Fathima Convent English Medium ... vs State Of Kerala
2022 Latest Caselaw 7411 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
     THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
   FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944

                 WP(C) NO. 19702 OF 2022

PETITIONER/S:


          FATHIMA CONVENT ENGLISH MEDIUM SCHOOL
          SOUTH ARAYATHURUTHI, CHIRAYANKEEZHU,(PO)
          THIRUVANANTHAPURAM, KERALA - 695 304.
          REPRESENTED BY ITS MANAGER, SR. VIJI

          BY ADVS.
          JOSE ABRAHAM
          N.RAGESH
          E.ADITHYAN
          MEERA RAMESH


RESPONDENT/S:

    1     STATE OF KERALA
          REPRESENTED BY SECRETARY,
          GENERAL EDUCATION DEPARTMENT,
          THIRUVANANTHAPURAM-695001.

    2     DISTRICT EDUCATIONAL OFFICER,
          BHS ROAD, AYLLAM ROAD,
          ATTINGAL, KERALA, 695 101.


          SMT NISHA BOSE SR GP



     THIS WRIT PETITION    (CIVIL) HAVING     COME UP      FOR
ADMISSION ON 24.06.2022,   THE COURT ON      THE SAME      DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 19702 OF 2022

                                      2




                                JUDGMENT

The Fathima Convent English Medium School, the petitioner herein,

is an aided school established in the year 2008 and is managed by the

"Society of the Sisters of Our Lady of Fathima". Being aggrieved by Ext. P2

order, as per which the request made by the petitioner for state

recognition for conducting classes from VIII to X standard in the said

school was rejected, the petitioner has approached this Court.

2. The petitioner states that the school is following the English

Medium Syllabus and has been conducting classes from Standard I to VII.

Seeking recognition for commencing Classes VIII to X from the 1st

respondent, Ext. P1 application was submitted on 17.08.2021. However,

the request was returned on the ground that there are other schools

situated within '3 km' radius of the petitioner school. Another reason

stated for refusing the recognition is that the school did not have the

requisite infrastructure insofar as property is concerned. It is also stated

that refusal of recognition based on the lack of requisite property, lacks

clarity as no further details are provided in the order. It is in the aforesaid

circumstances, that this writ petition is filed seeking to quash Ext. P2 and

for incidental reliefs.

WP(C) NO. 19702 OF 2022

3. Sri. Adityan Ezhappilly, the learned counsel appearing for the

petitioner submitted that their lordships of the Division Bench had

observed in Ext. P3 judgment that even if there are umpteen schools, the

State Government cannot reject the recognition of an application for the

establishment of a school, which is otherwise permissible, on the ground

of saturation of educational need. It was also held by relying on State of

Kerala & Another v. Mythri Vidya Bhavan English Medium School

& Others [AIR 2018 SC 2258] that the prescription of educational need to

reject an application for recognition would hence be ultra vires the RTE

Act, 2009 and the constitution. In so far as the second reason for rejection

is concerned, it is submitted by the learned counsel that the order is

nonspeaking as the concerned respondent has not even mentioned how

they have concluded that the school did not comply with the minimum

property requirement as per the mandate of Chapter IV of the Kerala

Education Rules, 1959 ("KER"). The learned counsel appearing for the

petitioner also pointed out that the Government had issued Ext. P4 order

extending the period till 30.04.2022 and in tune with the same Ext. P5

application was re-submitted well within time.

4. The learned Government Pleader submitted that the order of

rejection is unassailable.

5. I have considered the submissions advanced. WP(C) NO. 19702 OF 2022

6. The main reason for refusing recognition is the saturation of

schools in the area. However, the said reason for rejection cannot be

sustained in view of the law emphatically laid down by a Division Bench of

this Court in Ext. P3 judgment. In paragraph 23 of the said judgment, their

Lordships of the Division Bench had occasion to observe as follows:

"..........The compulsion on the State or the appropriate Government to provide free and compulsory education according to the educational need as provided for in the Act cannot result in a negative finding, on the application for recognition, based on the assumed saturation of the educational need by the existing schools. The State Government cannot thrust upon the parents or the students its own ideas or notions of quality education and curtail the option of the students/parents to receive the best education according to their choice. Educational need can only act as a compulsive force; a statutory force too, to compel the State Government to establish sufficient schools for the purpose of elementary education in a locality if there are not enough schools to provide that. Even when there are umpteen number of schools, the State Government cannot find a saturation of the educational need and thus reject the recognition of an application for establishment of a school which otherwise is permissible. This is precisely what Mythri Vidya Bhavan E.M.S observed, as to the public education in the State wanting in quality; if there is mushrooming of schools affiliated to the CBSE. The State cannot monopolize education or canvass the education provided in schools affiliated to the State Board and to that end reject affiliation under other Boards having national recognition and presence. If that be done it would only result in fettering and curtailing the option available to the students and parents to get the best education possible. That is not the intention of the RTE Act, which aims at providing free and compulsory education to all, in implementation of the constitutional mandate under Article 21-A. The RTE Act does not envisage any curtailment or confinement of elementary education to one or the other modes. If such a restriction is provided it would go against the constitutional vision of free and compulsory education. The prescription of educational need to reject an application for recognition would hence be ultra vires the statute and the Constitution..."

WP(C) NO. 19702 OF 2022

It was held that saturation of educational need is no reason to reject

the application for recognition if the same is otherwise permissible. It was

held that the prescription of educational need to reject an application for

recognition would be ultra vires the RTE Act and the Constitution.

7. Now the question is with regard to the sustainability of the

second reason given by the respondents for rejecting the application. All

that is stated in the order is that the trust is not in possession of the

requisite amount of property to seek for upgradation. No details

whatsoever are mentioned in the order with regard to the paucity of areas.

The petitioner asserts that the school is having all the infrastructure in

tune with Chapter IV of the Kerala Education Rules. The Government has

issued G.O. (M.S) No.45/2019/GEDN dated 22/05/2019 providing

guidelines for granting recognition to the recognized schools in the State

following the Kerala State Syllabus. However, none of these aspects were

taken note of by the respondents while returning the application submitted

by the petitioner. The order of rejection cannot, therefore, be sustained

under law and Ext.P2 will stand quashed.

8. Now the question is what is the course of action to be

followed. The respondents have extended the period for filing the

application till 30.04.2022. From Ext. P5, it appears that the petitioner has

resubmitted the application before the District Educational Officer on WP(C) NO. 19702 OF 2022

28.04.2022. I have already held that the rejection order cannot be

sustained under law. In that view of the matter, the 2nd respondent shall

reconsider the application submitted by the petitioner by considering that

the request made by the petitioner is well within time and take a fresh

decision in the matter expeditiously, in any event, within a period of two

months from the date of filing of the application.

This writ petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE avs WP(C) NO. 19702 OF 2022

APPENDIX OF WP(C) 19702/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE COVERING LETTER OF THE APPLICATION DATED 17-8-2021 FOR RECOGNITION TO STANDARD 8TH TO 10TH

Exhibit P2 TRUE COPY OF THE ORDER DATED 4-12-2021 ISSUED BY THE SECOND RESPONDENT.

Exhibit P3 TRUE COPY OF THE JUDGMENT IN WA 173 OF 2019 DATED 12TH JULY 2019 OF THE HON'BLE HIGH COURT.

Exhibit P4 TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED 08.03.2022.

Exhibit P5            TRUE COPY OF THE APPLICATION DATED
                      28.04.2022.