MANAGER, AIDED HIGH SCHOOL Vs. STATE OF KERALA

JUDGEMENT

(1.) These writ petitions carry challenge against Government order viz., G.O.(MS) No. 185/13/G.Edn., dated 11.6.2013 and consequential circular and notification issued by the Director of Higher Secondary Education, dated 17.6.2013, on varied grounds. In view of the commonness of points posed for consideration they were taken up for joint hearing and disposal. Government took a decision to grant sanction to upgrade one existing Government/Aided High School each as Higher Secondary School in 148 Grama Panchayats in the State where no Higher Secondary School exists either in the Government sector or in Aided sector and to sanction two batches each in those schools, as per the said G.O. dated 11.6.2013. A decision was also taken thereunder to grant sanction to open new Higher Secondary Schools or to upgrade existing High Schools in eight Northern districts of the State northwards to Ernakulam and inclusive of Ernakulam, in accordance with educational need of the locality. It also carries the decision to sanction additional batches of Higher Secondary Courses in those districts in accordance with the educational need of the locality.

(2.) Before encapsulating the rival contentions necessary for the disposal of these writ petitions it is only proper and profitable to have a glance at the steps taken anterior and posterior to the introduction of the Higher Secondary Course in the State. In tune with the National Education Policy of 1986 Government of Kerala have decided to reorganize the secondary education and collegiate education in the State and consequently de-linked pre-degree course from colleges and introduced Higher Secondary Course as a continuous two year course of study to be offered as part of school education after standard X. As per GO(MS) No. 138/90/G.Edn. dated 27.6.1990 Higher Secondary Course initially introduced in 31 Government High Schools during the year 1990- 91 and during 1991-92 it was introduced in 55 more High Schools in the State. Paragraph 3 in the said Government order dated 27.6.1990 would reveal that the Governmental decision was to introduce Higher Secondary Course in selected Government schools in the State and then after watching the progress, to extend the same stage wise in the other High Schools in the State. It is thus obvious that pursuant to the de-linking of Pre-degree course from colleges Higher Secondary Course was introduced in existing High Schools in the State either in the Government sector or in the Aided sector. True that certain Higher Secondary Schools were also established pursuant to the said decision. The subsequent orders issued by the Government in the matter of establishment of Higher Secondary Schools/upgradation of High Schools as Higher Secondary Schools would reveal that the earlier decision to extend higher education to other schools in the State are being implemented in a phased manner. Undoubtedly, the impugned Government order was also issued as part of such phased implementation. The circular and notification dated 17.6.2013 was issued by the Director of Higher Secondary Education in tune with and in pursuance of, the said Government order dated 11.6.2013. It is also apposite to keep reminded of the decision of the Hon'ble Supreme Court in Modern School v. Union of India, 2004 AIR(SC) 2236 in view of the claims and contentions raised in these writ petitions. It was held therein that right of education means that a citizen has a right to call upon the State to provide educational facilities only within the limits of its economic capacity and development.

(3.) Manifold contentions have been raised to assail the Government order dated 11.6.2013 and the circular and notification, dated 17.6.2013 issued by the Director of Higher Secondary Education in tune with the said Government order dated 11.6.2013. As a matter of fact, only a restricted challenge is mounted against them and in other words, all the petitioners preferred to challenge them not in their entirety. The common contention of the petitioners is that in the matter of opening of Higher Secondary Schools or upgradation of existing High Schools as Higher Secondary Schools the provisions under Chapter V of the Kerala Education Rules (for short 'KER') are bound to be followed scrupulously. The said contention is strongly resisted by the State contending that the provisions under the KER except Chapter XXXII thereunder are absolutely inapplicable to matters relating Higher Secondary Education. The learned Additional Advocate General appearing for the State contended further that such decisions to establish Higher Secondary Schools/upgrading existing High Schools as Higher Secondary Schools or sanctioning additional batches to existing Higher Secondary Schools are taken and sought to be implemented as part of policy decisions of the State and hence, cannot be subjected to judicial review. In the context of the rival contentions I am of the considered view that these points beckon consideration first as findings on those points would ultimately decide the very fate of these writ petitions. I will advert to the other contentions at the appropriate situation, in case of necessity.