Shan N.S. Vs. Director of Higher Secondary Education - Court Judgment

SooperKanoon Citationsooperkanoon.com/1022889
CourtKerala High Court
Decided OnAug-27-2013
JudgeHONOURABLE MR.JUSTICE C.T.RAVIKUMAR
AppellantShan N.S.
RespondentDirector of Higher Secondary Education
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice c.t.ravikumar tuesday, the 27th day of august 2013 5th bhadra, 1935 wp(c).no. 14845 of 2013 (e) ---------------------------- petitioner(s): ------------------ shan n.s. minor represented by his mother, shahida beevi.a police quarters no. c3, poonthura p.o thiruvananthapuram by advs.sri.p.sreekumar sri.p.s.sidhan respondent(s): ------------------ 1. director of higher secondary education housing board buildings, thiruvananthapuram-695001 2. the principal, cordova higher secondary school, ambalathara thiruvananthapuram- 695026 r2 by adv. sri.g.s.reghunath r1 by government pleader sri.m.a.fayaz this writ petition (civil) having come up for admission on 27-08-2013, the court on the same day delivered the following: wp(c).no. 14845 of 2013 (e) ---------------------------- appendix petitioner(s)' exhibits : ------------------------------- exhibit p1: a true copy of the identity card issued to the petitioner. exhibit p2: true copies of the receipts showing the payment of the fees by the petitioner. exhibit p3: a true copy of the complaint dated 04 06-2013 submitted before the ist respondent. exhibit p4: a true copy of the complaint dated 04 06-2013 submitted before the 2nd respondent. exhibit p5: true copies of the letters issued from government model higher secondary school and government higher secondary school, kamaleswaram. exhibit p6: a true copy of the communication dated 05 06-2013 issued by the 2nd repsondnet. exhibit p7:a true copy of the marklist of the petitioner in the 11th standard. respondent(s)' exhibits: -------------------------------- ext.r2(a):true copy of the letter given by one syed ali j.n. apologizing for what had happened and assuring that such violent behaviours will not be repeated in future dated 17 10.2012. ext.r2(b):true copy of the letter given by one shahabas sha apologizing for what had happened and assuring that such violent behaviours will not be repeated in future dated 17 10.2012. ext.r2(c):true copy of the letter given by the petitioner apologizing for what had happened and assuring that such violent behaviours will not be repeated in future dated 17 10.2012. ext.r2(d):true copy of the letter received from the english teacher sri.santhosh kumar dated 17 11.2012. ext.r2(e): true copy of the letter given by the petitioner admitting his guilt and agreeing not to enter the english classes dated 21 11.2012. ext.r2(f):true copy of the letter in the handwriting of the petitioner. ext.r2(g):true copy of the written complaint given by arun kumar v.a., class teacher, to the second respondent. r2(h):true copy of the letter dated 21 11.2012 submitted by 6 teachers of 11th standard to the 2nd respondent. //true copy// p.a.to judge "c.r" c.t. ravikumar, j.========================== w.p.(c). no. 14845 of 201.========================== dated this the 27th day of august, 2013 judgment the petitioner who is a minor and a student in the second respondent's school filed this writ petition through his mother seeking issuance of a writ of mandamus commanding the respondents to permit him to pursue his second year study in the higher secondary course at the second respondent's school itself. consequential reliefs are also sought for. the circumstances that constrained the petitioner to approach this court by filing the captioned writ petition, in succinct, are as hereunder:- the petitioner was given admission in the cordova higher secondary school, ambalathara in higher secondary course during the academic year 2012-2013 and now, he has successfully completed the first year. but, when the petitioner went to the school w.p.(c).14845/13 2 on the re-opening day, he was told that he would not be permitted to continue his studies there. the mother of the petitioner filed ext.p3 complaint before the first respondent seeking issuance of appropriate directions to the second respondent to enable the petitioner to pursue his studies in the second respondent's school where he had completed the first year of his higher secondary course. on the same day itself, the second respondent was also approached seeking permission to the petitioner to attend the classes. subsequently, ext.p6 communication was received by the petitioner's mother whereby the second respondent informed her that the petitioner is a trouble maker in the school and therefore, to obtain his transfer certificate and to remove him from the school. the contention of the petitioner is that he had never indulged in indecent or any troublesome activities as alleged in ext.p6 and till the issuance of ext.p6 neither the petitioner nor his parents were told of any decision to deny him the right to pursue his studies there and hitherto, no disciplinary action has been taken against him. the pith of an argument is that compelling the petitioner to receive the w.p.(c).14845/13 3 transfer certificate based on such unfounded allegations would ruin his future.2. a counter affidavit has been filed by the second respondent. manifold contentions have been raised thereunder to resist the claims and contentions of the petitioner. the core contention of the second respondent is directed against the maintainability of this writ petition. it is contended that the school in question is a private, unaided school purely funded by the kerala educational trust and therefore, not amenable to the jurisdiction of this court under article 226 of the constitution of india. to buttress the said contention, the learned counsel for the second respondent relied on decisions of this court in sreekala v. deo [2006 (3) klt 840], george roy v. mar athanasious [1992 (1) klt 94.and, kriti sisodia v. director of education and another [2007 khc 7140]. in sreekala's case, the main prayer was for issuance of a writ of mandamus commanding the first respondent viz., deo, aleppey to ensure that the managing committee of sndp hs, w.p.(c).14845/13 4 mahadevikadu is constituted strictly in terms of the bye-laws marked therein as ext.p1 and to enable all the eligible members of the fourth respondent therein to caste their votes. the further prayers sought for by the petitioner therein have been extracted in the opening paragraph itself and the facts of the case expatiated therein would undoubtedly go to show that its factual matrix is distinctly different from the instant case and the petitioner therein never sought for any direction akin to the nature of the relief sought for by the petitioner herein. though it was found that the managing committee of sndp h.s mahadevikadu is discharging a public function by imparting education the court held that it is essentially a private body and not an authority under article 12 of the constitution of india. consequently, it was held that no writ petition would lie under article 226 of the constitution of india. in george roy's case (supra), the petitioners who were 8th semester students in mar athanasious college of engineering were expelled from the college for misbehaving with girl students by way of disciplinary action. they challenged the punishment alleging infraction of w.p.(c).14845/13 5 natural justice owing to non-furnishing of the statements of the girl students and denial of opportunity to cross-examine the witnesses. admittedly, in that case show cause notices were issued, replies were obtained and it was thereafter, the decision to expel them from the college was taken. it was held that in the context of the case that a fair hearing and a reasonable notice were called for and they were extended to the petitioners. a perusal of the said case would reveal that the petitioners therein allegedly committed highly objectionable acts and consequently, show cause notices were issued and explanations were obtained from them. it is after considering their replies that the aforesaid punishment was imposed on them by way of disciplinary action. the second respondent relied on the decision in kriti sisodia's case (supra) rendered by the delhi high court to contend that un-aided minority institutions have complete freedom in so far as the procedures to be adopted for admissions in the institutions. it is contended that the school in question is a minority institution falling under article 30(1) of the constitution of india and therefore, in the light of the decision in kriti sisodia's w.p.(c).14845/13 6 case (supra), the school in question is having complete freedom in so far as the procedures to be adopted for admission. i am of the view that objection raised by the second respondent relying on the aforesaid decision is palpably unsustainable for the reason that in the said decision, what is upheld is the right of the minority institution to adopt procedures for admission. in this case, the petitioner was admitted to cardova higher secondary school, ambalathara and he was allowed to continue the first year of his course and the question is only with respect to his right to continue there for the second year of the course. that apart, in the case on hand, no such disciplinary action has been, admittedly, initiated against the petitioner. in the circumstances, i am of the considered view that, the above mentioned three decisions are not applicable to the case on hand. it is to be noted that in the reply affidavit filed by the petitioner it is categorically averred that the school in question is a school recognised by the state of kerala. this is not at all disputed by the second respondent. 'private school' is defined under section 2(7) of the kerala education act, 1958 (for short 'the act') as hereunder:- w.p.(c).14845/13 7 "private school means an aided or recognised school".3. 'recognised school' is defined under section 2(8) thereunder as to mean a private school recognised by the government under the act. when the school is a recognised school the mere fact it is an unaided school funded purely by a trust cannot be a reason for ousting the jurisdiction of this court as imparting education in the institution is a public function and therefore, necessarily, the second respondent who is the principal of the school is performing public duties in connection with the performance of that public function. in the context of the case it is apposite to refer to the decisions in k.krishnamacharyalu v. sree venkiteswara hindu college of engineering (air 199.sc295) and in ramesh ahluwalia v. state of punjab and others reported in 2012 (12) scc 331.in krishnamacharyalu's case, it was held that a writ petition is maintainable against private institutions if the remedy is not a private law remedy. in ramesh ahluwalia's case (supra), the hon'ble supreme court held that though an unaided private school w.p.(c).14845/13 8 does not fall within the definition of 'state' or 'other authority/instrumenty' of 'state' issuance of writ cannot be denied if person or authority concerned performs public duty. it was also held that since the respondent therein performs public functions i.e, providing education to children in their institutions writ could not be withheld merely because the respondent is a purely unaided private educational institution. in ramesh ahluwalia's case (supra), the hon'ble apex court held that writ could not be denied if person or authority concerned performs public duty/public function not necessarily imposed by statute. it is also held therein that providing education to children is performance of public function. i have no doubt that the said decisions would answer the objection raised by the second respondent regarding the maintainability of this writ petition in the negative. the other contention of the second respondent is that neither the cordova higher secondary school nor the kerala educational trust which is managing the school is not made party to this writ petition and hence, it is liable to be dismissed on that score. in this context, it is to be noted that as w.p.(c).14845/13 9 regards the admission of a student in a school, such duties are to be performed by the principal of the concerned school subject to the relevant provisions of law. going by g.o.(ms)no.338/2003/g.edn. dated 16.12.2003, the principal will be the administrative and academic head of the higher secondary schools. the principal of the school is arrayed as the second respondent in this writ petition and that apart, it is to be noted that ext.p6 was issued by the second respondent. in such circumstances, the non-impleadment of the manager as a party to this writ petition cannot be a reason for holding that this writ petition is not maintainable. therefore, i am of the view that the said decision would fetch no support to the contention raised by the second respondent regarding the maintainability.4. now, i will deal the question of availability or otherwise of a right to the petitioner to pursue with study of the course without fresh admission or readmission. it is contended that the petitioner was not given admission to standard xii and no fees was received w.p.(c).14845/13 10 from him for standard xii and therefore, he got no right to claim for continuance in the said school. it is further stated that there is no statutory provision or any agreement enabling the petitioner to compel the second respondent to admit him to the xii standard. though such a contention was pointedly raised by the second respondent, no provision was brought to my notice requiring a student who obtained admission to higher secondary course and completed his first year to obtain a fresh admission or readmission in order to pursue his studies in the second year of the said course. in the absence of any specific provision to the contrary when once a student is admitted into a biennial course successful completion of the first year of the study indubitably would and should fetch him the limited right to continue his study in its second year. it indeed is to be an indefeasible right which shall not be deprived of save by authority of law. in the context of the contentions, it is only apposite to refer to the decision of the hon'ble apex court in principal, kendriya vidyalaya v. saurabh chaudhary [2008 (4) klt 70.sc]. in the said decision, the hon'ble apex court held that w.p.(c).14845/13 11 promotion from one class to next higher class does not involve any fresh admission or readmission. that apart, in this subject, g.o. (ms)329/04/g.edn.dated 27.10.2004 governs the field. paragraph 3 (v) thereunder reads thus:- "promotion to second year:-pass in the first year examination is not a pre-condition for completing the two year course. but only those who have passed the first year examination securing 35% marks in each subject will be permitted to register for the higher secondary examination at the end of the course." (emphasis added) 5. in this case, ext.p7 marklist was produced by the petitioner along with the reply affidavit. it would reveal that in terms of the aforequoted paragraph from g.o. dated 27.10.2004, the petitioner is not only entitled to get promotion to the second year of the higher secondary course in the second respondent's school but also entitled to appear for the higher secondary examination on account of his securing more than 35% marks in the first year examination. when the relevant g.o. specifically provides that promotion to the second year of the higher secondary course is automatic in the light of the decision in principal, kendriya vidyalaya's case w.p.(c).14845/13 12 (supra) the second respondent cannot be heard to contend that fresh admission was not given to the petitioner to the second year of the higher secondary course and such admission is evidently automatic on completion of the first year. therefore, the aforesaid contention of the second respondent regarding admission to the second year of the course has to fail in such circumstances. one another aspect assumes relevance in the context of the rival contentions. no disciplinary action after following a fair hearing and a reasonable notice has been initiated against the petitioner and he was not expelled from the school as part of disciplinary action. though in the counter affidavit filed by the second respondent various allegations were levelled against the petitioner there is no case for the second respondent that the petitioner was expelled from the school after initiating disciplinary action following fair hearing and a reasonable notice. it is stated therein that the petitioner was not permitted to pursue his studies on account of certain activities. it is stated therein that he is behaving in the school in most vulgar manner and used to abuse the teachers and students in filthy and w.p.(c).14845/13 13 vulgar language and innumerable oral complaints were received from the teachers and students regarding his violent behaviour. to elucidate the same, an incident allegedly occurred on 17.10.2012 is narrated in paragraph 10 of the counter affidavit. it is stated therein that the petitioner along with another student saidali brutally attacked another student by name shahabas and the teachers had to intervene and stop him from causing severe injuries. though according to the second respondent, the petitioner along with another person unleashed such a brutal attack on another student, admittedly, no criminal complaint was lodged against the petitioner and admittedly, no disciplinary action has also been taken against the petitioner based on the said alleged incident or in that matter, based on any other activities. virtually, the counter affidavit depicts the petitioner as a student who behaves in an unruly and vulgar manner, in the school. in paragraph 22 of the counter affidavit, it is stated that on account of such behaviour of the petitioner, the morale of the teachers are seriously affected and according to the second respondent, they cannot take classes in a peaceful atmosphere if w.p.(c).14845/13 14 the petitioner is permitted to pursue his studies in the said school. in tampan v. principal, medical college reported in 1979 klt 4.this court held:- "the inherent right and quasi-parental authority of a teacher to proceed by way of disciplinary action against a pupil under his charge has been well recognized over the years" 6. it is incomprehensible as to how a student could have been spared without appropriate disciplinary action if he had actually misbehaved in the manner narrated in the counter affidavit. there is no case for the respondents that they had taken any disciplinary action against the petitioner for his alleged misbehaviour whilst it is evident that he was permitted to continue and complete his first year. it would indicate that if at all any action unbecoming of a student has been committed by the petitioner it was only excusable and any such action, even if occurred, was condoned lest the school authorities would not have permitted him to continue and complete the first year of study. ext.p7 marklist produced by the petitioner would reveal that virtually he had performed well in the w.p.(c).14845/13 15 examination and earned eligibility to appear for the second year examination as well. ext.p7 would also reveal that despite all such allegations in the counter affidavit, in the curriculum examination which involves internal assessment, he was given very high marks, in all subjects. the specific contention of the petitioner is that prior to ext.p6, no communication whatsoever was issued to the petitioner or his parents to obtain transfer certificate and seek for admission in some other schools. being a student is no reason for holding that in his case, that too, in a matter having damning dimensions as regards his future, the principle of natural justice has absolutely no application at all. even in the decision in george roy's case (supra) relied on by the second respondent the concerned petitioners were expelled from the college by way of disciplinary action that too, by passing an order after affording them opportunities to offer their explanation on the very serious and specific allegations. in fact, a reasonable notice and fair hearing was afforded. so also, in the decision of the hon'ble apex court in vice chancellor, guru ghasidas university v. craig mcleod w.p.(c).14845/13 16 reported in 2012 khc 4432.relied on by the second respondent, in connection with the gross misbehaviour a first information report was lodged with the police against craig mcleod and then an emergent decision was taken by proctorial board of the university to expel him from the university. in fact, pending final decision he was firstly suspended from attending classes. admittedly, no such action has been initiated against the petitioner herein, presumably on account of the fact that objectionable activities, if any, were condoned by the school authorities. in headmaster poikavu v. murali (1994 (2) klt 518), this court held that the teacher has an inherent right to proceed by way of action to maintain discipline and the teacher and headmaster are loco-parentis to all the students. i am of the considered view in such circumstances, except in extreme cases warranting disciplinary action, giving affable advice and guiding a student to the right and righteous path are certainly to be quintessential aspects of loco-parentis. admittedly, in this case, the school authorities had not initiated disciplinary action against the petitioner with notice to the petitioner or to his parents. as stated w.p.(c).14845/13 17 earlier, being a student is no ground for non-compliance with the principles of natural justice at least by giving a reasonable notice and affording a fair hearing especially when allegations of damning dimensions are raised. in respect of allegations which may bring a smirched reputation to a person, be a student or not, the concerned person cannot be condemned unheard. in this case, there is no case for the second respondent that any disciplinary action was taken against the petitioner with such opportunities and therefore, the denial of permission to attend the class would tantamount expulsion without following any procedure. expulsion, whatever be the mode, from the school with such wild allegation without a fair hearing and reasonable notice would certainly have damning dimension on the future of the petitioner who is now only a teen aged student. the non-initiation of disciplinary action against the petitioner till date and the marks awarded to him in curriculum examination persuade me to take the view that permitting the petitioner to continue to pursue his studies in the school in question would only be in the interest of justice. in view of the foregoing w.p.(c).14845/13 18 discussions i can only reach into one conclusion that the action on the part of the second respondent in not permitting the petitioner to pursue with his studies in the second year of the higher secondary course in cordova higher secondary school is illegal and arbitrary and invites interference by this court. in the result, the second respondent, being the administrative head of the school discharging public duties, is directed to permit the petitioner to continue his studies in the second year of the higher secondary course in cordova higher secondary school. the second respondent shall also take appropriate steps to take up the question of registration of the petitioner for the second year examination of the higher secondary course before the first respondent. if the last dates for submission of applications to register for the plus two higher secondary examination, march 2014 and also to register for improving scores of any subject which he attended at the first year of higher secondary examination 2013, if required, and also for remitting the requisite fee therefor, have already expired by now, the first respondent shall consider the case of the petitioner as a special w.p.(c).14845/13 19 case on account of the reasons aforesaid and accept the applications, as the case may be, and also permit the petitioner to remit fee for the aforesaid purpose/purposes despite the expiry of the last dates, on production of a copy of this judgment. it is further directed that if on account of the denial of permission to attend the class the petitioner is likely to fall short of the minimum required attendance, if there is such prescription, for appearing for the said examination the first respondent shall consider the question of its condonation, if requested for, in accordance with law and taking into account the fact that the absence of the petitioner had occasioned not on account of any lapse or laches on his part and in fact, he was denied to attend the class. if it is beyond his power to condone such shortage of attendance he shall place the matter before the government for such consideration and appropriate action, taking note of the observations in this judgment. before parting with the case i think it only appropriate to sound a word of caution to the petitioner to remain as an obedient student and to concentrate unto his studies and also to refrain from creating any problem whatsoever, affecting the w.p.(c).14845/13 20 discipline of the school. the writ petition is disposed of accordingly. sd/- (c.t.ravikumar, judge) spc c.t. ravikumar (judge) spc/ if the last dates for submission of applications to register for the plus two higher secondary examination, march 2014 and also to register for improving scores of any subject which he attended at the first year of higher secondary examination 2013 and also for remitting the requisite fee therefor, have already expired by now, the first respondent shall consider the case of the petitioner as a special case on account of the reasons aforesaid and accept the applications, as the case may be, and also permit the petitioner to remit fee for the aforesaid purpose/purposes despite the expiry of the last date on production of a copy of this judgment. c.t. ravikumar, j.judgment september,2010 ................................................ ................................................. c.t. ravikumar (judge) spc/ c.t. ravikumar, j.judgment september,2010
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 27TH DAY OF AUGUST 2013 5TH BHADRA, 1935 WP(C).No. 14845 of 2013 (E) ---------------------------- PETITIONER(S): ------------------ SHAN N.S. MINOR REPRESENTED BY HIS MOTHER, SHAHIDA BEEVI.A POLICE QUARTERS NO. C3, POONTHURA P.O THIRUVANANTHAPURAM BY ADVS.SRI.P.SREEKUMAR SRI.P.S.SIDHAN RESPONDENT(S): ------------------ 1. DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM-695001 2. THE PRINCIPAL, CORDOVA HIGHER SECONDARY SCHOOL, AMBALATHARA THIRUVANANTHAPURAM- 695026 R2 BY ADV. SRI.G.S.REGHUNATH R1 BY GOVERNMENT PLEADER SRI.M.A.FAYAZ THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14845 of 2013 (E) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------- EXHIBIT P1: A TRUE COPY OF THE IDENTITY CARD ISSUED TO THE PETITIONER. EXHIBIT P2: TRUE COPIES OF THE RECEIPTS SHOWING THE PAYMENT OF THE FEES BY THE PETITIONER. EXHIBIT P3: A TRUE COPY OF THE COMPLAINT DATED 04 06-2013 SUBMITTED BEFORE THE IST RESPONDENT. EXHIBIT P4: A TRUE COPY OF THE COMPLAINT DATED 04 06-2013 SUBMITTED BEFORE THE 2ND RESPONDENT. EXHIBIT P5: TRUE COPIES OF THE LETTERS ISSUED FROM GOVERNMENT MODEL HIGHER SECONDARY SCHOOL AND GOVERNMENT HIGHER SECONDARY SCHOOL, KAMALESWARAM. EXHIBIT P6: A TRUE COPY OF THE COMMUNICATION DATED 05 06-2013 ISSUED BY THE 2ND REPSONDNET. EXHIBIT P7:A TRUE COPY OF THE MARKLIST OF THE PETITIONER IN THE 11TH STANDARD. RESPONDENT(S)' EXHIBITS: -------------------------------- EXT.R2(A):TRUE COPY OF THE LETTER GIVEN BY ONE SYED ALI J.N. APOLOGIZING FOR WHAT HAD HAPPENED AND ASSURING THAT SUCH VIOLENT BEHAVIOURS WILL NOT BE REPEATED IN FUTURE DATED 17 10.2012. EXT.R2(B):TRUE COPY OF THE LETTER GIVEN BY ONE SHAHABAS SHA APOLOGIZING FOR WHAT HAD HAPPENED AND ASSURING THAT SUCH VIOLENT BEHAVIOURS WILL NOT BE REPEATED IN FUTURE DATED 17 10.2012. EXT.R2(C):TRUE COPY OF THE LETTER GIVEN BY THE PETITIONER APOLOGIZING FOR WHAT HAD HAPPENED AND ASSURING THAT SUCH VIOLENT BEHAVIOURS WILL NOT BE REPEATED IN FUTURE DATED 17 10.2012. EXT.R2(D):TRUE COPY OF THE LETTER RECEIVED FROM THE ENGLISH TEACHER SRI.SANTHOSH KUMAR DATED 17 11.2012. EXT.R2(E): TRUE COPY OF THE LETTER GIVEN BY THE PETITIONER ADMITTING HIS GUILT AND AGREEING NOT TO ENTER THE ENGLISH CLASSES DATED 21 11.2012. EXT.R2(F):TRUE COPY OF THE LETTER IN THE HANDWRITING OF THE PETITIONER. EXT.R2(G):TRUE COPY OF THE WRITTEN COMPLAINT GIVEN BY ARUN KUMAR V.A., CLASS TEACHER, TO THE SECOND RESPONDENT. R2(H):TRUE COPY OF THE LETTER DATED 21 11.2012 SUBMITTED BY 6 TEACHERS OF 11TH STANDARD TO THE 2ND RESPONDENT. //TRUE COPY// P.A.TO JUDGE "C.R" C.T. RAVIKUMAR, J.

========================== W.P.(C). No. 14845 OF 201.========================== Dated this the 27th day of August, 2013 JUDGMENT

The petitioner who is a minor and a student in the second respondent's school filed this writ petition through his mother seeking issuance of a writ of mandamus commanding the respondents to permit him to pursue his second year study in the Higher Secondary Course at the second respondent's school itself. Consequential reliefs are also sought for. The circumstances that constrained the petitioner to approach this Court by filing the captioned writ petition, in succinct, are as hereunder:- The petitioner was given admission in the Cordova Higher Secondary School, Ambalathara in Higher Secondary course during the academic year 2012-2013 and now, he has successfully completed the first year. But, when the petitioner went to the school W.P.(C).14845/13 2 on the re-opening day, he was told that he would not be permitted to continue his studies there. The mother of the petitioner filed Ext.P3 complaint before the first respondent seeking issuance of appropriate directions to the second respondent to enable the petitioner to pursue his studies in the second respondent's school where he had completed the first year of his Higher Secondary Course. On the same day itself, the second respondent was also approached seeking permission to the petitioner to attend the classes. Subsequently, Ext.P6 communication was received by the petitioner's mother whereby the second respondent informed her that the petitioner is a trouble maker in the school and therefore, to obtain his transfer certificate and to remove him from the school. The contention of the petitioner is that he had never indulged in indecent or any troublesome activities as alleged in Ext.P6 and till the issuance of Ext.P6 neither the petitioner nor his parents were told of any decision to deny him the right to pursue his studies there and hitherto, no disciplinary action has been taken against him. The pith of an argument is that compelling the petitioner to receive the W.P.(C).14845/13 3 transfer certificate based on such unfounded allegations would ruin his future.

2. A counter affidavit has been filed by the second respondent. Manifold contentions have been raised thereunder to resist the claims and contentions of the petitioner. The core contention of the second respondent is directed against the maintainability of this writ petition. It is contended that the school in question is a private, unaided school purely funded by the Kerala Educational Trust and therefore, not amenable to the jurisdiction of this Court under Article 226 of the Constitution of India. To buttress the said contention, the learned counsel for the second respondent relied on decisions of this Court in Sreekala v. DEO [2006 (3) KLT 840], George Roy v. Mar Athanasious [1992 (1) KLT 94.and, Kriti Sisodia v. Director of Education and another [2007 KHC 7140]. In Sreekala's case, the main prayer was for issuance of a writ of mandamus commanding the first respondent viz., DEO, Aleppey to ensure that the managing committee of SNDP HS, W.P.(C).14845/13 4 Mahadevikadu is constituted strictly in terms of the bye-laws marked therein as Ext.P1 and to enable all the eligible members of the fourth respondent therein to caste their votes. The further prayers sought for by the petitioner therein have been extracted in the opening paragraph itself and the facts of the case expatiated therein would undoubtedly go to show that its factual matrix is distinctly different from the instant case and the petitioner therein never sought for any direction akin to the nature of the relief sought for by the petitioner herein. Though it was found that the managing committee of SNDP H.S Mahadevikadu is discharging a public function by imparting education the Court held that it is essentially a private body and not an authority under Article 12 of the Constitution of India. Consequently, it was held that no writ petition would lie under Article 226 of the Constitution of India. In George Roy's case (supra), the petitioners who were 8th semester students in Mar Athanasious College of Engineering were expelled from the college for misbehaving with girl students by way of disciplinary action. They challenged the punishment alleging infraction of W.P.(C).14845/13 5 natural justice owing to non-furnishing of the statements of the girl students and denial of opportunity to cross-examine the witnesses. Admittedly, in that case show cause notices were issued, replies were obtained and it was thereafter, the decision to expel them from the college was taken. It was held that in the context of the case that a fair hearing and a reasonable notice were called for and they were extended to the petitioners. A perusal of the said case would reveal that the petitioners therein allegedly committed highly objectionable acts and consequently, show cause notices were issued and explanations were obtained from them. It is after considering their replies that the aforesaid punishment was imposed on them by way of disciplinary action. The second respondent relied on the decision in Kriti Sisodia's case (supra) rendered by the Delhi High Court to contend that un-aided minority institutions have complete freedom in so far as the procedures to be adopted for admissions in the institutions. It is contended that the school in question is a minority institution falling under Article 30(1) of the Constitution of India and therefore, in the light of the decision in Kriti Sisodia's W.P.(C).14845/13 6 case (supra), the school in question is having complete freedom in so far as the procedures to be adopted for admission. I am of the view that objection raised by the second respondent relying on the aforesaid decision is palpably unsustainable for the reason that in the said decision, what is upheld is the right of the minority institution to adopt procedures for admission. In this case, the petitioner was admitted to Cardova Higher Secondary School, Ambalathara and he was allowed to continue the first year of his course and the question is only with respect to his right to continue there for the second year of the course. That apart, in the case on hand, no such disciplinary action has been, admittedly, initiated against the petitioner. In the circumstances, I am of the considered view that, the above mentioned three decisions are not applicable to the case on hand. It is to be noted that in the reply affidavit filed by the petitioner it is categorically averred that the school in question is a school recognised by the State of Kerala. This is not at all disputed by the second respondent. 'Private School' is defined under section 2(7) of the Kerala Education Act, 1958 (for short 'the Act') as hereunder:- W.P.(C).14845/13 7 "Private school means an aided or recognised school".

3. 'Recognised school' is defined under section 2(8) thereunder as to mean a private school recognised by the Government under the Act. When the school is a recognised school the mere fact it is an unaided school funded purely by a trust cannot be a reason for ousting the jurisdiction of this Court as imparting education in the institution is a public function and therefore, necessarily, the second respondent who is the Principal of the school is performing public duties in connection with the performance of that public function. In the context of the case it is apposite to refer to the decisions in K.Krishnamacharyalu v. Sree Venkiteswara Hindu College of Engineering (AIR 199.SC

295) and in Ramesh Ahluwalia v. State of Punjab and others reported in 2012 (12) SCC 331.In Krishnamacharyalu's case, it was held that a writ petition is maintainable against private institutions if the remedy is not a private law remedy. In Ramesh Ahluwalia's case (supra), the Hon'ble Supreme Court held that though an unaided private school W.P.(C).14845/13 8 does not fall within the definition of 'state' or 'other authority/instrumenty' of 'State' issuance of writ cannot be denied if person or authority concerned performs public duty. It was also held that since the respondent therein performs public functions i.e, providing education to children in their institutions writ could not be withheld merely because the respondent is a purely unaided private educational institution. In Ramesh Ahluwalia's case (supra), the Hon'ble Apex Court held that writ could not be denied if person or authority concerned performs public duty/public function not necessarily imposed by statute. It is also held therein that providing education to children is performance of public function. I have no doubt that the said decisions would answer the objection raised by the second respondent regarding the maintainability of this writ petition in the negative. The other contention of the second respondent is that neither the Cordova Higher Secondary School nor the Kerala Educational Trust which is managing the school is not made party to this writ petition and hence, it is liable to be dismissed on that score. In this context, it is to be noted that as W.P.(C).14845/13 9 regards the admission of a student in a school, such duties are to be performed by the Principal of the concerned school subject to the relevant provisions of law. Going by G.O.(MS)No.338/2003/G.Edn. Dated 16.12.2003, the Principal will be the administrative and Academic Head of the Higher Secondary Schools. The Principal of the school is arrayed as the second respondent in this writ petition and that apart, it is to be noted that Ext.P6 was issued by the second respondent. In such circumstances, the non-impleadment of the Manager as a party to this writ petition cannot be a reason for holding that this writ petition is not maintainable. Therefore, I am of the view that the said decision would fetch no support to the contention raised by the second respondent regarding the maintainability.

4. Now, I will deal the question of availability or otherwise of a right to the petitioner to pursue with study of the course without fresh admission or readmission. It is contended that the petitioner was not given admission to standard XII and no fees was received W.P.(C).14845/13 10 from him for standard XII and therefore, he got no right to claim for continuance in the said school. It is further stated that there is no statutory provision or any agreement enabling the petitioner to compel the second respondent to admit him to the XII standard. Though such a contention was pointedly raised by the second respondent, no provision was brought to my notice requiring a student who obtained admission to Higher Secondary Course and completed his first year to obtain a fresh admission or readmission in order to pursue his studies in the second year of the said course. In the absence of any specific provision to the contrary when once a student is admitted into a biennial course successful completion of the first year of the study indubitably would and should fetch him the limited right to continue his study in its second year. It indeed is to be an indefeasible right which shall not be deprived of save by authority of law. In the context of the contentions, it is only apposite to refer to the decision of the Hon'ble Apex Court in Principal, Kendriya Vidyalaya v. Saurabh Chaudhary [2008 (4) KLT 70.SC]. In the said decision, the Hon'ble Apex Court held that W.P.(C).14845/13 11 promotion from one class to next higher class does not involve any fresh admission or readmission. That apart, in this subject, G.O. (MS)329/04/G.Edn.dated 27.10.2004 governs the field. Paragraph 3 (v) thereunder reads thus:- "Promotion to Second Year:-Pass in the First Year Examination is not a pre-condition for completing the two year course. But only those who have passed the first year examination securing 35% marks in each subject will be permitted to register for the Higher Secondary Examination at the end of the course." (emphasis added) 5. In this case, Ext.P7 marklist was produced by the petitioner along with the reply affidavit. It would reveal that in terms of the aforequoted paragraph from G.O. dated 27.10.2004, the petitioner is not only entitled to get promotion to the second year of the Higher Secondary course in the second respondent's school but also entitled to appear for the higher secondary examination on account of his securing more than 35% marks in the first year examination. When the relevant G.O. specifically provides that promotion to the second year of the higher secondary course is automatic in the light of the decision in Principal, Kendriya Vidyalaya's case W.P.(C).14845/13 12 (supra) the second respondent cannot be heard to contend that fresh admission was not given to the petitioner to the second year of the higher secondary course and such admission is evidently automatic on completion of the first year. Therefore, the aforesaid contention of the second respondent regarding admission to the second year of the course has to fail in such circumstances. One another aspect assumes relevance in the context of the rival contentions. No disciplinary action after following a fair hearing and a reasonable notice has been initiated against the petitioner and he was not expelled from the school as part of disciplinary action. Though in the counter affidavit filed by the second respondent various allegations were levelled against the petitioner there is no case for the second respondent that the petitioner was expelled from the school after initiating disciplinary action following fair hearing and a reasonable notice. It is stated therein that the petitioner was not permitted to pursue his studies on account of certain activities. It is stated therein that he is behaving in the school in most vulgar manner and used to abuse the teachers and students in filthy and W.P.(C).14845/13 13 vulgar language and innumerable oral complaints were received from the teachers and students regarding his violent behaviour. To elucidate the same, an incident allegedly occurred on 17.10.2012 is narrated in paragraph 10 of the counter affidavit. It is stated therein that the petitioner along with another student Saidali brutally attacked another student by name Shahabas and the teachers had to intervene and stop him from causing severe injuries. Though according to the second respondent, the petitioner along with another person unleashed such a brutal attack on another student, admittedly, no criminal complaint was lodged against the petitioner and admittedly, no disciplinary action has also been taken against the petitioner based on the said alleged incident or in that matter, based on any other activities. Virtually, the counter affidavit depicts the petitioner as a student who behaves in an unruly and vulgar manner, in the school. In paragraph 22 of the counter affidavit, it is stated that on account of such behaviour of the petitioner, the morale of the teachers are seriously affected and according to the second respondent, they cannot take classes in a peaceful atmosphere if W.P.(C).14845/13 14 the petitioner is permitted to pursue his studies in the said school. In Tampan v. Principal, Medical College reported in 1979 KLT 4.this Court held:- "The inherent right and quasi-parental authority of a teacher to proceed by way of disciplinary action against a pupil under his charge has been well recognized over the years" 6. It is incomprehensible as to how a student could have been spared without appropriate disciplinary action if he had actually misbehaved in the manner narrated in the counter affidavit. There is no case for the respondents that they had taken any disciplinary action against the petitioner for his alleged misbehaviour whilst it is evident that he was permitted to continue and complete his first year. It would indicate that if at all any action unbecoming of a student has been committed by the petitioner it was only excusable and any such action, even if occurred, was condoned lest the school authorities would not have permitted him to continue and complete the first year of study. Ext.P7 marklist produced by the petitioner would reveal that virtually he had performed well in the W.P.(C).14845/13 15 examination and earned eligibility to appear for the second year examination as well. Ext.P7 would also reveal that despite all such allegations in the counter affidavit, in the Curriculum Examination which involves internal assessment, he was given very high marks, in all subjects. The specific contention of the petitioner is that prior to Ext.P6, no communication whatsoever was issued to the petitioner or his parents to obtain transfer certificate and seek for admission in some other schools. Being a student is no reason for holding that in his case, that too, in a matter having damning dimensions as regards his future, the principle of natural justice has absolutely no application at all. Even in the decision in George Roy's case (supra) relied on by the second respondent the concerned petitioners were expelled from the college by way of disciplinary action that too, by passing an order after affording them opportunities to offer their explanation on the very serious and specific allegations. In fact, a reasonable notice and fair hearing was afforded. So also, in the decision of the Hon'ble Apex Court in Vice Chancellor, Guru Ghasidas University v. Craig Mcleod W.P.(C).14845/13 16 reported in 2012 KHC 4432.relied on by the second respondent, in connection with the gross misbehaviour a first information report was lodged with the police against Craig Mcleod and then an emergent decision was taken by Proctorial Board of the University to expel him from the university. In fact, pending final decision he was firstly suspended from attending classes. Admittedly, no such action has been initiated against the petitioner herein, presumably on account of the fact that objectionable activities, if any, were condoned by the school authorities. In Headmaster Poikavu v. Murali (1994 (2) KLT 518), this Court held that the teacher has an inherent right to proceed by way of action to maintain discipline and the teacher and headmaster are loco-parentis to all the students. I am of the considered view in such circumstances, except in extreme cases warranting disciplinary action, giving affable advice and guiding a student to the right and righteous path are certainly to be quintessential aspects of loco-parentis. Admittedly, in this case, the school authorities had not initiated disciplinary action against the petitioner with notice to the petitioner or to his parents. As stated W.P.(C).14845/13 17 earlier, being a student is no ground for non-compliance with the principles of natural justice at least by giving a reasonable notice and affording a fair hearing especially when allegations of damning dimensions are raised. In respect of allegations which may bring a smirched reputation to a person, be a student or not, the concerned person cannot be condemned unheard. In this case, there is no case for the second respondent that any disciplinary action was taken against the petitioner with such opportunities and therefore, the denial of permission to attend the class would tantamount expulsion without following any procedure. Expulsion, whatever be the mode, from the school with such wild allegation without a fair hearing and reasonable notice would certainly have damning dimension on the future of the petitioner who is now only a teen aged student. The non-initiation of disciplinary action against the petitioner till date and the marks awarded to him in Curriculum Examination persuade me to take the view that permitting the petitioner to continue to pursue his studies in the school in question would only be in the interest of justice. In view of the foregoing W.P.(C).14845/13 18 discussions I can only reach into one conclusion that the action on the part of the second respondent in not permitting the petitioner to pursue with his studies in the second year of the Higher Secondary Course in Cordova Higher Secondary School is illegal and arbitrary and invites interference by this Court. In the result, the second respondent, being the administrative head of the school discharging public duties, is directed to permit the petitioner to continue his studies in the second year of the Higher Secondary Course in Cordova Higher Secondary School. The second respondent shall also take appropriate steps to take up the question of registration of the petitioner for the second year examination of the Higher Secondary Course before the first respondent. If the last dates for submission of applications to register for the Plus Two Higher Secondary Examination, March 2014 and also to register for improving scores of any subject which he attended at the first year of Higher Secondary Examination 2013, if required, and also for remitting the requisite fee therefor, have already expired by now, the first respondent shall consider the case of the petitioner as a special W.P.(C).14845/13 19 case on account of the reasons aforesaid and accept the applications, as the case may be, and also permit the petitioner to remit fee for the aforesaid purpose/purposes despite the expiry of the last dates, on production of a copy of this judgment. It is further directed that if on account of the denial of permission to attend the class the petitioner is likely to fall short of the minimum required attendance, if there is such prescription, for appearing for the said examination the first respondent shall consider the question of its condonation, if requested for, in accordance with law and taking into account the fact that the absence of the petitioner had occasioned not on account of any lapse or laches on his part and in fact, he was denied to attend the class. If it is beyond his power to condone such shortage of attendance he shall place the matter before the Government for such consideration and appropriate action, taking note of the observations in this judgment. Before parting with the case I think it only appropriate to sound a word of caution to the petitioner to remain as an obedient student and to concentrate unto his studies and also to refrain from creating any problem whatsoever, affecting the W.P.(C).14845/13 20 discipline of the school. The writ petition is disposed of accordingly. Sd/- (C.T.RAVIKUMAR, JUDGE) spc C.T. RAVIKUMAR (JUDGE) spc/ If the last dates for submission of applications to register for the Plus Two Higher Secondary Examination, March 2014 and also to register for improving scores of any subject which he attended at the first year of Higher Secondary Examination 2013 and also for remitting the requisite fee therefor, have already expired by now, the first respondent shall consider the case of the petitioner as a special case on account of the reasons aforesaid and accept the applications, as the case may be, and also permit the petitioner to remit fee for the aforesaid purpose/purposes despite the expiry of the last date on production of a copy of this judgment. C.T. RAVIKUMAR, J.

JUDGMENT

September,2010 ................................................ ................................................. C.T. RAVIKUMAR (JUDGE) spc/ C.T. RAVIKUMAR, J.

JUDGMENT

September,2010