Full Judgment Text
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PETITIONER:
SHREE DAMODAR KALVAIBHAV EDUCATION SOCIETY
Vs.
RESPONDENT:
DIRECTOR OF EDUCATION, GOA AND ANR.
DATE OF JUDGMENT: 02/08/2000
BENCH:
M. Jagannadha Rao, J. & K.G. Balakrishnan, J.
JUDGMENT:
Balakrishnan, J.
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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writ petition was later withdrawn by the appellant pursuant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
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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@@
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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
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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
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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
Judicature, Bombay at Goa in Vidya Prasarak Samaj Vs.
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
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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.