The Manager, Puthiya Maliyekkal Sayyid Alavy Thangal (P.M.S.A.), Vocational Higher Secondary School, Chappanangadi vs State of Kerala and Director of Higher Secondary Education

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932** **WP(C).No. 24119 of 2010(L)** **--------------------------------------** **PETITIONER:** **-------------------** **THE MANAGER, PUTHIYA MALIYEKKAL SAYYID ALAVY THANGAL (P.M.S.A), VOCATIONAL HIGHER SECONDARY SCHOOL, CHAPPANANGADI, VIA.KOTTAKAL, TIRUR TALUK, PONMALA GRAMA PANCHAYAT, PONMALA, MALAPPURAM DISTRICT.** **BY SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE, ADV. A.J. JOSE.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM.** **R1 & R2 BY SPL. GOVERNMENT PLEADER SRI. T.B. HOOD.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2010, ALONG WITH W.P.(C).NO.24282/2010, THE COURT ON 25/11/2010 DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.24119/2010-L:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE RESOLUTION OF THE PONMALA GRAMA PANCHAYAT DTD. 16/12/2004.** **EXT.P.2: COPY OF THE COMMUNICATION DTD. 17/12/2004 SENT BY THE SECRETARY OF THE PANCHAYAT TO THE GOVERNMENT.** **EXT.P.3: COPY OF THE ORDER, G.O. DTD. 30/03/2010 ISSUED BY THE GOVERNMENT.** **EXT.P.4: COPY OF THE ORDER, G.O. DTD. 03/06/2010 ISSUED BY THE GOVERNMENT.** **EXT.P.5: COPY OF THE NOTIFICATION DTD. 07/06/2010 ISSUED BY THE R.2.** **EXT.P.6: COPY OF THE APPLICATION DTD. 10/06/2010 SUBMITTED BY THE PETITIONER.** **EXT.P.7: COPY OF THE DECLARATION SUBMITTED BY THE PETITIONER.** **EXT.P.8: COPY OF THE ORDER, G.O. DTD. 20/07/2010 ALONG WITH THE ANNEXURE (LIST OF SCHOOLS ATTACHED TO THE SAME) ISSUED BY THE RESPONDENT.** **EXT.P.9: COPY OF THE G.O. DTD. 31/07/2010.** **EXT.P.10: COPY OF THE RELEVANT PAGE OF THE SCHOOL VISIT BOOK.** **EXT.P.11: COPY OF THE PROCEEDINGS DTD. 31/07/2010.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** **Prv.** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos. 24119/2010-L & 24282/2010-I** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 25[th] day of November, 2010.** ## **JUDGMENT** These two writ petitions have been filed by the Managers of the respective Vocational Higher Secondary schools aggrieved by the exclusion of those schools from the list of schools prepared for starting Higher Secondary Courses. Since common questions have been raised, they are being disposed of by a common judgment. 2. The facts of W.P.(C) No.24119/2010 show the following: The school in question is an aided school situated in Ponmala Grama Panchayat in Malappuram District. The same is the only high school available in the entire Panchayat and there is no other Higher Secondary school therein. The students had to seek admission in the adjacent Grama Panchayat, viz. Kottakkal Grama Panchayat to pursue their higher secondary course, which is situated more than 8 kms. away from Ponmala Grama Panchayat. As early as in 2004, by Exts.P1 and P2 the Grama Panchayat had requested the Government to sanction Higher Secondary section in the petitioner's school. Ext.P3 is the copy of the norms and guidelines issued as per Govt. Order W.P.(C).No. 24119 & 24282 of 2010 2 dated 30.3.2000 with regard to the establishment of Higher Secondary schools. Para 7 provides that Vocational schools to be preferred only in the absence of a regular High School. It is averred that within a radius of 7 kms. there is no other high school and the petitioner's school is the only one. In W.P.(C).No.24282/2010, the School was established as an aided High School in 1983. In 2001 two batches of Vocational Higher Secondary Course was sanctioned. It is averred in para (1) that the area Varode, is an educationally backward one. 3. For the year 2010-2011 the Government issued Ext.P4 order in [W.P.(C).No.24119/2010] prescribing the norms for sanctioning Higher Secondary Schools. Ext.P5 therein is the notification issued by the second respondent Director of Higher Secondary Education in terms of the Government policy which states that the policy is to ensure higher secondary schools in each Panchayat in a phased manner. 4. The norms further show that number of High Schools having Higher Secondary/Vocational Higher Secondary Schools within a radius of 5 km. from the applicant's school as well as the details of students who have passed from the high schools in the SSLC examination March 2010, will be a factor to be considered. The number of High Schools not having W.P.(C).No. 24119 & 24282 of 2010 3 Higher Secondary/Vocational Higher Secondary Schools within a radius of 5 km. of the applicant school will also be a factor. 5. The Selection Committee recommended the sanction of Higher Secondary school to the schools managed by both the petitioners. Final order is produced as Ext.P8 in W.P.(C) No.24119/2010. 6. The order Ext.P8 issued by the Government states one aspect, that permission for starting the courses will be granted only after the schools and the lists are examined by the Director to ensure whether vocational higher secondary courses have been started in any of them. It is also mentioned that if it is found so, such schools will be omitted from the list. 7. Both the schools were recommended to be included in the list, but thereafter they have been deleted as per Ext.P9 order produced in W.P.(C) No.24119/2010 which is produced as Ext.P6 in W.P.(C) No.24282/2010. Due to the reason that the petitioners' schools are having Vocational Higher Secondary Courses, they have been deleted along with another school. The same is under challenge in these writ petitions. 8. Heard Shri O.V. Radhakrishnan and Shri V.Chidambaresh learned Senior Counsel for the petitioners and Shri T.B. Hood, learned Govt. Pleader for the respondents. W.P.(C).No. 24119 & 24282 of 2010 4 9. Respondents 1 and 2 have filed detailed counter affidavits explaining the reasons. 10. Shri O.V. Radhakrishnan, learned Senior Counsel for the petitioner in W.P.(C) No.24119/2010 submitted that the condition in Ext.P8 to delete the schools having Vocational Higher Secondary Courses, is really discriminatory. The crucial question is whether the Panchayat is having a Higher Secondary School. The fact that the school is having Vocational Higher Secondary Divisions, is not a disqualification. The Government itself has varied the same in favour of four schools mentioned in Ext.P8 and therefore the discriminatory treatment meted out to the school managed by the petitioner in W.P.(C) No.24119/2010 is not correct. Shri V. Chithambaresh, learned Senior Counsel appearing for the petitioner in W.P. (C) No.24282/2010 also submitted that having a Higher Secondary school by way of Vocational Higher Secondary division, is not at all a disqualification and the deletion from the list is discriminatory. 11. Shri O.V. Radhakrishnan, learned Senior Counsel for the petitioner relied upon the decisions of the Apex Court in **State of Haryana and others v. Rajpal Sharma and others** {(1996) 3 SCC 273}, **Indian Drugs & Pharmaceuticals Ltd. and others v. Punjab Drugs** W.P.(C).No. 24119 & 24282 of 2010 5 **Manufactures Association and others** {(1996) 6 SCC 247}, **Chandigarh Administration and others v. Rajni Vali (Mrs) and others** {(2000) 2 SCC 42) and **Cannanore District Muslim Educational Association v. State of Kerala** (2010 (2) KLT 725 - SC) to contend for the position that aided and Government schools cannot be differentiated while the Government grants certain benefits. In the view I propose to take, it is not necessary to elaborately consider the principles stated therein. 12. Evidently, the matter will have to be considered in the light of the educational need of the area in view of Ext.P3 Govt. Order produced in W.P.(C) No.24119/2010. In the case of localities where other high schools are not there, going by para 7 of Ext.P3, Vocational Schools will have to be preferred. Therefore, I find force in the submission made by the learned Senior Counsel for the petitioners that there is no total exclusion of schools having Vocational Higher Secondary divisions for conduct of Higher Secondary courses. 13. Then, the other question is whether the stipulation in the norms adopted as per Ext.P4 Govt. Order dated 3.6.2010 that details of any Higher Secondary/Vocational Higher Secondary School within a radius of 5 km. should be mentioned, will affect the petitioners. The respondents have W.P.(C).No. 24119 & 24282 of 2010 6 pointed out that the fact that the petitioners' schools are having Vocational Higher Secondary divisions, were not disclosed in the applications and only later the same was known and in the light of the above, the petitioners' schools have been deleted from the list. Learned Govt. Pleader also explained that the four Government schools which were included for sanctioning Higher Secondary courses and which are having Vocational Higher Secondary divisions, were given the facility in the light of the particular education need of the said localities. It is explained by the learned Senior Counsel for the petitioners that the details sought for in respect of other schools within 5 km. radius of the applicant school, cannot apply to the petitioners' schools. 14. Evidently, the Government is considering the sanction of higher secondary schools in each Panchayat in a phased manner. One of the crucial questions to be considered is the educational need of the area. Of course, in the orders issued as per Ext.P9 in W.P.(C) No.24119/2010 which is Ext.P6 in the other writ petition, the Government wanted to exclude schools having Vocational Higher Secondary Courses. But at the same time, the four Government Vocational Higher Secondary Schools have been sanctioned Higher Secondary Courses. That means there is no total W.P.(C).No. 24119 & 24282 of 2010 7 exclusion of Vocational Higher Secondary Schools from the scheme of sanction of Higher Secondary Schools. 15. Then the only and important question which had to be considered by the Government is whether the educational need in the area satisfies the sanctioning of Higher Secondary Courses. Various points have been raised by the petitioners in these writ petitions as a justification for sanctioning of Higher Secondary Schools. The reports of the committees which went against the petitioners when the impugned orders Exts.P9 and P6 were passed in the respective writ petitions are not before this Court. Whether the educational need of the areas have been addressed by the departmental authorities when such reports were called for by the Committee prior to the inclusion of the petitioners' schools, in the list is also not evident. Obviously copies of such reports have not been furnished to the petitioners. 16. In that view of the matter, the only course possible is to direct the matter to be reheard by the Government. There is clear violation of the principles of natural justice. The adverse reports relied on in Exts.P9 and P6 have been obtained without notice to the petitioners also. The copies of the reports have not been furnished to the petitioners, evidently. W.P.(C).No. 24119 & 24282 of 2010 8 17. Therefore, the writ petitions are allowed. The impugned order Ext.P9 in W.P.(C) No.24119/2010 which excludes Vocational Higher Secondary Schools like that of the petitioners from the sanction of Higher Secondary Courses, which is Ext.P6 in W. P.(C) No.24282/2010, is quashed. The Government will reconsider the matter after notice to the petitioners. The petitioners will be furnished copies of the reports relied upon in Ext.P9 produced in W.P.(C) No.24119/2010 and Ext.P6 produced in W.P.(C) No.24282/2010 for enabling them to file their objections in the matter, within a period of three weeks from the date of receipt of a copy of this judgment. Thereafter, the petitioners will be issued notices for hearing and they will also be allowed to produce additional materials, if any, in support of their pleas. Appropriate final orders shall be passed within three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**