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TMI Blog1971 (7) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... hools in the areas concerned as desired by them. Civil Appeal No. 878 of 1968 is by the applicant in Special Civil Application No. 694 of 1965 against the order of the High Court dismissing his writ petition and declining to interfere with the order of the State and educational authorities granting permission to the third respondent in the appeal to open, a new school at Sakharkherda with VIII and IX classes. We will first deal with Civil Appeals Nos. 160 and 161 of 1968 and refer to the facts leading up to those appeals. Civil Appeal No. 160 of 1968, as mentioned above, arises out of the ,order in Special Civil Application No. 420 of 1966. The applicant in the said application Loka Shikshan Sanstha Anjansinghi made an application dated October 30, 1965 to the Deputy Director of Education, Nagpur for permission to open a school during the year 1966-67 at Anjansinghi in Amravati district. The- appli,cation was sent in the prescribed form. Therein it was stated that the Management was not registered and that it will get itself registered by about the middle of January, 1966. Under the heading "Arrangements made for necessary furniture and apparatus" in col. 13, the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... striking down r. 3 of the Grant-in-aid Code framed by the State of Maharashtra as unconstitutional and violative of fundamental rights guaranteed under Art. 19(1)(c) of the Constitution and to quash the orders of the Deputy Director of Education and the State Government refusing permission to the petitioner Society to start a school at Anjansinghi. The applicant further prayed for a direction being issued to the educational authorities to grant permission to start the school as requested by it. As common contentions had been raised by the State of Maharashtra in this writ petition and also in Special Civil Application No. 421 of 1966 before the High Court, we will refer to those contentions after adverting to the facts in Special Civil Application No. 421 of 1966. Civil Appeal No. 161 of 1968 arises out of Special Civil Application No. 421 of 1966. The applicant therein Sri Nana Guru Shikshan Sanstha, Shirkhed sought permission of the Deputy Director of Education to start a school at Shirkhed from June 1966. The request was made by a letter dated October 29,1965 and the application was not made in the prescribed form. The Parishad Education Officer, Zila Parishad, Amravati by hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering applications for starting schools which required grants to be made by the Government. None of the rules contained therein violated any fundamental rights of the applicants. Even if Art. 19 can be invoked, the restrictions regarding the starting of schools were all reasonable restrictions in the interest of general public. No restriction has been placed on the applicants forming associations or unions as contemplated under Art. 19(1)(c) and that in any event the restrictions were saved by Cl. (iv) of Art. 19. The reasons given by the Deputy Director of Education for rejecting the applications of the two petitioners were valid as the District Committee constituted for the purpose had considered all the relevant matters before rejecting their applications and granting permission to the respective third respondents therein. The High Court by its common judgment has taken the view that cls. (1) and (2) of r. 3 of the Grant-in-aid Code are invalid as they are too vague to afford any standard both as to the need of a school in the locality and also as to the unhealthy competition with an existing school. The said clauses are equally vague as there is no standard to find out the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and directed the educational authorities to grant permission to the two writ petitioners to start schools as desired by them. The learned Attorney-General, appearing on behalf of the State in Civil Appeals Nos. 160 and 161 of 1968 raised the following contentions: (1) The High Court has committed a very serious mistake in invoking Art. 19 in view of the mandatory provisions of Art. 358 of the Constitution, (2) even assuming that Art. 19 can be invoked, the provisions contained in cls. (1) and (2) of r.3 are reasonable restrictions in the interest of general public and as such those clauses are valid; (3) the view of the High Court that the said clauses offend Art. 14 is erroneous; (4) that the clauses struck down by the High Court. are mere executive instructions given by the State for the guidance of the educational authorities when considering the applications received for permission to open schools in particular areas. Such executive instructions cannot be struck down on the ground that they are vague., Alternatively. under this head it was contended that the two clauses are not vague in any respect; and (5) the High Court has committed a serious mistake in striking down t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State and such policy will depend upon an overall assessment and summary of the requirements of residents of a particular locality and other categories of persons for whom it is essential to provide facilities for education. If the overall assessment is arrived at after a proper classification on a reasonable basis, it is not for the courts to interfere with the policy leading up to such assessment. It should also be made clear that as accepted by the State in its counter-affidavit filed before the High Court the provisions of the Code are executive instructions and are in the nature of administrative instructions without any constitutional force. It is on this. basis that we have to consider the correctness of the decision of the High Court when it struck down cls. (1) and of r. 3 of the Code. It is necessary to advert to the circumstances under which the Code came to be framed as also to certain instructions given by the State to the educational authorities when considering the applications for the grant of permission to open schools. The Grant-in-aid system appears to have been first introduced in 1859 and its main object was to promote voluntary effort and reliance on lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said rule provides that a school seeking recognition has to satisfy the Department as regards the conditions enumerated in cls. 1 to 16 therein. Clauses (1) and (2) of r. 3 which are attacked as invalid are as follows: "Rule 3: Conditions of Recognition: A school seeking recognition shall satisfy the Department as regards the following conditions:- (1) The school is actually needed in the locality and it does not involve any unhealthy competition with any existing institution of the same category in the neighborhood. (2) The Management is competent and reliable and is in the hands of a properly constituted authority or managing Committee. ... ... ... ... ..." We may at this stage point out that one of the conditions which has to be satisfied under r. 3 is regarding the financial stability of the proposed school as stated in cl. (3) of r. 3 therein. This aspect may have a bearing in considering the correctness of the High Court's decision in Civil Appeal No. 160 of 1968. Rule 86 deals with "Kinds of Grants". Rule 86.1 enumerates the various types of grants which a recognised school is eligible to get from the Government. Rule 86.2 provides as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... latest by the end of October. No doubt some of these aspects are already contained in r. 2 of the Code. Another important point to be taken note of in this press note is that though the applications are made to the concerned educational authorities, those applications are scrutinised by the District Committees concerned, and whose members must be familiar with the conditions prevailing in particular localities or areas. On the same date the Government sent a communication to the Chairman, Secondary School Certificate Examination Board. Poona and the Chairman Vidarbha Board of Secondary Educa- tion, Nagpur on the subject of appointment of District Committees to consider the applications received for opening new secondary schools. The composition of the District Committees was also' mentioned therein. The respective Chairmen were requested by the State to move the Board to nominate one member for each of the District Committees in the areas with which the Board was concerned. The Chairman was also requested to communicate the names of such members to the Parishad Education Officer of' the district concerned, the Deputy Director of Education of the region' and the Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions were filed by the writ petitioners before the educational authorities as well as the dates when they were rejected. The judgment of the High Court is dated December 2, 1966. There is no controversy that the Proclamation of Emergency was issued on October 26, 1962 and it was. revoked only on January 10, 1968 The relevant part of Art, 358 is as follows : "358. While a Proclamation of Emergency is in operation, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take.............." Therefore, it will be seen that during the period when a Proclamation of Emergency is in operation, Art. 19 will not operate as a bar in respect of any law or any executive action coming within the terms of Art. 358. We will be showing in the latter part of the judgment that cls. (1) and (2) of r. 3 read with the various instructions issued by the State cannot be considered to be vague or ambiguous as erroneously held by the High Court. Those instructions, in so far as they go, are perfectly valid and the State Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oards concerned. So far as the distribution of grant to the schools recognised under the Code is concerned, it is not the case of any of the petitioners that such grants are being made arbitrarily or any discrimination is shown in that regard. But Dr. Barlingay pressed before us the circumstances that though cls. (1) and (2) of r. 3 may appear to be innocuous, there is a potential danger of discrimination when the said clauses are applied without any guidance by the educational authorities. He also contended that there is no right given to the applicant to be heard by the educational authorities before his application is re- fused. On this ground the counsel urged that cls. (1) and (2) of r. 3 violate Art. 14. We have already referred to the press note and the circular letter issued by the State Government from which, it is clear that the applications are dealt with in the first instance by the District Committees, whose members are familiar with the requirements of the particular areas or localities and the conditions prevailing therein regarding the requirements of a school or an additional school. The district Committees have to take into account several material and relevant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons are not covered by the provisions contained in the Code. Clauses (1) and (2) of r. 3 are not to be read in isolation as has been done by the High Court. On the other hand they must be read along with the other various clauses contained in the same rule as well as the detailed instructions given by the Government in the circular letter dated October 5, 1965. It follows that the reasoning of the High Court that these two sub-clauses violate Art. 14 cannot be accepted. Coming to the fourth contention of the learned Attorney, it is evident from the judgment of the High Court that cls. (1) and (2) of r. 3 have been struck down for they are vague and do not afford any standard or criteria for judging whether a school or an additional school is needed in an area or locality and whether the management is competent and reliable. We have already pointed out that the definite stand taken by the State in its counter affidavit filed before the High Court was that the provisions of the Code are executive instructions and are in the nature of administrative instructions without any statutory force. When it is admitted that the provisions contained in the Code, which include cls. (1) and (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the various matters to be taken into account by the District Committees when considering appli- cations for grant of permission to start a school or for having an additional school in the area or the locality. Rule 3 will have to be read along with those instructions as well as the various particulars which have to be filled up in the prescribed form. If cls. (1) and (2) of r. 3 are interpreted having due regard to the various other matters, referred to above, the District Committee has got ample guidance to decide the need of a particular locality to have a school or an additional school as also the further question regarding the competency and reliability of the management. There will be sufficient material before the District Committee to consider whether the starting of a school or an additional school into a particular area or locality will involve any unhealthy competition. In view of the clear and detailed guidance furnished not only by r. 3 but also by the instructions contained in the circular letter dated October 5, 1965, it is clear that there is no- ambiguity in. either. cls. (1) or (2) of r. 3. In considering the question of vagueness the High Court has not adverted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the conclusions arrived at by the District Committee, which were accepted by the Deputy Director of Education were not based upon particulars furnished in the application. Coming to the application filed by the writ petitioner Special Civil Application No. 421 of 1966 which is the subject matter of Civil Appeal No. 161 of 1968. we have already referred to the fact that-the said society merely made a request for opening a school by means of a letter dated October 29. 1965. Admittedly the applicant did not comply with the requirement of r. 2.1 Of the Code that the application should be in the prescribed form. No doubt, later on ' on November 3, 1965 the said society sent a fresh application in the prescribed form, but this was not within the period mentioned in r. 2.1 of the Code. So the said writ petitioner did not comply with r. 2.1 read along with the press note and the circular letter, referred to above. That clearly shows that the application filed by the writ petitioner was not in the first instance in the prescribed form and that when it was sent in the prescribed form it was beyond time. Further, we have also referred to r. 86.2 which specifically says that the school ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aborately referred to the various matters mentioned by the third respondent in his application and also to the recommendation made by the District Committee. The District Committee had recommended permission being granted to the third respondent on the ground that the management had very good experience in running schools and that it was also financially sound. It was also stated that at the place in question even when the writ petitioner was conducting a school with standards V to X, there was another school run by the Zila Parishad with standards V to VII. It was pointed out by the State that the population in the area demanded additional school with standard VIII onwards and it was an absolute necessity. They had also given details regarchng the long experience that the third respondent bad in running schools in several places as also the soundness of its financial position. Before the High Court the attack made by the writ petitioner was slightly different from that of the other two writ petitioners in Special Civil Applications Nos. 420 and 421 of 1966. The attack on the grant of permission to the third respondent was made by this writ petitioner really based on cls. (1) and ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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