REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6267 OF 2012
[Arising out of SLP (Civil) No. 34988 of 2010]
State of Kerala and Others .. Appellants
Versus
The Tribal Mission .. Respondent
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. Leave granted.
2. We are, in this case, concerned with the question whether the State
is duty bound to grant recognition to an unaided educational institution on
the touchstone of Article 21A of the Constitution of India overlooking the
procedure laid down under Rule 2 and Rule 2A of Chapter V of the Kerala
Education Rules (for short ‘KER’).
3. Respondent established a school by name Betham English Medium School
in the year 2001 at Attappady in the Palakkad District, State of Kerata in
the unaided sector. An application for recognition was submitted by the
respondent school in the year 2003 before the Government. The Deputy
Direction of Education, however, forwarded a report/letter No. B1/8863/07
dated 19.10.2007 to the State Government pointing out existence of a three
recognized schools within a distance of 5 km from the respondent school
following Tamil and Malayalam mediums having Standard 1 to 7, of which one
is situated within a distance of 2.5 km. Further, it was pointed out that
the respondent school though was having sufficient infrastructure, granting
recognition would adversely affect the other aided schools functioning in
that area and the possibility of division fall in these schools could not
be ruled out.
4. The Government rejected the application for recognition on the ground
that it would violate the Government’s Policy referred to in GO (P)
No.107/07/G Edn dated 13.06.2007. Further, it was also pointed out that the
procedure for granting recognition to new schools is laid down in Chapter V
of KER and as per sub-rule (2) of Rule 2A of Chapter V of KER, an
application for opening a school should be in response to the notification
under sub-rule (1) of Rule 2A of Chapter V. Consequently, the application
was rejected by the Government vide GO (Rt) No. 5321/07/G.Edn. dated
22.11.2007.
5. Aggrieved by the said order, the respondent along with various others
approached the learned single Judge of the High Court who upheld the order.
Respondent took up the matter before the Division Bench of the High
Court. The Division Bench of the High Court, vide its judgment dated
18.8.2010 allowed the appeal stating that the respondent has satisfied the
various conditions laid down in the Government’s Policy dated 13.6.2007 and
therefore, directed the Government to grant recognition to the respondent
school as an unaided self-finance English medium school to run classes from
standard 1 to 10 from the academic year 2010-11 onwards. The State is
aggrieved by that judgment and hence this appeal.
6. We have heard Ms. Bina Madhavan for the appellant and Shri M. P.
Vinod for the respondent. Chapter V of KER deals with the opening and
recognition of schools. For easy reference, we may extract Rule 2 and Rule
2A of Chapter V as under:
“2. Procedure for determining the areas where new schools are
to be opened for existing schools upgraded - (1) The Director may,
from time to time, prepare two lists, one is respect of aided schools
and the other in respect of recognized schools, indicating the
localities were new schools or any or all grades are to be opened and
existing Lower Primary School 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; 26
(b) The strength of the several standards and the accommodation
available in each of the existing 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
habit1ation 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 representations
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 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
recommendations 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 scrutinizing 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) No appeal or revision shall lie against the final list
published by the Director.
Provided that the Government may either suo motu 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 finalizing 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 consideration or any relevant fact has not been taken
into account while finalizing 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 representation against such
modifications.
2A. Applications for opening of new schools and upgrading of
existing schools - (1) After the publication of the final list of the
areas where 8[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 [x x
x] call for applications for the 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
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 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 application 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.”
7. The scope of the above mentioned rules came up for consideration in
the case of State of Kerala & Others v. K. Prasad & Another (2007) 7 SCC
140, wherein this Court held as follows:
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 this
behalf has to be taken primarily by the Government on an application
made for that purpose under Rule 2-A. 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 finalised,
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 the 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.………….”
8. The Government’s Policy issued vide GO(P) No.107/07/G Edn. dated 13
June, 2007 with regard to up-gradation of existing schools and recognition
of unaided schools applies to respondent school as well. The operative
portion of the same which applies to unaided schools and grant of NOC for
CBSE/ICSE Schools reads as follows:
“Recognition of Un-aided Schools and NOC for CBSE/ICSE Schools:
1. As a policy unaided recognized Schools need not be given
recognition in future.
2. For those schools functioning in the state now whether they may be
considered for recognition at all a policy decision may be taken at
Govt. level.
3. Since many of them may be answering to the demand for English
medium and better quality education in the rural areas, those
having facilities as per Kerala Education Rules and maintaining
better academic standards may be considered for recognition, if the
local bodies also recommend recognition of a school acknowledging
the need for such a school in the local body’s jurisdiction.
Further steps can be as in Chapter V Kerala Education Rules, which
also envisages the setting up of recognized schools.”
9. Para 3 above will not give any Carte Blanche to start a school in the
unaided sector and then seek recognition as a matter of right because para
1 above indicates that as a policy unaided schools need not be given
recognition in future. In the instant case, it is after starting the
school in the unaided sector, the respondent school is pressing for
recognition which, in our view, is not a correct procedure. Assuming that
the respondent school has satisfied all the requirements stipulated in Para
3, still it has to undergo the procedure laid down under Rule 2 and Rule 2A
of Chapter V, otherwise, as held by this Court in K. Prasad case (supra),
it is bound to provide scope for discrimination, arbitrariness, favouritism
and also would affect the functioning of other recognized schools in the
locality.
10. The Division Bench of the High Court has expressed the view that once
the respondent satisfies Para 3 of the Policy, the State Government has to
grant recognition which in our view would go contrary to the view expressed
by this Prasad Case (supra) and violates Rule 2, 2A of Chapter V of KER.
The question, as to whether, the grant of recognition would affect the
existing schools is also a relevant consideration. The State spends large
amounts by way of aid, grant etc. for running schools in the aided sector
as well as the State owned schools. Indiscriminate grant of recognition to
schools in the unaided sector may have an adverse affect on the State owned
schools as well as the existing schools in the aided sector, by way of
division fall, retrenchment of teachers etc. Therefore, the procedure laid
down in Rules 2, 2A of Chapter V of KER cannot be overlooked.
11. The State Government, in the instant case, has already granted
recognition to the respondent school for conducting the classes from 1 to
10 in the academic year 2010-11 onwards, of course, subject to the result
of this SLP. Considering the fact that the local body has also recommended
recognition and large number of students are now studying in the school,
and the same is situated in a Tribal area, we find no reason to interfere
with the recognition already granted to the respondent school as a special
case, but we make it clear that this order shall not be treated as a
precedent. Appeal is disposed of as above. There will be no order as to
costs.
……………….……………………..J.
(K. S. RADHAKRISHNAN)
………………………………….…..J.
(DIPAK MISRA)
New Delhi
September 4, 2012
