The Supreme Court permitted the up-gradation of a school from lower primary to upper primary by observing that children of age group of 10 to 14 years cannot be expected to walk more than 3 kilometres to attend school.
The Kerala Government had granted sanction for the up-gradation of an existing lower primary school to an upper primary school. The said order of sanction was challenged by the Manager of another school in the vicinity on the ground that procedure under Rule 2 of Chapter V KER was not followed. It was contended that no notice to Managers of schools in the vicinity was issued calling for their objections, if any, to the up-gradation. Accepting the contention, the Single Bench of the High Court set aside the order of up-gradation. The Writ Appeal filed against the judgment of the Single Bench was dismissed by the Division Bench.
The Supreme Court however allowed the appeal filed by the school, and set aside the judgment of the High Court. Thereby, the order of the Government was restored. The Court noted the order of the Government actually made reference to Rule 2 and 2A of Chapter V, and that the High Court omitted to notice that. Also, Rule 3 of Chapter 1 enabled the Government to grant relaxation of operation of any Rules for avoiding hardship in any particular case. The Court was of the opinion that the case at hand warranted such relaxation. It was found that there were no schools within a distance of three kilometres from the appellant-school. The objector-school was located at a distance of about three kilometres, if a railway level crossing was crossed and 4.5 kilometers if bus route was taken. In the light of such fact situation, the Court observed that :-
We cannot expect children in the age group of 10 to 14 years to walk 3 6 kilometres or more to attend school. The right of education up to the age of 14 years is now a fundamental right under article 21A of the Constitution of India and if this right is to be meaningful then efforts must be made to open upper primary schools in such a manner that no child has to walk 3 kilometres or more only to attend school .