IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 95 of 2009()
1. UMMULQURA SECONDARY SCHOOL
... Petitioner
Vs
1. ISLAMIC PRIMARY SCHOOL
... Respondent
2. MAJMA'S PUBLIC SCHOOL,
3. K.C.JAMALUDHEEN MUSLIYAR MEMORIAL PUBLIC
4. STATE OF KERALA, REP. BY ITS SECRETARY
5. DIRECTOR OF PUBLIC INSTRUCTIONAS,
6. DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM
7. DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE.
For Petitioner :SRI.K.JAJU BABU
For Respondent :SMT.S.KARTHIKA
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :21/12/2009
O R D E R
C.R.
K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.
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W.A. Nos. 95, 98, 247, 260, 269,
453, 670 and 1327 of 2009
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Dated this the 21st day of December, 2009.
JUDGMENT
Balakrishnan Nair, J,
The point that arises for decision in these appeals is
whether the Government can grant recognition to a school,
which was remaining unrecognised, from day one of its
establishment. A few writ petitions were filed before this
Court by persons, running aided/recognised schools,
challenging the decision of the Government and also the
follow-up proceedings of the Director of Public Instruction, to
grant recognition to certain unrecognised schools, which were
functioning for the last few years in Malappuram and
Kasaragod Districts. Since the very same point arose for
decision in all the writ petitions, the learned Single Judge heard
and allowed them by a common judgment dated 20.10.2008.
W.A.95/2009 & con. cases. 2
Challenging the said judgment, the affected respondents have
preferred these appeals. Therefore, they are heard and disposed of
by this common judgment.
W.A.247 of 2009.
2. This appeal is treated as the main case for the purpose of
referring to the facts and documents. The fifth respondent in W.P.
(C) 11126 of 2008 is the appellant. The first respondent herein
was the writ petitioner. The first respondent is running an aided
High School in Moonniyur in Malappuram District. The
appellant/5th respondent was running an unrecognised English
Medium High School within the vicinity of the first respondent’s
School. The State Government issued Ext.P3 order dated
13.6.2007, containing its policy on opening of new schools,
upgrading of existing schools, granting recognition to
unrecognised schools, issuing NOC to CBSE/ICSE Schools etc.
While so, the Government issued Ext.P1 communication dated
6.3.2008, asking the Director of Public Instruction (for short “DPI)
W.A.95/2009 & con. cases. 3
to arrange to publish a list of schools, mentioned in that
communication as a preliminary notification for grant of
recognition, in the Gazette, immediately. Serial No.9 in Ext.P1 is
Nibras Secondary School, Moonniyur, Malappuram, run by the
appellant. Pursuant to that, the DPI published Ext.R5(a)
notification dated 28.3.2008 in the Kerala Gazette dated
10.4.2008. The list of schools appended to that notification
included the appellant’s school, which was shown as Serial No.9.
The said notification stated that the schools mentioned therein are
proposed to be recognised. Those who have objections were
called upon to file their objections.
3. According to the first respondent, the steps taken under
Exts.P1 and R5(a) were illegal and contrary to the provisions of
Rule 2 and Rule 2A of Chapter V of the Kerala Education Rules
( for short “KER”). Further, the aforementioned actions run
contrary to the law laid down in Ext.P2 judgment of the Apex
Court and also against the provisions of Ext.P3 order. The policy
W.A.95/2009 & con. cases. 4
contained in Ext.P3 was, in fact, not to recognise unrecognised
unaided schools. But, an exception to that policy was made in
relation to areas, where members of the educationally backward
Muslim community reside, in Malappuram, Kasaragod,
Kozhikode, Kannur and Wayanad Districts, subject to certain
conditions. The relevant portion of the said Government Order
reads as follows:
“2. Recognition of Unaided Schools and NOC for
CBSE/ICSE Schools
1. As a policy, un-aided unrecognised schools will not
be given recognition.
2. In order to overcome the educational backwardness
of the Muslim Community, recognition will be granted
and NOC for starting CBSE/ICSE schools shall be
issued to those unaided schools satisfying the following
conditions apart from those specified in the Kerala
Education Rules as the Government are convinced that
extreme educational backwardness among the members
of the Muslim Community persists in certain areas of
Malappuram, Kozhikode, Kasargod, Kannur, and
W.A.95/2009 & con. cases. 5
Wayanad Districts. Accordingly applications will be
limited to the above districts alone. The Additional
conditions are the following:
a) The school shall have started functioning on or
before 01.06.2000.
b) The School shall have a minimum of 500 students on
its roll.
c) The school shall have classes from 1 to 10.
d) The school shall be functioning in a socially and
educationally backward locality.”
According to the first respondent, the policy contained in Ext.P3
could be implemented only in accordance with the provisions of
the Kerala Education Act and Rules. But, the action taken under
Ext.P1 and Ext.R5(a) is clearly illegal. Raising these grounds, the
writ petition was filed. The appellant/fifth respondent, one of the
contesting respondents, filed a detailed counter affidavit and an
additional counter affidavit, resisting the prayers in the writ
petition. The first respondent/petitioner filed a reply affidavit. The
learned Single Judge, after hearing both sides, allowed the writ
W.A.95/2009 & con. cases. 6
petition and quashed Ext.P1 order of the Government and Ext.R5
(a) notification of the DPI. Feeling aggrieved by the said decision
of the learned Single Judge, this appeal is preferred.
4. We heard Sri.P.K.Suresh Kumar, the learned counsel
for the appellant, Sri.V.A. Mohammed, the learned counsel for the
first respondent and the learned Government Pleader for
respondents 7 to 15. We also heard the learned counsel M/s. K.
Jaju Babu and Elvin Peter, who appeared in the connected Writ
Appeals.
5. The learned counsel for the appellant submitted that
Rule 2A applies only to opening of new schools and does not
cover recognition of existing schools. For that, according to the
learned counsel, the relevant rule is Rule 17. It is submitted that
the appellant satisfies all the conditions in Rule 17, except the one
in sub-rule (i) thereof. When the Government decided to grant
recognition to the appellant’s School, it should be taken that the
Government had invoked its power under Rule 3 of Chapter I of
W.A.95/2009 & con. cases. 7
the KER. If that be so, there is nothing illegal with the
proceedings of the Government and the DPI. In support of the
contention that the Government had invoked its power under Rule
3 of Chapter I of the K.E.R., the learned counsel relied on the
decision reported in Cannanore District Muslim Educational
Association v. State of Kerala (2008(2) KLT 879). Special
reference was made to paragraph 23, wherein the grant of new
schools to Managers of Colleges on delinking of Pre-degree
courses was sustained, relying on Rule 3 of Chapter I of the KER.
6. The learned counsel for the first respondent
supported the views of the learned Single Judge. The learned
Government Pleader submitted that the Government have accepted
the judgment and issued consequential notification under Rule 2
of Chapter V of the KER, proposing the places where the unaided
schools are to be recognised. The notification dated 18.9.2009 is
published in the Gazette dated 6.10.2009. Ward Nos. 11 and 19 of
W.A.95/2009 & con. cases. 8
Moonniyur Grama Panchayat are included as places proposed for
recognition of unaided schools in Malappuram District. The
appellant’s school is functioning in that area.
7. Before dealing with the rival contentions, we will
refer to the statutory provisions dealing with recognition of
schools. Schools are generally classified into Government Schools
and private schools. Private Schools are further classified into
aided schools and recognised schools. Sub-section (7) of Section
2 of the Kerala Education Act (for short, “the Act”) defines ‘private
school’. As per the definition, ‘private school’ means an aided or
recognised school. ‘Aided School’ is defined in Section 2(1) as a
private school, which is recognised and is receiving aid from the
Government. Under Rule 2(8) ‘recognised school’ means a private
school recognised by the Government under this Act. Section 3 of
the Act deals with establishment and recognition of schools.
Section 3 reads as follows:
W.A.95/2009 & con. cases. 9
“3. Establishment and recognition of schools:-
(1) The Government may regulate the primary
and other stages of education and courses of
instructions in Government and private schools.
(2) The Government shall take, from time to time,
such steps as they may consider necessary or
expedient, for the purpose of providing facilities for
general education, special education and for the
training of teachers.
(3) The Government may, for the purpose of
providing such facilities:-
(a) establish and maintain schools; or
(b) permit any person or body of persons to
establish and maintain aided schools; or
(c) recognise any school established and
maintained by any person or body of persons.
(4) All existing schools shall be deemed to have
been established in accordance with the Act:
Provided that the educational agency of an aided
school existing at the commencement of this section
may, at any time within one month of such
W.A.95/2009 & con. cases. 10
commencement, after giving notice to the Government
of its intention so to do, opt to run the school as a
recognised school, subject to the condition that the
services of the teachers and other members of the staff
of the school shall not be dispensed with or their
conditions of service under the management varied to
their disadvantage on account of the exercise of this
option.
(5) After the commencement of this Act, the
establishment of a new school or the opening of a
higher class in any private school shall be subject to
the provisions of this Act, and the rules made
thereunder and any school or higher class established
or opened otherwise than in accordance with such
provisions shall not be entitled to be recognised by the
Government.” (emphasis supplied)
Sub-section (5) of Section 3 quoted above clearly shows that any
school established or opened otherwise than in accordance with
the provisions of the Act and the Rules made thereunder shall not
W.A.95/2009 & con. cases. 11
be entitled to be recognised by the Government. The relevant rules
concerning opening and recognition of schools are contained in
Chapter V of the KER. Sub-rule (5) of Rule 1 reads as follows:
“1(5) The opening of schools by an Educational
Agency and their recognition shall be governed by the
procedure laid down in the rules below and they shall
apply mutatis mutandis to the opening and recognition
of new standards. Permission to open and for
recognition for each standard shall be separately
obtained.”(emphasis supplied)
The rules mentioned in the above quoted sub-rule are Rules 2 and
2A. Rule 2(1) reads as follows:
“2.Procedure for determining the area where new
schools are to be opened or existing schools
ungraded-(1)The Director may, from time to time,
prepare two lists, one in respect of aided schools and
the other in respect of recognised schools, indicating
the localities where new schools of any or all grads are
to be opened and existing Lower Primary School or
W.A.95/2009 & con. cases. 12
Upper Primary Schools or both are to be upgraded. In
preparing such lists he shall take into consideration the
following:
(a) the existing schools in and around the locality
in which new schools are to be opened or existing
schools are to be upgraded;
(b) the strength of the several standards and the
accommodation available in each of the existing
schools in that locality;
(c) The distance from each of the existing schools
to the area where new schools are proposed to be
opened or to the area where existing schools are to be
upgraded;
(d) the educational needs of the locality with
reference to the habitation and backwardness of the
area; and
(e) other matters which he considers relevant and
necessary in this connection.
Explanation:- for the removal of doubts it is hereby
clarified that it shall not be necessary to prepare the
two lists simultaneously and that it shall be open to the
Director to prepare only one of the lists.” (emphasis
supplied)
W.A.95/2009 & con. cases. 13
Sub-rule (2) of Rule 2 provides that the Director shall publish the
list mentioned in sub-rule (1) in the official gazette, inviting
objections. The objections shall be enquired into by the
educational officers and the enquiry reports will be submitted to
the Director. The Director will consider them and send them to the
Government along with his recommendations under sub-rule (3).
Sub-rule (4) provides that the Government after scrutinizing all the
records may approve the list, with or without modification and
forward it to the Director, who, in turn, will publish the list so
approved by the Government in the Gazette. Rule 2A deals with
invitation of applications for opening of new schools and
upgrading of existing Schools in the areas notified under Rule 2(4).
The said rule reads as follows:
“2A. Applications for opening of new schools and
upgrading of existing schools – (1) After the
publication of the final list of the areas where new
schools of any or all grades are to be opened or
existing Lower Primary Schools or Upper Primary
W.A.95/2009 & con. cases. 14
Schools or both are to be upgraded the Director shall,
by a notification in the Gazette call for applications for
the opening of New schools of any or all grades and for
raising of the grade of existing Lower Primary Schools
or Upper Primary Schools or both in the area
specified.
(2) Applications for opening of new schools or
for raising of grade of existing schools shall be
submitted only in response to the notification published
by the Director. Applications received otherwise shall
not be considered. The applications shall be submitted
to the District Educational Officer of the area
concerned in form No.1 with 4 copies of the application
and enclosures within one month from the date of
publication of the notification under sub-rule (1).
(3) On receipt of the applications for permission
to open new schools or for upgrading of existing
schools, the District Educational Officer shall make
such enquiries as he may deem fit as to the correctness
of the statements made in the application and other
relevant matters regarding such applications and
W.A.95/2009 & con. cases. 15
forward the applications with his report thereon to the
Director within one month from the last date for
submitting applications under sub-rule (2).
(4) The Director on receipt of the applications
with the report of the District Educational Officer shall
forward the applications with his report to Government
within one month from the last date for forwarding the
report by the District Educational Officer.
(5) The Government shall consider the
applications in the light of the report of the District
Educational Officer and the Director and other
relevant matters which the Government think necessary
to be considered in this connection and shall take a
final decision and publish their decision in the Gazette
with the list containing necessary particulars within
one month from the last date for forwarding the report
by the Director.
(6) Applications for permission to open a new
standard in an existing school during any school year
not involving the raising of the grade of the school
shall be submitted to the District Educational Officer in
charge of the area in form 1 in triplicate.
(7) x x x
W.A.95/2009 & con. cases. 16
(8) The Government may, by notification in the
Gazette, extend any period specified in sub-rules (3),
(4) and (5) for reasons to be stated in the notification.”
8. Sub-rule (1) of Rule 2 specifically mentions about
two lists, one in respect of aided schools and the other in respect of
recognised schools. Rule 2A does not mention about any
particular list, but it governs both the lists mentioned in sub rule (1)
of Rule 2. Therefore, recognition of a school as an unaided school
can be granted only in a place identified under Rule 2, in respect of
which applications were invited under Rule 2A. Without
following the procedure provided under Rules 2 and 2A, we think,
no school can be recognised. But, the learned counsel for the
appellant relied on Rule 17 of the Rules, which deals with the
recognition of existing schools. But, sub-rule (1) of Rule 17 says
that a school opened with the permission under Rule 11 alone can
be granted recognition. Rule 11 deals with the grant of permission
to open schools included in the development plan approved by the
Government. Development plan mentioned in that rule is the plan
W.A.95/2009 & con. cases. 17
prepared by the District Planning Committee and approved by the
Government, while preparing the State plan. In this context, it is
fruitful to refer Section 17 of the Act. Sub section (1) of Section
17 reads as follows:
“17.Establishment of District Educational Authority-
(1) For the purpose of associating people with the
administration of education and to preserve and
stimulate local interest in education affairs, each
District Planning Committee constituted under Section
53 of the Kerala Municipality Act, 1994 (20 of 1994),
shall establish a District Educational Authority having
jurisdiction in the district.”
For the purpose of associating people with the administration of
education and to preserve and stimulate local interest in
educational affairs, each District Planning Committee constituted
under Section 53 of the Kerala Municipality Act, 1994, shall
establish a District Educational Authority having jurisdiction in
the District. Section 18 deals with the functions of the District
W.A.95/2009 & con. cases. 18
Educational Authority, which includes opening of new schools or
upgrading of existing schools. Section 18A deals with the
formation of Educational Development Committee for each school
by the local authority concerned. Sections 17 to 18A were
introduced by way of an amendment on 12.5.2000, as part of
entrusting the management of Government schools to the District
Panchayats and Grama Panchayats. Section 5A was introduced on
12.5.2000, which deals with handing over the management of
Government Schools and that of aided Schools taken over by the
Government to the Local Authorities. Section 53 of the Kerala
Municipality Act deals with the formation of a District Planning
Committee for each district by the Government, consisting of the
members specified in sub-section (2) thereof. Sub-section (10)
thereof provides that the Committee shall prepare a draft
development plan of Panchayats and Municipalities in the District,
which, if approved by the Government, will be included in the
State plan. Rule 11 of Chapter V of the K.E.R. refers to the power
W.A.95/2009 & con. cases. 19
of the Government to open schools included in the development
plan. The said plan is the plan prepared by the District Planning
Committee with the junction of the Educational Authority
concerned. That is clear from Notes (i) and (ii) of Rule 11, which
reads as follows:
“Note (i) A copy of the order shall be furnished to the
Local Educational Authority (if any).
(ii) No school which has not been included in the
development plan of the Educational Authority, if any,
shall be opened.”
Note (ii) quoted above, specifically says that no school, which has
not been included in the development plan of the Educational
Authority shall be opened. So, the power of the Government to
open new schools is subject to the condition of their inclusion in
the development plan of the Educational Authority. Recognition
under Rule 17 contemplates a school opened under Rule 11.
Therefore, the reliance placed by the learned counsel on Rule 17,
to support the impugned action of the Government and the
W.A.95/2009 & con. cases. 20
Director, is plainly untenable. Further, since the appellant does
not have a case that the school was established under Rule 11,
there is no question of application of Rule 17.
9. Since we have already found that even for
recognising a school, the procedures prescribed under Rules 2 and
2A of Chapter V of the K.E.R., have to be followed, the
unauthorised and illegal functioning of a school for sometime will
not confer any right on the appellant to seek recognition or
empower the Government to grant recognition de hors the
provisions of Rule 2 and Rule 2A of Chapter V of the K.E.R. It is
so declared. The decision in Cannanore District Muslim
Educational Association’s Case (Supra) has no application to the
facts of this case. The provisions of Rule 3 of Chapter I of the
K.E.R. cannot be invoked for sustaining the impugned orders in
view of S.3(5) of the Act.
10. In the result, we find no reason to interfere with the
judgment under appeal and therefore the writ appeal is dismissed.
W.A.95/2009 & con. cases. 21 W.A. Nos. 95, 98, 260, 269, 453, 670 and 1327 of 2009
In view of the dismissal of W.A. 247 of 2009, these
appeals are also dismissed.
K. Balakrishnan Nair,
Judge
P. Bhavadasan,
Judge
sb.