The Manager Palathingal A.M.L.P. School, Parappanangadi vs Sethumadhavan P.K. and Others

‘NON-REPORTABLE’

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 11359 OF 2017 (@SPECIAL LEAVE PETITION (C) No.11894 OF 2016)

THE MANAGER PALATHINGAL M.L.P. SCHOOL, PARAPPANANGADI … APPELLANT(S)

VERSUS

SETHUMADHAVAN P.K. AND ORS. …RESPONDENT(S)

JUDGMENT

Deepak Gupta, J.

1. Leave granted.

2. This appeal is directed against the judgment dated 29 th

March, 2016 whereby the Writ Appeal No.669 of 2016

filed by the appellant herein was dismissed and the

judgment dated 22nd February, 2016 of the learned Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2017.09.08 Single Judge in Writ Petition (Civil) No. 20027 of 2015, 13:25:05 IST Reason:

filed by the respondent No.1 herein was allowed. 2

3. The undisputed facts are that the appellant school was

a junior primary school up to the level of Class IV. Vide

order dated 16th June, 2015 the appellant school was

upgraded to the level of upper primary school i.e. it was

permitted to run from Class V to Class VIII also. The

order of the government dated 16th June, 2015

permitting the school to be upgraded was challenged by

respondent No.1, who is the Manager of a school being

run in the vicinity. The main ground of challenge was

that the procedure prescribed under the Kerala

Education Rules, 1959 (for short ‘KER’), had not been

followed and no notice was given to the schools in the

vicinity to raise any objection with regard to the

upgradation. The learned Single Judge allowed the writ

petition mainly on the ground that the procedure

prescribed in Rule 2 of Chapter V of KER was not

followed. The order of the State Government was set

aside but permission was given to the appellant school

to permit the students already admitted, to continue

their education in the school till the next academic

year. The learned Single Judge also directed that it 3

would be open to the Government to take a fresh

decision in the matter after following the procedure

prescribed under Rule 2 of Chapter V of KER. The

appellant filed Writ Appeal No.669 of 2016 which was

dismissed. Hence this appeal.

4. Mr Huzefa Ahmadi, learned senior counsel appearing

for the appellant school urged that both the courts have

lost sight of the fact that the Government of Kerala

specifically exercised the powers of relaxation vested in

it under Rule 3 of Chapter I of KER. A perusal of the

order dated 16th June, 2015 shows that it is a detailed

order and the appellant school had made a request that

to meet the needs of the children of the locality it may

be permitted to be upgraded as an upper primary

school. In the order it is mentioned that the appellant

school is situated in an economically backward area

and the students mainly belonged to the minority

Muslim community. It is also observed that the

students studying in this school have to attend schools

at a distance of 2.5 kilometres to 6 kilometres after

passing Class IV. It was also noticed that there are 268

students studying in the school from Class 1 to Class 4

IV. After considering all these aspects and after taking

into consideration Rule 2 and Rule 2A of Chapter V of

KER, which prohibit opening and upgradation of new

schools except in terms of the said rules, the

government has taken a conscious decision to make

relaxation in favour of the appellant school and

exempted it from the provisions of Rule 2 and Rule 2A

of Chapter V of KER and it has been upgraded to an

upper primary school from the academic year

2015-2016. Shri Ragenth Basant, learned counsel

appearing for the respondent No.1 urged that without

giving an opportunity to the respondent No.1 no

upgradation order could have been passed in favour of

the appellant school. Shri Prashant Bhushan, learned

counsel appearing for respondent No. 6, the Parent

Teachers Association, supported the appellant and

wanted that the children should go to the appellant

school which is located in their locality.

5. It appears that the attention of the High Court was not

drawn to the last two paragraphs of the impugned

order which makes specific reference to Rule 2 and

Rule 2A of Chapter V of KER as well as Rule 3 of 5

Chapter I of KER and the conscious decision of the

State to relax the rigours of the rules. There was no

specific challenge to the order of relaxation. Even

otherwise, we are clearly of the view that the

Government had the authority and jurisdiction to grant

such a relaxation in terms of Rule 3 of Chapter 1 of

KER, which reads as follows:

“3. Where the Government are satisfied that the operation of any rule under these Rules causes undue hardship in any particular case, the Government may dispense with or relax the requirements of that rule to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner.”

6. We may also mention that we have gone through the

file of the case especially the map (Annexure P-13),

showing the distance of the various schools and we find

that no other school is at a distance of less than 3

kilometres from the appellant school. Even the school

of respondent No. 1, as per the averments made in the

map, is at a distance of 3 kilometres if one crosses a

level crossing and is at a distance of 4.5 kilometres if

this journey is undertaken by a bus. We cannot expect

children in the age group of 10 to 14 years to walk 3 6

kilometres or more to attend school. The right of

education up to the age of 14 years is now a

fundamental right under article 21A of the Constitution

of India and if this right is to be meaningful then efforts

must be made to open upper primary schools in such a

manner that no child has to walk 3 kilometres or more

only to attend school.

7. In view of the above discussion we are clearly of the

view that the learned Single Judge was not justified in

allowing the writ petition. We accordingly set aside the

judgment of the Division Bench as well as of the

learned Single Judge and allow the instant appeal.

Pending application(s) stand(s) disposed of.

....................................J. (MADAN B. LOKUR)

....................................J. (DEEPAK GUPTA)

New Delhi September 08, 2017