State of
Kerala & Ors Vs. K.G. Madhavan Pillai
& Ors [1988] INSC 285 (19 September 1988)
Natrajan,
S. (J) Natrajan, S. (J) Sen, A.P. (J)
CITATION:
1989 AIR 49 1988 SCR Supl. (3) 94 1988 SCC (4) 669 JT 1988 (4) 613 1988 SCALE
(2)1247
CITATOR
INFO : RF 1991 SC1117 (9) R 1991 SC2160 (33)
ACT:
Kerala
Education Act, 1957/Kerala Education Rules-- Sections 2(7), 2(8), 37/Chapter
V--Rules 2, 2A, 9, 11 and 12--Opening new unaided recognised Schools or
upgrading existing schools-Government according sanction to educational
agencies--Later order cancelled--Held Order vitiated by reason of
non-observance of principles of natural justice.
HEAD NOTE:
Respondents
are running Private Schools. In pursuance of the State of Kerala publishing in
the Gazette a final list of areas where new unaided recognised high
schools/upper primary schools/lower primary schools were to be opened or
existing unaided lower primary schools/ upper primary schools were to be
upgraded in the year 1986-87 the Respondents-educational agencies submitted
applications for grant of sanction to open the unaided recognised schools or
for upgrading the schools already run by them. These applications were duly
inquired and considered by the District Educational Officer as also by the
Director of Education as per the Rules & procedure laid down therefor,
particularly Rules 24(3) and (4) and thereafter the Government considered the
applications in accordance with Rule 2A(5) and took a final decision for grant
of necessary sanction for opening/upgrading of 36 lower primary schools, 36
upper primary schools and 19 high schools, totalling in all 91 schools in the
list of areas selected. On 4.2.87, the State Government issued an Order under
Ex. P-4, granting sanction to the Respondents to open new unaided schools or to
upgrade their existing schools subject to the conditions set out therein.
However, by an Order Ex. P-5, dated 20.2.87, the Government directed that the
earlier order under Ex P-4 be kept in abeyance. The Respondents challenged the
Order of the Government by means of a Writ Petition.
During
the pendency of the Writ Petition general elections were held to the Kerala
Legislative Assembly as a result whereof a new Ministry assumed office. The
Government under the new Ministry passed an order dated 19.5.87 under Ex P-7 cancelling
in toto the order under Ex-P-4 granting sanction to the Respondents to open the
school or to upgrade the existing schools.
PG NO
94 PG NO 95 The Respondents thereupon amended their Petition suitably and
challenged the validity of the order of cancellation passed under Ex.P-7. The Singie
Judge of the High Court before whom the Writ Petition first came up for hearing
took the view that while it was obligatory for the Government to follow the
procedure prescribed in Rules 2 & 2A, Chapter V, if it was to permit the
opening of new unaided recognised schools or upgradation of existing schools,
the converse result would not follow i.e. wherever the Government had gone
through the procedure under the Rules the Government could not retrace its
steps and was bound to proceed further in the matter and that the Government
had no option to reverse its decision. On the question of revocation of the
order of sanction, however, the learned Judge held that the power to sanction
new schools carried with it the inherent power of cancellation of an order
passed under Rule 2A(5). Accordingly the learned Singie Judge dismissed the
petitions. The respondents thereafter preferred appeals before the Division
Bench. The Division Bench allowed the appeals, reversed the order passed by the
Single Judge but granted only limited reliefs to the Respondents in that it
quashed the order under Ex. P- 7 dated 19.5.87 and issued a mandamus to the
State Government to consider the applications of the Respondents on their
merits on the basis of the earlier order passed in their favour under Ex. P-4
dated 4.2.87. The Division Bench further held that the Respondents have locus-standi
to challenge the order of cancellation and that the Government did not have the
power or jurisdiction to revoke the cancellation order. It also held that the
cancellation order violated the principle of natural justice.
Being
aggrieved by the decision of the Division Bench of the High Court, the State
filed these appeals after obtaining special leave.
Dismissing
the appeals this Court,
HELD:
The importance of securing recognition lies in the fact that without
recognition the students studying in the unaided schools will neither be
permitted to appear as candidates in the examinations conducted by the State
nor be eligible to avail of the opportunities for higher education or to enter
public service examination. The obtainment of recognition from the Government
is therefore a vital factor for the educational agencies starting new schools
or newly upgrading their existing schools. [ 107B-C] Rule 2A(1) makes it
imperative for the Director to call for applications from interested parties
for opening new schools or upgrading existing schools in the selected areas.
The
mandate contained therein goes to show that the PG NO 95 idenffication and
selection of inadequately served areas under Rule 2(4) is not an idle or
meaningless exercise.
[111A-C]
When even an unsuccessful applicant is conferred a right to represent to
Government against the non-approval of the application, can it be said that an
approved applicant has no right whatever to complain when the sanction granted
to him is revoked all of a sudden without he being given any opportunity to
show cause against such cancellation. [111D- E] The further scrutiny of the
application of the approved applicant under Rule 9 and the confirmation of
approval under Rule 11 would not, however, mean that the earlier sanction
granted under Rule 2A(S) does not create "legitimate expectation
right" in the approved applicant.
[111G-H:
12A] The Rules do not provide for the Government reviewing suo moto any order
of sanction passed under Rule 2A(5) in favour of any applicant for opening of a
new school or upgrading an existing school and its power of revision under Rule
] 2 is confined to the reconsideration of the case of any applicant whose name
did not find a place in the final list of approved applications published by
the Government.
[116D-E
] Though the sanction granted to the respondents under Ex.
P-4
would not by itself entitle them to open new schools or upgrade the existing
schools, it did confer on them a right to seek the continuance of the statutory
procedural stream in order to have their applications considered under Rule 9
and dealt with them under Rule 11 [122C] It was not open to the Government,
either under the Act or Rules or under Section 20 of the Kerala General Clauses
Act to cancel the approval granted to the respondents under Rule 2A(5), for
opening new schools or upgrading existing schools in the selected areas on the
basis of a revised policy. [122D] The impugned order under Ex. P-7,
irrespective of the question whether the government had the requisite power of
cancellation or not, is vitiated by reason of non- observance of the principles
of natural justice and the vice of extraneous factors. [ 122E]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1407-15 of 1988.
PG NO
97 From the Judgment and Order dated 29.9.1987 of the Kerala High Court in W.A.
Nos. 601, 602, 604, 605, 610, 655, 664, 680 and 735 of 1987.
P.S. Poti,
K. Sudhakaran and K.R. Nambiar for the Appellants.
T.S.
Krishnamurthy Iyer, K.K. Venugopal, Dr. Y.S. Chitale, E.M.S. Anam and Mrs. Baby
Krishnan for the Respondents.
The
Judgment of the Court was delivered by NATARAJAN, J. These appeals by special
leave arise out of a common judgment rendered by the High Court of Kerala in a
batch of writ appeals filed by the respondents herein against the dismissal of
their petitions under Article 226 of the Constitution of India for the issue of
writs of certiorari, mandamus, prohibition etc. by a learned single Judge.
Though the appeals were allowed and the order of learned single Judge was
reversed, the Division Bench has granted only limited reliefs to the
respondents in that it has quashed the impugned order of the Government under
Ex. P-7 dated 19-5-87 and issued a mandamus to the State Government to consider
the applications of the respondents on their merits on the basis of the earlier
order passed in their favour under Ex. P-4 dated 4-2-87. The State of Kerala, feeling aggrieved with the judgment of the Division Bench, has
preferred these appeals.
Pursuant
to the State Government publishing in the Gazette a final list of areas where
new unaided recognised high schools/upper primary schools/lower primary schools
are to be opened or existing unaided lower primary schools/upper primary
schools are to be upgraded in the year 1986-87, the respondent educational
agencies submitted applications for grant of sanction to open new unaided recognised
schools or for upgrading the schools already run by them. By 4-2-87, the State Government issued an order under Ex. P-4
granting sanction to the respondents to open new unaided schools or to upgrade
their existing schools subject to the conditions set out therein. However, by
an order under Ex. P-5 dated 20-2-87, the
Government directed the earlier order under Ex. P-4 to be kept in abeyance. The
respondents challenged the order of the Government by means of petitions under
Article 226 of the Constitution. During the pendency of the writ petitions, the
general elections were held in Kerala State and a new ministry came to assume
office. The government under the new ministry passed an order dated 19-5-87 under Ex. P-7 cancelling in toto the order under Ex.
P-4 granting PG NO 98 sanction to the respondents to open new schools or to
upgrade the existing schools. This led to the respondents amending the writ
petitions suitably so as to direct their challenge to the validity of the
cancellation order passed under Ex. P-7. The respondents failed before the
single Judge but on appeal the Division Bench has granted them limited reliefs
as set out above.
Before
adverting to factual matters. it is necessary to refer to some of the relevant
provisions of the Kerala Education Act (for short `The Act') and the Kerala
Education Rules (for short `The Rules). After the Kerala Education Bill, 1957,
had been passed by the Kerala Legislative Assembly and was reserved by the
Governor for the consideration of the President, the President made a reference
to the Supreme Court under Article 143(1) of the Constitution for obtaining the
opinion of the Court upon certain questions relating to the constitutional
validity of some of the provisions of the Bill and the Supreme Court gave its
opinion as reported In re. Kerala Education Bill, 1957 ( 1959 SCR 995). The
preamble to the Act states that the Act is being enacted "to provide for
the better organisation and development of educational institutions in the
State providing a varied and comprehensive educational service throughout the
State". Section 2 is the definition section and for our purpose it is
enough if we look at the definitions of 'educational agency', 'private school',
and 'recognised school' because we are concerned in these appeals only with
private recognised schools and not with government or departmental schools or
aided schools. Section 2(2), 2(7) and 2(8) read as under:
2(2).
"Educational agency" means any person or body of persons permitted to
establish and maintain any private school under this Act;
2(7).
`-Private school" means an aided or recognised school;
2(8).
"Recognised school," means a private school recognised by the
Government under this Act".
Section
3(1) empowers the Government to regulate primary and other stages of education
and courses of instruction in government and private schools. It is apposite to
mention here that recognised schools do not receive any financial aid from the
Government though they are bound to impart instruction only according to the
prescribed curriculum of studies and they can have recognised standards or
divisions of classes only in accordance with the Act and the Rules.
Section
3(3) sets out that the Government may provide PG NO 99 educational facilities
by (a)establishing and maintaining schools or (b) permitting any person or body
of persons to establish and maintain aided schools or (c) recognising any
school established and maintained by any person or body of persons. Section
3(4) confers deemed recognition to all the schools which were in existence when
the Act came into force. Section 3(5) stipulates that after the commencement of
the Act, the establishment of a new school or the opening of a higher class in
any private school shall be subject to the provisions of the Act and the Rules
made thereunder and that if any school or higher class is established or opened
otherwise than in accordance with the provisions of the Act and the Rules, they
will not be entitled to be recognised by the Government. Section 9 provides that
the Government shall pay the salary of all teachers in aided schools direct or
through the Headmaster of the school. Section 13 lays down that if there is any
retrenchment of teachers in any aided school on account of orders of
Government, then the retrenched teachers can be absorbed in any Government
school or aided school. Section 36 confers power on Government to make Rules,
either prospectively or retrospectively for the purpose of carrying into effect
the provisions of the Act.
Section
37 provides that all Rules made under the Act shall be laid before the
Legislative Assembly for its approval.
In
exercise of its powers under Section 36, the Government have framed Rules and
they have been approved by the Legislature. Though the Rules contain several
chapters, we need look only into chapter V and the relevant rules therein. Rule
2 provides for the Director of Public Instructions (hereinafter the Director)
preparing once in two years "a report indicating the locality where new
schools or class or grades are to be opened and existing lower primary schools
or upper primary schools or both are to be upgraded." In preparing such a
report, the Director is enjoined to take into consideration several factors.
The list so prepared by the Director should be published in the Gazette before
the end of January of the year of publication, inviting objections or
representations against such list. Every objection filed by an objector has to
be accompanied by a challan for Rs.10.
On
receipt of the objection. the educational authorities have to conduct
enquiries, hear the parties, visit the areas and submit their reports, together
with their views on the objections raised, to the Director within a period of
two months. The Director, if he find6 it necessary, may also hear the parties
and thereafter he has to finalise the list and send his recommendations with
the final list to Government within a period of two months. The Government has
thereafter to PG NO 100 scrutinise the records and approve the list with or
without modifications and cause the approved list to be published by the
Director. As against the final list published by the Director, there is no
right of appeal or revision for anyone but the Government is empowered to
review the list. As Rules 2(4) and 2(5) are relevant for consideration, they
are extracted hereunder:
"2(4).
Government after scrutinising all the records may approve the list, with or
without modification and forward it to the Director within a month from the
last date of the receipt of the recommendation of the Director. The list shall
be finalised before the end of July by the Government and shall be published by
the Director." "2(5). No appeal or revision shall lie against the
final list Published by the Director Provided that the Government may, either suo
moto or on application by any person objecting to the list published by the
Director under sub-rule (4) made before the expiry of thirty days from the-date
of such publication, review their order finalising such list and make such
modifications in that list as they deem fit by way of additions or omissions,
if they are satisfied that any relevant ground has not been taken into
consideration or any irrelevant ground has been taken into account while finalising
the said list;
Provided
further that no modification shall be made under the preceding proviso without
giving any person likely to be affected thereby an opportunity to make
representations against such modification." Then comes Rule 2A which is an
important provision and requires close scrutiny. Rule 2A(1) provides that after
the publication of the final list under Rule 2(4) the Director shall, by
notification in the Gazette in the month of October, call for applications for
opening of new schools and for upgradation of existing schools in the areas
specified in the final list. Rule 2A(2) lays down that only applications made
in response to the notification published by the Director will merit
consideration and not applications made otherwise. Rule 2A(3) lays down that on
receipt of such applications for permission to open new schools or for
upgrading of existing schools, the District Educational Officer should make
appropriate enquiries regarding the cor PG NO 101 rectness of the particulars
contained in the application and other relevant matters and then forward the
applications with his report thereon to the Director. Rule 2A(4) obligates the
Director to peruse the applications and the reports of the District Educational
Officers and forward all the papers to the Government with his own report. Rule
2A(S) enJoins the Government to consider the applications and the reports
accompanying them and take a finfill decision and publish the same in the
Gazette. As this sub-rule is of importance it requires extraction:
"2A(5).
The Government shall consider the applications in the light of the report of
the District Educational Officer and the Director and other relevant matters
which the Government think necessary to be considered in this connection nd
shall take a final decision and publish their decision in the Gazette with the
list containing necessary particulars." Rule 2A(7) sets out the time
schedule in which the applications are to be made and the orders of Government
are to be issued. It is worthy of note that as against the list of applications
approved by the Government and published in the Gazette under Rule 2A(S), there
is no provision for the Government reviewing the list to the detriment of the
applicants whose applications have been approved and the provision made under
Rule 12 is only for unsuccessful applicants to present revision petitions to
complain of their non-selection. The next rule which requires notice is Rule 9
which sets out the conditions for grant of permission to open new schools. Rule
10 which was originally in the Rules and which prescribed the preparation of a
Development Plan by the Director came to be deleted when the Rules were
amended. Rule 11 pertains to grant of permission to open new schools. The rule
provides that if the Government are satisfied that permission to open the
schools included in the development plan may be granted, the Government may
issue orders to that effect through the Director specifying
(i) the
educational agency to whom permission i9 granted,
(ii) the
grade of the school,
(iii) the
standard or standards to be opened,
(iv) the
location of the school,
(v) the
date from which the school should start functioning and
(vi) the
conditions to be fulfilled by the educational agency in respect of the site,
area, buildings, equipments, staff, financial guarantee etc. Rule 14 provides
that when a new school is opened with permission granted under Rule 11, the
District Educational Officer and the Director should be informed of the date of
opening of the school. the location.
the
standards opened, the name and qualifications of the PG NO 102 staff etc. etc.
The District Educational Officer should then visit the school and report to the
Director about the conditions stipulated for opening the school being complied
with. Rule 15 provides for withdrawal of permission if the conditions
stipulated have not been fulfilled. Rule 16(a) deals with applications for
recognition of schools or of additional standards. The rule states that within
three B months from the date of opening of schools or of additional standards,
applications should be made to the educational authorities for grant of
recognition or continuance of temporary recognition. Rule 17 sets out that if
all the conditions prescribed have been satisfied, then the school shall be
granted recognition.
Now
turning to factual matters, the Director published on March 6, 1986 a list
indicating the areas where new un- recognised schools are to be opened and
existing lower/upper primary schools are to be upgraded and inviting objections
or representations against the list from interested parties.
Thereafter,
the educational authorities conducted the necessary enquiries, considered the
objections/representations received and submitted their reports to the
Director. There upon the Director bestowed his consideration to the matter and finalised
the list and sent his recommendations to the Government. The Government
approved the list with some modifications and then caused the approved list to
be published by the Director on June 24, 1986 in the Gazette. The list
published by the Government set out 122 areas where new schools are to be
opened or existing schools are to be upgraded in order to fulfil the
educational needs of the notified areas. The Gazette publication was under the
caption "The final list of areas where new unaided recognised High
schools/Upper primary schools/Lower primary schools are to be opened or
existing unaided L.P. Schools/Upper primary schools are to be upgraded in the
year 1986-87." The task of identifying and approving the areas where new
unaided schools are to be opened or existing schools are to be upgraded having
been accomplished, the Director took the next step of issuing a notification
under Rule 2A( I) calling for applications from intending applicants for
opening new schools or for upgrading of existing schools in the selected areas.
The respondents submitted their applications in response to the notification
made by the Director. These applications were duly enquired into and considered
by the District Educational Officer and thereafter by the Director as laid down
in Rule 2A(3) and (4) and thereafter the Government considered the applications
in accordance with Rule 2A(5) and took a H final decision and caused their
decision to be published in the Gazette on February 4, 1g87. As per the Gazette
notification, the Government granted sanction for the opening/upgrading of 36
lower primary schools, 36 upper primary schools and 19 high schools, totalling
in all 91 schools in the list of areas selected. This Gazette PG NO 103
notification has been marked as Ex. P-4. The names of all the respondents found
a place in the notification and they were granted permission to open/ upgrade
unaided schools.
The
order reads as under:
"Government
are pleased to accord sanction to open/ upgrade unaided recognised schools as
detailed in Annexure to the Government Order subject to the following
conditions.
1. The
schools will be permitted to be opened during the academic year 1986-87 .......
2. For
L.P. Schools and U.P. Schools without L.P.
Scction,
the educational agencies must provide one acre of land; for U.P. School with
L.P. Section 1.5 acres of land; and for High Schools with or without primary
section 3 acres of land. Recognition will be given only to the educational
agency who produce evidence before the concerned controlling authority of
having provided the required site.
3. The
applicants for opening of the schools or upgradation of the schools shall give
an undertaking as provided under Note (V) to Rule I l Chapter V of K. E. Rs .
It so
happened that on February
4, 1987, itself an
announcement was made regarding the holding of general elections in Kerala State but no dates were announced for the election. Presumably,
to avoid criticism about the timing of the publication of the sanction order,
the Chief Minister passed orders for keeping in abeyance the sanction accorded
to the successful applicants under Ex. P-4 and a Gazette notification to that
affect was published on February
23, 1987. Thereupon. the
respondents moved the High Court through petitions under Article 226 of the
Constitution challenging the action of the Government.
During
the pendency of the writ petitions, the general elections came to be held and a
new ministry assumed power in Kerala State. The new ministry decided to revoke
the order of sanction passed under Ex.P-4and caused a Gazette notification Ex.
P-7 to be made in that behalf. The notification was as under:
PG NO
104 "In the G.O. read as first paper above sanction was accorded to
open/upgrade 91 unaided recognised schools of various categories during the
academic year 1986-87. As per G.O. read as second paper above the orders issued
in the said G.O. were kept in abeyance until further orders.
2.
Government have reconsidered the matter. At present there are more than 16000
schools in the State. Thousands of protected teachers will have to be absorbed
from these schools. Every time a recognised school is started in an area, there
is an immediate impact on the neighbouring aided and Government schools leading
to fall in strength and divisions, creating more protected teachers and thereby
leading to wasteful expenditure. The 91 schools sanctioned were at the fag end
of the academic year 1986-87 and it was not possible to start the schools
during the same year. Many schools do not fulfil the conditions for starting
the schools. In several cases exemption will have to be given to fulfil the
conditions year after year. AS such Government strongly feel that instead of
starting new schools the existing schools should be strengthened in all
respects, i.e. site, building, equipment etc.
3. In
the circumstances the orders issued in the G.O. read as first paper will stand
cancelled. No recognised schools will be upgraded or sanctioned during 1987-88
also." The learned single judge who heard the writ petitions filed by the
respondents took the view that while it was obligatory for the Government to
follow the procedure prescribed in Rules 2 and 2A of Chapter V of the Rules, if
it was to permit the opening of new unaided recognised schools or the
sanctioning of upgradation of existing schools, the converse result would not
follow i.e. wherever the Government had gone through the exercise of the
procedure laid down in Rules 2 and 2A, the Government could not retrace its
steps and was bound to proceed further in the matter of the opening of new
schools or upgrading of existing schools and that the Government had no option
to reverse its decision. In so far as the Government's power to revoke an order
of sanction made under Rule 2A(5) is concerned, the learned judge held that the
Government's power to sanction new schools also carried with it an inherent
right of cancellation of an order passed under Rule 2A(5). The learned judge
saw justification for the cancellation order being passed by the Government on
another ground also viz. that the sanction for opening of new PG NO 105 schools
or upgrading of schools was given only at the fag end of the academic year
1986-87 and, as such, the order of sanction was not capable of implementation.
Besides these grounds, the single judge found merit in the reasons given by the
Government in the impugned order Ex. P-7 for revoking the sanction viz. that
the opening of new unaided schools or upgrading of existing unaided schools
invariably resulted in fall of pupil strength and/or division strength in the
government-run as well as aided schools and this led to the ousting of teachers
from aided schools whom the State had to treat as "protected
teachers" and take care of them and provide appointments for them in
government as well as aided schools. The last reason which weighed with the
single judge was that the Government's experience in the past showed that many
of the schools proposed to be started or seeking upgradation were not able to fulfil
the minimum requirements and resorted to seeking Government's indulgence for
granting them exemption from complying with the prescribed conditions and
requirements. In accordance with these views, the learned single judge
dismissed the writ petitions.
The
Division Bench which heard the writ appeals viewed the matter in a wholly
different manner and allowed the appeals. The Division Bench held that firstly
the writ petitioners had adequate locus standi to challenge the cancellation
order of the Government and that the Government did not have power or
jurisdiction to revoke the sanction order; secondly the order of cancellation
violated the principles of natural justice; thirdly there was no application of
mind and fourthly the order of cancellation was passed on the basis of
irrelevant grounds.
In
presenting the case of the State before us in these appeals Mr. Subramania Poti,
learned senior advocate appearing for the State assailed everyone of the
findings and reasons given by the Division Bench and argued that the notifications
made under Exs. P-4 and P-7 were only announcements of the policy decisions
taken by the Government and, the Government could revise its decision at any
time and even if they are to be viewed as administrative orders passed by the
Government, it was always open to the Government, in exercise of its powers
under Section 20 of the Kerala General Clauses Act (corresponding to Section 21
of the General Clauses Act X of 1897) to add, amend, vary, or rescind the
notifications. The learned counsel further stated that the respondents would
get the status of 'aggrieved persons' and acquire locus standi to question any
order of revocation passed by the Government only if they had been granted
permission under Rule l1 to open new schools and not before as they would
acquire "legitimate expectation rights" only after satisfying the
requirements of Rule 11. Proceeding on the same lines, the learned PG NO 106
counsel stated that the Government had not indulged in any adjudicative process
nor had the Government violated any provisions of the Act or Rules or even the
principles of.
natural
justice and, as such, the writ petitions did not B present any justiciable
issue for consideration by the Court. The last submission made was that the
cancellation order did not suffer either from the vice of non-application of
mind or the permeation of irrelevant grounds.
Controverting
the arguments of the appellant's counsel, Dr. Chitale, Mr. Krishnamurthy Iyer
and Mr. K.K. Venugopal, learned Sr. Advocates appearing for the respondents
contended that the decision rendered by the Division Bench is fully in
accordance with law and needs no interference by this Court. They pointed out
that the Division Bench has done nothing more than to place the parties in
their status quo ante position by quashing Ex. P- and directing the Government
to proceed further with the applications in order to see whether permission
could be granted under Rule 11 of Chapter V.
In the
light of these conflicting arguments what falls for consideration in these
appeals may broadly be enunciated under the following heads:
(I) Whether
any rights accrued to the respondents pursuant to the sanction granted to them
under Ex. P-4 for opening new schools or upgrading existing schools; so as to
challenge the cancellation order under Ex. P-7 or whether the right of
challenge would accrue to them only after further approval was granted under
Rule l1.
2.
Whether it was open to the Government under the Act and Rules or under Section
20 of the Kerala General Clauses Act to cancel in toto the sanction given to 91
approved applicants for opening new schools or upgrading existing schools;
3.
Even if the Government had powers of cancellation, whether the order under Ex.
P-7 is vitiated by reason of (a) nonobservance of the principles of natural
justice (b) non- application of mind and (c) influence of irrelevant grounds.
PG NO
107 Before taking up for consideration these questions, we may set out the
various stages contemplated by the Rules which have to be passed through by an
educational agency in order to open a new school or upgrade an existing school
and obtain recognition from the Government. It is relevant at this juncture to
mention that the Act and the Rules do not prohibit the starting and running of
private unaided schools by any agency and the only restriction is that it will
not be entitled to secure recognition for the said school from the Government
unless the conditions imposed by the Rules are satisfied and complied with. The
importance of securing recognition lies in the fact that without recognition
the students studying in the unaided schools will neither be permitted to
appear as candidates in the examinations conducted by the State nor be eligible
to avail of the opportunities for higher education or to enter public service
examination. The obtainment of recognition from the Government is therefore a
vital factor for the educational agencies starting new schools or newly
upgrading their existing schools.
Coming
now to the stages which should be gone through, there are five stages as set
out by the Division Bench and which enunciation is accepted by the learned
counsel for the appellants as the correct position. The first stage consists of
the Government going through the exercise under Rule 2 culminating in the
Government publishing under Rule 2(4) the localities where new schools are to
be opened or existing schools are to be upgraded. The second stage consists of
the Government calling for applications under Rules 2A(1) from intending
applicants for opening new schools or for upgrading the existing schools in the
areas specified and taking a final decision and publishing the list of approved
applicants in the Gazette under Rule 2A(5). Then comes the third stage when the
applications are subjected to more detailed scrutiny under Rule 11 regarding
the fulfilment of conditions set out in Rule 9 and the drawing up of the order
setting out the name of the educational agency, the grade of the school, the
standards to be opened, the location and the date of opening of the school etc
The fourth stage is envisaged under Rule 14 and it consists of the educational
agency permitted under Rule 11 to report to the educational, authorities the factum
of the opening of the school and the fulfilment of the conditions set out in
the order and the names and qualifications of the staff etc. so that the
educational officer can visit the school and submit a report to the Director
regarding the fulfilment of all the conditions by the school authority. The
fifth and the last stage l5 set out in Rules 16 and 17 and it pertains to the
school authority applying for recognition under Rule 16A and the Director
granting sanction under rule 17 after being satisfied that the school authority
has satisfied all the requisite conditions for grant of recognition.
PG NO
108 A four-fold argument was advanced by Mr. Poti to assail the judgment of the
Division Bench. The contentions were formulated as under:
1. The
respondents are not-entitled to the issue of a writ of mandamus because firstly
they had unauthorisedly opened new schools in contravention of Section 3(5)
without obtaining the Government's permission under Rule 11 Chapter V and
secondly the proceedings under Chapter V had reached only the second stage of
passing of an order under Rule 2A(5) and had not reached the third stage of
permission being granted under Rule 11 whereafter only the respondents would
acquire "legitimate-expectation rights" cognisable in law.
2.
There was no violation of any Rule or the principles of natural justice when
the Government dropped the proposal of permitting new schools to be opened or
existing schools to be upgraded in the 91 localities mentioned in Ex. P-4
notification because it was an administrative decision based on Government's
policy and no adjudicative process was involved in the passing of the
cancellation order.
3. In
any event the Government had inherent powers of revocation under Section 20 of
the Kerala General Clauses Act corresponding to Section 21 of the Central Act
and the exercise of such powers is not open to challenge.
4. In
any view of the matter, this was not a case where the High Court should have
exercised its powers under Section 226 to restore the sanction order under Ex.
P-4 because the Court cannot impose an economic burden on the State's resources
by issuance of a writ.
Taking
up for consideration the first limb of the first contention of the learned
counsel, it is true the respondents have opened new schools or upgraded their
existing schools at the approved localities on 2.6.1986 itself i.e. even before
the final list of approved areas under Rule 2(4) was published on 24.6.1986 and
the sanction order under Ex. P-4 was published on 4.2.1987. The question
however will be whether by reason of the opening of the schools prematurely,
the respondents stand forfeited of their right to question the cancellation
order under Ex. P- 7. We think not. This is because Section 3(5) of the Act PG
NO 109 does not totally ban the establishment of a new school or the opening of
a higher class but only states that if any school or higher class is opened
without following the procedure, then such new school or higher class will not
be entitled to recognition by the Government. It will not therefore, be per se
a contravention of the Act and the Rules if an educational agency started a new
school or opened a higher class without following the provisions of the Act and
the Rules and the only disqualification it would suffer is its disentitlement
to Government's recognition.
That
apart the order of cancellation is not challenged by the respondents on the
ground they have already established new schools or opened higher classes in
existing schools but on the ground the earlier order of sanction under Ex. P-4
had been cancelled without justifiable reason and without the respondents being
heard. Therefore, the respondents cannot be non-suited merely on the ground
they had opened new schools or higher standards even before the Government
published its final list of approved areas under Rule 2(4).
Hence,
the first limb of the first argument of Mr. Poti cannot be countenanced.
In so
far as the second limb of the first contention is concerned, it was urged by
Mr. Poti that the publication of the final list under Rule 2(4) was only a
preliminary exercise and not a final one because the initial selection of
localities under Rule 2(4) for opening new schools or upgrading existing
schools requires further scrutiny and approval under Rule 9 and consequently
any order of sanction granted under Rule 2A(5) would leave the grantee only in
the position of an applicant and not confer on him legitimate expectation
rights. In support of his contention Mr. Poti placed reliance on certain
passages in Chingleput Bottlers v. Magestic Bottling. 11984] 3 SCR 190 at 211
to 213: AIR 1982 SC 149 paras 14 to 17; State of Kerala v. A. Laxmi Kutti, [ 1986] 4 SCC 632 at 654 and certain
passages in Wade on Administrative Law pages 464, 465, 624 and 625.
Looking
at Rule 2 and the procedure enunciated therein for determining the areas where
new schools are to be opened or existing schools are to be upgraded, we are
unable to accept the contention of Mr. Poti that the selection of areas where
additional educational facilities are to be provided is only an informal and
inconsequential exercise and as such the final list published by the Government
carried no force with it till such time the further selection process under
Rule 9 is gone through. The reason for our saying so is because Rule 2
prescribes an elaborate procedure and the due application of mind by several
agencies before the final list of approved areas is published under Rule 2(4).
Rule 2(1), enjoins the Director PG NO 110 to prepare a list of localities where
new schools or upgraded schools are to be opened after taking into consideration
all the relevant factors viz. the existing schools in and around the locality,
the strength of the several standards and the accommodation position in the
existing schools, distance factors and the educational needs of the locality
with reference to the habitation and backwardness of the area etc. Besides
publishing the tentative list, the Director has to call for representations and
objections from interested parties and they have to be duly considered by the
Educational Officers of the locality and then by the Director himself and
eventually the Government itself has to apply its mind to the selection of
areas and then cause the final list to be published. The proviso to Rule 2(5)
grants only limited powers of modification to the Government viz. to alter the
list here and there and not to scrap it outright. Even the power of
modification can be exercised only after giving the affected parties an
opportunity to make representations against the proposed modification. The
selection of approved areas becomes final once the list is published under Rule
2(4), with or without modification and the finality is not contingent upon
further approval under Rule 9. What Rule 9 itself provides for is the grant of
permission to applicants approved under Rule 2A(5) to open new schools
depending upon the applicant subjectively satisfying the Government about his
ownership or right to possession of the site, buildings and other needs of the
school, his financial guarantee, has not being convicted of any offence involving
moral terpitude and about the locality being in need of the new school and the
accessibility of the new school to the members of the public. It is significant
to point out that Rule 9 speaks of fulfilment of conditions only for opening
new schools and not for the upgrading of existing schools. Thus it may be seen
that Rule 9 lays down subjective tests while Rule 2 prescribe objective as well
as subjective standards in the matter of selecting areas which are in need of
new schools or upgraded schools. It was also pleaded that the final list
published under Rule 2(4) was vulnerable to cancellation at any time before new
schools were actually opened in the selected areas in accordance with the Rules
because of change of conditions in the selected areas or because of the
selected area losing their place of priority. This is too fragile a statement
to merit acceptance because the need of a selected area, given recognition
after an elaborate process of selection, cannot disappear overnight unless the
need is fulfilled by the Government itself opening a new school or by the
residents of the locality migrating on a large scale to another place.
That
the publication of the final list under Rule 2(4) PG NO 111 has not only
binding force on the Government but it also entails consequential obligations
on the Government could be seen from the fact that Rule 2A( 1) makes it
imperative for the Director to call for applications from interested parties
for opening new schools or upgrading existing schools in the selected areas.
Mr. Poti argued that it was only to prevent a deluge of applications for
opening new schools all over the States the selection of areas under Rule 2 is
gone through so that the number of applications could be restricted. It is
difficult for us to accept this statement because it runs counter to the scheme
of Rule 2 regarding the selection of areas on objective factors and subjective
considerations. Be that as it may, the mandate contained in Rule 2A(1) goes to
show that the identification and selection of inadequately served areas under
Rule 2(4) is not an idle or meaningless exercise. Such being the case the
applications made under Rule 2A( 1) cannot be treated as applications made by
mere speculators or adventurers. On the contrary the applications carry with
them a certain amount of legitimacy in that they pertain to opening of schools
in the inadequately served areas notified by the Government and are made in
response to the Director's notification calling for applications. In fact Rule
12 confers a right of revision on those applicants whose applications for the
opening of new/upgraded schools are not included in the list of approved
applicants published by the Government under Rule 2A(5). Thus when even an
unsuccessful applicant is conferred a right to represent to Government against
the non-approval of his application, can it be said that an approved applicant
has no right whatever to complain when the sanction granted to him is revoked
all of a sudden without he being given any opportunity to show cause against
such cancellation. It is significant to note that the Rules do not provide for
the revocation or cancellation of a final list published under Rule 2A(5) and
that the right of cancellation is given to the Government only if the approved
applicant fails to satisfy the conditions laid down in Rule 9 and thereby
becomes disentitled to obtain sanction under Rule 11. The scheme of the Rules
is such that after sanction is accorded to an applicant under Rule 2A(5) to
open a new/upgraded school, then the applicant acquires a right to have his
application considered further under Rule 9 as regards his ownership or
possession of land, buildings etc.
his
declaration of financial guarantee, the suitability of the place offered by him
for location of the school and about he being free of any conviction by any
criminal court so as to entitle him to the issue of an order under Rule 11.
The
further scrutiny of the application of the approved applicant under Rule 9 and
the confirmation of approval under Rule 11 would not, however, mean that the
earlier sanction granted under Rule 2A(5)does not create "legitimate PG NO
112 expectation rights" in the approved applicant.
Mr. Poti
contended that an applicant obtaining sanction under Rule 2A(5) would only
remain in the position of an applicant and it is only after further permission
is granted under Rule 11, the applicant can be said to acquire "legitimate
expectation rights" and the requisite locus to challenge any order of
cancellation passed by the Government. In support of his argument Mr. Poti
relied upon
(1)
State of Kerala v. Laxmi Kutty, (supra) where the Court after referring to the
ruling in Mani Subrat Jain v. State of Haryana, [ 1977] 1 SCC 486 that a person
whose name had been recommended for appointment as a District Judge by the High
Court under Article 233(1) had no legal right to the post, held that unless
there was a judicially enforceable right no w t of mandamus for enforcement of
a right would lie;
(2) Chinglepet
Bottler v. Majestic Bottling, (supra) where the distinction drawn by Megarry
V.C. in Mecinnes v. Onslow Fane and Anr., [19781 3 All. E.R. 211 between
initial applications for grant of licence and the revocation, suspension or
refusal to renew licence already granted was referred to and the Court observed
that "the principle that there was a duty to observe the audi alteram partem"
Rule may not apply to cases which relate not to rights or legal expectations
but to mere privilege or licence;
(3)
Wade on Administrative Law, Vth Edition, where difference between rights,
liberties and expectations have been set out as under:
'In
many cases legal rights are affected, as where property is taken by compulsory
purchase or someone is dismissed from a public office. But in other cases the
person affected may have no more than an interest. a liberty or an expectation.
An applicant for a licence, though devoid of any legal right to it, is as a
general rule, entitled to a fair hearing and to an opportunity to deal with any
allegations against him. The holder of a licence who applies for its renewal is
likewise entitled to be fairly heard before renewal can be refused. So also is
a race goer before he can be put under a statutory ban against entering a
public race course.
In
none of these situations is there legal right, but they may, involve what the
courts sometimes call "legitimate expectation '. This expression furnishes
judges with a flexible criterion whereby they can reject unmeritorious or
unsuitable claims. It was introduced in a case where alien students of
scientology" were refused extension of their PG NO 113 entry permits as an
act of policy by the Home Secretary. The Court of Appeal held that they had no
legitimate expectation of extension beyond the permitted time, and so no right
to a hearing, though revocation of their permits within that time would have
been contrary to legitimate expectation. Likewise where car-hire drivers had
habitually offended against airport byelaws, with many convictions and unpaid
fines, it was held that they had no legitimate expectation of being heard
before being banned by the airport authority. There is some ambiguity in the
dicta about legitimate expectation, which may apparently mean either
expectation of a fair hearing or expectation of the licence or other benefit
which is being sought. But the result is the same in either case:
absence
of legitimate expectation will absolve the public authority from affording a
hearing.
For
the purpose of natural justice the question which matters is not whether the
claimant has some legal right but whether legal power is being exercised over
him to his disadvantage. It is not a matter of property or of vested interests,
but simply of the exercise of governmental power in a manner which is fair and
considerate." The argument, therefore, was that the respondents had no
locus standi to move the court to seek the quashing of Ex. P-7 order and
mandamus for their applications being approved and granted sanctioned under
Rule 17. Refuting this contention Dr. Chitale argued that the respondents were
"persons aggrieved" and they had locus standi in the full sense of
the term to move the court since their right to open a school, though not
claimed as a constitutional right was a natural right and their suitability to
open a school in the selected area having been accepted and their names
included in the list published under Rule 2A(S), the Government could not
cancel the list. Dr. Chitale relied upon the decisions of this Court in Ebrahim
Aboobakar and Anr. v. Custodian General of Evacuee Property, [1952] SCR 696 and
S.P. Gupta v. Union of India, [1981] Supp. SCC 87.
Arguments
were also advanced by the appellant's counsel to contend that any permission
given under the Rule to run a school would only be a privilege while the
respondent's counsel would say that it was a right within the meaning of
Article 19(1)(g) of the Constitution. We do not think it necessary to go into
this aspect of the matter because of the controversy narrowing down to the
question whether after having granted sanction to the respondents under Rule 2A(5)
PG NO 114 to open/upgrade schools, subject to satisfying the conditions under
Rule 9 and obtaining clearance under Rule 11, the Government could go back on
the matter and cancel the sanction order and that too without giving the
respondents any hearing at all.
In the
course of the arguments Mr. Poti laid stress upon the fact that while Rule 9
lays down several conditions for being fulfilled before permission can be
granted under Rule 11 to an educational agency to start a new school or upgrade
a school, the order made under Rule 2A(5) makes mention of only one of the
several conditions being noticed by the Government viz the provision of land
for the proposed school and as such the order, despite the use of the word
"sanction" can by no stretch of imagination be considered as an order
which conferred rights upon the respondents and therefore it was futile for the
respondents to say that legally enforceable recognition had been given to them
to open schools in the selected areas. Going a step further Mr. Poti said that
in many cases even the solitary factor noticed by the Government viz the
provision of land for the proposed school had not been adequately satisfied and
this shortcoming has been referred to in the alleged sanction order passed
under Rule 2A(S). Going to the other end, Mr. Iyer and Dr. Chitale tried to
take up the stand that the sanction order passed under Rule 2A(5) was virtually
one under Rule 11 because the respondents had furnished information pertaining
to all the conditions enunciated in Rule 9 and therefore what remained for the
Government was only to see whether the schools opened or upgraded by the
respondents were entitled to grant of recognition under Rule 17 or not. We are
unable to find merit in the last contention of the respondents in this behalf
because the Division Bench has clearly stated in para 52 of the judgment that
the stage of the Govern ment giving directions for fulfilment of various
conditions has not been reached and therefore it was directing 'the State to
proceed to take the further steps commencing from Rule 11, Chapter V of the
K.E.R." In view of this categoric finding and since it is the admitted
position that the Government have not subjectively scrutinised the application
of each of the respondents with reference to the conditions enunciated in Rule
9, there is no scope for the respondents to say that the sanction order made
under Ex. P-4 was for all practical purposes an order made under Rule 11. Even
so, we cannot accept the contention of the State that the applications
submitted by the respondents, despite their approval by the District
Educational Officer, the Director and the Government and the publication of the
sanction order under Rule 2A(5) remained only at the threshold and it was
therefore open to the Government to revise its policy of PG NO 115 opening new
schools or upgrading existing schools and throw overboard all the approved
applications. We do not therefore feel persuaded to accept the first contention
of the appellant's counsel that the sanction order passed in favour of the
respondents under Rule 2A(5) carried no rights with them and that they would
remain still-born orders till they passed through the third stage and were
given acceptance under Rule 11.
The second
major contention of the appellant's counsel, it may be recalled, was that the
Government had not violated any statutory provision or the principles of
natural justice when it passed the cancellation order Ex. P-7 revoking the
earlier order Ex. P-4. To a large extent the arguments on this aspect of the
matter overlapped the arguments advanced with reference to the first ground of
attack already dealt with. It was once again argued that the identification and
selection of poorly served areas in the matter of educational facilities under
Rule 2 was only an administrative exercise in order to restrict the number of
applications for opening new schools within manageable limits and that the real
test of selection of the areas began only when the applications were processed
under Rule
9. It
was likewise urged that though the Government was bound to implement the
Directive Principles contained in Article 41 of the Constitution in the matter
of providing educational facilities, the obligation was subject to the limits
of the economic capacity of the Government and as such the Government cannot be
compelled by any educational agency or even by the Court to open new schools
unmindful of the financial burden that would be cast on the State by the
opening of such schools.
The
last submission made in this behalf was that the revocation order passed under
Ex. P-7 was not in pursuance of any adjudication of the rights of the
applicants but to make known the revised policy of the Government which was
taken after considering several relevant factors such as the inadequate
resources of the applicants in providing lands, buildings, equipment, financial
guarantee etc. for opening the proposed schools, the backlash on Government's
finances due to the resultant surplusage of teachers that would occur in aided
and government schools due to opening of more unaided schools etc. and
therefore the respondents could neither complain of violation of the statute or
the principles of natural justice when the Government passed the impugned order
under Ex. P-7. It was pointed out by Mr. Poti that the Secretary to Government,
Education Department had pointed out in January 1983 about the inadvisability
of opening new schools and aboutt many of the applicants failing to satisfy
most of the required conditions for PG NO 116 opening new schools but in spite
of it the Education Minister had acted in a cavalier manner in passing the
order of sanction under Ex. P-4 and therefore the Government was well within
its rights in witholding the order in the first instance and revoking it in toto
subsequently.
We are
unable to see persuasive force in these contentions because they do not take
notice of the realities of the situation. As we have already pointed out, the
identification of inadequately served local areas in the matter of educational
facilities and their selection process under Rule 2 cannot be construed as a
meaningless and idle exercise. That apart, the final list of selected areas
published under Rule 2(4) has not been revoked or cancelled by the Government. Though
a fresh list of areas has to be prepared once in two years, that would not mean
that the list can be rendered irrelevant due to nonimplementation.
Such
being the case the sanction order granted to the 91 applicants from among the
total number of 122 applications has the support of the earlier Government
order made under Rule 2(4). It must, therefore, logically follow that the
approved applicants are entitled to have their applications taken to the next
stage for consideration on more subjective factors so as to obtain permission
under Rule 11 if they satisfied the requirements laid down by Rule 9. We have
already pointed out that the Rules do not provide for the Government reviewing suo
motu any order of sanction passed under Rule 2A(5) in favour of any applicant
for opening of a new school or upgrading an existing school and its power of
revision under Rule 12 is confined to the reconsideration of the case of any
applicant whose name did not find a place in the final list of approved
applications published by the Government.
In so
far as the argument that the Government cannot be compelled by any educational
agency or by the Court to incur additional financial burden by opening new
schools, or new classes is concerned, we have to point out that the argument in
the present context has no force because all the applications that were
approved pertained to the opening of unaided schools. Therefore, there is no
question of the Government being put to additional financial burden due to the
opening of new schools in the selected areas. Moreover, the sanction order
under Ex. P-4 specifically provided that "the applicants for opening of
the schools or upgradation of the schools shall give an undertaking as provided
under note (v) to Rule 11 Chapter (V) of the K.E.R." The undertaking
referred to above is for ensuring that the approved applicant "shall not
move the Government at any time for the conversion of the school into an aided
school" and clause (b) of Rule 11 further provides that "if any
application is made for conversion into an aided school, the permission granted
for opening of the school shall automatically lapse." Hence the argument
that the Government will be saddled with additional financial burden by the
opening of new unaided schools is a mis-conceived one.
PG NO
117 It cannot be disputed that the applicants have to necessarily make
arrangements for purchasing or taking on lease the required extent of land as
well as making arrangements for the building and equipment that would be
needed, for obtaining sanction from the Government even at the stage of making
an application under Rule 2A(2). The Government cannot, therefore, be heard to
say that no prejudice would occur to the respondents by reason of the
cancellation order and that no principles of natural justice would be voilated
if the Government unilaterally revokes an order of sanction granted under Rule
2A(5) to the respondents for opening new schools or for upgrading existing
schools. For all these reasons, we are unable to accept the second contention
of the appellant's counsel.
We now
pass on to the third contention that even if there is no provision in the Rules
for the Government cancelling the sanction order passed under Ex. P.4, the
Government is always possessed of inherent powers of revocation under Section
20 of the Kerala General Clauses Act and hence the Division Bench was wrong in
holding that the Government had no jurisdiction to pass the impugned order Ex.
P-7. In support of this argument, Mr. Poti referred to the decisions in M. P.
State v. V. P. Sharma, [ 1966] 3 SCR 557 at 570 and Lt. Governor v. Avinash
Sharma [1971] 1 SCR 413 at 416. Both the cases arose under the Land Acquisition
Act and what was in issue before the Court was whether the Government could exercise
powers only under Section 48 of the Land Acquisition Act to withdraw a
notification for acquisition made under Section 4(1) of the Act. In the first
case, after the issue of a notification under Section 4(1), the Government
issued successive notifications under Section 6 of the Act covering different
portions of the land notified for acquisition under Section 4(1). The validity
of the last of the notifications under Section 6 was challenged on the ground
that a notification under Section 4(1) could be followed only by one
notification under Section 6 and that successive notifications with respect to
different parts of the land comprised in one notification under Section 4(1)
cannot be made. The contention was upheld by the High Court and also by this
Court after over ruling the plea that once notification was made under Section
4(1), the Government PG NO 118 could issue successive notifications under
Section 6 as long as the notification under Section 4(1) was not withdrawn by
the Government in exercise of its powers under Section 48.
In
repelling this contention, the Court incidentally observed that the argument
"that the only way in which the notification under Section 4(1) can come
to an end is by withdrawal under Section 48(1)" is not correct because
"under Section 21 of the General Clauses Act the power to issue a
notification includes the power to rescind it and therefore it is always open
to the Government to rescind a notification under Section 4 or under Section 6
and a withdrawal under Section 48(1) is not the only way in which a
notification under Section 4 or Section 6 can be brought to an end." In
Lt. Governor v. Avinash Sharma, (supra) the Government caused a notification
under Section 4 of the Land Acquisition Act to be made on March 31, 1964 and followed the same by a
composite notification on May 16, 1964
under Section 6, 17(1) and (4). Then the Collector served notices under Section
9 in June 1964. Subsequently on October 5, 1965 the State Government published an order cancelling the earlier
notifications dated March
31, 1964 and May 16, 1964.
The
owner of the land challenged the cancellation order and sought a mandamus to
direct the Government to proceed with the acquisition in accordance with law
and determine the compensation payable to him for compulsory and urgent
acquisition. It was contended on behalf of the State that under Section 21 of
the General Clauses Act the State had the power to cancel the notification at
any time and that Section 48 of the Land Acquisition Act did not trench upon
that power. The contention was rejected and the Writ Petition filed by the
owner of the land was allowed. In the course of the judgment it was observed as
follows:
"Power
to cancel a notification for compulsory acquisition is, it is true, not affected
by Section 48 of the Act. By a notification under Section 21 of the General
Clauses Act, the government may cancel or rescind the notifications under
Sections 4 and 6 of the Land Acquisition Act". The Court, however pointed
out that "The power under Section 21 of the General Clauses Act cannot be
exercised after the land statutorily vested in the State Government.
In
another portion of the judgment it was observed that after possession has been
taken pursuant to a notification under Section 17(1) the land is vested in the
Government and the notification cannot be cancelled under Section 21 of the PG
NO 119 General Clauses Act, nor can the notification be withdrawn in exercise
of the powers under Section 48 and that any other view would enable the Government
to circumvent the specific provision by relying upon a general power.
Mr. Poti's
contention was that till the permission was granted under Rule 11 for opening
new schools or upgrading schools, the power of the Government under Section 20
of the Kerala General Clauses Act remained unaffected. We are unable to accept
this argument because as pointed out by the Division Bench, the Act and the
Rules do not provide for revocation of an order of sanction granted under Rule 2A(5)
before taking the application to the third stage and evaluating it on
subjective considerations as to whether permission should be granted under Rule
11 or not. In other words once the government approves an application for
opening a new unaided school or a higher class in an existing unaided schools
and passes an order under Rule 2A(5), then the successful applicant acquires a
right of legitimate expectation to have his application further considered
under Rules 9 and 1 l for the issue of a sanction order under Rule 11 for opening
a new school or upgrading an existing school. It is no doubt true, as pointed
out by the Division Bench, that by the mere grant of an approval under Rule 2A(5),
an applicant will not acquire a right to open a new school or to upgrade an
existing school but he certainly acquires a right enforceable in law to have
his application taken to the next stage of consideration under Rule l l. The
Division Bench was, therefore, right in taking the view that the general power
of rescindment available to the State Government under Section 20 of the Kerala
General Clauses Act has to be determined in the light of the "subject
matter, context and the effect of the relevant provisions of the statute."
For the aforesaid reasons the fourth contention of Mr. Poti has also to fail.
The
last contention of Mr. Poti was that the Division Bench of the High Court ought
not to have issued writs under Article 226 of the Constitution for quashing the
order under Ex. P-7 and issuing a mandamus to the Government to proceed with
the approval-exercise' and consider the eligibility of the respondents for
being granted permission under Rule 11 for opening new schools or upgrading
existing schools in the selected areas. Various factors were adverted to in
support of this plea. It was first of all stated that the respondents have no
enforceable right under law to open a school or to insist upon government
according them sanction.
Secondly,
it was stated that many of the respondents were not possessed of adequate land
or suitable buildings or PG NO 120 necessary equipment or financial resources
etc. to open the schools. Thirdly, it was urged that the academic year 1986- 87
had almost come to a close when the order under Ex. P-4 was issued and hence
the order had practically become infructuous. Fourthly, it was stated that
though there would be no direct expenditure for the State in the opening of
unaided schools, the consequential results would affect the finances of the
State. It was said that as a result of the opening of new unaided schools or
upgraded schools, the pupil strength and the division strength in the existing
government and aided schools inevitably get reduced and this led to reduction
in the teaching staff strength of those schools and the teachers thrown out of
employment have to be given protection by the State by treating them as
protected teachers and absorbing them in other government and aided schools as
and when vacancies arose and it was in this manner the, State's finances came
to be affected. By this devious reasoning it was contended that the State
cannot be compelled to incur additional expenditure in order to oblige the
respondents opening new schools etc.
We
have given our careful consideration to these submissions and find that they
have no merit or substance.
We have
already set out step that though the respondents do not claim a fundamental
right, since them base their claim under Article 30(1), to open new schools,
they do acquire a legal right under the Act and the Rules, after the Government
finalises the list of approved applicants for opening new schools or upgrading
existing schools in the selected areas. The Rules enjoin the Government to scrutinise
the applications at various levels and then cause a list of the approved
applications to be published. Any applicant whose name is not included in the
approved list can file a revision to Government under Rule 12 and seek redressal
of his grievance. Therefore it follows that if an application is approved and
sanction is granted under Rule 2A(5), the applicant acquires a justiciable
right to have his application considered at the next level of determination
under 9 and Rule 11. To take any other view of the matter would run counter to
the Rules in Chapter V and the legislative intent underlying them. In so far as
many of the respondents not possessing the required extent of land or the type
of building or the amount of finance etc. for opening a new school, it is
always open to the Government when scrutinising the applications in the context
of Rule 9, to refuse grant of permission to those applicants and reject their
applications. By the judgment of the Division Bench, the right of the State
Government to pass appropriate orders under Rules 9 and 11 have not been taken
away. As regards the contention that the sanction granted under Ex. P-4 on
4.2.87 was almost at the PG NO 121 close of the academic year and as such the
order could not have been effectively implemented by the respondents even if
the order had not been revoked, we have only to point out that the applications
were made well in time but at the instance of some parties who moved the High
Court, the Government was restrained from passing sanction orders and it was on
account of that there was some delay. Even otherwise Rule 11 provides for the
Government prescribing the date from which the school should start functioning.
It is always therefore open to the Government to fix the date from which the
school should start functioning and the Government is not left without power to
exercise regulatory control in such matters.
The
last of the reasons given viz. that by the opening of new aided schools, the
teachers in the government and aided schools will be rendered surplus due to
fall in the pupil strength or the division strength in the existing schools, it
speaks rather poorly of the standards of education in Government and aided
schools. Be that as it may, this cannot be a reason which can be advanced by
the Government after it had gone half the way through the exercise of opening
new schools in areas and localities where educational facilities are not
adequate. It was urged that there are 16,000 schools in Kerala State and they
themselves cast a heavy burden on the finances of the State and as such the
State cannot afford to have more teachers thrown out of employment in
Government and aided schools due to opening of new schools and pay them their
salary till such time they are absorbed in regular vacancies in the existing
schools. The argument fails to take note of the fact that all these factors
were not new developments but were in existence even when the Government took
steps under Rule 2 to identify the poorly served areas and then called for
applications from interested parties for grant of permission to open new
schools or to upgrade existing schools. If really the opening of new aided
schools would result in an adverse effect upon the finances of the State, then
the Government should find remedy for the situation by amending the Rules
suitably so as to severely limit the scope for opening new unaided schools by
putting more stringent conditions. In fact, the Government have already
proceeded in that direction and even now Rule 11 stipulates that any unaided
school granted recognition should not seek conversion into an aided institution
and that if such conversion is sought for, then the recognition granted earlier
will automatically lapse. Over and above all these things, it is inconceiveable
that by the opening of 1 unaided schools, new or upgraded, even assuming all of
them are granted permission under Rule 11, the impact on the pupil strength of
division strength the existing government and aided schools will be so great as
to cause a large number of teachers being rendered surplus and the Government
PG NO 122 being forced to incur heavy expenditure by treating them as protected
teachers and paying them their salary. We are, therefore, in complete agreement
with the Division Bench that these factors are undoubtedly extraneous ones and
do not afford justification for the passing of the impugned order Ex. P-7 for
revoking the earlier sanction order Ex. p-4. Hence the last contention also
fails.
In the
light of our reasoning and conclusions, our answers for the three questions
formulated by us are as under:
(1)
Though the sanction granted to the respondents under Ex. P-4 would not by
itself entitle them to open new schools or upgrade the existing schools, it did
confer on them a right to seek the continuance of the statutory procedural
stream in order to have their applications considered under Rule 9 and dealt
with under Rule 11
(2) It
was not open to the Government, either under the Act or Rules or under Section
20 of the Kerala General Clauses Act to cancel in toto the approval granted to
the respondents under Rule 2A(S), for opening new schools or upgrading existing
schools in the selected areas on the basis of a revised policy.
(3)
The impugned order under Ex. P-7, irrespective of the question whether the
Government had the requisite power of cancel-lation or not, is vitiated by
reason of non- observance of the principles of natural justice and the vice of
extraneous factors.
In the
result, all the appeals fail and are accordingly dismissed. There will be no
order as to costs.
However,
even as the Division Bench has done, we make it clear that we are not making
any pronouncement about the suitability or otherwise of the respondents to be
granted permission under Rule 11 to open new schools or upgrade existing
Schools. All that we hold is that the respondents are entitled, on the basis of
the earlier order passed in their favour under Ex. P-4, to seek continuance of
the statutory procedure in order to have their applications considered under
Rule 9 and for appropriate orders being passed under Rule 11 in accordance with
law.
Y. Lal
Appeals dismissed.
Back
