TMI Blog1988 (9) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... dents on their merits on the basis of the earlier order passed in their favour under Ex. P-4 dated 4-2-87. The State of Kerala, feeling aggrieved with the judgment of the Division Bench, has preferred these appeals. Pursuant to the State Government publishing in the Gazette a final list of areas where new unaided recognised high schools/upper primary schools/lower primary schools are to be opened or existing unaided lower primary schools/upper primary schools are to be upgraded in the year 1986-87, the respondent educational agencies submitted applications for grant of sanction to open new unaided recognised schools or for upgrading the schools already run by them. By 4-2-87, the State Government issued an order under Ex. P-4 granting sanction to the respondents to open new unaided schools or to upgrade their existing schools subject to the conditions set out therein. However, by an order under Ex. P-5 dated 20-2-87, the Government directed the earlier order under Ex. P-4 to be kept in abeyance. The respondents challenged the order of the Government by means of petitions under Article 226 of the Constitution. During the pendency of the writ petitions, the general elections were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d schools do not receive any financial aid from the Government though they are bound to impart instruction only according to the prescribed curriculum of studies and they can have recognised standards or divisions of classes only in accordance with the Act and the Rules. Section 3(3) sets out that the Government may provide PG NO 99 educational facilities by (a)establishing and maintaining schools or (b) permitting any person or body of persons to establish and maintain aided schools or (c) recognising any school established and maintained by any person or body of persons. Section 3(4) confers deemed recognition to all the schools which were in existence when the Act came into force. Section 3(5) stipulates that after the commencement of the Act, the establishment of a new school or the opening of a higher class in any private school shall be subject to the provisions of the Act and the Rules made thereunder and that if any school or higher class is established or opened otherwise than in accordance with the provisions of the Act and the Rules, they will not be entitled to be recognised by the Government. Section 9 provides that the Government shall pay the salary of all teachers i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut modification and forward it to the Director within a month from the last date of the receipt of the recommendation of the Director. The list shall be finalised before the end of July by the Government and shall be published by the Director. 2(5). No appeal or revision shall lie against the final list Published by the Director Provided that the Government may, either suo moto 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 finalising 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 account while finalising 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 representations against such modification. Then comes Rule 2A which is an important provision and requires close scrutiny. Rule 2A(1) provides that after the publication of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of permission to open new schools. The rule provides that if the Government are satisfied that permission to open the schools included in the development plan may be granted, the Government may issue orders to that effect through the Director specifying (i) the educational agency to whom permission i9 granted, (ii) the grade of the school, (iii) the standard or standards to be opened, (iv) the location of the school, (v) the date from which the school should start functioning and (vi) the conditions to be fulfilled by the educational agency in respect of the site, area, buildings, equipments, staff, financial guarantee etc. Rule 14 provides that when a new school is opened with permission granted under Rule 11, the District Educational Officer and the Director should be informed of the date of opening of the school the location the standards opened, the name and qualifications of the PG NO 102 staff etc. etc. The District Educational Officer should then visit the school and report to the Director about the conditions stipulated for opening the school being complied with. Rule 15 provides for withdrawal of permission if the conditions stipulated have not been fulfilled. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal decision and caused their decision to be published in the Gazette on February 4, 1g87. As per the Gazette notification, the Government granted sanction for the opening/upgrading of 36 lower primary schools, 36 upper primary schools and 19 high schools, totalling in all 91 schools in the list of areas selected. This Gazette PG NO 103 notification has been marked as Ex. P-4. The names of all the respondents found a place in the notification and they were granted permission to open/ upgrade unaided schools. The order reads as under: Government are pleased to accord sanction to open/ upgrade unaided recognised schools as detailed in Annexure to the Government Order subject to the following conditions. 1. The schools will be permitted to be opened during the academic year 1986-87 ....... 2. For L.P. Schools and U.P. Schools without L.P. Scction, the educational agencies must provide one acre of land; for U.P. School with L.P. Section 1.5 acres of land; and for High Schools with or without primary section 3 acres of land. Recognition will be given only to the educational agency who produce evidence before the concerned controlling authority of having provided the required s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed schools will be upgraded or sanctioned during 1987-88 also. The learned single judge who heard the writ petitions filed by the respondents took the view that while it was obligatory for the Government to follow the procedure prescribed in Rules 2 and 2A of Chapter V of the Rules, if it was to permit the opening of new unaided recognised schools or the sanctioning of upgradation of existing schools, the converse result would not follow i.e. wherever the Government had gone through the exercise of the procedure laid down in Rules 2 and 2A, the Government could not retrace its steps and was bound to proceed further in the matter of the opening of new schools or upgrading of existing schools and that the Government had no option to reverse its decision. In so far as the Government's power to revoke an order of sanction made under Rule 2A(5) is concerned, the learned judge held that the Government's power to sanction new schools also carried with it an inherent right of cancellation of an order passed under Rule 2A(5). The learned judge saw justification for the cancellation order being passed by the Government on another ground also viz. that the sanction for opening of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act X of 1897) to add, amend, vary, or rescind the notifications. The learned counsel further stated that the respondents would get the status of 'aggrieved persons' and acquire locus standi to question any order of revocation passed by the Government only if they had been granted permission under Rule l1 to open new schools and not before as they would acquire legitimate expectation rights only after satisfying the requirements of Rule 11. Proceeding on the same lines, the learned PG NO 106 counsel stated that the Government had not indulged in any adjudicative process nor had the Government violated any provisions of the Act or Rules or even the principles of natural justice and, as such, the writ petitions did not B present any justiciable issue for consideration by the Court. The last submission made was that the cancellation order did not suffer either from the vice of non-application of mind or the permeation of irrelevant grounds. Controverting the arguments of the appellant's counsel, Dr. Chitale, Mr. Krishnamurthy Iyer and Mr. K.K. Venugopal, learned Sr. Advocates appearing for the respondents contended that the decision rendered by the Division Bench is ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or newly upgrading their existing schools. Coming now to the stages which should be gone through, there are five stages as set out by the Division Bench and which enunciation is accepted by the learned counsel for the appellants as the correct position. The first stage consists of the Government going through the exercise under Rule 2 culminating in the Government publishing under Rule 2(4) the localities where new schools are to be opened or existing schools are to be upgraded. The second stage consists of the Government calling for applications under Rules 2A(1) from intending applicants for opening new schools or for upgrading the existing schools in the areas specified and taking a final decision and publishing the list of approved applicants in the Gazette under Rule 2A(5). Then comes the third stage when the applications are subjected to more detailed scrutiny under Rule 11 regarding the fulfilment of conditions set out in Rule 9 and the drawing up of the order setting out the name of the educational agency, the grade of the school, the standards to be opened, the location and the date of opening of the school etc The fourth stage is envisaged under Rule 14 and it consists ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents have opened new schools or upgraded their existing schools at the approved localities on 2.6.1986 itself i.e. even before the final list of approved areas under Rule 2(4) was published on 24.6.1986 and the sanction order under Ex. P-4 was published on 4.2.1987. The question however will be whether by reason of the opening of the schools prematurely, the respondents stand forfeited of their right to question the cancellation order under Ex. P- 7. We think not. This is because Section 3(5) of the Act PG NO 109 does not totally ban the establishment of a new school or the opening of a higher class but only states that if any school or higher class is opened without following the procedure, then such new school or higher class will not be entitled to recognition by the Government. It will not therefore, be per se a contravention of the Act and the Rules if an educational agency started a new school or opened a higher class without following the provisions of the Act and the Rules and the only disqualification it would suffer is its disentitlement to Government's recognition. That apart the order of cancellation is not challenged by the respondents on the ground they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existing schools, distance factors and the educational needs of the locality with reference to the habitation and backwardness of the area etc. Besides publishing the tentative list, the Director has to call for representations and objections from interested parties and they have to be duly considered by the Educational Officers of the locality and then by the Director himself and eventually the Government itself has to apply its mind to the selection of areas and then cause the final list to be published. The proviso to Rule 2(5) grants only limited powers of modification to the Government viz. to alter the list here and there and not to scrap it outright. Even the power of modification can be exercised only after giving the affected parties an opportunity to make representations against the proposed modification. The selection of approved areas becomes final once the list is published under Rule 2(4), with or without modification and the finality is not contingent upon further approval under Rule 9. What Rule 9 itself provides for is the grant of permission to applicants approved under Rule 2A(5) to open new schools depending upon the applicant subjectively satisfying the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns made by mere speculators or adventurers. On the contrary the applications carry with them a certain amount of legitimacy in that they pertain to opening of schools in the inadequately served areas notified by the Government and are made in response to the Director's notification calling for applications. In fact Rule 12 confers a right of revision on those applicants whose applications for the opening of new/upgraded schools are not included in the list of approved applicants published by the Government under Rule 2A(5). Thus when even an unsuccessful applicant is conferred a right to represent to Government against the non-approval of his application, can it be said that an approved applicant has no right whatever to complain when the sanction granted to him is revoked all of a sudden without he being given any opportunity to show cause against such cancellation. It is significant to note that the Rules do not provide for the revocation or cancellation of a final list published under Rule 2A(5) and that the right of cancellation is given to the Government only if the approved applicant fails to satisfy the conditions laid down in Rule 9 and thereby becomes disentitled to ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... someone is dismissed from a public office. But in other cases the person affected may have no more than an interest. a liberty or an expectation. An applicant for a licence, though devoid of any legal right to it, is as a general rule, entitled to a fair hearing and to an opportunity to deal with any allegations against him. The holder of a licence who applies for its renewal is likewise entitled to be fairly heard before renewal can be refused. So also is a race goer before he can be put under a statutory ban against entering a public race course. In none of these situations is there legal right, but they may, involve what the courts sometimes call legitimate expectation '. This expression furnishes judges with a flexible criterion whereby they can reject unmeritorious or unsuitable claims. It was introduced in a case where alien students of scientology were refused extension of their PG NO 113 entry permits as an act of policy by the Home Secretary. The Court of Appeal held that they had no legitimate expectation of extension beyond the permitted time, and so no right to a hearing, though revocation of their permits within that time would have been contrary to legitimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could go back on the matter and cancel the sanction order and that too without giving the respondents any hearing at all. In the course of the arguments Mr. Poti laid stress upon the fact that while Rule 9 lays down several conditions for being fulfilled before permission can be granted under Rule 11 to an educational agency to start a new school or upgrade a school, the order made under Rule 2A(5) makes mention of only one of the several conditions being noticed by the Government viz the provision of land for the proposed school and as such the order, despite the use of the word sanction can by no stretch of imagination be considered as an order which conferred rights upon the respondents and therefore it was futile for the respondents to say that legally enforceable recognition had been given to them to open schools in the selected areas. Going a step further Mr. Poti said that in many cases even the solitary factor noticed by the Government viz the provision of land for the proposed school had not been adequately satisfied and this shortcoming has been referred to in the alleged sanction order passed under Rule 2A(S). Going to the other end, Mr. Iyer and Dr. Chitale tried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgued that the identification and selection of poorly served areas in the matter of educational facilities under Rule 2 was only an administrative exercise in order to restrict the number of applications for opening new schools within manageable limits and that the real test of selection of the areas began only when the applications were processed under Rule 9. It was likewise urged that though the Government was bound to implement the Directive Principles contained in Article 41 of the Constitution in the matter of providing educational facilities, the obligation was subject to the limits of the economic capacity of the Government and as such the Government cannot be compelled by any educational agency or even by the Court to open new schools unmindful of the financial burden that would be cast on the State by the opening of such schools. The last submission made in this behalf was that the revocation order passed under Ex. P-7 was not in pursuance of any adjudication of the rights of the applicants but to make known the revised policy of the Government which was taken after considering several relevant factors such as the inadequate resources of the applicants in providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant whose name did not find a place in the final list of approved applications published by the Government. In so far as the argument that the Government cannot be compelled by any educational agency or by the Court to incur additional financial burden by opening new schools, or new classes is concerned, we have to point out that the argument in the present context has no force because all the applications that were approved pertained to the opening of unaided schools. Therefore, there is no question of the Government being put to additional financial burden due to the opening of new schools in the selected areas. Moreover, the sanction order under Ex. P-4 specifically provided that the applicants for opening of the schools or upgradation of the schools shall give an undertaking as provided under note (v) to Rule 11 Chapter (V) of the K.E.R. The undertaking referred to above is for ensuring that the approved applicant shall not move the Government at any time for the conversion of the school into an aided school and clause (b) of Rule 11 further provides that if any application is made for conversion into an aided school, the permission granted for opening of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made. The contention was upheld by the High Court and also by this Court after over ruling the plea that once notification was made under Section 4(1), the Government PG NO 118 could issue successive notifications under Section 6 as long as the notification under Section 4(1) was not withdrawn by the Government in exercise of its powers under Section 48. In repelling this contention, the Court incidentally observed that the argument that the only way in which the notification under Section 4(1) can come to an end is by withdrawal under Section 48(1) is not correct because under Section 21 of the General Clauses Act the power to issue a notification includes the power to rescind it and therefore it is always open to the Government to rescind a notification under Section 4 or under Section 6 and a withdrawal under Section 48(1) is not the only way in which a notification under Section 4 or Section 6 can be brought to an end. In Lt. Governor v. Avinash Sharma, (supra) the Government caused a notification under Section 4 of the Land Acquisition Act to be made on March 31, 1964 and followed the same by a composite notification on May 16, 1964 under Section 6, 17(1) and (4). Then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opening a new unaided school or a higher class in an existing unaided schools and passes an order under Rule 2A(5), then the successful applicant acquires a right of legitimate expectation to have his application further considered under Rules 9 and 1 l for the issue of a sanction order under Rule 11 for opening a new school or upgrading an existing school. It is no doubt true, as pointed out by the Division Bench, that by the mere grant of an approval under Rule 2A(5), an applicant will not acquire a right to open a new school or to upgrade an existing school but he certainly acquires a right enforceable in law to have his application taken to the next stage of consideration under Rule l l. The Division Bench was, therefore, right in taking the view that the general power of rescindment available to the State Government under Section 20 of the Kerala General Clauses Act has to be determined in the light of the subject matter, context and the effect of the relevant provisions of the statute. For the aforesaid reasons the fourth contention of Mr. Poti has also to fail. The last contention of Mr. Poti was that the Division Bench of the High Court ought not to have issued writs u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the approved applications to be published. Any applicant whose name is not included in the approved list can file a revision to Government under Rule 12 and seek redressal of his grievance. Therefore it follows that if an application is approved and sanction is granted under Rule 2A(5), the applicant acquires a justiciable right to have his application considered at the next level of determination under 9 and Rule 11. To take any other view of the matter would run counter to the Rules in Chapter V and the legislative intent underlying them. In so far as many of the respondents not possessing the required extent of land or the type of building or the amount of finance etc. for opening a new school, it is always open to the Government when scrutinising the applications in the context of Rule 9, to refuse grant of permission to those applicants and reject their applications. By the judgment of the Division Bench, the right of the State Government to pass appropriate orders under Rules 9 and 11 have not been taken away. As regards the contention that the sanction granted under Ex. P-4 on 4.2.87 was almost at the PG NO 121 close of the academic year and as such the order could not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... institution and that if such conversion is sought for, then the recognition granted earlier will automatically lapse. Over and above all these things, it is inconceiveable that by the opening of 1 unaided schools, new or upgraded, even assuming all of them are granted permission under Rule 11, the impact on the pupil strength of division strength the existing government and aided schools will be so great as to cause a large number of teachers being rendered surplus and the Government PG NO 122 being forced to incur heavy expenditure by treating them as protected teachers and paying them their salary. We are, therefore, in complete agreement with the Division Bench that these factors are undoubtedly extraneous ones and do not afford justification for the passing of the impugned order Ex. P-7 for revoking the earlier sanction order Ex. p-4. Hence the last contention also fails. In the light of our reasoning and conclusions, our answers for the three questions formulated by us are as under: (1) Though the sanction granted to the respondents under Ex. P-4 would not by itself entitle them to open new schools or upgrade the existing schools, it did confer on them a right to seek the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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