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Judgment
A.M. Shaffique, J.—The writ petition is filed by the Manager of K.N.N.M.V.H.S., a High School at Pavithreswaram, Kottarakkara, Kollam. The grievance of the petitioner is that their application for sanction of Higher Secondary School is not being considered by the Government, despite the fact that as per Ext. P1 order of the Government it was found that the school has all the necessary infrastructure and facilities for starting the Higher Secondary School. It is the case of the petitioner that when the Government has a policy to start Higher Secondary School in every Panchayath, despite the fact that Ext. P1 order evidences that the petitioner''s school satisfies all the requirements, Government has denied the sanction on the ground that the Government''s financial position do not permit sanctioning such Higher Secondary courses to aided schools. The matter was being agitated by the petitioner for quiet some time. In a batch of writ petitions filed for this purpose which resulted in Ext. P3 judgment dated 10.08.2004 the Division Bench of this Court held as follows:-
We are however inclined that to hold that those aided schools which have been recommended by the District Level Committee constituted on the basis of the direction of a Division Bench of this Court would have preference if the Government proposes to grant higher secondary schools in the aided sector in future.
Despite the judgment being passed it is the complaint of the petitioner that no action had been taken by the Government to sanction Higher Secondary School in the petitioner''s Panchayath. Further it is contended that as per the policy of the Government as reflected in a statement made by the Minister before the Legislative Assembly stating that taking into consideration various factors like coastal area, minority community, geographical factors and the population, necessary Higher Secondary Schools will be established even if there are other Higher Secondary Schools in the said area. This statement was made as an answer to the question raised before the Government. Still further the petitioner has submitted Ext. P8 representation to the Government reiterating their request as they are qualified for starting the course, but despite issuing the same and the Panchayath supporting the petitioner school stating that there is no other Higher Secondary School in the Panchayath which affects the requirement of the Panchayath, Government has not taken any action in this regard. Hence the writ petition is filed seeking the following reliefs:-
i) issue a writ of mandamus or any other writ, order or direction commanding and compelling the respondents to grant higher secondary course to the petitioner school;
ii) issue a direction to the respondent to consider the case of the petitioner for getting higher secondary course in the school in the light of Exhibit P6
iii) declare that the non consideration of the claim of the petitioner for grant of higher secondary course even in the change policy decision of the Government is highly unjust and illegal;
The 3rd respondent has filed a counter affidavit inter alia contending that in order to achieve the object of giving opportunity for Higher Secondary course it is the policy of the Government to have the Higher Secondary School in every Panchayath in Kerala or a Vocational Higher Secondary School. It is stated that there are 3 Vocational Higher Secondary Schools in the same Panchayath. It was found that there was no sufficient Higher Secondary studies opportunity in Thrissur and Malabar districts and therefore the Government had taken a policy decision to start Secondary courses in Thrissur, Palakkad, Malappuram, Kozhikode, Kannur, Wayanad and Kasargode districts during 2010-2011. It is further indicated that since there is no shortage of such facilities in Kollam district in which the petitioner''s school belong, no policy decision was taken to start Higher Secondary course in that district and therefore Ext. P8 application could not be considered. The 3rd respondent has also given a list of students who had passed out after having availed higher studies in Pavithreswaram Panchayath and nearby Panchayaths such as Kulakkada and Neduvathoor which would show that SSLC pass outs during March 2012 is 1412 and Plus One/VHC seats is 1830. Therefore according to the 3rd respondent there are sufficient educational opportunities to cater educational requirement in the area.
Heard the learned counsel for the petitioner and the learned Government Pleader.
The main question to be considered is whether the direction as sought for, that is to consider or to direct the Government to sanction the Higher Secondary course to the petitioner''s school or to direct consideration of Ext P6 is required to be made under the changed circumstances especially in the light of the fact that the Government had started Higher Secondary Schools in other districts as stated in the counter affidavit.
The main argument of the learned counsel for the petitioner is that the reason for not giving the Higher Secondary sanction to the petitioner''s school was financial paucity of the Government. Though it is a policy matter of the Government either to sanction a Higher Secondary School or not, when it is stated by the Government that on account of financial paucity Ext. P1 was not complied with in full, the fact that the Government had decided to sanction Higher Secondary course in various other districts will prove to show that said financial paucity to start Higher Secondary courses has no relevance as matters stand now. In view of the said changed circumstances, it is argued that the petitioner''s school also requires to be sanctioned with Higher Secondary School as the said Panchayath has no Higher Secondary School at all, which according to the counsel is the policy of the Government. On the other hand, it is argued by the learned Government Pleader that a Division Bench of this Court in Secretary, Cannanore District Muslim Educational Association Vs. State of Kerala and Others, had opined in paragraph 12 that the sanctioning of new schools as mentioned earlier will always come within the realm of policy and even if there is an educational need, the Government can decide not to sanction any schools, having regard to its financial position since the resources of the Government are very limited. Paragraph 12 reads as follows:-
In this case, as mentioned earlier, the Government have decided not to grant any new Higher Secondary Schools before revamping the existing norms and now it is decided that fresh grants will be made in accordance with the newly framed policy published on 13.06.2007 and not based on earlier decisions taken in the light of the then prevailing policy. We find nothing illegal with the stand of the Government in this regard. The petitioner does not have any statutory right to get sanctioned a Higher Secondary School and the Government do not owe any corresponding duty to him in this regard. The right of the petitioner under the earlier orders governing grant of Higher Secondary Schools is lost by the replacement of those orders by the new order G.O. (P) No. 107/07/G. Edn dated 13.06.2007.
The Government cannot be tied down to a policy permanently. It should be conceded freedom to change it from time to time. So, the prayer for mandamus to enforce the right claimed under the repealed policy fails. Accordingly, the Writ Petition is dismissed.
In the light of the above proposition of law laid down by the Division Bench of this Court in the above case, I do not think that the direction as sought for can be granted in favour of the petitioner. Though it is contended by the learned Government Pleader that for sanctioning the Higher Secondary School the provisions of Rule 2 and 2A of Chapter V of KER has to be complied with, the said Chapter apparently does not deal with sanctioning of Higher Secondary Schools and it only relates to upgradation of Upper Primary Schools or High Schools or starting new schools.
Then the only question is whether on account of the Government sanctioning Higher Secondary courses in various other districts the same benefit should be granted to the petitioner. I do not think such an approach can be taken in this regard especially in view of the statement of law by the Division Bench of this Court in Secretary, Cannanore District Muslim Educational Association Vs. State of Kerala and Others, . It might be true that the Government had sanctioned new courses in various other districts, but according to the Government it is on account of the insufficiency of Higher Secondary courses in the said districts. The Government had clearly indicated in their counter affidavit that sufficient opportunities are available for students in the locality where the petitioner''s school is situated for availing Higher Secondary studies. That apart, the Division Bench of this Court in an unreported judgment dated 11.04.2012 in W.A. No. 658/2012, Manager, Aided High School v. State of Kerala and Others has also held that the difficulties confronted by students of the school pursuing Higher Studies by travelling a little distance in these days should not be a mere consideration for the Government to sanction Higher Secondary courses in every High School. That being the situation if the Government as a policy matter does not intend to sanction Higher Secondary School in a particular Panchayath on account of various factors, I do not think that this Court will be justified in directing the Government to consider the matter as it does not call for consideration by the Government as matters stand now, especially in the light of the statements made in the counter affidavit. In that view of the matter, I do not think that it is possible for this Court to grant the reliefs as sought for in this writ petition.
Accordingly, the writ petition is dismissed.