WP(C) No.15520/2022 1/7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
Friday, the 6th day of May 2022 / 16th Vaisakha, 1944
WP(C) NO. 15520 OF 2022(L)
PETITIONER:
ELNA CHINCHU, AGED 7 YEARS(MINOR) D/O. CHINCHU THOMAS, REPRESENTED
BY HER FATHER, CHINCHU THOMAS, AGED 34, S/O. THOMAS AS HER LAWFUL
GAURDIAN FOR AND ON BEHALF OF THE MINOR, RESIDING AT NANNIKUNNEL
HOUSE, PUNNATHURA E.P.O, KIDANGOOR, KOTTAYAM DISTRICT, KERALA , PIN
686 583.
RESPONDENTS:
1. KENDRIYA VIDYALAYA SANGATHAN REPRESENTED BY ITS COMMISSIONER, 18,
INSTITUTIONAL AREA, SHAHEED JEET SINGH MARG, NEW DELHI, PIN 110 001.
2. THE DEPUTY COMMISSIONER, KENDRIYA VIDYALAYA SANGATHAN, REGIONAL
OFFICE, IGH ROAD, KADAVANTHARA, ERNAKULAM- 682 020.
3. THE PRINCIPAL, KENDRIYA VIDYALAYA RUBBER BOARD, RUBBER BOARD P.O,
KOTTAYAM , KERALA 686 009.
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct the 3rd respondent to allow the petitioner to deposit
the school fees so that she can continue her studies in the KV School,
pending disposal of this WP.(C) in the interest of justice.
This petition coming on for admission upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
M/S.GEORGE.T.J, BABY THOMAS, K.ANIL JOSEPH, MARIAMMA JOSEPH & ALICIA JOSE
Advocates for the petitioner and of ASSISTANT SOLICITOR GENERAL OF INDIA
for the respodents, the court passed the following:-
P.T.O.
WP(C) No.15520/2022 2/7
GOPINATH P, J.
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W.P.(C) No. 15520 of 2022
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Dated this the 6th day of May, 2022
ORDER
Admit.
2. Assistant Solicitor General takes notice for the respondents.
3. The petitioner, a minor represented by her father and legal guardian, has approached this Court with a grievance that her admission to Class-II in the Kendriya Vidyalaya (Rubber Board- Kottayam) has been arbitrarily cancelled.
4. Perusal of the record indicates that insofar as the petitioner is concerned, the entire admission formalities were completed and she was admitted to Class-II in the above school with Student Unique ID No. 27193122005671 (See Ext P.3). The petitioner also obtained Ext.P.2 Transfer Certificate from her former school. It is also averred that after the admission was confirmed, the petitioner purchased school uniforms, textbooks etc. Ext.P.3 Challan was also issued for remitting the school fee. It was submitted that subsequently, when the petitioner's father contacted the school as he was unable to remit the fee on 29.4.2022 (time for remittance was WP(C) No.15520/2022 3/7 W.P (C) No.15520/2022 -2- up to 30.4.2022), he was informed that the admission had been cancelled on the basis of some Government Order. It was also submitted that the petitioner's father is suffering from 'High Grade Giloma Grade -III' (Brain Tumour) and that he is suffering extreme stress on account of the high handed and arbitrary action of cancellation of admission.
5. The learned Assistant Solicitor General submits that on the basis of a policy introduced on 25.04.2022 through a Government Order, the admission granted to the petitioner had to be cancelled as the discretionary quota under which the petitioner had been admitted is no longer available. He submits that a policy decision cannot be challenged or adjudicated under Article 226 of the Constitution of India.
6. Prima facie, the action of the respondents in applying the changed policy and cancelling an admission granted cannot be sustained. It appears to be highly arbitrary. A policy decision is not immune from judicial review. It is too late in the day for the respondents to contend that the Courts should not interfere in policy matters even if they are arbitrary. A policy can be faulted on grounds of malafides, unreasonableness, arbitrariness or unfairness, etc. [See WP(C) No.15520/2022 4/7 W.P (C) No.15520/2022 -3- Brij Mohan Lal v. Union of India, (2012) 6 SCC 502 ]. Still further, by a judgment delivered 0n 05-05-2022 in State of Bihar and Others v. Shyama Nandan Mishra, 2022 SCC OnLine 554, the Supreme Court has explained the concept of 'substantive legitimate expectation' which is clearly accepted as part of the law of this country in contradistinction to mere 'procedural legitimate expectation' available in some other jurisdictions. The Supreme Court held in Shyama Nandan Mishra (supra):-
"34. To understand the legal consequences arising therefrom, useful reference can be made to R. v. Inland Revenue Commissioners, ex parte M.F.K. Underwriting Agents Ltd. (1989) where Lord Justice of Appeal, Thomas Bingham, while invoking fairness as a rationale for protecting legitimate expectations, expressed the following:
--
"If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. ... The doctrine of legitimate expectation is rooted in fairness."
35. Another facet of denial of legitimate expectations is underscored by the Court of Appeal of England and Wales in the seminal case of Coughlan where the Court preferred to use abuse of power as one of the criteria for testing whether a public body could resile from a prima facie legitimate expectation. In the Court's opinion, if the government authority induced an expectation which was substantive, the upsetting of that expectation, through departure from the expected course of action in the absence WP(C) No.15520/2022 5/7 W.P (C) No.15520/2022 -4- of compelling public interest, would be so unfair, that it would amount to abuse of power. In the present case, the abuse of power is discernible in the State's disparate decision in encadring the +2 lecturers with the teachers of nationalized schools, notwithstanding the contrary representation through the 1985 notification which created the +2 lecturer posts and the 1987 advertisement under which, the respondents entered service. Such manifest departure from the projected course smacks of arbitrariness and the government action, to selectively protect the interest of the BES cadre, does not conform to rules of justice and fair play.
36. Taking a cue from above, where the substantive legitimate expectation is not ultra vires the power of the authority and the court is in a position to protect it, the State cannot be allowed to change course and belie the legitimate expectation of the respondents. As is well known, Regularity, Predictability, Certainty and Fairness are necessary concomitants of Government's action and the Bihar government in our opinion, failed to keep to their commitment by the impugned decision, which we find was rightly interdicted by the High Court."
7. As already indicated, I am prima facie of the view that the policy stated to have been introduced on 25.4.2022 will have to be held arbitrary if it were to apply to admissions already granted. Further, any decision taken on the basis of such a changed policy clearly defeated the legitimate expectation of the petitioner.
8. Having regard to the aforesaid facts, I direct the respondents to ensure that one seat is kept vacant in Class-II in the Kendriya Vidyalaya (Rubber Board- Kottayam) to enable consideration of the claim of the petitioner that she is entitled to be WP(C) No.15520/2022 6/7 W.P (C) No.15520/2022 -5- admitted. The respondents shall also permit the petitioner/her guardian to remit the fee by re-validating Ext.P.3 challan or by issuing a fresh challan.
Post on 20-05-2022, by which time the respondents shall place their statement/counter affidavit on record (without fail) along with a copy of the Government Order stated to be issued on 25-04-2022.
Post on 10.05.2022 along with W.P.(C).No.15261/2022.
Sd/-
GOPINATH P
JUDGE
nkr
06-05-2022 /True Copy/ Assistant Registrar
WP(C) No.15520/2022 7/7
Exhibit P2 TRUE COPY OF TC OBTAINED FROM THE ERSTWHILE SCHOOL
DATED 12.04.2022.
Exhibit P3 TRUE COPY OF THE COPY OF THE UNIQUE ID NO.
271793122005671 ALLOTED TO THE PETITIONER DATED 12.04.2022.