The State of Kerala & Others v. Manager, Panakkad Pookoya Thangal Memorial High School, Pombra, Palakkad

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 8TH DAY OF AUGUST 2017 / 17TH SRAVANA, 1939** **WA.No. 1367 of 2017 IN WPC. 16100/2012** ## **AGAINST THE JUDGMENT IN WP(C) 16100/2012 of HIGH COURT OF KERALA DATED 03-02-2016** ## **APPELLANTS/RESPONDENTS & ADDITIONAL 6TH RESPONDENT:** **1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS,** - **JAGATHY,THIRUVANANTHAPURAM-695014.** ## **3 THE SECRETARY,** - **PAREEKSHA BHAVAN,POOJAPPURA,THIRUVANANTHAPURAM-695014.** ## **4 THE DEPUTY DIRECTOR OF EDUCATION,** **PALAKKAD DISTRICT-678001.** ## **5 THE DISTRICT EDUCATIONAL OFFICER,** - **OTTAPPALAM-679101,PALAKKAD.** **ADDITIONAL 6TH RESPONDENT: THE DISTRICT EDUCATIONAL OFFICER, MANNARKKAD, PALAKKAD DISTRICT-678552.** ## **BY GOVERNMENT PLEADER A.J VARGHESE** ## **RESPONDENT/PETITIONER:** **THE MANAGER, PANAKKAD POOKOYA THANGAL MEMORIAL HIGH SCHOOL, POMBRA,PALAKKAD-678595.** **BY ADV. SRI.V.A.MUHAMMED BY ADV. SRI.M.SAJJAD** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.SURENDRA MOHAN, & MARY JOSEPH, JJ.** **-------------------------------------------------W.A NO. 1367 OF 2017 --------------------------------------Dated this the 8[th] day of August, 2017** ## **JUDGMENT** ## **K.SURENDRA MOHAN.J.** The State is in appeal challenging the judgment of the learned Single Judge dated 03.02.2016 in W.P.(C) No.16100 of 2012. As per the judgment, the learned Single Judge has allowed the writ petition and directed the Government to look into the report of the District Educational Officer (D.E.O) referred to in Ext.P11 and to grant permanent recognition to the school of the respondent within three weeks from the date of receipt of a copy of the judgment. According to the appellants, the judgment of the learned Single Judge is unsustainable and liable to be set aside. 2. The respondent had filed the writ petition challenging Ext.P11 Government Order dated 11.04.2012 by which permanent recognition to the school conducted by the respondent was not granted. The school was initially granted temporary recognition by an order dated 10.12.2004. Later on, the name of the school was changed to its present one and W.A NO. 1367 OF 2017 2 the school continued to function on the strength of temporary recognition. Permission to open Std.VIII was granted on 6.3.2006 for the academic year 2004-05. In 2005-06 permission was granted for Std.IX. Thereafter, temporary recognition was granted to start Std. X in the year 2006-07. Later on, recognition was granted for Std. VIII to X for the year 2007-08. In the above circumstances, by Ext.P5 order dated 5.11.2009, the Director of Public Instructions withdrew the recognition that was granted. Ext.P5 was the subject matter of challenge before this Court in W.P.(C) No. 3998/2010. The said writ petition was disposed of by Ext.P6 judgment. The respondent challenged Ext.P6 in W.A No.525/2010. As per Ext.P7 judgment dated 18.5.2010, the Writ Appeal was disposed of, modifying the judgment of the learned Single Judge. The operative portion of the judgment is extracted hereunder for convenience of reference. “We therefore dispose of the writ appeal by modifying the impugned judgment as follows: 1) The appellant is permitted to admit students for the VIIIth standard for the current academic year 2010-11 and run the school with the VIIIth, IXth and Xth sections complying with the requirements of the education rules. 2) the appellant will submit a fresh application in Form II to the D.E.O. within two weeks from the date of this judgment and the D.E.O. will conduct inspection of the school, make his report on the relevant matters on appellant's W.A NO. 1367 OF 2017 3 application and forward the application submitted by the appellant for consideration by the Government for approval. The Government will consider the matter and grant permanent approval, if appellant's school is found eligible based on the report of the D.E.O. and on the other hand, if the report is adverse to the appellant, the appellant should be given a copy of the report and given an opportunity to make up all deficiencies for getting approval.” 3. Pursuant to the above direction, the respondent submitted a fresh application for the grant of permanent recognition. The said application was forwarded by the D.E.O. as per Ext.P10 dated 2.8.2010. The application was considered by the Government in the light of the report of the D.E.O. By Ext.P11 order dated 11.4.2012, the Government held that though the D.E.O had recommended grant of permanent recognition to the school, such recognition could be granted only as per the norms stipulated by the Right to Education Act. Consideration of the respondent's application was deferred, until the process of implementing the provisions of the said Act was completed. It was aggrieved by the said direction in Ext.P11 that the respondent had filed the writ petition from which this appeal arises. 4. It is necessary to mention here that after the disposal of W.A No.525 of 2010 by Ext.P6 judgment, the respondent had approached this Court by filing writ petition W.A NO. 1367 OF 2017 4 No.34037 of 2010. In the said writ petition, he sought for the grant of sanction of an examination center for the conduct of S.S.L.C examination at his school. By an interim order dated 23.11.2010, as per Ext.P8 such permission was granted. Later on, the writ petition itself was disposed of by Ext.P9 judgment dated 17.08.2011. Wherein also, the learned Single Judge of this Court directed the application for permanent recognition submitted by the respondent to be considered after affording an opportunity of hearing to the respondent. 5. The contentions of the respondent in the writ petition were opposed by the appellants. However, no counter affidavit appears to have been filed. The learned Single Judge considered the contentions of the parties since the application submitted by the respondent was long prior to the enactment of the Right of the Children to Free and Compulsory Education Act, 2009 (herein after referred to as 'the RTE Act' for short). There was no justification for delaying consideration of the application of the respondent, awaiting finalization of the norms regarding implementation of the provisions thereof. Therefore, the Government have been directed to look into the report of the DEO and to grant permanent recognition within the time stipulated in the judgment. 5 W.A NO. 1367 OF 2017 6. According to the learned Government Pleader who appears for the appellants, applications seeking permanent recognition could be made by schools only pursuant to a notification issued by the Government under Rule 2 and 2A of chapter V, Kerala Education Rules, 1959 (hereinafter referred to as 'KER' for short). In the present case, no notification had been issued by the Government and therefore, there was no occasion for the respondent to have submitted an application seeking permanent recognition. Though the Government had issued a notification in the year 2003, the notification entitled only schools that were started in the year 2003-04 to submit applications. The school of the respondent was started in the year 2004-05. In spite of the above, the respondent had submitted an application. By mistake, the respondent's school was also included in the preliminary list of schools prepared pursuant to the Government order. However, on realizing the mistake, the name of the respondent's school was deleted by Ext.P1 Government Order and was later granted temporary recognition as per Ext.P1. The grant of temporary recognition does not confer any right on the respondent to seek permanent recognition, it is contended. The learned Government Pleader also places reliance on the decisions of W.A NO. 1367 OF 2017 6 the Apex Court in **State of Kerala v. Prasad [2007 (3) KLT 531 (SC)]** and **Ekta Shakti Foundation v. Government of NCT of Delhi [2006 (3) KLT 601 (SC)]** to contend that, this Court has no jurisdiction to direct the grant of recognition to a school in a situation where the Government has not issued a notification as stipulated by Rules 2 and 2A of chapter V of KER. The learned Government Pleader seeks interference with the judgment of the learned Single Judge. 7. Adv. V.A Muhammed, appears for the respondent. According to the learned counsel, the school was initially started as per Ext.P1 Government Order. The Government order has granted recognition but not specified whether such a recognition was temporary or permanent. On the basis of the recognition, the school started functioning and has been continuously functioning ever since. Additional classes were being sanctioned by the authorities periodically and at present, the school is conducting classes up to Std.X. According to the learned counsel, a division bench of this Court in Ext.P7 judgment directed the grant of recognition to the school, on the basis of the report of the DEO. The said judgment having become final, the Government cannot wriggle out of their liability to comply with the directions W.A NO. 1367 OF 2017 7 therein, at this length of time. It was taking note of the above direction that the learned Single Judge has directed the grant of recognition to the school. Therefore according to the learned counsel there are absolutely no grounds to interfere with the judgment of the learned Single Judge. 8. Heard. This is not a case in which the respondent has submitted an application for starting a school. It is clear from Ext.P1 that the school had started functioning from 2004-05 onwards. The respondent had submitted an application pursuant to a notification issued by the Government at that time. The school of the respondent was included in the preliminary list prepared pursuant to the said notification. However, since it was later found that the respondent had been mistakenly included in the list, the name of the school was dropped from the list and temporary recognition was granted as per Ext.P1. On the strength of Ext.P1, the school started functioning and has been functioning continuously, ever since. Permission to start additional classes was being granted periodically as evident from the orders Ext.P2 and P3. Thereafter, an application for permanent recognition, Ext.P4 was submitted by the respondent to the D.E.O. It was years thereafter, by Ext.P5 W.A NO. 1367 OF 2017 8 dated 5.11.2009, that the Director of Public Instructions had sought to withdraw the recognition already granted. The same was interfered with by this Court as already noticed above, by the directions in Ext.P7 judgment. A perusal of the directions issued, which we have already extracted above, leaves no doubt in our mind that the Government ought to have considered the fresh application in Form-II that was directed to be submitted by the respondent to the D.E.O within a period of two weeks from the date of the said judgment. The manner in which such fresh application was to be considered has also been directed in Ext.P7. The direction was for the D.E.O to conduct an inspection of the school and make a report on the relevant matters and to forward the respondent's application for consideration by the Government for approval. There is a further direction to the Government to consider the matter and to grant permanent approval if the school was found to be eligible based on the report of the D.E.O. On the other hand, if the report of the DEO was adverse to the respondent, the respondent was to be given a copy of the report and given an opportunity to make up all deficiencies for getting approval. Therefore, the direction was clearly to the effect that permanent recognition was to be W.A NO. 1367 OF 2017 9 granted on the basis of the report of the D.E.O and in the event of there being any deficiencies detected, an opportunity to rectify such deficiencies also was to be granted. In other words, Ext.P7 contains a direction to grant permanent recognition to the respondent subject to the conditions therein. It is admitted that, Ext.P7 judgment has become final and binding inter parties. It is in the above background that the present contentions have to be considered. 9. Ext.P11 refers to the application for permanent recognition submitted by the respondent pursuant to the direction contained in Ext.P7 judgment of the Division Bench. In paragraph 6 of Ext.P11, reference has been made to the application submitted by the respondent as well as the report of the D.E.O, Ottappalam. The Deputy Director of Education also appears to have conducted an inspection of the school and reported to the Government. A perusal of paragraph 9 of Ext.P11 shows that the District Educational Officer, Ottappalam has recommended the application for permanent recognition since the basic facilities and space provided by the school were satisfactory. The access to the school was also satisfactory and it is also not in dispute that there was no other school within 5 km thereof. Ext.P11 further notes that W.A NO. 1367 OF 2017 10 to meet the educational need of the locality, a high school was necessary. For the above reason, it is found in Ext.P11 that the school was eligible to be granted permanent recognition. However, such permanent recognition has been declined only for the reason that the process of implementing the provisions of the 'RTE Act' was in progress and was expected to be completed within two or three months. For the above reason, it is stated that the application for permanent recognition would be taken up for consideration after the RTE Act was implemented in the State. The said stand of the Government in Ext.P11 is not in compliance with the direction of the Division Bench contained in Ext.P7 judgment as already noticed above, wherein the direction was to consider the report of the DEO and to grant permanent recognition. Since the report of the DEO had found the school to be eligible for the grant of permanent recognition, it was incumbent on the appellant to have granted the permanent recognition in compliance with the direction contained in Ext.P7 judgment. The above being the factual scenario, the contention of the learned Government Pleader that the application of the respondent could not be considered in the absence of a notification inviting applications under Rules 2 and 2A of W.A NO. 1367 OF 2017 11 Chapter V of KER cannot be countenanced. This is not a case in which the respondent has submitted an application for permanent recognition, in the absence of a notification by the Government. Having suffered Ext.P7 judgment and the direction contained therein, it was incumbent on the Government to have granted permanent recognition to the respondent in compliance with the directions therein. The stand taken in Ext.P11 by the Government is an attempt to avoid compliance with the positive directions in Ext.P7. Therefore we do not find any substance in the contentions raised now, against the direction of the learned Single Judge. For the foregoing reasons, the writ Appeal fails and is accordingly dismissed. SD/- ## **K.SURENDRA MOHAN JUDGE** **sd/-** **MARY JOSEPH JUDGE** sab