The Manager, U.M.A. Lower Primary ... vs The State Of Kerala
2021 Latest Caselaw 16227 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

         WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943

                             WP(C) NO. 9822 OF 2014

PETITIONER:

               THE MANAGER, U.M.A. LOWER PRIMARY SCHOOL
               P.O.PALANKARA, VIA NILAMBUR, MALAPPURAM DISTRICT-679330.

               BY ADVS.
               SRI.V.A.MUHAMMED
               SRI.M.SAJJAD



RESPONDENTS:

     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 DEPUTY DIRECTOR OF EDUCATION
               DOWN HILL, MALAPPURAM DISTRICT-676519.

     4         THE ASSISTANT EDUCATIONAL OFFICER
               NILAMBUR, MALAPPURAM DISTRICT-679329.




OTHER PRESENT:

               G.P -SRI.V. VENUGOPAL




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.08.2021,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 9822 OF 2014

                                    2




                            JUDGMENT

The petitioner, who is stated to be the Manager of "UMA

Lower Primary School", Palankara, has approached this Court

impugning Ext.P4 order issued by the Government rejecting the

request for upgradation of the school as a High School. The

petitioner says that there are 14 tribal colonies in and around the

area of the School and that the residents have no facility for proper

education due to lack of high schools in the area in question. He

says that the students, therefore, terminate their education after

completion of 4th standard and thus asserts that Government was

bound to grant them High School section, as has been requested

by them.

2. The petitioner further explains that, though there are

five schools within the territory of Moothedam Grama Panchayat,

they are all situated in one extreme end of the same; while the

petitioner school is situated in the other end. He added that the

nearest high school from the petitioner - School is more than five

kilometres away and therefore, that going by the provisions of the

Right of Children to Free and Compulsory Education Act (RTE Act),

the students of the said area obtains a constitutional right to have

a "neighbourhood school", namely within three kilometres from WP(C) NO. 9822 OF 2014

their residences. The petitioner thus, reiteratingly prays that

Ext.P4 be set aside and the Government be directed to reconsider

their request for upgradation of School as a High School forthwith.

3. The afore submissions of Sri.M.Sajjad, learned counsel

for the petitioner, was refuted by the learned Government Pleader

- Sri.V.Venugopal, by referring to the counter affidavit filed by the

2nd respondent, wherein, it has been averred that an area

notification, as contemplated in Rule 2 and Rule 2A of Chapter V of

the Kerala Education Rules (KER), has not been yet issued and that

the Government has not taken any policy decision regarding the

opening/upgradation of any school till date. He then explained

that, as per the afore Rules, individual applications of the Schools

without a proper Gazette notification issued by the Government

cannot be considered, since sanctioning of new schools and

upgradation of existing schools come within the realm of the policy

making power of the Government. He then pointed out that, as per

Rule 2 Chapter V of the KER, areas where new schools are to be

opened or existing schools to be upgraded, have to be first

determined and then alone applications for the same can be invited

under Rule 2A of the KER. He submitted that, therefore, the

petitioner's request has been rightly rejected by the Government, WP(C) NO. 9822 OF 2014

through Ext.P4; and prayed that this writ petition be dismissed.

4. Even though, in an abstract sense, the contentions of

the learned Government Pleader as argued above, may find some

sanction in the provisions of the KER, the fact remains that, after

the Constitution of India has been amended to bring in Article 21A

and after the consequential RTE Act has been brought into force,

the students of the area obtain an indefeasible constitutional right

to education upto the age of 14, under the aegis of a

neighbourhood school. A neighbourhood school has been

statutorily defined to be one within three kilometres of the

residence of the student and obviously, therefore, the defence of

the Government against Ext.P4, that they have not taken a policy

yet for upgradation of any school in Kerala as High School, cannot

find my favour at this point of time. I am certain that, before the

Government can take a conclusive view on the afore lines, the

conditions under the RTE Act and Article 21A of the Constitution of

India will certainly have to be satisfied and the procedure

enumerated therein to be followed.

In the afore circumstances, I order this writ petition and set

aside Ext.P4 and leave liberty to the petitioner to approach the

Government with a fresh application seeking upgradation of their WP(C) NO. 9822 OF 2014

school as High School; and if this is done within a period of one

month from the date of receipt of a copy of this judgment, same

shall be considered by the Government in terms of my observations

above and adverting to the specific provisions of the RTE Act and

Article 21A of the Constitution of India.

Needless to say, while the afore exercise is completed, the

petitioner and any other person, who is vitally interested, will be

given an opportunity of being heard and their versions recorded

appropriately.

The orders in terms of the afore directions shall be issued by

the competent Authority of the Government, as expeditiously as is

possible but not later than four months from the date on which the

application of the petitioner as per this judgment is received by

them.

SD/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 9822 OF 2014

APPENDIX OF WP(C) 9822/2014

PETITIONER EXHIBITS

EXHIBIT P1 : TRUE COPY OF THE CERTIFICATE DT.21-8-2012.

EXHIBIT P2 : TRUE COPY OF THE SKETCH OF THE PANCHAYATH.

EXHIBIT P3 : TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER DT.29-10-2013.

EXHIBIT P4 : TRUE COPY OF THE GO(RT)NO.163/2014/G.EDN.DT.9-1-2014 OF THE GOVERNMENT.

EXHIBIT P5 : TRUE COPY OF THE G.O.(MS)NO.152/2003/G.EDN DT.9-6-2003 OF THE GOVERNMENT.

EXHIBIT P6 : TRUE COPY OF THE G.O.(RT)NO.146/2004/G.EDN. DT.9-1-2004 OF THE GOVERNMENT.

EXHIBIT P7 : TRUE COPY OF THE G.O.(MS)NO.309/2012/G.EDN.DT.29-9-2012 OF THE GOVERNMENT.

EXHIBIT P8 : TRUE COPY OF THE RESOLUTION OF THE MOOTHEDAM GRAMA PANCHAYATH DT.19-10-2013.