KALYANI AMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the Manager of a Higher Secondary School governed by the provisions of the Kerala Education Act, 1958 and the Kerala Education Rules, 1959, for short, "KER". She complains that if the Government Upper Primary school, Vanmugham is upgraded as a High School under the Rashtriya Madhyamic Siksha Abhiyan Scheme, hereinafter referred to as "RMSA Scheme", that will adversely affect the Higher Secondary school of which she is the Manager. The crux of the petitioner's apprehension is that if the Government Upper Primary School is upgraded, the number of students who join the secondary wing of the petitioner's school would fall drastically resulting in retrenchment of teachers and other members of the staff. The Writ Petition is, therefore, filed challenging Ext.P2 by which the Government considered the petitioner's representation and rejected it. By that Government Order, the Project Director, R.M.S.A. Scheme stands directed to go ahead with the proposal for upgradation of the Government Upper Primary school observing norms and procedure stipulated under the said Scheme. The fundamental ground on which the Government decision is challenged is that it is founded wholly on false information provided by the Assistant Educational Officer and that even as per that Government Order, no primary school can be upgraded under the R.M.S.A. scheme if a secondary school is located within a distance of 5 kms. The factual foundation for this contention is the plea of the petitioner that the distance between her school and the Government Upper Primary School is only about 3 1/2 kms and therefore, the Government Upper Primary School cannot be upgraded. Petitioner criticizes the materials relied on by the Government regarding the distance between two schools.

(2.) In answer, the Government have filed a counter affidavit and an additional counter affidavit. We may immediately note that the learned senior counsel appearing for the writ petitioner pointed out that in the counter affidavit, the Government had stated that the distance between two schools under the R.M.S.A. Scheme is 5 kms. However, the learned Additional Advocate General pointed out that the additional counter affidavit has been filed rectifying the said erroneous statement in the counter affidavit filed initially and the fact of the matter is that R.M.S.A. Scheme envisages that there should be "at least one school" within a radius of 5 kms. He also made reference to Ext.P5 information obtained under the Right to Information Act, 2005 and produced by the writ petitioner along with her reply affidavit. The Parent-Teachers' Association also supported the Government decision and has pointed out that though the school is situated in a socially and economically challenged backward area, the local people have done their best to provide the facilities to have the Government upper Primary School upgraded to a High School.

(3.) Before we proceed further, we may note that this Writ Petition is before the Division Bench on a reference by the learned single Judge in the light of an earlier reference order noticing that there is divergence of opinion expressed by two Division Benches in Punnose v. Nair Service Society,1984 KerLT 736 and W.A. No. 1042 of 2012 since reported as State of Kerala v. Mythri Vidya Bhavan English Medium School, 2013 1 KerLT 36 . Having bestowed our anxious consideration, we are of the view that the views expressed by the Division Bench in those two cases are not pointedly on the issue as to whether the Manager of an aided school can object to the upgradation of Government upper primary school into a High School. That apart, in Punnose's case, the Division Bench did not speak as such, on any question of locus standi or on the jurisdiction of the High Court under Art. 226 of the Constitution. The said judgment proceeded to consider the objections raised against the proposed upgradation of an upper primary school and held that the objector did not have any right to sustain any such objection on the basis of the provisions of the Education Act and K.E.R. and that the ground of objection that the number of students in a particular school run by the objector will be reduced, is not a valid ground of objection against the grant of privilege of upgradation of an existing upper primary school. Not only that, Punnose's case was decided in a conflict between two aided schools, it did not involve any Government school as in the case in hand. Mythri Vidya Bhavan English Medium School's case was decided by the Division Bench in relation to C.B.S.E. School. Apart from the fact that the learned Additional Advocate General points out that the said decision stands stayed by the Hon'ble Supreme Court of India, we are of the view that the said precedent does not contain any ratio to be applied on any of the questions arising for decision in the case in hand, we, therefore, do not see any question to be answered on the reference. Hence, we proceed to examine the plea projected by the writ petitioner.