Full Judgment Text
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CASE NO.:
Appeal (civil) 2913 of 2007
PETITIONER:
STATE OF KERALA & ORS
RESPONDENT:
K. PRASAD & ANR
DATE OF JUDGMENT: 09/07/2007
BENCH:
ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO 2913 OF 2007
[Arising out of S.L.P.(Civil) No.19854 of 2006)
D.K. JAIN, J.:
Leave granted.
2. Challenge in this Appeal by the State of Kerala is to the
common judgment rendered by a Division Bench of the Kerala
High Court in Writ Appeals No.545 and 546 of 2004, reversing
the view of the learned Single Judge in regard to the
upgradation of two aided schools in the State. By the
impugned order, the Division Bench has directed the State to
treat both the schools at par with the two other schools which
had been upgraded in the past.
3. As noted above, both the respondent schools are aided
schools. They made representations to the State (one of them
pursuant to the direction of the High Court) praying for
upgradation of the schools from primary to secondary level.
However, the request was declined by the State authorities
because of lack of funds. The validity of the said decision was
questioned by the respondents in the High Court mainly on
the ground that they had been discriminated against
inasmuch as the privilege given to two similarly situated
schools had been denied to them. The argument did not find
favour with the learned Single Judge, who came to the
conclusion that since the schools could be upgraded only as
per the procedure laid in Chapter V of the Kerala Education
Rules, 1959 (for short ’the Rules’) no positive direction could
be issued to the State to upgrade the schools by ignoring the
statutory provisions, particularly when there was no challenge
to the validity of the Rules. Learned Single Judge held that
merely because two schools had been upgraded without
following the Rules, no legal right had accrued in favour of the
writ petitioners’ schools to have them upgraded without
following the mandatory rules. The plea of financial
constraints urged by the State was also found to be a valid
ground for rejection of the representations. Aggrieved, the
matter was carried in appeals to the Division Bench.
Accepting the plea of discrimination, the Division Bench
directed the State authorities to give same treatment to the
respondents herein as was given to the two other schools. The
State was, thus, directed to grant upgradation to the
respondent schools.
4. It is this common judgment which is questioned in this
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appeal.
5. Learned counsel appearing for the appellant has
submitted that upgradation of an aided and unaided school
has to be strictly in accordance with the procedure prescribed
in the Rules and since the case of the respondents did not fit
in the criteria and the procedure contemplated in the Rules,
direction for upgradation of the schools was unwarranted. It
is urged that merely because two aided schools had been
upgraded by relaxing the Rules, as a special case, because of
the directions of the Court, it could not be said that the
respondents had been discriminated against, particularly
when a policy decision had been taken by the State that no
aided school shall be upgraded till the financial position of the
State improves. It is, thus, pleaded that the impugned
direction is not only against the specific provisions, it will also
put unbearable heavy financial burden on the State Exchequer
if the same is required to be given effect to, which, as observed
in Secretary, State of Karnataka & Ors. Vs. Umadevi &
Ors. , may prove to be counter productive. It is also asserted
that the impugned direction, in fact, amounts to amendment
of the existing government policy by a judicial order, which is
not permitted. In support, reliance is placed on a decision of
this Court in Principal, Madhav Institute of Technology
and Science Vs. Rajendra Singh Yadav & Ors. wherein a
direction contrary to the government policy in vogue at the
relevant time was disapproved. It is also pointed out that
several special leave petitions, filed by the school
managements against the decisions of the High Court
declining to issue directions for upgradation of their schools
have already been dismissed.
6. On the other hand, learned counsel for the respondents,
while supporting the direction of the Division Bench has
submitted that two other similarly situated schools having
been upgraded by the government during the relevant period,
the stand of the State regarding financial stringency is per se
arbitrary as equals have been treated as unequals and as such
Article 14 of the Constitution is violated.
7. Having heard learned counsel for the parties, we are of
the view that on facts in hand respondents’ plea of
discrimination, which found favour with the Division Bench, is
clearly untenable and, therefore, the impugned direction
cannot be sustained.
8. Chapter V of the Rules embodies rules for the regulation
of opening and recognition of schools in the State of Kerala.
Rule 2 lays down the procedure for determining the areas
where new schools are to be opened or the existing schools are
to be upgraded. The Rule, insofar as it is relevant for our
purpose, reads as under:
"2. (1) The Director may, from time to
time, prepare two lists, one in respect of
aided schools, and other in respect of
recognised schools indicating the
localities where new Schools of any or all
grades are to be opened and existing
Lower Primary Schools or Upper Primary
Schools or both are to be upgraded. In
preparing such lists he shall take into
consideration the following:
(a) the existing schools in and around
the locality in which new schools are
to be opened or existing schools are
to be upgraded;
(b) the strength of the several
standards and the accommodation
available in each of the existing
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schools in that locality;
(c) the distance from each of the
existing schools to the area where
new schools are proposed to be
opened or to the area where existing
schools are to be upgraded;
(d) the educational needs of the locality
with reference to the habitation and
backwardness of the area; and
(e) other matters which he considers
relevant and necessary in this
connection.
Explanation: - For the removal of doubts
it is hereby clarified that it shall not be
necessary to prepare the two lists
simultaneously and that it shall be open
to the Director to prepare only one of the
lists.
(2) A list prepared by the Director
under Sub-rule (1) shall be published in
the Gazette, inviting objections or
representation against such list.
Objections, if any, can be filed against the
list published within one month from the
date of publication of the list. Such
objection shall be filed before the
Assistant Educational Officers or the
District Educational Officers as the case
may be. Every objection filed shall be
accompanied by a chalan for Rs.10/
remitted into the Treasury. Objections
filed without the necessary chalan receipt
shall be summarily rejected.
(3) The Assistant Educational Officer
and the District Educational Officer may
thereafter conduct enquiries, hear the
parties, visit the areas and send their
report with their views on the objections
raised to the Director within two months
from the last date of receipt of the
objections. The Director, if found
necessary, may also hear the parties and
finalise the list and send his
recommendation with the final list to
Government within two months from the
last date of the receipt of the report from
the Educational officers.
(4) The Government after scrutinising
all the records may approve the list with
or without modification and forward the
same to the Director within one month
from the last date for the receipt of the
recommendations of the Director. The
list as approved by the Government shall
be published by the Director in the
Gazette.
(5) xxx xxx xxx.
(5A) xxx xxx xxx.
(6) xxx xxx xxx."
9. Rule 2A of the Rules provides for inviting applications for
opening of new schools and upgrading of existing schools. For
the sake of ready reference, the relevant provision is also
reproduced hereunder:
"2A. (1) After the publication of the final
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list of the areas where new school of any
or all grades are to be opened or existing
Lower Primary Schools or Upper Primary
schools or both are to be upgraded the
Director shall, by a notification in the
Gazette call for applications for opening of
new schools of any or all grades and for
raising of the grade of existing Lower
Primary Schools or Upper Primary
Schools or both in the areas specified.
(2) Applications for opening of new
schools or for raising of grade of existing
schools shall be submitted only in
response to the notification published by
the Director. Applications received
otherwise shall not be considered. The
applications shall be submitted to the
District Educational Officer of the area
concerned in form No.1 with 4 copies of
the application and enclosures within one
month from the last date of publication of
the notification under sub-rule (1).
(3). On receipt of the applications for
permission to open new schools or for
upgrading of existing schools, the District
Educational Officer shall make such
enquiries as he may deem fit as to the
correctness of the statements made in the
applications and other relevant matters
regarding such applications and forward
the applications with his report thereon
to the Director within one month from the
last date for submitting applications
under sub-rule (2).
(4) The Director on receipt of the
applications with the report of the District
Educational officer shall forward the
applications with his report to
Government within one month from the
last date for forwarding the report by the
District Educational Officer.
(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 and shall
take a final decision and publish their
decision in the Gazette with the list
containing necessary particulars within
one month from the last date for
forwarding the report by the Director.
(6) xxx xxx xxx.
(7) xxx xxx xxx.
(8) xxx xxx xxx."
10. The two Rules, quoted above, lay down a comprehensive
procedure for opening of new schools in particular areas; their
recognition and upgradation. It is manifest that a decision in
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this behalf has to be primarily by the government on an
application made for that purpose under Rule 2A. The Rules
also lay down the guidelines which are to be taken into
consideration for preparing the list in terms of sub rule (1) of
Rule 2. On the lists being finalized, after their publication and
consideration of objections, if any, the same have to be sent to
the government for its approval, with or without modification.
Nevertheless the decision by the government whether opening
of new school is to be sanctioned or whether an existing school
is to be allowed to be upgraded has to be taken on
consideration of the matters enumerated in clauses (a) to (e)
of Rule 2(1) of the Rules. Similarly, an application for either
opening of new school or for upgradation of an existing aided
school can be submitted only after the Director publishes a
final list of areas where new schools are to be opened or
existing schools are to be upgraded under sub rule (4) of Rule
2. Any application received otherwise cannot be considered.
In view of such comprehensive procedure laid down in the
statute, an application for upgradation has necessarily to be
made and considered strictly in a manner in consonance with
the Rules. It needs little emphasis that Rules are meant to be
and have to be complied with and enforced scrupulously.
Waiver or even relaxation of any Rule, unless such power
exists under the Rules, is bound to provide scope for
discrimination, arbitrariness and favouritism, which is totally
opposed to the rule of law and our constitutional values. It
goes without saying that even an executive order is required to
be made strictly in consonance with the Rules. Therefore,
when an executive order is called in question, while exercising
the power of judicial review the Court is required to see
whether the government has departed from such Rules and if
so, the action, of the government is liable to be struck down.
11. This Court in Shrilekha Vidyarthi (Kumari) Vs. State
of U.P. held that every State action, in order to survive, must
not be susceptible to the vice of arbitrariness which is the crux
of Article 14 and basic to the rule of law, the system which
governs us, arbitrariness being the negation of the rule of law.
Non-arbitrariness, being a necessary concomitant of the rule
of law, it is imperative that all actions of every public
functionary in whatever sphere must be guided by reason and
not humour, whim, caprice or personal predilections of the
persons entrusted with the task on behalf of the State and
exercise of all powers must be for public good instead of being
an abuse of power.
12. Having examined the instant matter on the touchstone of
the aforementioned settled principles, we find it difficult to
hold that the decision of the appellant not to sanction
upgradation of respondent schools because of paucity of funds
was either arbitrary or unreasonable or manifestly erroneous
to warrant interference by the Court. There is no denying the
fact that opening of new schools or upgradation of aided
schools does involve considerable financial commitment for
the State. Moreover, insofar as the present cases are
concerned, indubitably, applications for upgrading the existing
schools had not been invited by the Director as stipulated in
sub rule (2) of Rule 2A and, therefore, the representations
made by the respondents for upgrading their schools could not
be considered by the government unless it was shown that the
Director or the State Government were not finalizing the list in
terms of Rule 2A for some extraneous considerations, which
was not the case of the respondents. Thus, in the absence of
gazette notification, calling for applications for raising of the
grade of an existing school, the question of consideration of
respondents applications/representations did not arise. In
fact, sub rule (2) of Rule 2A puts a complete embargo on
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consideration of an application which is submitted otherwise
than in response to notification under sub rule (1) of Rule 2A.
We are constrained to observe that the Division Bench of the
High Court has failed to keep all these aspects in mind while
issuing the impugned directions.
13. We may now deal with the plea of the respondents that
they have been discriminated against. It is true that Article 14
of the Constitution embodies a guarantee against arbitrariness
but it does not assume uniformity in erroneous actions or
decisions. It is trite to say that guarantee of equality being a
positive concept, cannot be enforced in a negative manner. To
put it differently, if an illegality or irregularity has been
committed in favour of an individual or even a group of
individuals, others, though falling in the same category,
cannot invoke the jurisdiction of the writ courts for
enforcement of the same irregularity on the reasoning that the
similar benefit has been denied to them. Any direction for
enforcement of such claim shall tantamount to perpetuating
an illegality, which cannot be permitted. A claim based on
equality clause has to be just and legal.
14. Dealing with such pleas at some length, this Court in
Chandigarh Administration & Anr. Vs. Jagjit Singh &
Anr. , has held that if the order in favour of the other person
is found to be contrary to law or not warranted in the facts
and circumstances of his case, it is obvious that such illegal or
unwarranted order cannot be made the basis of issuing a writ
compelling the authority to repeat the illegality or to pass
another unwarranted order. The extra-ordinary and
discretionary power of the High Court under Article 226
cannot be exercised for such a purpose. This position in law is
well settled by a catena of decisions of this Court. [See:
Secretary, Jaipur Development Authority, Jaipur Vs.
Daulat Mal Jain & Ors. and Ekta Shakti Foundation
Vs. Govt. of NCT of Delhi ]. It would, thus, suffice to say that
an order made in favour of a person in violation of the
prescribed procedure cannot form a legal premise for any
other person to claim parity with the said illegal or irregular
order. A judicial forum cannot be used to perpetuate the
illegalities.
15. Adverting to the facts of the two cases, stated
hereinabove, we are of the considered view that having been
made aware of the fact that the relied upon orders of
upgradation had been passed in utter disregard of the
statutory rules, the Division Bench fell in grave error in
importing the theory of discrimination, particularly when
respondents’ applications seeking upgradation, were per se
not as per the prescribed procedure.
16. We are, therefore, of the opinion that the Division Bench
was not justified in directing the State Government to accord
the same treatment which had been given to two other
schools, which had been upgraded ignoring the statutory rules
and upgrade the respondents’ schools. In this view of the
matter, decision of the High Court is clearly unsustainable
and deserves to be set aside.
17. In the result, the appeal is allowed; the judgment of the
Division Bench is set aside and both the writ petitions are
dismissed. There will, however, be no order as to costs.