The Manager, Holy Family L.P. School, Angamaly v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 3[RD] DAY OF AUGUST 2021 / 12TH SRAVANA, 1943** ## **WP(C) NO. 28817 OF 2019** ## **PETITIONER:** **THE MANAGER, HOLY FAMILY L P SCHOOL, ANGAMALY, KERALA-683 572.** ## **BY ADV SHERRY J. THOMAS** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DEPUTY SECRETARY, GENERAL EDUCATION, GOVT. OF KERALA, THIRUVANANTHAPURAM-1.** - **3 THE JOINT DIRECTOR, GENERAL EDUCATION DEPARTMENT (ACADEMIC), THIRUVANANTHAPURAM-695 014.** - **4 THE DISTRICT EDUCATION OFFICER, ERNAKULAM-682 011.** - **5 THE ASSISTANT EDUCATION OFFICER, ANGAMALY-683 572. BY ADV.SRI. V.VENUGOPAL,GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 28817 OF 2019** **-2-** ## **JUDGMENT** The Manager of the 'Holy Family L.P.School', Angamaly - which is an Aided School operating within the ambit of the Kerala Education Rules (KER for short) - has approached this Court impugning Ext.P5 order dated 19.08.2019; whereby, his request for sanctioning eighteen divisions/post of teachers has been declined, on the ground that the number of students in the school does not warrant the same. 2. The petitioner says that the view in Ext.P5 is contrary to the facts, because the number of students has been reckoned by the educational Authorities without taking into account the boys studying there. He explains that the school was originally an 'all girls school', which was converted as a 'mixed school' in the year 2003, through Ext.P1 order. ## **WP(C) NO. 28817 OF 2019** ## **-3-** 3. The petitioner, however, concedes that in Ext.P1, a condition was attached to the effect that further divisions will not be sanctioned to the School subsequent to the admission of boy students; but asserts that this stipulation cannot continue _ad infinitum_ , because it is in conflict with the provisions of Rule 12 of Chapter IV of the KER, which stipulates that, as a General Rule, all Primary Schools will be deemed to be “Mixed Schools”. 4. The petitioner says that Ext.P1 was issued as early as in the year 2003 and that, as is evident from Ext.P4, the student strength has considerably increased in the subsequent years, on account of the admission of boy students; but that the post of teachers and divisions have been fixed only taking into account the number of girl students. The petitioner thus prays that Ext.P5 be ## **WP(C) NO. 28817 OF 2019** ## **-4-** set aside. 5. I have heard Sri.Sherry J.Thomas – learned counsel for the petitioner and Sri.V.Venugopal – learned Government Pleader appearing for the official respondents. 6. The learned Government Pleader submitted that the petitioner cannot maintain this writ petition or challenge Ext.P5 order, because he had expressly agreed - at the time when the School was converted into a “Mixed School” - that the strength of the boy students will not be taken into account for the purpose of fixing the divisions in future. He submitted that this condition has been specifically incorporated in Ext.P1 with his consent; and consequently, that petitioner cannot now disregard the same and seek that the School be granted divisions/posts reckoning the boy students also. The learned Government Pleader, therefore, prayed that this ## **WP(C) NO. 28817 OF 2019** **-5-** writ petition be dismissed. 7. The rival contentions of the parties being so recorded, it is limpid that the only issue in this case is whether the Staff Fixation Order for the School, made after excluding its boy students, is valid as per the provisions of the KER. Normally, when a School has both boy and girl students, the total strength will have to be reckoned to make provisions for divisions and posts of teacher. However, in the case at hand, the irony is that even though there are several boy students in the School, they have not been taken into account, reportedly, because of the condition imposed in Ext.P1 order, dated 05.06.2003. 8. Apart from the fact that exclusion of boy students is in dissonance with the provisions of the KER, it is also in egregious conflict with the rights of students to education, as guaranteed by ## **WP(C) NO. 28817 OF 2019** **-6-** Article 21A of the Constitution of India and protected by the provisions of the Right of Children to Free and Compulsory Education Act, 2009. 9. When I say as afore, I am fully cognizant that a learned Judge of this Court, in **Jayasree v.** ## **Director of Public Instruction, Thiruvananthapuram** **and Others** [2016 (3) KHC 300], has considered this issue, to find that as per the provisions of the KER, all Primary Schools, whether it be Lower or Upper, shall be deemed to be “Mixed Schools” and admission thereto shall be open to boys and girls alike. It is also further affirmatively declared therein that no differentiation can be made between a boy and a girl as regards the admission to a School, and that a departure from this is possible only if the Director of General Education permits the School to be maintained either as an exclusive 'Boy School' or as an exclusive 'Girl ## **WP(C) NO. 28817 OF 2019** **-7-** School'. 10. Since it is admitted before me, even by the learned Government Pleader, that the School presently continues to be a 'Mixed School', I fail to understand how the Authorities can still frame the Staff Fixation Order in the manner as has been done by them now, excluding boy students. 11. It is rather incongruous that, based on an undertaking by the Manager - given in the year 2002-03, when the School was converted into a “Mixed School” - the Authorities still continue to exclude boy students, while completing the staff fixation exercise. 12. As indited above, this clearly causes violation to the right of the students to good education, particularly when the boy students are excluded, the effective teacher-student ratio would be much more than what is permitted by the ## **WP(C) NO. 28817 OF 2019** **-8-** KER and would also cause an affront to the core subject ratio, as has been stipulated by the Government from time to time, through their orders. In the afore circumstances, and being guided by the judgment of this Court in **Jayasree** (supra), I order this writ petition and set aside Ext.P5; with a consequential direction to the Government to reconsider the Revision of the petitioner - filed challenging Ext.P3 order, rejecting his appeal against the Staff fixation order for the year 2016-2017 - after affording him an opportunity of being heard – either physically or through video conferencing – thus culminating in a new order thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. Needless to say, while completing the afore exercise, the competent Authority of the ## **WP(C) NO. 28817 OF 2019** **==> picture [22 x 9] intentionally omitted <==** Government shall specifically advert to the observations above, as also the declarations in **Jayasree** (supra). **Sd/DEVAN RAMACHANDRAN JUDGE** akv **-10-** ## **WP(C) NO. 28817 OF 2019** ## **APPENDIX OF WP(C) 28817/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE ORDER DATED 5.6.03. EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED 8.3.18. EXHIBIT P3 THE TRUE COPY OF THE ORDER OF 3RD RESPONDENT DATED 9.10.2018. EXHIBIT P4 THE TRUE COPY OF THE ORDER DATED 16.7.2019 EXHIBIT P5 THE TRUE COPY OF THE ORDER DATED 19.08.2019.** **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE