Shree Damodar
Kalvaibhav Education Society Vs. Director of Education, Goa & ANR [2000] INSC 403 (2 August 2000)
M. Jagannadha
Rao, J. & K.G. Balakrishnan, J. Balakrishnan, J.
L.I.T.J
The appellant-Society has been running a school by name Keshav Smriti School at
Alto-Dabolim, Vasco Da Gama, Goa since the year 1994- 95. The school began as a
middle school with Vth standard and gradually every year permission was sought
to start VI th and VIIth standard and approval was granted by the authorities.
On 15.11.96, the appellant- Society applied for opening VIIIth standard in the
school from academic year 1997-98. The appellant -Society was informed that
permission to open VIIIth standard had been rejected on the ground that there
were other three higher secondary schools within a radius of 5 kms. from the
appellant's school and as the opening of a new higher secondary school would
adversely affect the neighboring schools and there would be an unhealthy
competition among the existing schools. The appellant was also informed by the
impugned order that an action to start a new school within the radius of 5 kms.
from the existing schools would lead to violation of Rule 31(3)(iii) of Goa, Daman and Diu
School Education Rules, 1986 (hereinafter being referred as the
"Rules"). The appellant- Society filed a Writ Petition No. 275/97
before the Panaji Bench of the Bombay High Court challenging the order of
rejection dated 14.5.97. The said writ petition was later withdrawn by the
appellant pursuant to a statement made by the counsel for the Government that
fresh guidelines were being framed regarding the starting of new schools. In
pursuance of a decision of the High Court, certain guidelines were framed. A
survey was conducted to find out the educational needs of the localities and to
identify the localities where the school in different grades are required to be
opened in the State of Goa. The appellant's case was examined
and it was found that it was not desirous to allow the appellant-Society to
start a new school and the Director, School Education passed an order on
26.11.97 and the appellant was informed that his request to open a new school
in 1998-99 cannot be considered. The Order dated 26.11.97 was challenged by the
appellant by filing Writ Petition No. 86/98 before the High Court of Bombay, Panaji.
The said writ petition was dismissed. This appeal is directed against that
decision.
We
heard the appellant's counsel and also the counsel for the respondent. The
contention of the appellant's counsel is that the Director of Education,
Government of Goa has wrongly rejected the claim of the appellant. The main
thrust of the argument of the appellant's counsel is that the Rule 31 of the Goa, Daman and Diu
Education Rules, 1986 has no application. According to the appellant, the
request of the appellant was to start VIIIth standard which should have been
considered in the light of Rule 32 of the said Rules. The contention of the
appellant's counsel is that the appellant - Society is having an existing
school and starting of VIIIth standard in that school does not amount to
creation of a new school but rather an addition of one more standard to the
existing school.
In
order to appreciate the contention advanced by the appellant's counsel, it is
necessary to look into some of the relevant rules which are applicable to the
starting of new school and opening of new classes. In the State of Goa, Daman and Diu, the schools are classified into five stages,
namely, pre-primary stage, primary stage, middle stage, secondary stage and
higher secondary stage. The primary stage consists of classes from Ist to Ivth
(both inclusive), the middle stage includes classes from Vth to VIIth (both
inclusive), the secondary stage includes classes from VIIIth to Xth (both
inclusive) and the higher secondary stage includes classes above class Xth. The
definition of the stages has been given in Rule 2 of the said Rules. While
giving the definition of the secondary stage, the following definition which is
given in Rule 2(1)(i) is as under:- "Secondary stage" means stage of
school education having VIII-X classes or V-X classes as the case may be; (both
inclusive)." The above definition indicates that even if in a particular
school, both middle and secondary stage classes are there, it would not be
known as secondary school.
Rule
31 deals with the guidelines relating to opening of new schools or classes or
closure of the existing schools or classes. Proviso to Rule 31(3) says that no
school shall be permitted more than one class at each stage, namely, primary,
middle, secondary or higher secondary and after recognition, no school shall be
permitted to add one more higher class each year at each stage. Rule 31(3)(i)
says that no primary school of that category shall be permitted within a radius
of 1 Km. and Rule 31(3)(ii) says that no middle school of that category within
a radius of 3 Kms.
The
third proviso to Rule 31(3) reads as follows:- "No secondary school of
that category within a radius of 5 Kms.
from
the existing schools, unless the Director of Education is satisfied that the
existing school is overcrowded and there is no scope for further expansion, or
there is no easy access to the existing school due to natural barriers like
forest area, rivers with running water, or the proposed school is entirely for
the benefit of backward class community, scheduled caste or Tribal pupils.
Nothing
contained in this provision shall apply to unaided minority schools." Rule
32 deals with the opening of new classes in schools. The relevant provisos are
as follows:- (1) No@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ recognised schools,
not being an unaided minority school, without giving full justification, shall
open any new class or division other than the ones which have received approval
from the appropriate authority, without obtaining prior sanction of the
Director of Education or any subordinate authority authorised by him.
(2) In
the case of unaided minority schools, opening of new classes/divisions shall be
subject to such norms as may be specified by the Director of Education.
(3) the
norms for granting additional divisions in Middle and Secondary Schools shall
be as follows subject to any change on the recommendations of the Advisory
Board.
I.
XXXX II. XXXX Provided that permission to open additional divisions shall be
granted by the Directorate of Education after satisfying himself about the
physical facilities available with the school and mere enrolment of students by
a school shall not automatically make the school eligible for the additional
divisions and if the additional division is opened by the School Management,
without prior permission the additional liability shall not be borne by the
Department.
(4)
XXXX" The above provisions say that for starting a new class in a school
or to open an additional division of a class, the school authorities shall make
available certain physical facilities whereas starting of a new school is
subject to satisfactory completion of several criteria. The Director of
Education must be satisfied himself that the number of schools existing in the
locality or in the neighboring area where the new school is proposed to be opened,
is sufficient to meet the needs of that locality. The Director of Education is
also to consider whether the opening of a new school would be against the
public interest or not. It is specifically stated that while permitting new
schools, the Director of Education shall adopt the norms that no secondary
school of that category within the radius of 5 Kms. shall be there and unless
the Director Education is satisfied that the existing school is overcrowded and
there is no scope for further expansion and there is no easy access to the
existing schools due to natural barriers like forest area, rivers with running
water, or the proposed school is entirely for the benefit of backward class
community, scheduled caste or Tribal pupils.
The
contention of the counsel for the appellant is that the appellant society
wanted only to have a new class in the existing school, therefore, the norms
laid down under Rule 31 are not applicable and Rule 32 alone should have been
looked into by the Director, Education. This contention is not tenable for
various reasons. Admittedly, the appellant started the school as a middle
school and the Vth standard was started in the year 1994-95. VI th standard was
started in 1995-96 and the permission to open the VIIth standard was given
during the year 1996-97. The present request is to start VIIIth standard in
that school which would convert the school to a secondary school. Even though
the request of the appellant is to have a new class in the existing school but
the real demand of the appellant is to have a secondary school as the existing
school is only upto VIIth standard and if the school is to become a secondary
school, norms laid down under Rule 31 are to be necessarily followed. The
contention of the learned Counsel for the appellant that starting of a new
class does not amount to a new school cannot be accepted for the reason that
rigorous criteria prescribed under Rule 31 are to be followed for starting a
new school. For opening a new class in the existing school, the appellant
society need only satisfy the authorities that there are certain physical
facilities available with the school and that there are sufficient students for
starting a class. Whereas under Rule 31, the authorities have to take into
consideration various other aspects and find out whether the opening of a new
school is necessary to meet the educational needs of that area.
It was
contended on behalf of the appellant that in view of the definition of the
secondary stage mentioned in Rule 2(1)( i ), the appellant school shall be
deemed to be a secondary school and, therefore, starting of the VIIIth standard
in the school does not amount to the starting of a new school. Under Rule 2(1)(f),
middle stage of the school is specifically mentioned as the stage of school
education from class Vth to VIIth (both inclusive). As regards 'Secondary
Stage', an inclusive definition is given so as to take in standards Vth to VIIth
also, within the secondary stage and that would only indicate that even if a
school is having a middle stage consisting of classes IVth to VIIth still it
would be deemed as secondary stage if there are classes from Vth to Xth. As
regards the appellant's school is concerned, there are classes only from Vth to
VIIth. It does not fall within any other category and it has to be held as a
middle school. If it is converted into a secondary school by addition to
standard VIIIth, we are of the view that the guidelines under Rule 31 of the
'Rules' are to be followed as it amounts starting of new school having
"Secondary stage".
The
counsel for the appellant drew our attention to a decision of the Division
Bench of the High Court of Director of Education (Writ Petition No. 26/94
decided on 25.7.94) where it was held that Rule 31 has no application while
starting of new class in higher stage. That was a case where the starting of
standard VIIIth, IXth and Xth in neighboring school was challenged and the
challenge was negatived on the ground that distance rule under Rule 31 has no
application and it was held that opening of classes for higher standards cannot
be said to be opening of new school.
We do
not think that the Division Bench has correctly interpreted the Rule. If such
interpretation is adopted it would only defeat Rule 31 and primary school can
gradually ripen into Higher secondary school stage by stage contravening the
mandate contained in Rule 31. By the proposed new class, the school is upgraded
and then it amounts to starting of a new school and is not a mere addition of
one more class to the existing school.
However,
in the instant case, the first respondent, i.e., Director, Education has not
adverted to various other relevant circumstances while passing the impugned
order.
The
counsel for the appellant had specifically contended that the appellant school
catered to the needs of the students from the lower middle class families and
out of the three neighboring schools within a radius of 5 Kms., one is a Naval
school which exclusively caters to the children of navy personnel and the
second school is a convent school and it is not normally possible to get
admission to the students from the ordinary families. As regards the third
school also, it is stated that there are sufficient number of students in the
standard VIIIth of that school and there would not be any unhealthy competition
in case the appellant is allowed to open standard VIIIth in their school. These
aspects are not seen to have been considered by the Director of Education while
passing the impugned order. It is not known whether these relevant factors are
taken into consideration while passing the order. Therefore, on the facts and
circumstances of this case, we are inclined to set aside the impugned order and
direct the first respondent to consider the matter afresh.
The
appellant is directed to submitted fresh application before the first
respondent. The application shall be submitted within three weeks from the date
of this Order. The first respondent shall pass the revised order having due
regard to the relevant circumstances and, if necessary, shall give notice to
the representatives of the neighboring schools which are likely to be
prejudicially affected by the order, if any, to be passed by the Director,
Education. Further, the Director has to consider whether the students who
complete standard VIIth in this school can get admission in the other schools
and whether there would be adequate vacancies in the standard VIIIth in the
other schools, after accommodating their own promotees from standard VIIth. The
order shall be passed sufficiently before the commencement of the new academic
year.
The
appeal is disposed of. Parties to bear the costs.
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