N. KUNHICFLEKKU HAJI(D) BY LRS versus STATE OF KERALA AND ORS.

This ~ppeal aris~s fr~m the jud~ent of the Division Bench of the High Court of Kerala in WA. No. 299m dated 6.2.79. The admitted facts are that the appellant was running a primary school at Kanmanam by name . A.M.L.P. School As per the procedure prescn'bed in Rule2 of Chapter V of the Kerala Education Rules, objections have been called on the need to establish new schools or upgradation of existing schools. The notification was issued on July 4, 1975 inviting applications for establishing new schools , or upgradation of the existing schools. Pursuant thereto; the appellant made an application for upgradation of. his primary school into upper primary school The Government had sanctioned on lRl0.1975 but in the · Schedule the name of the aPPellant for upgradation of his school did not find place. The Government in G.O.Ms. No. 116/76, dated 21.6.1976 issued orders in which the appellant's name as item 5 finds place for upgradation of his school as upper primary school The respondent had challenged the order of the Government gimg sanction for upgradation by filing the O.P. wder Art.226 contending inter aiia that since the applications have already been dismissed by issuing ihe notification ~n · is.10.1975, the Government have no jurisdiction or power to grant sanction under the iinpugned G.O. That was found favour with the learned Single· Judge and accordingly it

p. 956, margin B

was quashed. On appeal, it was conrm,;ed. Thus this appeal by special --lcavc.~.-----,\ -' ,,-., '.

p. 956, margin F

It ~ould be seen that the j,udgment of the High Court was suspended . by this collrt. In coniequence the appellant has been Continuing to rwi the upgraded school ever since the sanction was pven by the Government 21.6.1976. The question is whether· tbC sanction for upgradation of the ·school was properly given by the Government. It would be seen from the · recital of the G.O. that certain applications have been deferred for detailed consideration; at a later stage the Director of Public Instructions had considered such application in detail and had recommended to sanction the schools in those places taking into consideration of the educational need existing in that locality. In consequence the sanction of the upgradation of appellant's school was granted. In the counter affidavit filed in the High Court, it was specifically stated that the distance between the respondent school and that of the appellant is about 2-1/2 kms. The G.O. further shows that:

pp. 956–957, margin F

"The Government felt that the area Kananham is in need of a U .P. school. As no particular school was notified for opening of the new school or upgrading of existing school the question of hearing petition regarding his objections against the upgrading of A.M.L.P.S. Kanmanam did not arise. However, the· Assistant Education Officer, Tanur made a spot enquiry when the objections from the Manager, A.M.U.P.S. Kanhirakole was received. The Manager's statement that the very survival ofthis U.P. School primarily depends upon the feeder schools cannot be believed. At present the pupils coming form Kanzanam area to Kanhirakole have to cross a flooded field which is very inconvenient for the little children of tender age. Due to this inconvenience many of the pupils who have complete L.P. School studies in the feeder schools discontinue their studies. The fact that there will be fall in the number of strength in Kanhirakole school cannot be a reason to ignore the inconvenience of the children of Kanmuanam

p. 957, margin B

area."

p. 957, margin E

In that Order, Government have granted permission in the public interest upgrading the school to avoid drop out of school going children. It is known that Kerala has the highest literacy percentage. Even then Malappuram District was found to be a backward diatrict in education and the Government felt that the District needs encouragement for educatioMI incentives. As a consequence, the educational need was found to be genuine. It is also to be noted that in the counter affidavit ftJed in this Court and the High Court, it was stated that due to 2-1/2 ·kms. distance young children are dropping out since there is no direct route except crossing the fields which the children found it difficelt to travel fro'1t the village to the school tun by the respondent. Therefore, when the Government had folind it necessary that there exists need for upgradation of the existing school into upper primary school, we think that the Government must be allowed to exercise its statutory power unless it is malafide or colourable exercise of power and is justified on extraneous facts in granting upgradation.

pp. 957–958, margin F

Shri Vishwanatha Iyer, learned senior counsel has contended that the appellant died in 1983 and an application was made in 1994 to bring the legal representatives on record, and there is no proper explanation for the inordinate delay. Therefore, there is not pending appeal in the eye of law since the appeal stands abated. Technically the contention is correct. But the question is whether the respondent has any personal interest in the matter. Since there exists public need for catering the educational interest of the young children, the technicalities should not stand in the way for consideration of the matter in issue. Moreover, the Government itself has come forward to transpose itself as an appellant. No doubt they did not file any appeal against the order of the Single Judge before the Division Bench, nor filed any appeal in this Court. The fact that the Government is coming forward to transpose itself as an appellant would clearly indicate that there 1s an acute educational need for upgrading primary school in the locality as upper primary school. Moreover, children have fundamental right to education. Therefore, larger interest of young children should be t~en into consideration in meeting the. procedural cob-web and the technicatities should not subsume substance. Considered in that perspective, we reject the contention of the respondent that the appeal stands abated on account of the fact that the legal representatives of the appellant have not been brought on record within limitation. The appeal is aceord~y allowed and they are transposed as legal representatives.

p. 958, margin B

It may be mentioned that G.O. dated October 18, 1975 recites that incomplete or defective applications stood rejected as noted by the High .Court. The recitals in the impugned G.O. clearly mentions that some applications including that of the appellant were kept back for further examination. The Government also found that there was need for establishing new school.S or upgrading the existing school.S. The educational need thereby sought to be served by granting upgradation of the appellant's school. The High Court also did not record any finding that the impugned G.O. is vitiated by any malafide exercise of the power. After the Director of Public Instructions examined the matter and made recommendation, t)le Government had issued the revised G.O. Since the procedural step:; required under Sections 2 and 2(A) of the Rules have been adhered to, we do not find any violation of the statutory steps required in this behalf. Therefore, the appeal is allowed. The orders of the High Court are set aside. Consequently the Writ Petition stands dismissed. In the circumstances, the parties are directed to bear their own costs throughout.

pp. 958–959, margin F

All the applications shall be treated to have been disposed of in the light of this judgment. G.N. Appeal allowed.

p. 959, margin B