W.P.(C) No.15185 of 2018

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 14TH DAY OF JUNE 2018 / 24TH JYAISHTA, 1940** **WP(C).No. 15185 of 2018** **------------------** **PETITIONER(S)** - **-------------** **1 MANAGER, AMLP SCHOOL, VETTIKKATTIRI PODIYAT, VALLUVANGAD P.O, PANDIKKAD, MALAPPURAM-676 521.** - **2 MANAGER, JUNIOR BASIC SCHOOL, VETTUKAD, MANJALOOR P.O, PALAKKAD-678 502.** - **3 MANAGER,** - **PANANGAD WEST AMLP SCHOOL, MM PARAMBA P.O, UNNIKULAM, KOZHIKODE-673 574.** ## **4 MANAGER,** - **AMLP SCHOOL, NOCHAD, NOCHAT P.O, KOZHIKODE -673 614.** - **5 MANAGER,** - **A.M.L.P SCHOOL, VALLUVANGAD, VALLUVANGAD SOUTH P.O, PANDIKKAD, MALAPPURAM-676 521.** - **6 MANAGER,** - **LP SCHOOL, VELIYAMBRA, P.R NAGAR P.O, KANNUR-670 702.** - **7 MANAGER,** - **AMLP SCHOOL, CHERAYI NORTH, ANDATHODE P.O, THRISSUR-679 564.** - **8 MANAGER,** - **AUP SCHOOL, MUZHAPPILANGAD SOUTH, MUZHAPPILANGAD P.O, KANNUR-670 662.** - **9 MANAGER, ALP SCHOOL, ATTADAPPA, ATTADAPPA P.O, KANNUR -670 613.** - **10 MANAGER, JUNIOR BASIC SCHOOL, PARAPRAM, PINARAI, PARAPRAM P.O, KANNUR-670 741.** - **11 MANAGER,** - **AMLP SCHOOL, EDAPPULAM, CHATHANGOTTUPURAM P.O, WANDOOR, MALAPPURAM-679 328.** **WP(C).No. 15185 of 2018** **12 MANAGER, P.P.T.S. A.L.P SCHOOL, KANHANGAD KADAPPURAM, KANHANGAD P.O, KASARAGOD-671 315.** - **13 MANAGER, AMLP SCHOOL, KOONOLMADU, PUTHUR PALLIKKAL P.O, THENHIPALAM(VIA), MALAPPURAM-673 636.** - **14 MANAGER, ALP SCHOOL, KAKKUR, KAKKUR P.O, KOZHIKODE-673 613.** - **15 MANAGER, MM ALP SCHOOL, KEDAVOOR, THAMARASSERY P.O, KOZHIKODE -673 573.** - **16 MANAGER, ALP SCHOOL, BADOORPADAV, BADOOR P.O, KUMBLA(VIA), KASARAGOD- 671 321.** - **17 MANAGER, PANUNDA BASIC UP SCHOOL, ERUVATTI P.O, THALASSERY, KANNUR-670 647.** - **18 MANAGER, AMLP SCHOOL, KUTTASSERI, ELANKUR P.O, MALAPPURAM-676 122.** - **19 MANAGER, ALP SCHOOL, MANGALAM, MANGALAM P.O, MALAPPURAM-676 561.** - **20 MANAGER, AMLP SCHOOL, MORAYUR P.O, MALAPPURAM-673 649.** - **21 MANAGER, PANAMPILLY GOVINDA MENON MEMORIAL LP SCHOOL, KALLAYI, MUTTITHADI P.O, THRISSUR-680 317.** - **22 MANAGER, AMUP SCHOOL, MUNDAKKOTTUKURSSI P.O, SHORNUR, PALAKKAD- 679 122.** - **23 MANAGER, AUP SCHOOL, KULUKKALLUR P.O, PATTAMBI, PALAKKAD-679 337.** - **24 MANAGER, AMLP SCHOOL, NEEROLPALAM, THENHIPALAM P.O, MALAPPURAM-673 636.** - **25 MANAGER, AMLP SCHOOL, PULASSERY P.O, PATTAMBI, PALAKKAD-679 307.** **WP(C).No. 15185 of 2018** **26 MANAGER, ALP SCHOOL, KARINGANAD P.O, VILAYOOR, PATTAMBI(VIA), PALAKKAD-679 309.** - **27 MANAGER, KOORIKUZHI AMUP SCHOOL, KAIPAMANGALAM, KAIPAMANGALAM P.O, THRISSUR-680 681.** - **28 MANAGER,** - **S.N.U.P. SCHOOL, KOCHUKOIKKAL P.O, PATHANAMTHITTA-689 667.** - **29 MANAGER,** - **AMUP SCHOOL, MANNENGODE P.O, (VIA) PATTAMBI, PALAKKAD-679 307.** - **30 MANAGER, AUP SCHOOL, IRIMBALASSERI, VALLAPUZHA P.O, (VIA) SHORANUR, PALAKKAD-679 336.** ## **31 MANAGER,** - **ALP SCHOOL, VILAYUR UNION, VILAYUR WEST P.O, PATTAMBI(VIA), PALAKKAD-679 309.** - **32 MANAGER, AMLP SCHOOL, THIRUVEGAPPURA, THIRUVEGAPPURA P.O, PATTAMBI (VIA), PALAKKAD-679 304.** - **33 MANAGER,** - **AUP SCHOOL, PALLIKKAL, PALLAM P.O, CHERUTHURUTHY, THRISSUR- 679 532.** - **34 MANAGER, ALP SCHOOL, KANNIKULANGARA, PUTHENCHIRA P.O, MALA, THRISSUR-680 682.** - **35 MANAGER, CHITHARANJAN ALP SCHOOL, BEPU, IRIAYANNI P.O, KASARAGOD- 671 542.** ## **36 MANAGER,** **KCNM ALP SCHOOL, SANKARAMPADY, SANKARAMPADY P.O, (VIA) CHENGALA, KASARAGOD-671 541.** **37 MANAGER, PADMA ALP SCHOOL, PONNEMPADAM, KARADPARAMBA P.O, MALAPPURAM-673 632.** ## **38 MANAGER,** **C.H.M.K.M UP SCHOOL, KUNDOOR, NANNAMBRA P.O,(VIA) THEYYALINGAL, MALAPPURAM-676 320.** **WP(C).No. 15185 of 2018** - **39 MANAGER, AMUP SCHOOL, KUMMINIPARAMBA,, KUMMINIPARAMBA P.O, (VIA) KONDOTTY, MALAPPURAM-673 638.** - **40 MANAGER,** - **SRI SHARADA ALP SCHOOL, KANIYALA, DHARMATHADKA P.O, KASARAGOD-671 324.** - **41 MANAGER, MAHATMA LP & UP SCHOOL, PORATHISSERY, IRINJALAKUDA NORTH P.O, THRISSUR-680 125.** - **42 MANAGER, R.V.L.P SCHOOL, KAYILIAD P.O, SHORANUR (VIA), PALAKKAD-679 112.** - **43 MANAGER, TAJ LP SCHOOL, VANDIKIDAKKUMPOIKA, BHARATHANNOOR P.O, THIRUVANANTHAPURAM-695 616.** - **44 MANAGER,** - **S.N.D.P AUP SCHOOL, KADUMENI P.O, KASARAGOD-670 511.** - **45 MANAGER, AUP SCHOOL, MUNDAKKAL, MUNDAKKAL P.O, MALAPPURAM-673 645.** - **46 MANAGER, AMLP SCHOOL, OMACHAPUZHA P.O, MALAPPURAM-673 320.** - **47 MANAGER, ALP SCHOOL, PULIYANAMKUNNU, PULIYANAMKUNNU P.O, SHORANUR(VIA), PALAKKAD-679 505.** - **48 MANAGER,** - **K.M.M AUP SCHOOL, CHERUCODE, CHATHANGOTTUPURAM P.O, MALAPPURAM-679 328.** - **49 MANAGER, AUP SCHOOL, IRUMBUCHOLA, A.R NAGAR P.O, MALAPPURAM-676 305.** - **50 MANAGER, ALP SCHOOL, VELLAMPURAM, KARAD P.O, VANIYAMBALAM, MALAPPURAM-679 339.** **51 MANAGER, JANAKEEYA VIDYALAYAM MACHAD, MANALITHARA P.O, WADAKKANCHERY, THRISSUR-680 589.** **WP(C).No. 15185 of 2018** - **52 MANAGER, SRI DURGA PARAMESHWARI ALP SCHOOL, MALLAM, MALLAM P.O, KASARAGOD-671 542.** ## **53 MANAGER,** - **I.I ALP SCHOOL, CHENGALA, CHENGALA P.O, KASARAGOD-671 541.** - **54 MANAGER, AMLP SCHOOL, KARINGANAD SOUTH, MANNENGODE P.O, PALAKKAD-679 307.** - **55 MANAGER,** - **SHRI VANI VIJAYA AUP SCHOOL, KODLAMOGARU P.O, (VIA) MANJESWARA, KASARAGOD -671 323.** - **56 MANAGER,** - **AUP SCHOOL, ANEKALLU P.O,** - **(VIA) MANJESWARA, KASARAGOD-671 323.** ## **57 MANAGER,** - **AU AUP SCHOOL, NELLIKUNNU, KASARAGOD-671 121.** ## **58 MANAGER,** - **S.M.M ALP SCHOOL, PANDIKKAD P.O, MALAPPURAM-676 521.** ## **59 MANAGER,** - **BAKRABAIL AUP SCHOOL, PATHOOR, PATHOOR P.O, (VIA) MANJESWARA, KASARAGOD-671 323.** - **60 MANAGER,** - **M.I.M. L.P SCHOOL, ARALAM, ARALAM P.O, KANNUR-670 704.** - **61 MANAGER, ALP SCHOOL, PUZHAKKATTIRI P.O, MALAPPURAM-679 321.** - **62 MANAGER, THOTTADA WEST UP SCHOOL, THOTTADA P.O, KANNUR-670 007.** - **63 MANAGER, BKM LP SCHOOL, KODALUR, MELE PATTAMBI P.O, PALAKKAD-679 306.** - **64 MANAGER, MADONNA AUP SCHOOL, RAILWAY STATION ROAD, KASARAGOD-671 121.** - **65 MANAGER,** - **U.M ALP SCHOOL, PALANGARA, PALANGARA P.O, MALAPPURAM-679 330.** **WP(C).No. 15185 of 2018** - **66 MANAGER, RAJARSHI MEMORIAL LP SCHOOL, KIZHUTHANI, THANISSERY P.O, THRISSUR-680 701.** - **67 MANAGER, AYITTY ISLAMIA ALP SCHOOL, THRIKKARIPUR P.O, KASARAGOD-671 310.** - **68 MANAGER, ALP SCHOOL PADNEKADAPPURAM, VALIYAPARAMBA P.O, KASARAGOD-671 312.** - **69 MANAGER, VENNACODE AUP SCHOOL, KAVANOOR P.O, MALAPPURAM-673 639.** - **70 MANAGER,** - **KOTT RJM AM LP SCHOOL, TIRUR, TIRUR P.O, MALAPPURAM-676 101.** - **71 MANAGER,** - **AUP SCHOOL, HOSDURG, THERUVATH, KANHANGAD P.O, KASARAGOD-671 315.** - **72 MANAGER, PADMA AUP SCHOOL, KARAD, KARADPARAMBA P.O, FAROOK COLLEGE (VIA), MALAPPURAM-673 632.** - **73 MANAGER,** - **AMLP SCHOOL, CHATHRATHODY, PARAMBILPEEDIKA P.O, MALAPPURAM-676 317.** - **74 MANAGER, AMUP SCHOOL, MELMURI SOUTH, KADAMPUZHA P.O, MALAPPURAM-676 553.** - **75 MANAGER, VANI VILASINI ALP SCHOOL, CHUNANGAD, PALAKKAD-679 511.** - **76 MANAGER,** - **KV UP SCHOOL, KAYILIAD, PALAKKAD- 679 122.** - **77 MANAGER,** - **M.L.P SCHOOL, VETTOOR-ELAPPIL, VARKALA P.O, THIRUVANANTHAPURAM-695 141.** - **78 MANAGER,** - **A.L.P SCHOOL, MATHUR EAST, MATHUR P.O, KUZHALMANNAM, PALAKKAD-678 571.** - **79 MANAGER,** **A.U.P SCHOOL, CHENGANIYUR, MATHUR P.O, KUZHALMANNAM, PALAKKAD-678 571.** **WP(C).No. 15185 of 2018** - **80 MANAGER, A.L.P SCHOOL, MATHUR WEST, MATHUR P.O, KUZHALMANNAM, PALAKKAD-678 571.** - **81 MANAGER, V.M.L.P SCHOOL, PALAKKAPOTTA, AYALUR P.O, PALAKKAD-678 510.** - **82 MANAGER, M.G.L.P SCHOOL, M. PUDUR, GOVINDAPURAM P.O, PALAKKAD-678 507.** - **83 MANAGER,** - **M.M.M S.B SCHOOL, KODUVAYUR P.O, PALAKKAD-678 501.** - **84 MANAGER, S.N.U.P SCHOOL, KODUNTHIRAPPULLY P.O, PALAKKAD -678 004.** - **85 MANAGER, A.L.P SCHOOL, CHERUMKULAM P.O, THENKARA, PALAKKAD-678 572.** - **86 MANAGER,** - **A.L.P SCHOOL, MUTHUKUNNI, AYILOOR P.O, PALAKKAD-678 510.** - **87 MANAGER,** - **K.S BASIC SCHOOL, KARIPPODE, PUDUNAGARAM P.O, PALAKKAD-678 503.** - **88 MANAGER, V.M.H.M. A.L.P SCHOOL, PORUR, POOKAYI P.O, TIRUR, MALAPPURAM-676 107.** - **89 MANAGER, A.M.L.P SCHOOL, TRIPRANGODE P.O., TIRUR, MALAPPURAM-676 108.** - **90 MANAGER,** - **K.V.A.L.P SCHOOL, MUDUKURUSSI P.O, MANNARKKAD, PALAKKAD-678 593.** - **91 MANAGER, VIDYODAYAM A.L.P SCHOOL, PUTTANIKKAD, KANDAMANGALAM P.O, MANNARKKAD, PALAKKAD-678 583.** - **92 MANAGER, A.U.P SCHOOL, PAYYANEDAM, PALLIKUNNU P.O, PALAKKAD-678 583.** - **93 MANAGER,** **MUNDAKKUNNU A.L.P SCHOOL, EDATHANATTUKARA P.O, PALAKKAD-678 601.** **WP(C).No. 15185 of 2018** - **94 MANAGER, A.L.P SCHOOL, MURIYAKKANNI, MANNARKKAD, PALAKKAD-678 582.** - **95 MANAGER, A.L.P SCHOOL, THRIKKALOOR, AMBALAPPARA P.O, MANNARKKAD, PALAKKAD-679 512.** - **96 MANAGER, C.P.A U.P SCHOOL, THIRUVAZHAMKUNNU P.O, MANNARKKAD, PALAKKAD-678 601.** - **97 MANAGER, A.U.P SCHOOL, KALLADIKODE P.O, MANNARKKAD, PALAKKAD-678 596.** - **98 MANAGER, A.M.L.P SCHOOL, CHAMAPARAMB, NATTUKAL P.O, MANNARKKAD, PALAKKAD-678 554.** - **99 MANAGER, A.U.P SCHOOL, KUMARAMPUTHUR P.O, MANNARKKAD, PALAKKAD-678 583.** - **100 MANAGER, A.L.P SCHOOL, KULAPADAM, MANNARKKAD, PALAKKAD-678 583.** - **101 MANAGER, LEGACY A.U.P SCHOOL, THACHANATTUKARA, MANNARKKAD, PALAKKAD-678 583.** - **102 MANAGER, A.L.P SCHOOL, MALAYAMPALLAM, KOLLENGODE, PALAKKAD-678 504.** - **103 MANAGER, A.L.P SCHOOL, THOTTAKARA, NADUVATHUPARA, KUZHALMANNAM, PALAKKAD-678 574.** **BY ADVS.SRI.S.M.PREM** **SRI.P.RAMACHANDRAN (PALAKKAD) SRI.H.NARAYANAN.** **RESPONDENT(S): --------------** **1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF SCHOOL EDUCATION & LITERACY, MINISTRY OF HUMAN RESOURCE DEVELOPMENT, GOVERNMENT OF INDIA, SHASTRI BHAVAN, NEW DELHI-110 001.** **WP(C).No. 15185 of 2018** **2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **3. DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THYCAUD P.O, THIRUVANANTHAPURAM-695 014.** **4. EXECUTIVE DIRECTOR, IT @ SCHOOL, SCERT BUILDING, POOJAPPURA, THIRUVANANTHAPURAM-695 012.** **R1 BY SRI.N. NAGARESH, ASSIST. S.G. OF INDIA. SRI.JAISHANKAR V.NAIR, CGC.** - **R2 TO R4 BY GOVT. PLEADER SRI.B. UNNIKRISHNA KAIMAL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **16/06/2018.** **WP(C).No. 15185 of 2018 (W)** **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE INTERIM ORDER DATED 08-05-2015 PASSED IN W.P(C) NO. 13822 OF 2015. EXHIBIT P1(A) TRUE COPY OF INTERIM ORDER DATED 08-05-2015 PASSED IN W.P(C) NO. 13792 OF 2015. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 11-03-2016 PASSED BY THE APEX COURT ALLOWING THE INTERLOCUTORY APPLICATIONS FILED IN THE SLP(C)NO(S).24786-24787/2015. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 07-04-2017 PASSED BY THE APEX COURT DISPOSING OF SLP (C)NO(S).2478624787/2015. EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER DATED 19-05-2017 PASSED IN W.P(C) NO. 15781 OF 2017. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 14-07-2017 PASSED BY THIS HONOURABLE COURT IN THE BATCH OF WRIT PETITIONS INCLUDING W.P(C) NO. 15781 OF 2017. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 29-08-2017 IN W.P(C) NO. 15781 OF 2017. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 25-01-2018 IN W.A NO. 2487 OF 2017. EXHIBIT P8 TRUE COPY OF THE COMMON ORDER DATED 09-04-2018 PASSED IN SLP (C) NOS. 8044-8046 OF 2018 WITH SLP(C) NOS. 8107 & 8057-8072 OF 2018. EXHIBIT P9 TRUE COPY OF THE NOTIFICATION DATED 19-05-2017 AND PUBLISHED IN THE KERALA GAZETTE EXTRAORDINARY NO. 1057 DATED 20-05-2017. EXHIBIT P10 TRUE COPY OF G.O(RT) NO. 1813/2017/G.EDN DATED 09-06-2017 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE NEWS REPORT WHICH APPEARED IN THE HINDU DAILY DATED 29-03-2018 REPORTING THE DECISION OF THE KERALA STATE GOVERNMENT NOT TO CLOSE DOWN THE UNRECOGNISED SCHOOLS IN THE STATE DURING THE ACADEMIC YEAR 2018-2019. EXHIBIT P11(A) TRUE COPY OF THE INTERIM ORDER DATED 27-04-2018 PASSED BY THIS HONOURABLE COURT IN W.P(C) NO.14645 OF 2018.** - **EXHIBIT P12 TRUE COPY OF REPRESENTATION DATED 23-04-2018 SUBMITTED BY THE PRESIDENT OF THE MANAGER'S ASSOCIATION OF AIDED PRIMARY SCHOOLS IN KERALA TO THE 1ST RESPONDENT.** **RESPONDENT'S EXHIBITS: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs. 16/06/2018.** ## **ANIL K. NARENDRAN, J.** **------------------------------------------------WP(C)No.15185 of 2018 ------------------------------------------------DATED THIS THE 14[th] DAY OF JUNE, 2018** ## **JUDGMENT** The petitioners 1 to 103, who are the Managers of aided Lower Primary/Upper Primary Schools in various districts have filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 1[st] respondent Union of India to direct the 2[nd] respondent State to grant formal sanction to impart elementary education by permitting admission of children to Class V and Class VIII respectively in the petitioners' schools and to extend all the benefits available to children studying in the aided schools within the State. The petitioners have also sought for other consequential reliefs, including a writ of certiorari to quash Exhibit P9 notification dated 19.05.2017 issued by the 3[rd] respondent Director of Public Instructions and also Ext.P10 Government order dated 09.06.2017 of the 2[nd] respondent State. 2. By the interim order dated 04.05.2018 the respondent State and the Educational Authorities were directed to provisionally permit the petitioners to commence admission to Class V or Class VIII, as the case may be, pending disposal of this writ petition; and they were also directed to open W.P.(C)No.15185/2018 -2- 'Sampoorna Internet Portal' to facilitate such admission without further delay. The said order was granted on the ground that, last year, when similar matters were brought to the notice of this Court, interim order was given in favour of the petitioners therein. 3. On 24.05.2018, the respondents have filed I.A.No.8894/2018 seeking an order to vacate the interim order dated 04.05.2018. The learned Senior Government Pleader has also filed a memo dated 17.05.2018 in this writ petition, to adopt the counter affidavit filed in W.P.(C)No.14645/2018. 4. On 13.06.2018, when this writ petition was listed before this Court, the petitioners filed I.A.No.10408/2018 seeking amendment of this writ petition. 5. Heard the learned counsel for the petitioner, the learned Central Government Counsel for the 1[st] respondent Union of India and also the learned Senior Government Pleader for respondents 2 to 4. 6. As already noticed, the petitioners 1 to 103, who are the Managers of aided Lower Primary/Upper Primary Schools in various districts in the State seeks permission to impart elementary education by permitting admission of W.P.(C)No.15185/2018 -3- children to Class V and Class VIII respectively in the petitioners' schools. Regarding educational need of the locality in which the respective schools situate, the only averment made in paragraph 9 of the writ petition is that, there is no neighbourhood schools within a walking distance of 1km from the Lower Primary Schools and 3.5km from the Upper Primary Schools of the petitioners' imparting elementary education. Thus, on the implementation of the Right of Children to Free and Compulsory Education Act, 2009 (for brevity 'the Right to Education Act') Class V or Class VIII, as the case may be, were started in the petitioners school. The documents produced along with this writ petition are mainly the interim orders of this Court and also the orders of the Apex Court. 7. In **Bharat Singh v. State of Haryana (AIR 1988 SC 2181)** , the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ W.P.(C)No.15185/2018 -4- - petition or to the counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counteraffidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be - pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. 8. The issue raised in this writ petition is covered against the petitioners by the judgment of this Court dated 11.06.2018 in W.P.(C) No.23820 of 2016 and connected cases. In the said judgment, this Court held that, though the provisions of Rule 14 of the Kerala Right of Children to Free and Compulsory Education Rules, 2011 (for brevity, 'the Kerala Rules) have no application in the matter of establishment or upgradation of a school owned or controlled by the Central Government or the State Government or the local authority, in view of the provisions under sub-rule (2) of Rule 6 of the Kerala Rules, read with clause (q) of Rule 2, the basis for upgradation of such a school shall be the educational need for W.P.(C)No.15185/2018 -5- upgradation, found in the school mapping conducted by authorised agencies. Similarly, in view of the provisions under sub-rule (14) of Rule 14, read with clause (q) of Rule 2 and sub-rule (2) of Rule 6, the basis for upgradation of an existing school, other than a school established, owned or controlled by the Central Government or the State Government or the local authority shall be the educational need of the locality as revealed in the school mapping carried out by the authorised agency and certified by the local authority and the educational officer concerned. In that view of the matter, if no educational need is found in the locality in which a school rendering elementary education situates, no application for upgradation of such school by commencing Class V or Class VIII, as the case may be, can be made by the respective management. This Court has also found that, in none of the writ petitions, an effective challenge has been made against notification dated 19.05.2017 issued by the Director of Public Instructions regarding educational need and also the Government order dated 09.06.2017 whereby it was ordered to provide transportation facility to children of 82 areas. The procedure or the criteria adopted by the State for school mapping is not W.P.(C)No.15185/2018 -6- under challenge. The scientific study conducted by the officers from the Directorate of Public Instruction and Sarva Shiksha Abhiyan was based on 7 parameters, which include distance of the nearest school to the area specified in the draft notification, distance to the nearest available school from the residence of students, transportation facility available in the neighborhood school, details of children in the age group of 1- 14 years in the feeder area; etc. Therefore, the petitioners cannot make out a case for interference merely on the basis the distance between the schools. Paragraphs 70 to 72, 76, 90 to 92 and 95 to 107 of the said judgment read thus; “70. In the process of school mapping, geographic location of the schools have been collated and mapped on Geographic Information System Platform (GIS Platform) established by Sarva Shiksha Abhiyan Kerala. The school locations have been interlinked with the school report cards based on Unified District Information System for Education database (U-DISE database). The geographic locations of the schools provided by Sarva Shiksha Abhiyan, Kerala are available in its website http://ssakerala.in/gis. The web application comprises of base map services like street maps and high resolution satellite images for better understanding of the topography/terrain of the location, administrative boundaries, location information, etc. The geographic W.P.(C)No.15185/2018 -7- location of the schools collected by the State Education Departments has been collated and mapped on the GIS Platform established by National Informatics Centre. Further, the school locations have been interlinked with the school report cards based on U-DISE database, developed and hosted by National University of Educational Planning and Administration. 71. The geographic locations of the schools provided by each State Education Department is available in the website http://schoolgis.nic.in/ of the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India. By entering the name of the school or school code anyone can collect the details regarding geographic location of that school, which has been collated and mapped on GIS Platform and other details like the nearest L.P./U.P./Secondary/Higher Secondary schools, the aerial/ walkable/driving distance to such schools, the lowest and highest class available in such schools, the number of students enrolled, and also whether such schools are Government schools, aided schools or unaided schools. The distance between two schools can be viewed with street maps and high resolution satellite images by clicking the link 'find' against the name of each nearest school. 72. In none of these writ petitions an effective challenge has been made against notification No.NS(3)/21147/2016/DPI dated 19.05.2017 issued by the Director of Public Instructions regarding educational need and also G.O.(Rt.)No.1813/2017/G.Edn. dated W.P.(C)No.15185/2018 -8- 09.06.2017 to provide transportation facility to the children of 82 areas, with reference to the materials collected in school mapping, and the details regarding geographic location of the schools, availability of classes, etc. The file relating of notification No.NS(3)/21147/ 2016/DPI dated 19.05.2017 issued by the Director of Public Instructions, made available for the perusal of this Court, would show that the draft notification dated 25.05.2016 was published in the Official Gazette and also in the website of the Director of Public Instructions. Copy of the draft notification was made available through the office of all Deputy Directors of Education, District Educational Officers and Assistant Educational Officers. Press release was also issued in this regard through the Director of Information and Public Relations. Thereafter, a personal hearing was also conducted on 30.09.2016. xxx xxx xxx xxx 76. Regarding the educational need of the locality in which the respective L.P. Schools/U.P. Schools situate, the only averment made in paragraph 9 of W.P. (C)Nos.17434, 17581, 17582, 17583, 17584, 17585, 17635, 18446, 18613, 18614, 18615, 18616, 18617, 18618, 19460, 19461, 19462, 19463, 20093, 20094, 20095, 20096, 20097, 20098, 20099, 20100, 20101, 20295, 20296, 20297, 20298, 20299, 20300, 20316, 20317, 20318, 20320, 20557, 20843, 20994, 20995, 21138, 21139, 21140 of 2017 (Sl.Nos.2 to 45 in the list @ para.4) and also in W.P.(C)Nos.15806, 15838, 15890 and 17193 of 2018 (Sl.Nos.90, 97, 99, and 131) is that W.P.(C)No.15185/2018 -9- there is no neighborhood school within a walking distance of 1km from the L.P. School/3.5km from the U.P. School of the petitioners imparting elementary education. Thus, on the implementation of the Right to Education Act, Class V or Class VIII, as the case may be was started in the petitioners school. The documents produced along with the above 48 writ petitions are mainly the copy of the interim orders of this Court and also the orders of the Apex Court. In W.P.(C)No.15838 of 2018 a counter affidavit has been filed by the 5th respondent Manager, wherein it has been stated that the students who got qualified to Class V have already taken transfer certificates and joined schools of their choice. In W.P.(C)No.17866 of 2018 (Sl.No.134) it is averred in paragraph 9 of the writ petition that there is no neighborhood school within a walking distance of 3.5km of the petitioner's U.P. School. xxx xxx xxx xxx 90. As already noticed, 'school mapping' as defined under clause (q) of Rule 2 of the Kerala Rules is the assessment of the availability of schooling facilities for elementary education, taking into account various factors mentioned in the said clause, which includes the distance matrix between schools and habitations. As per clause (t) of Rule 2, 'walking distance' is the maximum distance covered by a child from his residence to the school on the shortest, generally accepted path. As per clause (o) of Rule 2, 'neighbourhood' is the area near or within a walkable distance of an elementary school referred to in sub-clauses (i) and (ii) of clause (n) of W.P.(C)No.15185/2018 -10- Section 2 of the Right to Education Act and shall include areas of such schools in adjacent local bodies. The mandate of sub-rule (1) of Rule 6 is that, the area or limits of neighbourhood within which a school has to be established by the Government or the local authority shall be, within a walking distance of 1km of the neighbourhood, in respect of children in classes from I to V; and within a walking distance of 3km of the neighbourhood, in respect of children in classes from VI to VIII. 91. As per sub-rule (3) of Rule 6 of the Kerala Rules, in places with difficult terrain, risk of landslides, floods, lack of roads and in general, danger for young children in the approach from their homes to the school, the Government shall locate the school in such a manner as to avoid such dangers, by reducing the area or limits specified under sub-rule (1). Sub-rule (4) of Rule 6, which deals with transportation facility for children from small hamlets, provides that for children from small hamlets, as identified by the Government or the local authority, where no school exists within the area or limits of neighbourhood specified under sub-rule (1), the Government or the local authority shall make adequate arrangements, such as free transportation and residential facilities for providing elementary education in a school, in relaxation of the area or limits specified in the sub-rule (1) of Rule 6. Similarly, sub-rule (5) of Rule 6 mandates that, in places with high population density, the Government may consider establishment of more than one neighbourhood school having regard to the W.P.(C)No.15185/2018 -11- number of children in the age group of 6 to 14 years in such places based on the child census conducted by Sarva Siksha Abhiyan or the local authority. 92. In **Kum.Sreya Vinod's case (supra)** a Division Bench of this Court held that, there will be nothing wrong in the Government or the local authority providing transportation facility in discharge of its obligations under the Right to Education Act and the Kerala Rules. In the judgment in W.A.No.2487 of 2017 and connected cases, after adverting to the contention advanced by the learned counsel with reference to the law laid down in **Kum.Sreya Vinod's case** , another Division Bench held that, instead of establishing additional schools or providing additional infrastructural facilities, the provision of providing transportation facilities cannot be found fault with. xxx xxx xxx xxx 95. The guidelines issued by the Central Government on 25.07.2011 (F.No.1-12/2010-EE-4), in exercise of the powers conferred under sub-section (1) of Section 35 of the Right to Education Act, clarify the provisions under the said Act with reference to neighbourhood schools. The said guidelines would make it explicitly clear that, in providing for the right of every child to free and compulsory education in a neighbourhood school, the Right to Education Act does not restrict the choice of the child to seek admission in a school, which may not be in the immediate vicinity, or the neighbourhood of the ' child s residence. In other words, there is no compulsion on the child to seek admission only in the school in his W.P.(C)No.15185/2018 -12- or her neighbourhood. 96. As per the said guidelines, the State Government/Union Territories need to arrive at a clear picture of current availability of schools within the defined areas or limits of neighbourhoods. In order to do this, the State/Union Territories need to (i) define the neighbourhood norms keeping in view that all primary and upper primary schools and composite schools (with primary and upper primary sections) established by the State Government would be neighbourhood schools for the purpose of sub-section (1) of Section 3 and (ii) map the neighbourhoods or habitations and link them to specific schools. 97. The said guidelines would show that, it is possible that a neighbourhood may be linked to more than one school. Similarly, a school may be linked to more than one neighbourhood. The mapping exercise will help to identify gaps and areas where new schools need to be opened to ensure universal access. By undertaking mapping to determine the need, and planning for establishment of neighbourhood schools, the appropriate Government should factor in the intake capacity in all the schools within the area or limits of neighbourhood as prescribed under Section 6, i.e., Government or local body schools, aided schools, and unaided and specified category schools. Such planning will ensure that the Government uses its resources optimally in relation to the actual requirement of providing universal access to elementary education. 98. In the said guidelines, it has also been provided W.P.(C)No.15185/2018 -13- that, the provision under Section 10 of the Right to Education Act should be read together with the responsibilities of the appropriate Government and local authority to provide free and compulsory elementary education in a neighbourhood school. It is not the intention of Section 10 to compel parents/guardian and children/wards, who do not wish to avail of free and compulsory education, to necessarily admit their children/wards in the neighbourhood schools. 99. In this batch of writ petitions, neither the provisions under the Kerala Rules, nor the provisions of G.O.(Ms) No.154/2013/G.Edn. Dated 03.05.2013, which speaks of retaining Class V and Class VIII in the same premises by redesignating such schools as Lower and Upper Primary Schools and Upper Primary and High Schools is under challenge. The challenge made against clause (2) of the aforesaid Government order dated 03.05.2013, in the context of Article 254 of the Constitution of India, has already been dealt with by this Court in **Kerala Aided LP and UP School's case (supra)** . In the said judgment, the challenge to the conversion of elementary cycle, as brought out by clause (2) was negatived, however, leaving open the question of upgradation or grant of higher standards to be considered after the Government comes out with the comprehensive measures as directed by this Court in the judgment in **Manager, L.P.G.S., Veliyam's case (supra)** . 100. As already noticed, in none of these writ petitions, an effective challenge has been made against W.P.(C)No.15185/2018 -14- notification dated 19.05.2017 issued by the Director of Public Instructions regarding educational need and also the Government order dated 09.06.2017 whereby it was ordered to provide transportation facility to children of 82 areas. An effective challenge to the aforesaid notification and the Government order can be made only with reference to the materials collected in school mapping and the details regarding geographic location of the schools, availability of classes, etc. In the GIS platform established by Sarva Shiksha Abhiyan, Kerala, geographic locations of schools are provided and the web application comprises of base map services, like street maps and high resolution satellite images. The geographic locations of schools provided by Sarva Shiksha Abhiyan, Kerala and by each State Education Departments, is also available in the website of the Department of School Education and Literacy, Ministry of Human Resource Development. The details like the nearest L.P/U.P./Secondary/Higher Secondary Schools, the areal/walkable/ driving distance to such schools, etc. are also available on GIS platform and the distance between two schools can be viewed with street maps and high resolution satellite images by clicking the link 'find' against the name of each nearest school. Though such materials are very much available in the website maintained by Sarva Shikshan Abhiyan, Kerala and also the Ministry of Human Resource Development, the petitioners in this batch of writ petitions have not chosen to make use of those materials in order to challenge the notification dated 19.05.2017 of the Director of Public W.P.(C)No.15185/2018 -15- Instructions and the Government order dated 09.06.2017. In some of the writ petitions, during the course of arguments, statements have been handed over showing the distance to the nearby school, number of students, etc. 101. In **Bharat Singh v. State of Haryana (AIR 1988 SC 2181)** , the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the - counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter-affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the - counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. 102. In **Manager, L.P.G.S., Veliyam's case (supra)** , this Court had occasion to deal with the question as to whether applications filed before the State by the Managers of various aided schools seeking upgradation of existing aided schools, so as to bring within their fold additional classes, i.e., Class V or Class VIII, as the case W.P.(C)No.15185/2018 -16- may be, in their existing L.P./U.P. Schools can be entertained without the recommendation/counter signature of the educational authority concerned. In the said decision, this Court held that the State Government need to complete the tasks enumerated in paragraph 5 of the said judgment, so as to put itself in a position where it will be able to effectively consider the applications preferred by the petitioners therein for upgradation of their schools. It is only thereafter, that the State Government can call for and consider the applications for the grant of new schools/upgradation of existing schools in each area. 103. Pursuant to the direction contained in the said judgment, school mapping was conducted and in that process, the areas where the schools in this batch of writ petitions situate were not found to have educational need, vide the notification dated 19.05.2017 of the Director of Public Instructions. The Judges papers in W.P. (C)No.3060 of 2014 would show that various steps taken to comply with the directions contained in the judgment in **Manager, L.P.G.S., Veliyam's case (supra)** were placed before this Court while seeking extension of time and it was thereafter that the said notification and the Government order dated 09.06.2017 were issued. Once the areas where the schools in this batch of writ petitions were not found to have educational need, the permission sought for to have Class V or Class VIII, as the case may be, in the respective L.P. Schools/U.P. Schools cannot be granted unless the petitioners have made out a prima facie case W.P.(C)No.15185/2018 -17- for interference of the said notification and Government order. 104. As already held at paragraphs 48 and 49 hereinbefore, though the provisions of Rule 14 of the Kerala Rules have no application in the matter of establishment or upgradation of a school owned or controlled by the Central Government or the State Government or the local authority, in view of the provisions under sub-rule (2) of Rule 6 of the Kerala Rules, read with clause (q) of Rule 2, the basis for upgradation of such a school shall be educational need for upgradation, found in the school mapping conducted by authorised agencies. Similarly, in view of the provisions under sub-rule (14) of Rule 14, read with clause (q) of Rule 2 and sub-rule (2) of Rule 6, the basis for upgradation of an existing school, other than a school established, owned or controlled by the Central Government or the State Government or the local authority shall be educational need of the locality as revealed in the school mapping carried out by the authorised agency and certified by the local authority and the educational officer concerned. In that view of the matter, if no educational need is found in the locality in which a school rendering elementary education situates, no application for upgradation of such school by commencing Class V or Class VIII, as the case may be, can be made by the respective management. 105. The procedure or the criteria adopted by the State for school mapping is not under challenge. The scientific study conducted by the officers from the Directorate of W.P.(C)No.15185/2018 -18- Public Instruction and Sarva Shiksha Abhiyan was based on 7 parameters, which include distance of the nearest school to the area specified in the draft notification, distance to the nearest available school from the residence of students, transportation facility available in the neighborhood school, details of children in the age group of 1-14 years in the feeder area; etc. Therefore, the petitioners cannot make out a case for interference merely on the basis the distance between the schools. Despite the fact that the locality in which the elementary schools which are the subject matter of this batch of writ petition situates were not included in the draft/preliminary notification, none of the petitioners except one or two, objected the said notification. 106. The localities having educational need were identified in that process taking into consideration the availability of students, distance to from their residence to the nearest school, availability of transportation, etc. As per the guidelines (F.No.1-12/2010-EE-4) issued by the Central Government on 25.07.2011, the intake capacity in all the schools within the area or limits of neighbourhood, etc. are relevant considerations while undertaking mapping to determine the educational need and planning for establishment of neighbourhood schools, in order to ensure that the Government uses its resources optimally in relation to the actual requirement of providing universal access to elementary education. 107. In the absence of any valid and tenable challenge made against the notification dated 19.05.2017 of the Director of Public Instructions and the Government order W.P.(C)No.15185/2018 -19- dated 09.06.2017, the petitioners in this batch of writ petitions are not entitled for an order to make admission of students to Class V or Class VIII, as the case may be, in the respective Lower Primary Schools (with Class I to IV) and Upper Primary Schools (with Class V to VII) for the academic year 2018-19 or for consideration their requests for upgradation of the respective schools. Therefore, any students who are yet to be issued with transfer certificates in the respective L.P. Schools or U.P. Schools to seek admission to Class V or Class VIII, as the case may be, shall be issued with such transfer certificates forthwith, and the State and the Educational Authorities shall ensure that such students are admitted in other schools having Class V/Class VIII, without any delay. The effective strength of students on the sixth working day from the date of reopening in the respective schools shall be reckoned taking note of the transfer certificates so issued/admission of students based on such transfer certificates.” 9. A reading of paragraph 76 of the said judgment would show that, 48 writ petitions with the very same averments as to educational need, in paragraph 9 of the respective writ petitions, are already dismissed by that judgment. Those writ petitions were filed by the learned counsel, who represents the petitioners in this writ petition. However, the pendency of this writ petition with 103 Managers of aided Lower Primary/Upper Primary Schools in the party W.P.(C)No.15185/2018 -20- array, was never brought to the notice of this Court, when detailed arguments were heard in that batch of writ petitions consisting of 134 cases. 10. By the judgment dated 11.06.2018 in W.P.(C) No.23820 of 2016 and connected cases, including 48 writ petitions with the very same averments as to educational need, as contained in paragraph 9 of this writ petition, have already been dismissed, since, in none of those writ petitions, an effective challenge has been made against notification dated 19.05.2017 issued by the Director of Public Instructions regarding educational need and also the Government order dated 09.06.2017, whereby it was ordered to provide transportation facility to children of 82 areas. 11. In the said judgment, this Court noticed that, the procedure or the criteria adopted by the State for school mapping is not under challenge in any of the writ petitions. The scientific study conducted by the officers from the Directorate of Public Instruction and Sarva Shiksha Abhiyan was based on 7 parameters, which include distance of the nearest school to the area specified in the draft notification, distance to the nearest available school from the residence of W.P.(C)No.15185/2018 -21- students, transportation facility available in the neighborhood - school, details of children in the age group of 1 14 years in the feeder area; etc. Therefore, the petitioners cannot make out a case for interference merely on the basis the distance between the schools. This Court has also noticed that, despite the fact that the locality in which the elementary schools which are the subject matter of that batch of writ petition situates were not included in the draft/preliminary notification, none of the petitioners therein, except one or two, objected the said notification. Therefore, I.A.No.10408/2018 filed by the petitioners on 13.06.2018, seeking amendment of this writ petition, after the dismissal of the connected cases by the judgment dated 11.06.2018, cannot be entertained. In the result, the said interlocutory application stands dismissed. 12. In the instant case, in the absence of any valid and tenable challenge made against the notification dated 19.05.2017 of the Director of Public Instructions and the Government order dated 09.06.2017, the petitioners in this writ petition are not entitled for an order to make admission of students to Class V or Class VIII, as the case may be, in the respective Lower Primary Schools (with Class I to IV) and W.P.(C)No.15185/2018 -22- Upper Primary Schools (with Class V to VII) for the academic year 2018-19. Therefore, any students who are yet to be issued with transfer certificates in the respective Lower Primary Schools or Upper Primary Schools to seek admission to Class V or Class VIII, as the case may be, shall be issued with such transfer certificates forthwith, and the State and the Educational Authorities shall ensure that such students are admitted in other schools having Class V/Class VIII, without any delay. The effective strength of students on the sixth working day from the date of reopening in the respective schools shall be reckoned taking note of the transfer certificates so issued/admission of students based on such transfer certificates. In the result, this writ petition is dismissed following the judgment of this Court dated 11.06.2018 in W.P.(C)No.23820 of 2016 and connected cases. No order as to costs. ## Sd/- **ANIL K. NARENDRAN JUDGE** DSV/16/6/18