SC upholds Kerala HC order, directs govt to establish primary schools where none exist

Delhi: The Supreme Court on Tuesday directed the Kerala government to take immediate steps to establish government lower primary and upper primary schools in all regions where none currently exist, while hearing a petition filed by the state challenging an earlier High Court order on the matter.

A bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi upheld a Kerala High Court direction requiring the state to set up a school in an area that had no educational facility within a 3-4 km radius. The court emphasised that the rights under the Right of Children to Free and Compulsory Education Act (RTE Act) 2009 cannot be denied on grounds of geographical or financial constraints.

Calling the High Court's order "justified and valid," the court granted the State three months to ensure compliance.

The bench was dealing with the state's petition challenging the High Court's direction to establish a lower primary school in a remote village in Malappuram district. While refusing to entertain the state's challenge, the bench also issued a general direction to establish schools in areas lacking educational facilities.

"The State of Kerala must take a holistic decision to establish government primary schools in all areas where none are functioning under the 2009 Act," the bench said. The bench further directed that, in regions with difficult terrain, schools must be set up with accessibility in mind.

The court laid down a two-phase approach. In the first phase, the state must identify all regions without any lower or upper primary schools. In the second phase, schools must be established in all areas lacking a lower primary school within a one-kilometre radius or an upper primary school within three kilometres.

Acknowledging the state's resource limitations, the court permitted the temporary use of private buildings as makeshift school facilities, given that such arrangements are not to be continued indefinitely. The state was also directed to make appropriate budgetary allocations for permanent school infrastructure.

The bench instructed gram panchayats to provide the government with all available land-site information for establishing the schools. Further, to avoid disruption of academic activity, the court allowed the appointment of retired teachers until regular appointments are made.

The state has also been given the liberty to invite charitable institutions to establish schools in unserved areas, provided they ensure transparency in admissions, follow equality principles, maintain adequate infrastructure, comply with the Right to education Act, and do not charge capitation fees.

However, the bench made it clear that "no private individual shall be allowed to take benefit of these directions."

The High Court passed the judgment in July 2020 in a Public Interest Litigation filed by an individual seeking the establishment of a Government Lower Primary School in Elambra in Manjeri Municipality. The petition was filed, noting that local residents have purchased one acre of land for the school and that the Municipality has offered to provide a building.

(With LiveLaw inputs)