The first petitioner is an manager of Bhagavathi Vilasam A.L.P.School, which is an aided school governed by the Kerala Education Act and Rules. The second petitioner is the parent of a student studying in the above school. The grievance highlighted in the writ petition is that inspite of several reports made by the educational authorities recommending upgradation of the school as a UP school, no action has been taken by the respondents. 2. Heard the learned counsel for the petitioners and the learned Government Pleader.
3. The petitioners essentially made two reliefs based on two grounds. One is based on the provisions under the Kerala Education Rules, 1959 (hereinafter referred to as the “KER”) and the other is based on the provisions laid down under the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the “Act 35 of 2009”).
4. The claim of the petitioners under the KER is liable to be rejected in view of the decision of the Hon'ble Supreme Court in State of Kerala v. Prasad [2007 (3) KLT 531 (SC). It is stated in the above decision that there is a complete embargo on consideration of an application, which is submitted otherwise than in response the notification under sub-rule (2) of Rule 2(a) of Chapter V of the KER. The petitioner has no case that the Government has invited an application in terms of the above provisions. Therefore, the petitioners claim fails for upgradation in terms of the KER.
5. The petitioners have yet another claim in terms of Act 35 of 2009. Article 21A, as inserted by the Constitution (86th Amendment) Act 2002, which provides for free and compulsory education of all children in the age group of 6 to 14 years as a Fundamental Right in such manner as the State may, by law, determine. The Parliament enacted the right of children to Free and Compulsory Education Act, 2009 (Act 35 of 2009). Section 38 of the Act 35 of 2009 mandates appropriate Government may by notification make rules for carrying out Article 21 of the Constitution. The Government of Kerala framed Rules as per the gazette notification dated 30.4.2011. The Rules provide the manner in which the application has to be made by the educational agency as well as upgradation of existing schools. Section 6 of the Act 35 of 2009 provides that the appropriate Government and the local authority shall establish, within such area or limits of neighbourhood, as may be prescribed, a school, where it is not so established, within a period of three years from the commencement of this Act.
6. In the Rules framed by the Government of Kerala under Rule 6(b), it is stated that in respect of children in classes from 6 to 8, a school shall be established within a walking distance of three kilometres of the neighbourhood. It is also stated in Rule 6(2), the Government shall endeavour to upgrade in a phased manner, existing Government and aided schools with classes from 1 to 4, to include classes from 5 to 8 and in respect of schools which start from class 5 onwards, to add classes from 1 to 4 wherever required, taking into account the availability of such classes in the existing schools in the neighbourhood and the specific recommendation of the Assistant Educational Officer and the local authority.
7. Rule 14 (14) of the Rules framed by the Government of Kerala, it laid down that an educational agency or society proposing to start a new school or upgrade an existing school shall furnish an application in the prescribed format Form No.III and shall conform to the norms and standards specified in the Schedule and those mentioned in these Rules, and the locality in which the school is proposed to be started has a proven educational need as revealed in the school mapping carried out by the authorised agency and such educational need shall be certified by the local authority and the Assistant Educational Officer concerned.
8. Thus if such a certificate is issued by the local authority and, by the Educational Officer concerned, the Government is bound to upgrade an existing school in terms of the provision envisaged under the Act 35 of 2009 as such upgrdation is fundamental right sofar it relates to the children in the age group of 6 to 14, it does not depend upon the policy of the Government as envisaged under the KER.
9. The learned Government Pleader had filed a statement in which the Government had contraverted the claim for the petitioner to upgradation in terms of the KER. However, nothing has been stated about considering the claim of the petitioner in terms of the provisions under the Act 35 of 2009 and the relevant Rules framed by the Government of Kerala as already noted above. The petitioner appears to have filed Ext.P6 claiming upgradation in terms of Act 35 of 2009. In view of the above discussion, the mere request is not sufficient, the petitioner has to make any application in terms of format of Form No.III appended to the rules along with relevant certificate issued by the local authority and the Assistant Officer concerned. If the petitioner submits any application in the manner prescribed as per format of Form No.III along with the certificate issued by the local authority and the Educational Officer concerned, the needful shall be done by the first respondent within a period of three months from the date of receipt of a copy of this judgment. The petitioner shall also produce the judgment before the first respondent for compliance.
Sd/- A.MUHAMED MUSTAQUE, JUDGE ln