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‘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)

J U D G M E N T  

Deepak Gupta, J.

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

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

Single Judge in Writ Petition (Civil) No. 20027 of 2015,

filed by the respondent No.1 herein was allowed.  

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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

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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

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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

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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

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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