to grant additional batches of higher secondary courses sought by the petitioner since the State Level Committee constituted by the Government pursuant to the direction issued by this Court in **St.Sebastian's High School** has recommended for grant of additional batches of higher secondary courses in the School. This argument cannot be accepted, as the Government is not bound by the report of the State Level Committee and the purpose of the report of the State Level Committee is only to enable the Government to take a fair decision in the matter and to make the process of allotment of higher secondary courses in various schools in the aided sector consistent and transparent. Another argument advanced is that since the Government has not invited applications as directed by this Court in **St.Sebastian's High School,** the petitioner is entitled to seek directions to the Government to sanction additional batches of higher secondary courses in the School to cater to the needs of the students. We do not find any substance in this argument either. As indicated, if the Government does not act upon the report of the State Level Committee and invites applications in compliance with the directions issued by the Government, the petitioner can at the most seek directions to the Government to act upon the report of the State Level Committee and invite applications. As rightly contended by the learned Government Pleader, sanctioning of additional batches in a few Higher Secondary Schools who have made individual representations before the Government and who have approached this Court challenging ``` WP(C) NO.26227 OF 2022 ``` ``` 10 ``` the decisions rejecting their representations will open up a Pandora's box, and the Government will be in a predicament in dealing with such applications in the light of the directions of this Court in **St.Sebastian's High School,** and Ext.P4 order is issued in compliance of the directions in the said case. The possibility of identically placed schools approaching this Court for identical reliefs granted to the petitioners cannot also be ruled out. Needless to say, as noted, all these are going to derail the implementation of the direction issued by this Court in **St.Sebastian's High School,** and the directions contained in Ext.P4 order. 18. Above all, it needs to be noted that in areas where policy decisions involving financial implications are to be taken by the Government, the scope of judicial review is limited and circumscribed. In such cases, the State must be held to be within its competence to frame a policy, and unless the policy so framed is so capricious or comes into conflict with constitutional or statutory provisions, the Court should not out- step its limit and tinker with the policy decision of the executive authority [See **M.P. Oil Extraction v. State of M.P.** , ((1997)7 SCC 592]). 19. However, in the light of our finding that there is acute shortage of facilities in the field of higher secondary education in Malappuram District, we have no hesitation to hold that the Government is obliged to take a decision forthwith as to the manner in which it would cater to the needs of Malappuram District. In the circumstances, the impugned judgment is set aside and the writ appeals are disposed of directing the Government to take a decision forthwith as to the manner in which it would cater to the needs in the field of higher secondary education in Malappuram District with due regard to the number of applications received during the previous years and the latest recommendations of the State Level Committee. If it is found that arrangements cannot be made ``` WP(C) NO.26227 OF 2022 ``` ``` 11 ``` otherwise than by granting additional batches in the existing schools in the aided sector, steps shall be initiated forthwith for grant of new and additional batches of higher secondary courses in aided sector as directed by this Court in **St.Sebastian's High School** , and as accepted by the Government in Ext.P4 order. 6. The Division Bench went on to hold that even when there is an educational need and a shortage of facilities, if the Government is not taking any step to cater to the need, the right of persons running the educational institutions being one traceable only to Article 19(1)(g) of the Constitution, they can at the most seek only directions to the Government to comply with the guidelines framed and nothing more. This Court also held that there is no infirmity in the facts and circumstances of the said case in the decision of the Government rejecting the request of the petitioner for grant of an additional batch of Higher Secondary Courses. It was also held that the Government is not obliged to grant additional batches on the ground that the State Level Committee constituted by the Government has recommended the grant of additional batches, as the Government is not bound by such a report. The purpose of the report is only to enable the Government to take a fair decision in the matter and to make the process of allotment of Higher Secondary Courses in various ``` WP(C) NO.26227 OF 2022 ``` ``` 12 ``` schools in the aided sector consistent and transparent. Finally, it was held that in areas where policy decisions involving financial implications are to be taken by the Government, the scope of judicial review is limited and circumscribed. Directions were accordingly issued to the Government to take a decision forthwith as to the manner in which it would cater to the needs in the field of higher education in Malappuram district with due regard to the number of applications received during the previous years and the latest recommendation of the State Level Committee. It was also ordered that if arrangements cannot be made otherwise than by granting additional batches in the existing schools in the aided sector, steps be initiated for grant of new and additional batches of Higher Secondary courses in the aided sector as directed by this Court in **St. Sebastian** (supra). 7. Having regard to the observations made by this Court, I am of the view that the request made by the petitioner can also be considered in the light of the law laid down in **St.Sebastian** (supra) and in **State of Kerala and Ors v. Sreelal K.V. and Ors.** [W.A.No.271/2022]. ``` WP(C) NO.26227 OF 2022 ``` ``` 13 ``` In view of the above discussion, as and when the 1st respondent calls for application for sanctioning additional batches based on the committee reports, the 1st respondent shall consider Exhibit P3 application in the light of the observations in **St.Sebastian** (supra) and in **State of Kerala and Ors v. Sreelal K.V. and Ors.** [W.A.No.271/2022], and take a decision in terms of the directions issued by this Court in the judgments above. Sd/- ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** IAP ``` WP(C) NO.26227 OF 2022 ``` ``` 14 ``` ## **`APPENDIX OF WP(C) 26227/2022`** ``` PETITIONER’S EXHIBITS: ``` ``` Exhibit P1TRUE COPY OF THE REPRESENTATION DATED 25.01.2021 FILED IN THIS REGARD FILED BEFORE THE DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, ERNAKULAM. Exhibit P2TRUE COPY OF THE DATA OF THE STUDENTS IN THE SCHOOL. Exhibit P3TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 1.8.2022. ``` ``` RESPONDENTS’ EXHIBITS: ``` ``` NIL ```