The Manager, Ebenezer Higher Secondary School, Veettoor, Nellad P.O., Ernakulam - vs State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945** **WP(C) NO. 8401 OF 2021** ## **PETITIONER:** **THE MANAGER, EBENEZER HIGHER SECONDARY SCHOOL, VEETTOOR, NELLAD P.O., ERNAKULAM-686 669.** **BY ADVS. K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SHRI.SACHIN RAMESH SHRI.ARAVIND T RAMESH SHRI.RAMANARAYANAN G.** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2 THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **3 THE DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695 014.** - **4 THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, KAKKANAD P.O., ERNAKULAM-682 030.** - **5 THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA-686 661.** -2- WP(C)No.8401 of 2021 - **6 THE ASSITANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT (LSGD), SECTION OFFICE, MAZHUVANNUR, AIRAPURAM P.O., ERNAKULAM-683 541.** - **7 THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **BY SMT.NISHA B OSE, SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING** - **ON 1.03.2024, THE COURT ON 13.03.2024 DELIVERED THE FOLLOWING:** -3- WP(C)No.8401 of 2021 ## **MOHAMMED NIAS C.P., J.** **- - - - - - - - - - - - - - - - - - - - -** WP(C)No.8401 of 2021 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of March, 2024 ## **JUDGMENT** The petitioner is the manager of an aided Higher Secondary school. To improve the facilities in the school, management undertook renovation and expansion works, and the same was in progress from the academic year 2017-2018 onwards. While so as per G.O.(P) No.30/2018 dated 1.3.2018, the Government declared a policy of creating a Challenge Fund Scheme intended for Government and aided schools to expand the facilities intending to provide better avenues for learning and holistic development of children, which is produced as Ext.P1. The scheme specified that the 'Challenge Fund Scheme' contribution from the part of the Government will be on a 1:1 ratio to the amount deposited by the management on the Treasury Savings Bank account specified by the Government. It is also specified that the funds from the TSB (Treasure Savings Bank) could be withdrawn for purchases and the progress of the construction. The petitioner management submitted a request to avail the benefits of the -4- ## WP(C)No.8401 of 2021 scheme along with the proforma and requisite documents dated 15.06.2018. It was to provide for a three-storied building complex for the Higher Secondary School. The application for a building permit was also submitted to the local authority, and the construction commenced without any delay by using their funds, legitimately expecting an allotment of Rs.50 lakh offered under Ext.P1. 2. The petitioner had deposited their part of Rs.50 lakh stipulated in the Government Order in Treasury by 3.7.2018 and requested for the Challenge Fund of Rs.50 lakh submitted along with the proof of deposit of Rs.50 lakh by the petitioner as per Ext.P3 application. The third respondent, by order dated 26.10.2018, Ext P4, declared the list of schools eligible for availing the Challenge Fund Scheme and the petitioner school was included as Serial No.5 and was allotted an amount of Rs.50 lakh in proportion to the amount remitted by them. The petitioner requested the amounts payable by the Government under Ext.P1. The petitioner submits that the construction was completed and the occupancy certificate was issued by the Panchayath as seen from Ext.P5, and the fitness certificate was also issued by the Assistant Executive Engineer, LSGD Sub Division, Kolancherry, dated 31.5.2019. The construction was based on the estimate approved by the fifth respondent and the completion report in accordance with Exts.P7 and P8, the relevant extract of the estimate and work -5- ## WP(C)No.8401 of 2021 schedule was issued to the building by the sixth respondent, as seen from Ext.P9. A three-storied RCC building, including seven classrooms, a staff room, a dining hall, a kitchen and a toilet, was constructed with an additional floor area of 742.74 sq. meters. The Grama Panchayath also issued an ownership certificate on 21.01.2020, as evident from Ext.P10. On 30.10.2020, the Headmistress of the school requested disbursement of the amount towards Government share by Ext.P11. 3. The fourth respondent issued a letter dated 17.12.2020 addressed to the Headmistress pointing out that bills included in the application submitted for the release of the funds were not counter-signed by the Engineer, Local self Government department and also did not contain a valuation certificate. The petitioner accordingly submitted the valuation certificate and also the bills signed by the Assistant Executive Engineer. The petitioner submits that despite furnishing the Ext.P13 valuation certificate, no amount was paid after the compliance of the directions in Ext.P12. Thereafter, the petitioner filed a grievance petition in the Santhwana Sparsham Adalath 2021 and a hearing was scheduled on 18.02.2021 in the presence of the ministers and found that the petitioner was effected construction of the school on the terms of Ext.P1 and that they were entitled to the benefits of Challenge Fund Scheme. The copy of the communication as regards the Adalath is marked as Exts.P16 and P17. -6- ## WP(C)No.8401 of 2021 The petitioner submits that they had a legitimate expectation as the work was carried out on the strength of the assurance in Ext.P1. The writ petition was originally filed seeking a direction to respondents 1 to 4 to disburse the Challenge Fund Scheme benefit of Rs.50 lakh. By an interim order of this Court dated 24.3.2023, the first respondent was directed to consider Exts.P2 and P3 applications preferred by the petitioner and take a decision with due regard to Exts.P1, R4(a), P4, P9 and P16 within two months. Accordingly, Ext.P20 decision was taken, which was also challenged by way of amendment to the writ petition. The reasons stated in Ext.P20 are that some of the bills submitted by the petitioner bear the dates during 2017 and that the claim of the management was wrong as the construction works had already started much before the introduction of the Challenge Fund Scheme and the invoices submitted by the management pertaining to the year 2017 cannot be accepted. In short, the contention is that the management had started the construction well before the Challenge Fund Scheme and they completed the project on their own without any proper sanction from the departmental authorities before the commencement of the Challenge Fund Scheme. 4. The Government has filed a counter-producing Ext.R4(a) dated 15.11.2019 to contend that the school authorities had to carry out the construction activities at their own instance based on their available -7- WP(C)No.8401 of 2021 financial position and the Government Orders only permitted to claim activities which commenced only after 1.3.2018. It is also stated that the Tahsildar issued Ext.P16 without assessing/verifying the documents submitted. 5. Heard senior counsel Sri.Jaju Babu, instructed by Sri.Brijesh Mohan and Smt.Nisha Bose, the learned senior Government Pleader. 6. It is not disputed that the petitioner was included in Ext P1 scheme by Ext.P4 dated 26.10.2018 and was one among the 23 schools selected for the project commenced under Ext.P1. Ext.P4 did have conditions that the construction has to be supervised by the Engineer concerned of the Local Self Government department and that the concerned Educational Officer has to verify whether the construction is as per the permit granted by the local bodies. It is based on Ext P1 that the management remitted the amount to the Treasury, and the same was allowed to the used. The first rejection by the Government and the claim of the petitioner was by Ext.P12 because the bills were not counter-signed and the valuation certificate was not enclosed. These defects were cured, as is evident from the documents produced. The reason now put forth in Ext.P20, the impugned order, is that the construction was already complete, and thus the petitioner was not covered under Ext.P1 Scheme, -8- ## WP(C)No.8401 of 2021 objections were also raised that some of the bills were for the period before 1.3.2018. The petitioner was selected and found entitled by Ext.P4, and the conditions mentioned in Ext.P4 were for the implementation of the Scheme. The petitioner had also remitted Rs.50 lakh in the Treasury as part of the conditions and had completed the work. Having found the entitlement of the petitioner through Ext.P4, the respondents cannot be heard to contend at this point that the petitioner is not entitled since the construction was already over using their own funds. It has to be verified and ascertained before selecting the petitioner school, finding them to be entitled under Ext.P1. 7. Having made the petitioner believe that they were entitled under the Scheme and the petitioner had acted under Ext.P1 scheme, the contention of the Government that the petitioner is not entitled to be included under the Scheme cannot be accepted. By Ext.P1, the State had made a representation, and acting on the same, the petitioner had remitted the amounts. Ext.P4 must be understood as one that found the petitioner entitled to Ext.P1 Scheme. The respondents are under a legal obligation to exercise the powers they had reasonably and also in good faith and to effectuate the purpose for which the power is conferred. The doctrine of substantive legitimate expectation is one of the ways in which the guarantee of non-arbitrariness enshrined under Article 14 of the -9- WP(C)No.8401 of 2021 Constitution of India finds concrete expression. (see the judgment in NOIDA Entrepreneurs Association v. NOIDA [2011(6) SCC 508] 8. If it is a case that the petitioner was not entitled and still was selected and found to be entitled under Ext.P4, the officials who are responsible for the same must be taken to task after a proper enquiry in that regard. The selection and inclusion of the petitioner in Ext.P4 and making him remit Rs.50 lakh as part of the Scheme and thereafter come up with objections much after the construction cannot be justified on the part of the Government, whose actions are enjoined to be just and fair in every sphere of their activities. The reason stated for rejecting the claim of the petitioner after finding him entitled under Ext.P4 cannot be sustained even though the claim of the petitioner for the bills submitted before 1.3.2018 need not be honoured. 9. For the balance of the amount, the respondents or the competent among them are directed to take a fresh decision in the light of the observations made above and the documents produced in the writ petition after putting the petitioner and other affected parties on notice and after affording reasonable opportunity of hearing. Orders as directed above shall be passed within three months from today, and the amounts to which the petitioner is found entitled shall be paid within one month -10- WP(C)No.8401 of 2021 thereafter. After paying the amount due to the petitioner, it will be open to the Government to take appropriate action against the official responsible for including the petitioner in Ext.P4 in case the petitioner school is found not entitled to the benefit of Ext.P1. Since public money is involved and if it is ultimately found that the petitioner is not entitled to the benefit of Ext.P1 Scheme, the Government will have to pay the amount to the petitioner as promised and recover it from the officials responsible, as stated above. The writ petition is allowed as above. Sd/- **MOHAMMED NIAS C.P.** **JUDGE** dlk/3.3.2024 -11- WP(C)No.8401 of 2021 ## **APPENDIX OF WP(C) 8401/2021** **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER GO(P) NO.30/2018/FIN DATED 01.03.2018.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 15.06.2018 ALONG WITH PROFORMA SUBMITTED BY THE HEADMISTRESS OF SCHOOL.** **EXHIBIT P3 TRUE COPY OF THE APPLICATION NO.B4/5049/2018 DATED 07.07.2018 ALONG WITH RELEVANT PAGE OF TREASURY SAVING PASS BOOK.** **EXHIBIT P4** **TRUE COPY OF THE ORDER NO.W1/30602/2018/DPI DATED 26/.10.20187 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE OCCUPANCY CERTIFICATE ISSUED BY THE MAZHUVANNOOR GRAMA PANCHAYAT ON 22.05.2019 VIDE FILED NO.C3/7661/2018.** - **EXHIBIT P6 TRUE COPY OF THE FITNESS CERTIFICATE OF THE PETITIONER SCHOOL DATED 31.05.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, LSGD SUB DIVISION.** - **EXHIBIT P7 TRUE COPY OF THE RELEVANT EXTRACT OF THE ESTIMATE FOR THE CONSTRUCTION OF CLASS ROOM BUILDING VIDE EST NO.2019-2020/0.** **EXHIBIT P8 TRUE COPY OF THE RELEVANT EXTRACT OF THE WORK SCHEDULE FOR THE CONSTRUCTION OF CLASS ROOM BUILDING.** **EXHIBIT P9** **TRUE COPY OF THE COMPLETION CERTIFICATE/REPORT OF THE BUILDING ISSUED** -12- WP(C)No.8401 of 2021 ## **BY THE 6TH RESPONDENT.** **EXHIBIT P10 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 21.01.2020 VIDE FILE NO.5067801/79/2020, NO.5067801/80/2020, NO.5-067801/81/2020 ISSUED BY THE MAZHUVANNOR GRAMA PANCHAYATH. EXHIBIT P11 TRUE COPY OF THE LETTER VIDE NO.B4/5049/2018 DATED 04.11.2020 ISSUED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT. EXHIBIT P12 TRUE COPY OF THE LETTER NO.F2/14940/2020 DATED 17.12.2020 ISSUED BY THE 4TH RESPONDENT ADDRESSED TO THE HEADMISTRESS. EXHIBIT P13 TRUE COPY OF THE VALUATION CERTIFICATE ISSUED BY THE 6TH RESPONDENT. EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DATED 02.02.2021 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE MINISTER OF INDUSTRIES. EXHIBIT P15 TRUE COPY OF THE NEWS REPORT APPEARED IN THE HINDU DAILY DATED 09.02.2021. EXHIBIT P16 TRUE COPY OF THE COMMUNICATION VIDE NO.A6/1300/2021 DATED 26.02.2021 ISSUED BY THE TAHDILDAR KUNNATHUNADU TO THE 3RD RESPONDENT. EXHIBIT P17 TRUE COPY OF THE COMMUNICATION VIDE NO.A6/1300/2021 DATED 01.03.2021 ISSUED BY THE TAHSILDAR KUNNATHUNADU TO THE PETITIONER. EXHIBIT P19 COPY OF THE COMMUNICATION VIDE NO.1509377/NC-B3/34/2020-FIN DATED 20.08.2022 FORWARDED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P20 TRUE COPY OF THE G.O.(RT) NO. 4200/2023/FIN** -13- WP(C)No.8401 of 2021 ## **DATED 3.6.2023** **EXHIBIT P21 TRUE COPY OF THE BUILDING PERMIT VIDE NO. C7-10710/12 (B.P-67) DATED 06.06.2014 ISSUED BY THE MAZHUVANNUR GRAMA PANCHAYATH** - **EXHIBIT P22 TRUE COPY OF THE FITNESS CERTIFICATE DATED 30.05.2015 ISSUED BY THE MAZHUVANNUR GRAMA PANCHAYATH** **EXHIBIT P23 COPY OF THE SUBSEQUENT FITNESS CERTIFICATE DATED 27.04.2018 ISSUED BY THE MAZHUVANNUR GRAMA PANCHAYATH** ## **RESPONDENTS EXHIBITS** **EXHIBIT R1(A) TRUE COPY OF THE G.O(P).NO.24/2019/FIN. DATED 06.03.2019.** **EXHIBIT R1(B) TRUE COPY OF THE G.O(P).NO.156/2019/FIN. DATED 15.11.2019.** **EXHIBIT R1(C) TRUE COPY OF THE REPORT OF THE DEPUTY DIRECTOR OF EDUCATION DATED 12.03.2021.**