STATE OF KERALA V.

AYSHA LP SCHOOL
SUBMITTED BY INTERN MANI MUNJAL

ISSUES
1. Was over-ruling the two judgements Manager LPGS Vellyam v. State of Kerala and
TKMMLP v. State of Kerala justified when the reasoning for school mapping and to
provide transportation to students under RTE Act, 2009 was approved by this Hon’ble
Court.
2. Does compliance with the ‘norms and standards’ under section 19 of RTE Act 2009
by schools would give them an automatic right for upgradation?
3. The educational need ascertained by process of school mapping under the 2011 Rules
would become otiose after enforcement of RTE Act 2009?
4. If walkable distance for neighbourhood school u/r 6(1) can be extended w/o
discomfort to the child when free transport is provided by the govt especially when
Section 5 of RTE Act 2009 and Rules 6(4) and 6(7) of 2011 Rules contemplates
transportation to be given to students in certain circumstances
HELD IN THE IMPUGNED ORDER
Providing transportation facilities by the state under Rule 6(4) is for specified
contingency and not a substitute to establish schools for elementary education and the
statutory duties u/s 19 r/w Rule 6(1) is not discharged by providing merely
transportation and Kum Sreya and TKMMLP stands over-ruled.
IMPUGNED ORDER
1. Relevant Section of RTE, 2009 Act: Section 5, 18, 19, 38
2. Relevant Rules of Kerala RTE Rules 2011. Rule 6
3. The present case is regarding the possible incorrectness of the decisions in Kum
Sreya Vinod v. Director of Public Instruction and TKMMLP v. State of Kerala. The
Right of Children to Free and Compulsory Education Act, 2009 (RTE) was enacted in
compliance with Article 21A of the Constitution with the objective to provide free
and compulsory education to children of ages 6-14.
4. Section 19 of the RTE Act 2009, prescribes that the school withing 3 years of
commencement of the act need to take steps to fulfil the norms and standards
stipulated.
5. The educational institutes lament that their applications to re-structure the schools as
per the Act are not considered even after 9 years. However, the state argues that the
schools have been provided with transportation facilities and the child can seek
transfer to another school after completion of elementary school.
6. The relevant definitions in the 2009 Act are under Section 2n (School), 2f
(Elementary Education), 2m (Schedule) to understand that any school imparting
elementary education loses its recognition u/s 18 of the Act unless it fulfils the norms
under the schedule.
7. The Schedule prescribes two categories of School. Firstly, 1st to 5th Class and
Secondly 6th to 8th class and they differ vastly in terms of pupil teacher ratio and
working days
8. Section 38 of the 2009 Act empowers the state govt to make rules to carry out the
provisions of the Act and there is no rule delineating Section 19, and this is how The
Kerala RTE, 2011 rules were made.
9. Rule 6 of 2011 Rules sets out the establishment of schools in areas or limits of
neighbourhood which has to be established by the govt or local authority
A. Children in Class 1-5: 1 km 6(1) a (Includes Category 1st to 5th)
B. Children in Class 6-8: 3km 6(1) b (Includes Category 6th to 8th)
10. The word neighbourhood is defined in Rule 2(o) of the 2011 Rules which means the
area near or within walkable distance of an elementary school.
11. It is argued that it is the duty of the govt under Rule 6(2) of the 2011 Rules to add
Classes 5-8 to schools having classes 1-4 and vice-versa.
12. Further Section 5 of the 2009 Act provides for transfer to other school if one school
does not have provision for completion of elementary education. However, such
provision is only a facilitating factor during the transitional phase of three years
13. It is emphasised that a child should not be treated like a chattel and be tossed from
one school to another for completion of the elementary education. Thus, a
restructuring of all the schools with uniform classes from 1-8 is a necessity, even
though it would be a financial burden on the state but both centre and state shall have
concurrent responsibility to share the financial commitment.
14. However, the above-mentioned judgements dated 9.6.2017 (Kum Sreya and
TKMMLP) stated that such upgradation won’t be feasible, and transportation is
sufficient.
15. Rule 6(4) of 2011 rules applies to children from small hamlets be given transportation
facility where no school exists in the neighbourhood and the state cannot take refuge
under Rule 6(4) from establishing school’s u/s 19 of 2009 Act and 6(1) of 2011 Rules
REASONING
1. The state govt has complied with the tasks ordered and approved by this court in the
case of LPGS Veliyam v. State of Kerala and the entire school mapping process was
carried out, and the HC in the present proceeding should not have adjudicated on
issues that have already attained finality and were approved
2. Regarding provision of transportation, it was due to the order of the court in Kum
Shreya and TKMMLP case and this court has approved the latter, and again issue of
school mapping and transportation have attained finality
3. That as per List 3 Entry 25 under the Constitution of India, the state can establish the
“educational need” criterion to determine upgradation of the schools and there is not
conflict between the RTE and Kerala Education Act
4. That the state has the flexibility to determine various modalities for achieving the
purse of RTE as was held in Jawaharlal Technological University v. Sangam
Laxmi Bai
5. TKMM case has been wrongly over-ruled which provides for safe and free transport
and which has been approved
6. The schools cannot demand upgradation as a matter of right
 7. That the norms and standards u/s 19 are being mis-construed
8. Nowhere u/s section 5 pertaining to transfer of child is only for a transitional phase of
3 years
9. The RTE act provides flexibility to the state
10. RTE rules mandate that the application for recognition or upgradation shall be on the
basis of proven educational need as per school mapping, and the same was never
challenged by the respondent

PRAYER
1. Grant Special Leave to appeal against impugned final order passed by the HC of
Kerala dates 10.07.2019
2. Pass such other order and the court may deem fit
3. Prayer for Interim Relief to pass ad-interim ex-parte stay order staying the operation
of the impugned judgment.

HOW OTHER STATES CONSTRUE THE PROVISIONS

S.N STATE DISTANCE (within )
.
1. Andhra Classes I-V :1 km
Pradesh Classes VI-VIII : 3km
*Relaxation similar to Model Rule 4(4)

2. Arunachal Classes I-V :1 km

Pradesh Classes VI-VIII : 3km
*Relaxation similar to Model Rule 4(4)
3. Assam Classes I-V :1 km
Classes VI-VIII : 3km
*Relaxation similar to Model Rule 4(4)

4. Bihar Classes I-V- :1 km provided there a minimum of 40 children in

the age group of 6 to 11 years
Classes VI-VIII : 3km
*Relaxation similar to Model Rule 4(4)
5. Chattisgarh Classes I-V :1 km
Classes VI-VIII : 3km
*Relaxation similar to Model Rule 4(4)
6. Delhi Classes I-V-5- :1 km
Classes VI-VIII : 3km
Rule 6(1) uses the expression ‘as far as possible’.
However, there is no rule similar to Rule 4(4) of the model
rules requiring state to provide transport in case the
prescribed distance is not adhered to.
7. Goa Classes I-V :1 km
Classes VI-VIII : 3km
*Relaxation similar to Model Rule 4(4)

8. Gujarat Classes I-V :1 km

 Classes VI-VIII : 3km
Rule 5(5) provides that the distance requirement can be waived
where transport or residential facility is available.
9. Haryana Classes I-V- :1 km provided there are atleast 30 children in the
age group of 5-6 years
Classes VI-VIII : 3km provided that there are atleast 150
children in primary school and minimum 30 in children in
class V.
11. Himanchal
Pradesh Class I-V : within 1.5 kms of a neighbourhood and has a
minimum of 25 children in the age group of 6 to 11 years
available and willing for enrolment in that school
Class VI-VIII : within 3kms of a neighbourhood which has not
less than 25 children in class 5th of the feeding primary
schools, taken together, available and willing for enrolment in
that school.

Rule 4(3) provides that where no such school exists within the
prescribed radius, the State may consider provision of free bus
pass or payment of distance allowance
Rule 4(4) provides that in areas with dispersed population, the
State Government, instead of opening a School, may establish a
hostel in some suitable school where, students of such areas
may be admitted.
12. Jharkhand Classes I-V :1 km
Classes VI-VIII : 2 km
*Rule 6(2) provides for relaxation of above requirement in case of
difficult terrain, risk of floods, difficulty of travelling or unsafe
roads.
13. Karnataka Classes I-V :1 km
Classes VI-VII : 3km
Class VIII : 5 kms
Above requirements apply to all areas except city corporation.
For urban areas where local authorities are City Corporation,
the area of neighbourhood will be area of ward notified for the
purpose of local governance.
*Relaxation similar to Model Rule 4(4)
14. Kerala Classes I-V - :1 km
Classes VI-VIII : 3km
*Relaxation similar to Model Rule 4(4)
15. Madhya Classes I-V - :1 km
Pradesh Classes VI-VIII : 3km
*Relaxation similar to Model Rule 4(4)
16. Maharashtra Classes I-V a school shall be established as far as possible
within a distance of 1Km of the neighbourhood and has a
minimum of 20 children in the age group of 6 to 11 years
available and willing for enrollment in that school;

Classes VI-VIII, a school shall be established as far as possible

within a distance of 3kms of the neighbourhood and which has
 not less than 20 children in class 5th of the feeding primary
schools, taken together, available and willing for enrollment in
that school
*Relaxation similar to Mode per Rule 4(4)
* Rule 4 (2) permits State to alter the minimum distance in
case of hilly areas and areas not easily accessible.

17. Meghalaya Classes I-V :1 km

Classes VI-VIII : 3km
*Relaxation similar to Model Rule 4(4)
18. Manipur Classes I-V :1 km
Classes VI-VIII : 3km
*Relaxation similar to Model Rule 4(4)
19. Mizoram Classes I-V :1 km
Classes VI-VIII : 3km
*Relaxation similar to Model Rule 4(4)
20. Orissa Classes I-V :1 km
Classes VI-VIII : 3km
Rule 6 (4) provides that for children from small hamlets, as
identified by the Government/Local Authority, where no school
exists within the area or limits of neighbourhood specified under
sub-rule (1) the Government/Local Authority shall make adequate
arrangements for providing elementary education in a school, in
relaxation of the limits specified under sub-rule (1).

21. Punjab Classes I-V :1 km

Classes VI-VIII : 3km
*Relaxation similar to Model per Rule 4(4)
22. Rajasthan Classes I-V :1 km
Classes VI-VIII : 2 km
*Relaxation similar to Model Rule 4(4)
Rule 7(3) provides that in difficult and remote areas like desert
area, hilly area, and areas with scattered population, the State
Government or local authority shall establish a School with
classes I to V, in a habitation whose minimum population is
150 persons and having minimum 20 children in the age group
of 6 to 11 years, and a School with classes VI to VIII in a
habitation with minimum 30 children in class V from at least
two feeder primary schools.
23. Sikkim Classes I-V :1 km
Classes VI-VIII : 3km
* Rule 4(1) proviso provides that where it is not possible to
adhere to these requirements State shall provide for adequate
arrangements such as transport and residential facilities.
*Relaxation similar to Model Rule 4(4)

24. Tripura Classes I-V :1 km

Classes VI-VIII : 3km
*Relaxation similar to Model Rule 4(4)
25. Tamil Nadu Classes I-V :1 km
 Classes VI-VIII : 3km
* Rule 4(1) proviso provides that where it is not possible to
adhere to these requirements State shall provide for adequate
arrangements such as transport and residential facilities.
*Relaxation similar to Model Rule 4(4)
26. Uttarakhand Classes I - V : within 1 K.M. of the served area having a
minimum population of 200. For the rural areas there should
be a minimum of 25 children and for the urban areas there
should be a minimum of 40 children in the age group of 6‐11
years available and willing for enrollment in that school;
Classes VI – VIII within 3kms of the served area having a
minimum population of 400. For the rural areas there should
be a minimum of 25 children and for the urban areas there
should be a minimum of 40 children in class V of the feeding
Primary School, taken together, available and willing for
enrollment in that school.
In every three years the State shall review the situational status
of every Primary and Upper Primary schools and may
consider to relocate the schools not fulfilling the norms
mentioned in sub rule 1(a)&(b) of rule 4
*Relaxation similar to Model Rule 4(4)
27. Uttar Pradesh Classes I-V : 1 km
Provided the habitation is atleast 300

Classes VI-VIII : 3km habitation provided habitation is

atleast 800
Rule 4(2) empowers State to relax this requirement where it is
not possible to provide within the radius specified but provide
adequate arrangement such as transportation and residential
facilities
28. West Bengal Classes I-V : 1 km for rural area
1/2km for urban area
Classes VI-VIII : 2kms for rural area
1km for urban area
Rule 4(3) provides for relaxation in sparsely populated areas
and those areas which are difficult to access and provide for
adequate measures ( transportation, allowance, residence) if
required.