The Manager, T.K.M.M.L.P. & U.P School, Edakadathy, Erumely, Kottayam District v. State of Kerala, represented by its Secretary to Government, General Education Department, Secretariat, Thiruvananthapuram; The Director of Public Instructions, Jagathy, Thiruvananthapuram; The Assistant Educational Officer, Kanjirappally, Kottayam District

n **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **& THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY, THE 25TH DAY OF JANUARY 2018 / 5TH MAGHA, 1939** **WA.No. 2487 of 2017 IN WPC. 18155/2017** **AGAINST THE ORDER/JUDGMENT IN WP(C) 18155/2017 of HIGH COURT OF KERALA** ## **APPELLANT(S)/PETITIONER.** **THE MANAGER T.K.M.M.L.P & U.P SCHOOL, EDAKADATHY, ERUMELY, KOTTAYAMM DISTRICT.** **BY ADVS.SRI.V.A.MUHAMMED** **SRI.M.SAJJAD** ## **RESPONDENT(S):** **1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM.695014.** **3. THE ASSISTANT EDUCATIONAL OFFICER, KANJIRAPPALLY, KOTTAYAM DISTRICT.686507.** - **R BY ADVOCATE GENERAL SRI C.P.SUDHAKARA PRASAD GOVERNMENT PLEADER SRI A J VARGHESE GOVERNMENT PLEADER SMIT NISHA BOSE** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25-01-2018, ALONG WITH W.A.NO.2487 OF 2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **kkj** **C.R.** ## **K.SURENDRA MOHAN & ANNIE JOHN, JJ.** **---------------------------------------------** **W.A.No. 2487,2470,2519,2544,2572,2621,2622, 2641, 2643 & 2649 of 2017 & 30,32,34,46,47,68,72,74,75, 134,135,141,145,167,189,190,191,201,204,221,222 & 228 of 2018 ---------------------------------------------Dated this the 25[th] day of January, 2018** ## **J U D G M E N T** ## Surendra Mohan, J. This cluster of Writ Appeals at the instance of Managers of aided schools as well as Parent Teachers Associations challenge a judgment of the learned Single Judge finally disposing of a number of Writ Petitions. Though the judgments in some of the cases are dated 29.08.2017, the same judgment in respect of some of the other cases are rendered on two other dates namely, 27/09/2017 and 06/10/2017 respectively. However, the judgment is the same, except for the variation in the dates. The issue that arises for consideration is also common. 2. The appellants had filed the Writ Petitions seeking the issue of directions compelling the respondents to grant formal sanction to impart elementary education to the ## -:2:- ## W.A. No.2487 of 2017& Conns. children studying in their schools, in some cases by adding Std V to the LP Section conducted by them and in other cases by adding Std VIII to the UP Section conducted by them. According to them, the classification of schools for General Education made by Rule 2, Chapter II, of the Kerala Education Rules, 1959 (KER for short) now stands abrogated and substituted by the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the RTE Act for short) enacted by the Union Parliament. According to them, after the introduction of Article 21A into the Constitution by the 86[th] Amendment Act, 2002, every child has been clothed with a fundamental right to be provided with elementary education. The RTE Act was brought into force with effect from 01.04.2010 for the purpose of giving effect to the mandate of Article 21A of the Constitution. The Act was followed by the Right of Children to Free and Compulsory Education Rules, 2010 brought into force with effect from 09.04.2010. The above developments have effected a ## -:3:- ## W.A. No.2487 of 2017& Conns. change in the structure of the education system that is contained in the KER. The provisions of the Act guarantee to every child, the right to elementary education which the State is bound to provide. As far as the schools in these appeals are concerned, it is pointed out by the appellants that, they have provided all the additional facilities that are required to be put in place for being granted the sanction for conducting an additional V[th] standard or VIII[th] standard as the case may be, at their expense. They are willing to have the classes conducted utilising the services of protected teachers who are available in the State. Since the protected teachers are being paid salaries by the State without extracting sufficient work from them, it is contended that the course suggested by them could ensure that the services of such protected teachers are gainfully utilised. Therefore, they sought various reliefs from this Court. 3. The contentions of the appellants were contested by the respondents. According to the State, in compliance ## -:4:- ## W.A. No.2487 of 2017& Conns. with the obligation that is cast on it by Article 21A as well as the provisions of the RTE Act and the Rules, appropriate action has been taken to ensure that right to education was made meaningfully available to all the children. In accordance with the stipulations contained in the RTE Act and the Rules, school mapping was conducted and areas where proper facilities were lacking have been identified and necessary action has been taken for implementation of the provisions of the RTE Act and the Rules. It is also contended that, similar reliefs as sought for in the present Writ Petitions had been declined by this Court on two earlier occasions. Therefore, they sought for dismissal of the Writ Petitions. 4. The learned Single Judge considered the Writ Petitions together and found that the action taken by the Government for the purpose of implementing the provisions of the RTE Act and the Rules were progressing satisfactorily. Therefore, reserving the liberty of the appellants to challenge any orders that may be passed by ## -:5:- ## W.A. No.2487 of 2017& Conns. the Government, the Writ Petitions were disposed of. During the pendency of the Writ Petitions, the Managers of the schools had been granted interim orders permitting them to admit students to Class V and Class VIII as the case may be, in each of the schools. Therefore, the learned Single Judge has made it clear that such interim orders would be confined to the academic year 2017-18 only. These appeals are all filed aggrieved by the said directions. 5. According to Advocate V.A.Muhammad who appears for the appellants, chapter II, Rule 1, KER classifies the schools into Schools for General Education, Schools for Special Education, etc. As per Rule 2 of the said chapter, Schools for General Education are to consist of two grades, the Primary Grade comprising of standards 1 to VII which is subdivided into the Lower primary and Junior Basic comprising of standards I to IV and an Upper Primary and Senior Basic comprising of classes V to VII. Standards VIII to X are collectively known as Secondary Grade. Our attention is drawn to Section 19 of the RTE Act to point out -:6:- ## W.A. No.2487 of 2017& Conns. that, as per Sub section 1 no school is permitted to be established and recognized under Section 18 unless it fulfills “the norms and standards specified in the schedule”. The schedule stipulates class 1 to V in one grade and Class VI to VIII in the second category. Reliance is placed on the provisions of the Kerala Right of Children to Free and Compulsory Education Rules, 2011 (hereinafter referred to as 'the Kerala Rules' for short) to point out that as per Rule 14(8) any school that does not conform to the norms and standards specified in the Schedule and conditions mentioned in sub-rule (1) within three years from the date of commencement of the Act would have to stop functioning. The schedule further prescribes the teacher -pupil ratio as well as the number of working days that the school is expected to work. The learned counsel also places reliance on G.O.(Ms) No.154/2013/G. Edn. dated 03.05.2013 by which, the Government has declared Standard I to VIII as Elementary Education Cycle. In view of the above provisions, it is contended that it is only appropriate that ## -:7:- ## W.A. No.2487 of 2017& Conns. sanction is accorded to the appellants to commence the additional standards in consonance with the scheme that is envisaged by the RTE Act and the Rules. Reliance is placed on the decisions of the Apex Court in **Kalyani Mathivanan K.V.Jeyraj** [(2015) 6 SCC 363] and **Sudhir N. v. State of Kerala** [(2015) 6 SCC 685] in support of the above contention. 6. Advocate S.M.Prem who appears for some of the appellants, while endorsing the contentions taken note of hereinabove, points out that Section 2(n) of the RTE Act defines a school to include aided schools imparting elementary education also. Going by Section 2(f), elementary education means education from the first class to the 8[th] class. The right to elementary education is conferred on children aged 6 to 14 years. It is also pointed out that, as per Rule 2A of Chapter V KER the schools have the right to apply for sanction for starting a new standard. Therefore, it is for the Government to accord such sanction and to permit the schools to conduct classes in accordance -:8:- ## W.A. No.2487 of 2017& Conns. with the provisions of the RTE Act and the Rules. In view of the above, according to the counsel, the learned Single Judge erred in not granting an affirmative order compelling the Government to exercise the powers available to it. 7. The contentions of the appellants are opposed by the learned Advocate General by pointing out that, all the obligations of the Government under Article 21A of the Constitution as well as the the provisions of the RTE Act have been discharged. The Government have framed the Kerala Rules in 2011, and brought them into force on 06.05.2011, putting in place all the necessary provisions to ensure that the fundamental right under Article 21A was made meaningful to the children. Exhibit R1(c) notification was issued on 19.05.2017 identifying the localities in which the facilities stipulated by the RTE Act and the Rules were not available and appropriate action has been taken by issuing Exhibit R1(d) Government Order dated 09.06.2017. The Government have provided transportation facility to the children of 82 such areas to reach the nearest school. -:9:- ## W.A. No.2487 of 2017& Conns. Reliance is placed on the decision of this Court in **Kum. Sreya Vinod v. Director of Public Instructions** [2012 (4) KHC 49 (DB)] to point out that, providing of transportation facility was accepted by this Court as sufficient to discharge the obligations of the State under the RTE Act and the Rules. The learned Advocate General places reliance on the decision of a learned Single Judge of this Court in **Kerala Aided L.P. and U.P.School, Kollam v. State of Kerala** [ILR 2016(1) Kerala 590], paragraphs 10 to 16 and 84 in particular, to point out that, similar contentions had been repelled by this Court on an earlier occasion. 8. Heard. We have considered the respective contentions advanced before us by the contesting parties, anxiously. It is true that, by the Constitution 86[th] Amendment Act 2002, the right to education has been made a fundamental right by the introduction of Article 21A. In tune with the mandate of the said provision, the Union Parliament has enacted the RTE Act, 2010. The complaint of the appellants before us is that, they have not been ## -:10:- ## W.A. No.2487 of 2017& Conns. granted the sanction to add either an additional V[th] standard or an additional VIII[th] standard to the schools conducted by them for the purpose of giving meaningful education to the children who are studying in their schools. We notice that, the obligation to provide elementary education to the children in the age group of 6 to 14 years is on the State. The State has in furtherance of the objective enacted the Kerala Rules of 2011 putting in place various measures to ensure proper implementation of the provisions of the Act and the Rules. Though it is contended that, the schools are entitled under the provisions of the RTE Act, 2009 and the Rules thereunder to be granted permission to start additional classes, we do not find that they have any such right either under the RTE Act 2009 or the Rules framed thereunder. It is true that, they have offered to provide the necessary facilities for the purpose of starting additional standards at their expense. However, the fact remains that teachers would be necessary to impart instruction to the students. According to the respective ## -:11:- ## W.A. No.2487 of 2017& Conns. counsel appearing for the appellants, by utilising the services of the protected teachers available in the State, any additional burden on the State exchequer could be avoided. It could also be ensured that the services of the protected teachers are more meaningfully utilised, considering the obligation of the State to pay them, eventhough they do not have sufficient work to be discharged. However, the above aspect is one on which the Government would have to bestow its attention. We do not know what is the number of protected teachers available for such utilisation or deployment. We are also not aware as to what would be the other consequences that are likely to follow by such deployment of the protected teachers. As rightly pointed out by the learned Advocate General, in the absence of such teachers being not available, the Managers of the schools would make fresh appointments adding to the burden on the State exchequer. Therefore, those are matters on which the Government would have to take a decision after evaluating the ground realities. -:12:- ## W.A. No.2487 of 2017& Conns. 9. With respect to the question as to whether the State has discharged its obligations for giving effect to the RTE Act and the Rules, we find that the Kerala Rules have made provisions. As already noticed above, as per Exhibit R1(c) Government Order, the Government have identified the areas where sufficient schools were not available to provide elementary education to the children. As per exhibit R1(d), the Government have for the purpose of meeting the educational needs of the children in the locality ordered to provide transportation facilities in the 82 areas appended to the Government Order. Such transportation facilities are provided to children for reaching the nearest schools with the cooperation/assistance of the local bodies. The obligation of the State being to provide sufficient facilities for extending elementary education to the children in the age group of 6 to 14 years, the modalities for making provision for the said purpose necessarily falls within the realm of Governmental decision making. Instead of establishing additional schools or providing additional -:13:- ## W.A. No.2487 of 2017& Conns. infrastructural facilities, the provision of providing transportation facilities cannot be found fault with. Therefore, we are not satisfied that there has been any lapse in the matter of implementing the provisions of the RTE Act and the Rules as alleged by the appellants. 10. Another contention put forward is that, the omission to provide education as stipulated by the RTE Act and the Rules by commencing classes for Std V and Std VIII, as the case may be, would entail a cancellation of the recognition of the schools. According to the learned counsel, as per Rule 14(8) any school that does not conform to the the norms specified in the schedule to the Act within three years from the date of commencement of the Act would have to stop its functioning, apart from attracting punishment under Section 19 of the Act. It is pointed out that the three year period has expired. The above is a contingency that would have to be addressed by the State while considering the question as to whether a school should be granted permission to start additional standards -:14:- ## W.A. No.2487 of 2017& Conns. for the purpose of conforming to the provisions of the RTE Act and the Rules. The appellant shall be at liberty to approach the Government for the said purpose. If applications for such purpose are submitted, needless to observe that the Government shall consider and dispose them of in accordance with law. Except for the above clarification we find no grounds to admit these appeals or to set aside the judgment appealed against. These appeals are therefore dismissed. **Sd/K.SURENDRA MOHAN JUDGE** **Sd/ANNIE JOHN JUDGE** kkj