Kerala High Court
Anson K Maliakkal vs State Of Kerala on 24 June, 2021
-1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TH
THURSDAY, THE 24 DAY OF JUNE 2021 / 3RD ASHADHA, 1943
WP(C) NO. 22312 OF 2016
APPELLANT/S:
ANSON K MALIAKKAL
AGED 48 YEARS
S/O M.V.KUNJAVIRA, MALIAKKAL VEEDU,KUZHIPPILLY,
AYYAMPILLY-682501.
BY ADV SRI.T.M.ABDUL LATHEEF
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,GENERAL
EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001.
2 DIRECTOR OF HIGHER SECONDARY EDUCATION
GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM,PIN:695001.
3 JOINT DIRECTOR
DIRECTORATE OF HIGHER SECONDARY
EDUCATION,THIRUVANANTHAPURAM-695001.
4 REGIONAL DIRECTOR
DIRECTORATE OF HIGHER SECONDARY
EDUCATION,ERNAKULAM-682030.
5 THE MANAGER
ST. AUGUSTINE HIGHER SECONDARY SCHOOL,KUZHIPPILLY,
AYYAMPILLY-682501.
6 KUZHIPPILLY PANCHAYAT
KUZHIPPILLY, REPRESENTED BY ITS
SECRETARY,PIN:682501.
R1 TO R4 BY SRI. SURIN GEORGE IPE, SENIOR
GOVERNMENT PLEADER
R5 BY SRI. JOY GEORGE
R6 BY SRI. R. ROHIT, STANDING COUNSEL
SRI.C.X.ANTONY BENEDICT
MT.PRAICY JOSEPH
-2-
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 22312 of 2016 -3-
JUDGMENT
Shaji P. Chaly, J.
This is a public interest litigation filed by a resident of
Kuzhuppilly, Ernakulam District, within the limits of Kuzhuppilly
Grama Panchayat. The basic case advanced in the writ petition is that
St. Augustine's Girls High School, Kuzhippilly, represented by the 5 th
respondent, i.e. the Manager, was established years ago, and at that
point of time, the Higher Secondary Schools were not included in the
curriculum as an educational pattern in the State of Kerala. It was
consequent to Government decision to introduce, plus two patterns of
education instead of pre degree course as directed by the Central
Government, the 1st respondent State has set up a specialized
Directorate, namely the Director of Higher Education, and it was
introduced in Government, aided, and unaided sector.
2. According to the petitioner, the Government found that there
should be a Higher Secondary School in each Panchayat, and on the
basis of the said Government policy, in Kuzhupilly Panchayat, the
school of the 5th respondent, namely the St. Augustine's Higher
Secondary School was given Higher Secondary Course as per Ext. P1
order of the Government.
3. The case projected by the petitioner is that while sanctioning
the Higher Secondary Classes and Schools, the Government did not
intend to make any distinction between girls and boys schools. Even
though the 5th respondent school is a Girls High School, when the
Higher Secondary Education Sector was granted, it was not limited to
girls students alone and the policy of the Government did not allow
the same as well. It is further pointed out that in the notification issued
by the Government, Government did not intend to make any
differentiation or distinction between girls and boys and what was
intended by the programme was to impart co-education. Matters being
so, the 5th respondent ought to have admitted boys students also in the
School, but quite strangely and surprisingly, the 5th respondent has not
accepted the application of boys students, and as the entire people in
the Panchayat became agitated due to the said attitude of the
management, they filed complaints before the higher authorities
including the Government, and accordingly, Government gave specific
direction to admit boys also in the school in question, is the prime
contention.
4. Ext. P2 is a letter issued by the Private Secretary to the
Minister for Education wherein it is stated that the complaint raised
regarding non giving of admission to boys students was examined and
the matter was also verified with school records and further orders
were issued.
5. Petitioner has also produced the admission details of one
Vimal Jeeson, who was a boy student admitted in the year 2015 in St.
Augustine's School evident from Ext. P3 admission details. Whatever
that be, the case projected by the petitioner is that the Government has
issued Ext. P1 order with the hopeful intention of starting mixed
Higher Secondary Schools in the State and therefore while granting
Higher Secondary Sector to St. Augustine's School Government did
not intend to exclude admission to boys students.
6. The paramount ground raised is that co-education is the mode
of the day and when the students reach a higher level, co-education is
the best suited method, taking into account the fact that the students
have reached a higher level of maturity. Therefore, when Higher
Secondary School was sanctioned in Panchayat level, where boys and
girls are studying in various schools, when moving for higher studies
from the High School level, there cannot be any confinement to Girls
Higher Secondary School in the Panchayat and the 5 th respondent
ought to have provided admission to boys students also. Therefore
according to the petitioner, the action of the Manager of the school is
nothing but gender discrimination, offending the rights guaranteed
under Articles 14 and 16 of the Constitution of India. Therefore the
petitioner has sought for a declaration that the St. Augustine's Higher
Secondary School sanctioned for admitting both boys and girls
students, who are eligible to pursue their studies in the Higher
Secondary course.
7. In the above backdrop, following are the reliefs sought for by
the petitioner:-
"(i) To call for the records relating to Exts. P1 to P11 and
to issue a writ of certiorari quashing Ext. P8.
(ii) To issue any writ, order or direction, directing the
Respondents to admit Boy Students also in the Higher Secondary
section of the 5th Respondent's School for the academic year
2016-2017."
8. A detailed counter affidavit is filed by the Manager of the
school and along with the same the application submitted by the
school and other relevant documents are produced.
9. Inter Alia among other contentions, it is submitted that, in
Ext. R5(a) application seeking sanction for Higher Secondary Course
at sl. no. 26, to the following query "whether the proposed Higher
Secondary School will be open to all communities and both sex" - "to
all communities - girls". It is also pointed out that as per Ext. R5(b)
details of the Higher Secondary Schools sanctioned, the name of the
St. Augustine's Higher Secondary School is contained at sl. no. 140
with school code no. 7195 and is shown as a Girls Higher Secondary
School.
10. That apart in Ext. R5(c) revised nominal list issued by the
Directorate of Higher Education, in regard to the students admitted to
plus one, it is clear that only the girls students are studying in the
school. But it is admitted that during the year 2015, by mistake, a few
boys students were admitted and they have completed their course
also.
11. Therefore according to the Manager of the school, they have
applied only for a Girls Higher Secondary School, and the
Government has issued Ext. P1 Order with the intention of
sanctioning Higher Secondary Schools in terms of the application
submitted by the Manager of the school.
12. We have heard, Sri. T. M. Abdul Lattif appeared for the
petitioner, learned Senior Government Pleader Sri. Surin George Ipe,
Sri. Joy George for the 5th respondent school and perused the
pleadings and material on record.
13. Actually the question lies in a very narrow compass. It may
be the intention of the Government to start Higher Secondary Schools
in every Panchayat, which may be a policy decision, however,
petitioner could not point out any provision of law by which the
Government can compel the schools granted with Higher Secondary
Sector to conduct a mixed school. The Ext. P1 Government Order was
passed to open up Higher Secondary schools in Panchayat level but
there is no manner of indication at all thereunder to grant only mixed
schools as contended by the petitioner, and in normal course there
cannot be any presumption like that due to the significant factor that in
the State of Kerala it is a common feature that there are boys and girls
schools and mixed schools in the Government and private sector.
Therefore when the Government issued Ext P1 notification expressing
its intention to start Higher Secondary Schools it definitely thought of
granting schools in accordance with the requirements of applicant
schools. It is an admitted fact that Ext. R5(a) is the application
submitted by St. Augustine's School for sanctioning Higher Secondary
Courses during the year 2013-14. It is clearly mentioned in column
no. 26 that the school is interested in securing sanction for girls
students of all communities, which is not under dispute at all, though a
faint attempt was made by the learned counsel for the petitioner to
contend, taking advantage of the lack of clarity due to the highlighted
marking made to gather immediate attention to the said aspect.
Moreover petitioner has never made any pleading to that effect also, to
advance any such contention. The rest of the documents, namely Ext.
R5(b), as we have pointed out in the deliberation of facts, shows that
the sanction is granted for starting a Girls Higher Secondary School.
Even though some boys students were admitted during the year 2015,
the school was of the clear opinion that it was due to a
misunderstanding that exercise was undertaken and when they
realized the mistake no boys students were being admitted in the
school.
14. Even though the petitioner has a contention that the
Government Order - Ext. P1 does not segregate by and between a
Boys Higher Secondary School and a Girls Higher Secondary School,
we can only legally presume that the Government has passed the order
in terms of the application submitted by the schools, and as per the
application submitted by the school in question, it applied for a Girls
Higher Secondary School by admitting girls students of all
communities and granted accordingly .
15. Therefore, the contention advanced by the petitioner that
there is nothing contained in Ext. P1 Government Order to segregate
the girl students and the boys students and only mixed schools were
intended, is without any bonafides, and factual and legal foundation.
16. Moreover, the documents produced by the respondent school
also shows that what is sanctioned is a Girls Higher Secondary School
evident from Ext. R5(b) at sl. no. 140 with school code no. 7195,
which is conclusive evidence in regard to the sanction of the Higher
Secondary Schools. It is also clear from the said document that a
number of boys, girls and mixed schools were sanctioned in the
Higher Secondary sector. This, according to us, reflects the policy of
the Government in the matter of grant of sanction to start Higher
Secondary Schools in various sectors also bearing in mind the gender
equations, which can never be said to be bad, arbitrary or illegal as
contented by the learned counsel for the petitioner .
17. Assimilating the issues so, in our considered view, no
declaration or any of the reliefs sought for by the petitioner can be
granted and compel the Management of the School to conduct the
school in a manner which is not acceptable to the Management. It is
also clear that the St. Augustine's High School was a Girls High
School established in the year 1947, and ever since, it was being
conducted as a Girls School.
18. Even though learned counsel for the petitioner has submitted
that as per Ext. P9 the Panchayat has issued a communication
expressing its intention and also stating that the St. Augustine's School
is to be conducted as a mixed Higher Secondary School, going
through the said document, it is clear that it is a communication
secured by the petitioner addressing this Court to consider the issue.
Merely because the Panchayat has expressed such an intention, that
cannot be taken on its face value, overlooking the application
submitted by the school. Moreover, it is discernible from the said
letter that, it is addressed to the High Court of Kerala and dated
24.05.2016, whereas this writ petition was filed on 30.06.2016. The
Panchayat is not expected to address this Court and issue such letters
to be produced in a writ petition, so as to persuade this Court, which
practice is to be deprecated in strong terms in order to maintain the
independence and integrity of the judicial institutions, and accordingly
we strongly condemn the action but refrain ourselves from proceeding
further being an old litigation, however we direct the Principal
Secretary of the Local Self Government Department, Government of
Kerala to issue a circular to all the local bodies not to indulge in any
such practice.
19. Taking into account the facts, law and circumstances
deliberated above, we have no hesitation to hold that petitioner has not
made out any case of arbitrariness or illegality on the part of the 5 th
respondent school in the matter of granting admission to the girls
students alone since the school has applied only for starting the school
as a Girls School in the Higher Secondary Sector.
20. Yet another relief sought for by the petitioner contained in
prayer no. 1 is to quash Ext. P8, however, Ext. P8 is a judgment of this
Court in W. P. (C) No. 18394 of 2016 dated 31.05.2016, by which in a
writ petition filed by two other persons with regard to the same issue,
the writ petition was dismissed as infructuous on the submission made
by learned counsel for the petitioner, who happened to be the same
counsel, that it has become infructuous. We do not think a collateral
challenge made to a judgment in an earlier writ petition in a
subsequent writ petition can be entertained, for not being maintainable
under law. There was no appeal or any other proceedings instituted by
the petitioner against Ext. P8. Therefore the said relief also cannot be
granted.
Needless to say, the writ petition fails. Accordingly it is
dismissed. Registry is directed to forward a copy of this writ petition
to the Principal Secretary Local Self Government Department for
appropriate action as directed above and file a compliance report
within a month.
Sd/-
S. MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
JUDGE
Eb
///TRUE COPY/// P. A. TO JUDGE
APPENDIX OF WP(C) 22312/2016
PETITIONER ANNEXURE
EXHIBIT P1 TRUE COPY OF THE RELEVANT PORTION OF
THE ORDER NO.A.C.D.C3/16830/13/HIGHER
SECONDARY DEPARTMENT, DATED 8.8.2014.
EXHIBIT P2 TRUE COPY OF THE LETTER NO.5572/2015
M.EDN. DATED 7.9.2015 ISSUED BY PRIVATE
SECRETARY TO HONOURABLE MINISTER FOR
EDUCATION.
EXHIBIT P3 TRUE COPY OF THE ADMISSION DETAILS OF
VIMAL JEESON.
EXHIBIT P4 TRUE COPY OF THE NAME BOARD PLACE IN
FRONT OF THE 5TH RESPONDENTS SCHOOL.
EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGES OF THE
LIST OF SCHOOL PUBLISHED IN THE PRESENT
YEAR.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT PASSED BY
THIS HOUNOURABLE COURT IN PWC
NO.17021/2016
EXHIBIT P7 TRUE COPY OF THE LETTER OF THE PARENTS
OF THE PETITIONERS IN WPC NO.18394 OF
2016.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT PASSED BY
THIS HONOURABLE COURT IN WPC NO.18394
OF 2016
EXHIBIT P9 TRUE COPY OF THE LETTER DATED 24.5.2016
OF THE 6TH RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE LETTER
NO.34822/T1/15/GEN.EDUCATION DEPARTMENT
DATED 17.9.2015.
EXHIBIT P11 TRUE COPY OF RELEVANT PORTION OF ORDER
ACDCE/16830/2013/HSE DATED 9.3.2016.
