IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32534 of 2005(W)
1. THE MANAGER, P.M.S.A.M.U.P. SCHOOL,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTION
3. THE DEPUTY DIRECTOR OF EDUCATION,
4. THE DISTRICT EDUCATIONAL OFFICER,
5. THE ASSISTANT EDUCATIONAL OFFICER,
6. MAMBAHUL HUDA HIGH SCHOOL,
For Petitioner :SRI.GOVIND K.BHARATHAN (SR.)
For Respondent :SRI.R.RAMADAS
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :26/11/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) No.32534 OF 2005
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Dated this the 26th day of November 2008
J U D G M E N T
The petitioner is the Manager of an aided school. In
this writ petition, the petitioner seeks a declaration that the
grant of recognition to the new unaided Lower Primary
School, Upper Primary School and High School to the 6th
respondent is in violation of the statutory provisions
contained in the Kerala Education Act and the Rules. They
are also seeking to quash Ext.P5 to the extent it granted
recognition to the 6th respondent school.
2. Briefly stated the facts of the case are that the 2nd
respondent published Ext.P1 preliminary list of new unaided
LPS/UPS/HS to be recognized and to be upgraded during the
year 2003-04, in terms of the provisions contained under
Chapter V Rule 2 of the K.E.R. The 6th respondent school
has been included, at serial Nos.33 & 79 of Ext.P1. The
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petitioner filed objections vide Exts.P2 and P3, and Ext.P4 is
yet another objection filed by the teachers of the petitioner’s
school. According to the petitioner, the parties were heard
by the 5th respondent and it is stated that the 3rd respondent
was also against the grant of recognition to the 6th
respondent. It is stated that thereafter, Ext.P5 final list of
schools was published by the 2nd respondent in terms of the
provisions contained in Chapter 5 Rule 2(4), K.E.R, after
considering the objections that were filed in response to
Ext.P1. The 6th respondent school was included in Ext.P5 at
serial No.31.
3. Against Ext.P5, the petitioner filed a writ petition
before this Court as WP(C) No.37605/2003, and Ext.P5 to
the extent it granted recognition to the 6th respondent
school was stayed by this Court. When the writ petition was
pending, a fresh notification was issued by the 2nd
respondent on 20/02/2004, containing the list of schools to
be recognized and upgraded and this notification, however,
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excluded the school of the 6th respondent. Taking note of
this development, the writ petition was disposed of by
Ext.P6 judgment dated 27/07/2004 giving liberty to the 6th
respondent to seek review of the notification dated
20/02/2004. The petitioner’s objection that in the issuance
of Ext.P5 and notification dated 20/02/2004, the procedure
laid down in Chapter V Rule 2, K.E.R. was not complied
with, was also left to be urged and decided by the
Government.
4. It is stated that in pursuance to Ext.P6 judgment,
the 6th respondent filed a review petition invoking the
provisions contained in Chapter V Rule 2(5) of K.E.R. On
the review petition, parties were heard by the Government
and by Ext.P8 order, the review was rejected.
5. However, again, the Government issued Ext.P9 on
01/12/2004 granting recognition to the 6th respondent
school. Though the learned counsel for the petitioner
contends that once the power of review has been exercised
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by the Government and issued Ext.P8, the Government
could not exercise the power of review for a second time,
this argument is contradicted by the learned counsel for the
6th respondent by referring to Chapter V Rule 2B, K.E.R.,
conferring power of review on the Government.
6. Be that as it may, challenging Ext.P9 the
petitioner filed a writ petition before this Court as WP(C)
No.36202/2004, in which by Ext.P10 order, this Court
stayed Ext.P9. Finally by Ext.P12 judgment, Ext.P9 order
was quashed on the ground that the same was passed
without hearing the petitioner, and on that basis the
Government was directed to reconsider the matter.
Accordingly, the matter was reconsidered and Ext.P15 order
was issued granting recognition to the school of the 6th
respondent, and challenging Ext.P15 this writ petition has
filed seeking the prayers mentioned above. In this writ
petition also, an interim order of stay has been passed and
as a result of which Ext.P15 remain stayed even as of now.
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7. The learned counsel for the petitioner contends
that Ext.P1 is invalid for the reason that though under
Chapter V Rule 2, list published should be that of the locality
where the schools is to be opened and upgraded, that was
not done and that what was published was a list of the
Schools. It is also contended that no applications were
invited pursuant to Ext.P5, and that the extent of land
provided is inadequate, that there is a grave yard which lies
in close proximity to the school campus, and that the
Government could not have reviewed Ext.P8, its own order
passed in exercise of its review power under the proviso to
Rule 2(5) of Chapter V, K.E.R.
8. However, having regard to the admitted factual
position that even as per the case of the 6th respondent the
application made by it was prior to Ext.P1, and that no
applications were invited or submitted after Ext.P5 final list
was published, I am satisfied that the issue is covered
against the 6th respondent in view of the law laid down by
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the Apex Court in State of Kerala v. Prasad (2007(3)
KLT 531). Since I am deciding the issue only with
reference to the contention of the petitioner with regard to
the non-compliance of the provisions contained in Chapter V
Rule 2 and 2A, K.E.R., I do not think it necessary to deal
with the other contentions raised.
9. Chapter V Rule 2 provides for publication of a
preliminary list and after considering objections, a final list.
Once such a final list has been published a notification in
terms of Rule 2A inviting applications for opening of new
schools and upgrading of existing schools are to be invited
by the 2nd respondent. In the Apex Court judgment referred
to above, this very aspect has been considered and it has
been held that only in terms of Rule 2 and 2A of Chapter V,
new schools can be opened and existing schools upgraded.
The relevant portion of the Apex Court judgment, which
concludes the issue against the 6th respondent, is extracted
below for reference.
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“12. Having examined the instant matter on the
touchstone of the aforementioned settled principles, we
find it difficult to hold that the decision of the appellant not
to sanction upgradation of respondent schools because of
paucity of funds was either arbitrary or unreasonable or
manifestly erroneous to warrant interference by the Court.
There is no denying the fact that opening of new schools
or upgradation of aided schools does involve considerable
financial commitment for the State. Moreover, insofar as
the present cases are concerned, indubitably, applications
for upgrading the existing schools had not been invited by
the Director as stipulated in sub-r.(2) of R.2A and,
therefore, the representations made by the respondents
for upgrading their schools could not be considered by the
Government unless it was shown that the Director or the
State Government were not finalizing the list in terms of
R.2A for some extraneous considerations, which was not
the case of the respondents. Thus, in the absence of
Gazette notification, calling for applications for raising of
the grade of an existing school, the question of
consideration of respondents applications /
representations did not arise. In fact, sub-r.(2) of R.2A
puts a complete embargo on consideration of an
application which is submitted otherwise than in response
to notification under sub-r.(1) of R.2A. We are
constrained to observe that the Division Bench of the High
Court has failed to keep all these aspects in mind while
issuing the impugned directions.”
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10. Apparently to wriggle out of this situation, the
learned counsel for the 6th respondent contended that since
Ext.P5 notification contains 71 schools and the challenge is
confined only to the school granted to the 6th respondent,
the challenge raised is liable to be repelled. According to
him, since uniform procedure has been followed in respect
of all the schools and as all the schools are included in one
composite notification, the whole notification alone can be
challenged. In support of this contention, the learned
counsel for the 6th respondent relied on the judgments of
the Apex Court in R.M.D.Chamarbaugwalla and another
v. Union of India and another (AIR 1957 SC 628), State
of Orissa and another v. Binode Kishore Mahapatra
(AIR 1969 SC 1249) and Siraj v. High Court of Kerala
(2006(2) KLT 923).
11. In the judgment in R.M.D.Chamarbaugwalla
and another v. Union of India and another (AIR 1957
SC 628), the Apex Court was concerned with the validity of
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a statute and dealt with the competence of the legislature to
enact the law. The Court held that with reference to the
particular statute it has to be ascertained as to whether the
invalid portion of the statute can be segregated from the
valid portion of the statute. This necessarily means that if
in a given case, the invalid part of the statute can be
separated, remaining will continue to be in force.
12. In the judgments in State of Orissa and
another v. Binode Kishore Mahapatra (AIR 1969 SC
1249) and Siraj v. High Court of Kerala (2006(2) KLT
923), the Apex Court was concerned with the validity of a
seniority list and a select list. On the reasoning that
interference with the seniority list or the select list would
result in its recasting, affecting others, it was held that all
persons, who are included in the seniority list and the select
list, being affected parties, ought to have made parties to
the litigation.
13. However, in this case, I must consider each grant
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as a separate one. At any rate even the Government have
no contention that invalidation of the grant in favour of the
6th respondent will, in any manner, affect the recognition
granted in favour of the remaining grantees. Therefore, the
invalidation of the recognition granted to the 6th respondent
will not affect other grantees in any manner. If that be so, I
cannot accept the plea of the learned counsel for the 6th
respondent that for the reason that the petitioner has not
challenged the notification in its entirety, the challenge is
liable to be repelled.
14. Since, admittedly, the procedure contemplated in
Chapter V Rule 2 & 2A has not been complied with in this
case, Ext.P5 to the extent it grants recognition to the school
of the 6th respondent has to be invalidated, and I do so.
The writ petition will stand allowed as above.
(ANTONY DOMINIC, JUDGE)
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