PUNNOSE Vs. NAIR SERVICE SOCIETY

JUDGEMENT

(1.) This appeal is against the judgment of a learned Single Judge of this Court in OP. No 8900 of 1983 - J quashing the proceedings of the Government and the Education Department for the upgradation of an Upper Primary School under the educational agency of the fourth respondent in the Original Petition into a High School. The learned Judge found that the preliminary list in regard to the opening of new schools/upgradation of schools drawn up by the Director of Public Instruction was without adverting to all the relevant matters in sub-r.(1) of R.2 of Chap.5 of the KER., the enquiry under sub-r.(3) was only about the impact of including the area of the Upper Primary School for upgradation on the neighbouring schools and not with respect to the educational needs of the locality and that there was no material before the Director as to the educational need when he finalised the list of places for sanctioning new schools or upgradation of existing schools. According to the learned Judge, the Government also had, at the stage of approval under sub-r.(4), no material to support the crucial matters required to be considered under the rules. The learned Judge, however, found that the order under sub-r.(5) on a second look into the matter passed by the Government was unassailable. Nevertheless at the earlier stage when the matter had been gone into, there was dearth of material. The grant in favour of the 4th respondent cannot, according to the learned Judge, be sustained in law.

(2.) The responsibility of providing educational facilities in the State is of the Government admits of no doubt. The Preamble to the Kerala Education Act, 1958 states that the Act is passed for the better organisation and development of educational institutions in the State providing a valid and comprehensive educational service throughout the State. As per S.3 of the Act it is the responsibility of the Government to regulate the primary and other stages of education and courses of instruction in Government and private schools, and it is also its responsibility to take such steps from time to time as are considered necessary or expedient for the purpose of providing facilities for general education, special education and for training of teachers. It is also the responsibility of the Government under S.9 of the Act to pay the salary of the teachers and non teaching staff of all aided schools in the State. The Government is also required to pay to the Managers of aided schools a maintenance grant at the prescribed rates and also grants in aid for the purchase, improvement and repairs of any land, building or equipment of aided schools in the State. The procedure for determination of the areas where new schools are to be opened or existing schools are to be upgraded is contained in R.2 of Chap.5 of the KER. As per sub-r.(1) the Director is required, from time to time, to prepare a list of localities where new schools are to be opened and existing schools are to be upgraded. In preparing the list the Director has to take into consideration the matters enumerated as (a) to (e) in sub-r.(1). These include the existing schools in and around the locality, the strength of the several standards and the accommodation available in each of the existing schools, the distance from each of the existing schools to the area where new schools are to be opened or existing schools are to be upgraded, the educational needs of the locality with reference to the habitation and backwardness of the area, and also any other matter which the Director considers relevant in the matter of choice of the locality for sanctioning new schools or the upgradation of existing schools. Under sub-r.(2) the Director is required to publish the preliminary list prepared by him under sub-r.(1) in the Gazette, inviting objections or representations to be filed before the Assistant Educational Officer or the District Educational Officer as the case may be. Sub-r.(3) enjoins the Educational Officer to conduct an enquiry and send his report with his views on the objections received to the Director within the time specified. The Director may also, if found necessary, hear the parties and finalise the list and forward the same to the Government with his recommendations within the time mentioned in the said sub-rule. Sub-r.(4) provides for the approval of the final list by the Government with or without modifications after scrutiny and the final list as approved by the Government is to be published by the Director in the Gazette. Sub-r.(5) provides for a second look into the matter by the Government either suo motu or on application by any person objecting to the list published by the Director under sub-r.(4). The Government may, on reconsideration, make such modifications to the list as are deemed fit by way of additions or omissions on satisfaction that any relevant ground has not been taken into consideration or any irrelevant ground has been taken into consideration while finalising the list.

(3.) The relevant files relating to the case were placed before the learned Single Judge and are also placed before me by the learned Additional Advocate General appearing on behalf of respondents 1 to 3 in the Original Petition. The files disclose that the Government had, on 6-2-1982, intimated the Director that it had decided to notify a fresh list of 75 places for opening and upgrading various categories of aided schools for the year 1982-83 with a view to meet the complaints in regard to deserving places being omitted and to start schools in those areas where there is urgent need. The files disclose that there was a subsequent communication by the Government addressed to the Director on 12-3-1982 wherein it is stated that the Government had received representations from various educational agencies. Panchayats etc. about the inadequacy of the number of new schools already approved by the Government and requesting for sufficient number of additional schools to be opened, after its earlier decision opening / upgradation of 75 new schools. Accordingly the Government had revised its earlier decision dated 6-2-1982 arid had decided to notify 275 areas for the opening of new private aided schools for the academic year 1982-83. The Director was requested to take necessary steps for opening/upgradation of 275 new schools in the State for the year 1982-83. On receipt of this communication the Director published a preliminary list dated 15-3-1982 under sub-r.(1) of R.2, a copy of which is produced in the OP. as Ext. P1. Item 87 in Ext. P1 is "Mundiappally" where the existing Upper Primary School of the 4th respondent in the OP. is to be upgraded into a High School. The petitioner is an educational agency having a number of schools in the State. It has two High Schools, one at a distance of 2 Kms. and the other at a distance of 3 Kms. from Mundiappally where the existing U. P. School was proposed to be upgraded. Ext. P3 dated 3-4-1982 is a copy of the objections filed by the petitioner against the proposal in Ext. P1 for upgradation of the existing U. P. School at Mundiappally. A reading of Ext. P3 would show that he had raised two objections viz.. that the educational needs of the locality do not justify the upgradation of the U. P. School into a Secondary School, and that the strength of his existing High Schools at Kunnamthanam and Kaviyoor will be considerably affected if another High School is to be established at Mundiappally. Ext. P3 was the only objection against the proposal for the upgradation of the U. P. School at Mundiappally; no other person had objected to the proposal. The objection was enquired into by the District Educational Officer who submitted a report to the Director as required by sub-r.(3) of R.2 and the Director, apparently after considering the objections and the report of the District Educational Officer, finalised the list and published the same in the Gazette. Ext. P4 dated 27-1-1983 is the final list published by the Director. The petitioner filed Exts. P5 and P7 representations against the final list before the Government, and the Government passed Ext P8 order dated 30-9-1983 rejecting the representations by the petitioner against Ext P4 list, and upholding the decision to upgrade the existing U. P. School at Mundiappally into a High School. Ext. P8 order shows that it was an order passed after hearing the petitioner and the 4th respondent. It has also relied on a further report of the District Educational Officer on the basis of which the Government had come to the finding that though the distance from Mundiappally to the N. S. S. High School, Kunnamthanam is only two kilometres and to the N. S. S. High School, Kaviyoor is three kilometres, transport facilities available from Mundiappally to those places are limited, Mundiappally is a very backward area with respect to educational facilities, the two High Schools existing at the aforesaid places do not meet the educational needs of the locality, the number of students enrolled in the above two High Schools from Mundiappally is negligible and the public residing in a Poor Home conducted by the C. S. I. Church at Mundiappally have to suffer for want of a High School at Mundiappally. For these reasons the Government as per Ext. P8 order held that the educational needs of the locality require the opening of a new High School at Mundiappally, and the review petition submitted by the petitioner was accordingly rejected.