IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24119 of 2010(L)
1. THE MANAGER, P.M.S.A.V.H.S.SCHOOL,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR OF HIGHER SECONDARY
For Petitioner :SRI.O.V.RADHAKRISHNAN (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :25/11/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) Nos. 24119/2010-L &
24282/2010-I
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Dated this the 25th day of November, 2010.
JUDGMENT
These two writ petitions have been filed by the Managers of the
respective Vocational Higher Secondary schools aggrieved by the exclusion
of those schools from the list of schools prepared for starting Higher
Secondary Courses. Since common questions have been raised, they are
being disposed of by a common judgment.
2. The facts of W.P.(C) No.24119/2010 show the following: The
school in question is an aided school situated in Ponmala Grama Panchayat
in Malappuram District. The same is the only high school available in the
entire Panchayat and there is no other Higher Secondary school therein.
The students had to seek admission in the adjacent Grama Panchayat, viz.
Kottakkal Grama Panchayat to pursue their higher secondary course, which
is situated more than 8 kms. away from Ponmala Grama Panchayat. As
early as in 2004, by Exts.P1 and P2 the Grama Panchayat had requested the
Government to sanction Higher Secondary section in the petitioner’s school.
Ext.P3 is the copy of the norms and guidelines issued as per Govt. Order
W.P.(C).No. 24119 & 24282 of 2010
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dated 30.3.2000 with regard to the establishment of Higher Secondary
schools. Para 7 provides that Vocational schools to be preferred only in
the absence of a regular High School. It is averred that within a radius of 7
kms. there is no other high school and the petitioner’s school is the only one.
In W.P.(C).No.24282/2010, the School was established as an aided High
School in 1983. In 2001 two batches of Vocational Higher Secondary
Course was sanctioned. It is averred in para (1) that the area Varode, is an
educationally backward one.
3. For the year 2010-2011 the Government issued Ext.P4 order in
[W.P.(C).No.24119/2010] prescribing the norms for sanctioning Higher
Secondary Schools. Ext.P5 therein is the notification issued by the second
respondent Director of Higher Secondary Education in terms of the
Government policy which states that the policy is to ensure higher
secondary schools in each Panchayat in a phased manner.
4. The norms further show that number of High Schools having
Higher Secondary/Vocational Higher Secondary Schools within a radius of
5 km. from the applicant’s school as well as the details of students who
have passed from the high schools in the SSLC examination March 2010,
will be a factor to be considered. The number of High Schools not having
W.P.(C).No. 24119 & 24282 of 2010
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Higher Secondary/Vocational Higher Secondary Schools within a radius of
5 km. of the applicant school will also be a factor.
5. The Selection Committee recommended the sanction of Higher
Secondary school to the schools managed by both the petitioners. Final
order is produced as Ext.P8 in W.P.(C) No.24119/2010.
6. The order Ext.P8 issued by the Government states one aspect, that
permission for starting the courses will be granted only after the schools
and the lists are examined by the Director to ensure whether vocational
higher secondary courses have been started in any of them. It is also
mentioned that if it is found so, such schools will be omitted from the list.
7. Both the schools were recommended to be included in the list, but
thereafter they have been deleted as per Ext.P9 order produced in W.P.(C)
No.24119/2010 which is produced as Ext.P6 in W.P.(C) No.24282/2010.
Due to the reason that the petitioners’ schools are having Vocational Higher
Secondary Courses, they have been deleted along with another school. The
same is under challenge in these writ petitions.
8. Heard Shri O.V. Radhakrishnan and Shri V.Chidambaresh learned
Senior Counsel for the petitioners and Shri T.B. Hood, learned Govt.
Pleader for the respondents.
W.P.(C).No. 24119 & 24282 of 2010
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9. Respondents 1 and 2 have filed detailed counter affidavits
explaining the reasons.
10. Shri O.V. Radhakrishnan, learned Senior Counsel for the
petitioner in W.P.(C) No.24119/2010 submitted that the condition in Ext.P8
to delete the schools having Vocational Higher Secondary Courses, is really
discriminatory. The crucial question is whether the Panchayat is having a
Higher Secondary School. The fact that the school is having Vocational
Higher Secondary Divisions, is not a disqualification. The Government
itself has varied the same in favour of four schools mentioned in Ext.P8 and
therefore the discriminatory treatment meted out to the school managed by
the petitioner in W.P.(C) No.24119/2010 is not correct. Shri V.
Chithambaresh, learned Senior Counsel appearing for the petitioner in W.P.
(C) No.24282/2010 also submitted that having a Higher Secondary school
by way of Vocational Higher Secondary division, is not at all a
disqualification and the deletion from the list is discriminatory.
11. Shri O.V. Radhakrishnan, learned Senior Counsel for the
petitioner relied upon the decisions of the Apex Court in State of Haryana
and others v. Rajpal Sharma and others {(1996) 3 SCC 273}, Indian
Drugs & Pharmaceuticals Ltd. and others v. Punjab Drugs
W.P.(C).No. 24119 & 24282 of 2010
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Manufactures Association and others {(1996) 6 SCC 247}, Chandigarh
Administration and others v. Rajni Vali (Mrs) and others {(2000) 2
SCC 42) and Cannanore District Muslim Educational Association v.
State of Kerala (2010 (2) KLT 725 – SC) to contend for the position that
aided and Government schools cannot be differentiated while the
Government grants certain benefits. In the view I propose to take, it is not
necessary to elaborately consider the principles stated therein.
12. Evidently, the matter will have to be considered in the light of
the educational need of the area in view of Ext.P3 Govt. Order produced in
W.P.(C) No.24119/2010. In the case of localities where other high schools
are not there, going by para 7 of Ext.P3, Vocational Schools will have to be
preferred. Therefore, I find force in the submission made by the learned
Senior Counsel for the petitioners that there is no total exclusion of schools
having Vocational Higher Secondary divisions for conduct of Higher
Secondary courses.
13. Then, the other question is whether the stipulation in the norms
adopted as per Ext.P4 Govt. Order dated 3.6.2010 that details of any Higher
Secondary/Vocational Higher Secondary School within a radius of 5 km.
should be mentioned, will affect the petitioners. The respondents have
W.P.(C).No. 24119 & 24282 of 2010
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pointed out that the fact that the petitioners’ schools are having Vocational
Higher Secondary divisions, were not disclosed in the applications and only
later the same was known and in the light of the above, the petitioners’
schools have been deleted from the list. Learned Govt. Pleader also
explained that the four Government schools which were included for
sanctioning Higher Secondary courses and which are having Vocational
Higher Secondary divisions, were given the facility in the light of the
particular education need of the said localities. It is explained by the
learned Senior Counsel for the petitioners that the details sought for in
respect of other schools within 5 km. radius of the applicant school, cannot
apply to the petitioners’ schools.
14. Evidently, the Government is considering the sanction of higher
secondary schools in each Panchayat in a phased manner. One of the
crucial questions to be considered is the educational need of the area. Of
course, in the orders issued as per Ext.P9 in W.P.(C) No.24119/2010 which
is Ext.P6 in the other writ petition, the Government wanted to exclude
schools having Vocational Higher Secondary Courses. But at the same
time, the four Government Vocational Higher Secondary Schools have been
sanctioned Higher Secondary Courses. That means there is no total
W.P.(C).No. 24119 & 24282 of 2010
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exclusion of Vocational Higher Secondary Schools from the scheme of
sanction of Higher Secondary Schools.
15. Then the only and important question which had to be considered
by the Government is whether the educational need in the area satisfies the
sanctioning of Higher Secondary Courses. Various points have been raised
by the petitioners in these writ petitions as a justification for sanctioning of
Higher Secondary Schools. The reports of the committees which went
against the petitioners when the impugned orders Exts.P9 and P6 were
passed in the respective writ petitions are not before this Court. Whether
the educational need of the areas have been addressed by the departmental
authorities when such reports were called for by the Committee prior to the
inclusion of the petitioners’ schools, in the list is also not evident.
Obviously copies of such reports have not been furnished to the petitioners.
16. In that view of the matter, the only course possible is to direct the
matter to be reheard by the Government. There is clear violation of the
principles of natural justice. The adverse reports relied on in Exts.P9 and
P6 have been obtained without notice to the petitioners also. The copies of
the reports have not been furnished to the petitioners, evidently.
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17. Therefore, the writ petitions are allowed. The impugned order
Ext.P9 in W.P.(C) No.24119/2010 which excludes Vocational Higher
Secondary Schools like that of the petitioners from the sanction of Higher
Secondary Courses, which is Ext.P6 in W. P.(C) No.24282/2010, is
quashed. The Government will reconsider the matter after notice to the
petitioners. The petitioners will be furnished copies of the reports relied
upon in Ext.P9 produced in W.P.(C) No.24119/2010 and Ext.P6 produced
in W.P.(C) No.24282/2010 for enabling them to file their objections in the
matter, within a period of three weeks from the date of receipt of a copy of
this judgment. Thereafter, the petitioners will be issued notices for hearing
and they will also be allowed to produce additional materials, if any, in
support of their pleas. Appropriate final orders shall be passed within three
months from the date of receipt of a copy of this judgment.
The writ petition is disposed of as above. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/