PETITIONER: STATE OF MAHARASHTRA & ANR. Vs. RESPONDENT: LOK SHIKSHAN SANSATHA & ORS. DATE OF JUDGMENT26/07/1971 BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. SIKRI, S.M. (CJ) MITTER, G.K. REDDY, P. JAGANMOHAN DUA, I.D. CITATION: 1973 AIR 588 1971 SCR 879 1971 SCC (2) 410 ACT: Education-Grant-in-aid System, r. 3(1) and (2)-If vague or ambiguous-Executive instructions. Constitution of India, 1950, Arts. 14, 226 and 358-Jurisdiction of High Court in relation to policy of giving grants to educational institutions. Grant-in-aid Code if violative of Art. 14. Period of Emergency-Article 358 if protects Executive instructions from attack under Art. 19. HEADNOTE: The grant-in-aid system was introduced in 1859 and its main object was to permit voluntary effort and reliance on local resources in the field ,of education apart from such contributions as may be available from the funds of the State. After the re-organisation of the State of Bombay a unified code of grant-in-aid to non-government secondary schools throughout the State was introduced by the State from the year 1963-64. Under r. 2(1) an application for permission to start a secondary school has to be made in the prescribed form and such application has to reach the prescribed authorities by the end of October in the year preceding the year in which the school was proposed to be started. Under r. 2(2) the management which was permitted to open a school has so apply for recognition of the school and under r. 3, a school seeking recognition shall satisfy the Department that the school was actually needed in the locality that it did not involve any unhealthy competition with any existing institution and that the management was competent, reliable and was in the hands of a properly constituted authority or committee. Under r. 3(3) one of the conditions which has to be satisfied is regarding the financial stability of the proposed school. Other conditions which had to be satisfied by a proposed school are enumerated in the remaining 13, clauses of the rule. Rule 86(2) provides that schools which are not registered under the Societies Registration Act, would not be eligible for grant. On October 6, 1965, the State issued a press-note calling attention of all the managements intending to start new secondary schools to the relevant provisions of the Code. It was also stated that applications received for starting new schools would be scrutinised and considered by the District Committee comprising of the Chairman of the Education Committee, Zila Parishad Parishad Education Officer and a member of the Secondary School Certificate Examination Board, Poona, or Vidarbha Board of Secondary Education, Nagpur, that is, by persons who were familiar with the conditions prevailing in the particular areas, and the requirements in the area for a new or additional school, and that permission to start a new school would be communicated to the applicants concerned by the Deputy Director of Education of the region by the end of February. The applicants were also informed that the appeals to the Government against the orders of the Deputy Director of Education could be filed up to end of March, 1966. On the same date, Government sent communications for taking steps for constituting the District Committees. The State also sent a circular on the same :date to the various educational authorities stating that the Disrict Committees 880 should bear in mind, when considering the applications, the various matters, enumerated in items 1 to 14 Which related to the requirement of a school or an additional school in a particular area, its financial stability, the nature and competency of the management and several allied matters. It was obligatory on the District Committee to record its reasons in writing for recommending or not recommending a particular application, which would be considered by the Deputy Director of Education of the concerned region before granting or refusing permission to start a new school. The applications of the three applicants-societies were scrutinised by the concerned District Committees along with the applications and objections of rival applicants. In the case of the first applicant-society the District Committee recommended the rival applicant on the grounds that the applicant society had no funds but that the rival applicant was of good financial position and experience. The Deputy Director of Education accepted the recommendation and rejected the first applicants' application stating that the need of the place had been fulfilled by permitting the rival society to open a school at the place. In the case of the second applicant the Deputy Director of Education rejected the application on two grounds, namely: (a) that the application was made after the prescribed date, and (b) that the society was not registered. The appeals of these applicants to the State Government were rejected and they filed writ petitions in the High Court for striking down r. 3 of the Grant-in-aid Code. In the case of the third applicant, in spite of objections by a rival who was already conducting a school in that area the District Committee recommended the grant of permission to the applicant on the grounds that the applicant society was a good, experienced and popular society and it was also financially sound and that the population of the areas demanded as an absolute necessity an additional school from standard VIII onwards, The society which was already running a school filed a writ petition to quash the permission granted to the third applicant. The High Court struck down cls. 1 and 2 of r. 3 of the Code as violative of Arts. 14 and 19 of the Constitution and directed the educational authorities to grant permission to the first two applicants to start schools, as desired by them. It dismissed the writ petition filed for quashing the permission granted to the third applicant. The High Court also made certain observations regarding the policy that should be adopted by the educational authorities in the matter of permitting the starting of a new school or an additional school in a particular area. In appeals to this Court, HELD:(1) The High Court had misunderstood the nature of its jurisdiction when dealing with the claims of the first two applicants. It was not for the High Court to lay down the policy that should be adopted by the educational authorities in the matter of granting permission for starting schools. The question of policy is essentially for the State and such policy will depend upon an overall assessment of the requirements of the residents of a particular locality and other categories of persons for whom it is essential to provide for education. If the overall assessment is arrived at after proper classification on a reasonable basis, it is not for courts to interfere with the policy leading up to such assessment. [887E-H] (2)Clauses (1) and (2) of r. 3 are not vague or ambiguous in any respect. They should not be considered in isolation. If they are interpreted having due regard to the various other matters contained in other clauses of the rule and the detailed instructions contained. 881 of the rule and the detailed instructions contained in the circular letter, the District Committee had ample guidance for deciding the need of a particular locality to have a school or an additional school, as also the further questions regarding the competency and reliability of the management. [895D-E; F-H] (3)The provisions of the Code are executive instructions and are in the nature of administrative instructions without any constitutional force. The State Government was competent to issue those executive instructions for the guidance of the educational authorities dealing with the applications for grant of permission to start schools, and they are perfectly valid. The applications in the present case were considered during the period when the Proclamation of Emergency was in operation. Article 19 could not therefore be invoked by the first two applicants and the view of the High Court that Art. 358 did not save the two clauses of r. 3 was erroneouse. [888A-B; 892C-E] (4)(a) The High Court erred in striking down the two clauses on the ground that unless a school was started in accordance with the rules contained in the Code they would not be recognised by the Secondary School Boards and students studying in such schools would not be able to appear for the examinations held by the Board and the University, and therefore, were violative of Art. 14. The provisions regarding grant of permission and recognition of schools under the Code are merely intended for the purpose of receiving grant from the Government, and are not concerned with the effect of starting a school without complying with the requirements of the provisions of the Code or in the face of refusal of permission by the educational authorities. So far as the distribution of grant to the schools recognised under the Code was concerned it was not the case of any of the applicants that such grants were being made arbitrarily or any discrimination was shown in that regard. It was also not the case of the applicants that the District Committees had acted arbitrarily, nor was it their case that the Deputy Director of Education had not based his decision on the recommendations of the District Committees. There was thus no violation of Art. 14. [892G- H; 893B-C, D-I] (b)The mere fact that there was no right provided for the applicant being heard before the application was rejected could not be a ground for holding that there was violation of the principles of natural justice. The particulars which had to be mentioned in the prescribed application form are very elaborate and complete. The provisions in the Code read along with the instructions given by the State in its circular letter referred to various relevant material factors that had to be taken into account for the purpose of deciding whether the application was to be granted or not. When all the relevant circumstances, claims and objections of the applicants and their rivals had been taken into account by the District Committees and the educational authorities there was no violation of any principle of natural justice. It was not the case of the applicants that the reasons given for rejection of their applications were not covered by the provisions contained in the Code. [893H; 894D-E] (5)The High Court erred in issuing a mandamus to the State without considering the Various reasons given by the Deputy Director of Education for rejecting the application of the first two applicants. (a)The reason given by the Deputy Director of Education with respect to the first applicant for rejecting its application was that the need of the place had been fulfilled by permitting another society to open the school at the place, on the recommendations of the District Committee. It was open to the authorities to refuse permission if the school is not in a financially sound position. [896B-D, G] 56-1 S.C.India/71 882 (b)In the case of the second applicant the reasons given were that the application was sent after the prescribed date and that the society was not registered. Therefore the rejection was on valid grounds. [897D-E] (6)In the case of the third applicant, from the mere fact that by giving it permission to open another school some of the students of the rival society's school may seek admission in the new school, could not be a ground for stating that the rival society's legal rights had been in- fringed. In granting permission to another society no extraneous or irrelevant matters had been taken into account by the District Committee or the educational authorities. The reasons given by the District Committee for granting permission were valid reasons and the High Court rightly rejected the petition of the rival society. [898G-H] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 160, 161
and 878 of 1968.
Appeals from the judgment and order dated December 2, 1966
of the Bombay High Court, Nagpur Bench in Special Civil
Applications Nos. 420 and 421 of 1966 and 694 of 1965.
Niren De, Attorney General, B. D. Sharma and S. P. Nayar,
for the appellants (in C.As. Nos. 160 and 161 of 1968).
W.S. Barlingay and A. G. Ratnaparkhi, for the appellant
(in C.A. No. 878 of 1968) and respondents Nos. 1 and 2 (in
C.A. No. 160 of 1968).
A.G. Ratnaparkhi, for respondents Nos. 1 and 2 (in C. A.
No. 161 of 1968).
M.R. K. Pillai, for respondent No. 2 (in C. A. No. 160 of
1968).
Niren De, Attorney General, B. D. Sharma and S. P. Nayar,
for respondent Nos. 1 and 2 (in C.A. No. 878 of 1968).
Bishan Narain, S. K. Bisaria and T. L. Garg, for respondent
No. 3 (in C.A. No. 878 of 1968).
The Judgment of the Court was delivered by
Vaidialingam, J.-All these three appeals, on certificate,
are directed against the common judgement and order dated
December 2, 1966 of the Bombay High Court in Special Civil
Applications Nos. 694 of 1965 and 420 and 421 of 1966.
Civil Appeals Nos. 160 and 161 of 1968 are filed by the
State of Maharashtra and the Deputy Director of Education,
Nagpur against that part of the order of the High Court
allowing Special Civil Applications Nos. 420 and 421 of 1966
after holding that cls. (1) and (2) of S. 3 of the Grant-in-
aid Code (hereinafter to be referred as the Code) are
invalid and directing the State of Maharashtra to grant
883
the petitioners in the said Special Civil Applications
permission to start schools 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 applicant stated that they proposed to spend
about Rs. 2,000 in respect of furniture, science, apparatus,
teaching ,Aids, teachers library and pupil’s library. The
break up of the figures under these heads was also given.
In col. 15 under the heading “Funds at the disposal of the
management in addition to those in col. 13 above”, the
applicant stated Rs. 5,000 only. The applicant further
stated under col. 17 that it required only a token grant in
the first year of recognition and a regular grant at the
prescribed rate from the second year. The Ashok Education
Society, Ashoknagar, the third respondent in the writ
petition, bad also applied to the educational authorities to
start a school during the same year at Anjansinghi. The
writ petitioner filed an objection dated March 8, 1966
before the Deputy Director of Education, Nagpur objecting to
the grant of permission asked for by the Ashok Education
Society, Ashoknagar on the ground that the said Society is
an outside agency. In the said petition the applicant
requested for favourable consideration of his application
already submitted, to the authorities. The District Con,’
mitee which scrutinized the applications of both the parties
recommended that the application of the writ petitioner
should be rejected as it had no funds. Another Society with
good financial position and experience was recommended by
the Committee. The, District Committee recommended that
Ashok Education Society should be granted permission as it
was a good, experienced and popular society and it was also
financially sound. The Deputy Director of Education by his
order dated April 12,1966 rejected the application of the
writ petitioner on the ground that the need
884
of the place has been fulfilled by Permitting another
society to open a school at the place. The petitioner was
further informed that in case any school is started when
permission has been refused, serious view will be taken by
the educational authorities. The writ petitioner filed an
appeal on April 21, 1966 to the State Government wherein he
prayed for withdrawing permission granted to the Ashok
Education Society, the third respondent and also requested
that permission may be granted to the applicant society to
open a school. This appeal was rejected by the Government
by its order dated 10/16th May, 1966. The applicant society
filed writ petition and prayed for 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 his communication dated November 15,
1965 forwarded the prescribed application form to the
applicant with a request to have the particulars mentioned
therein properly filled in and to submit the same
immediately. The application in the prescribed form was
sent by the applicant on November 3, 1965. In Column No. 4
under the heading ‘ whether the management is registered”
the answer given was, “no”. Under the same column to the
further query “if not, whether it is intended to get it
registered. If so when” the answer given was “within a
month”. In column 13, the expenditure proposed to be
incurred regarding furniture etc. the applicant stated that
about Rs. 800 was intended to be spent. The break up in
respect of the various items was also given. Under column
15 regarding funds at the disposal of the management, it was
stated that a sum of Rs. 5,000 was available. The third
respondent therein Swami Vivekan and Shikashan Sanstha,
Lehgaon had also made an
885
application for opening a school at Shirkhed. The applicant
filed an objection on January 5, 1966 to the grant of any
permission to the third respondent. The Deputy Director of
Education by his order dated April 11, 1966 rejected the
application of the writ petitioner on two grounds namely,
“(1) the application is after the prescribed date and (2)
the Society is not registered.” The petitioner was also
informed that if a school is started when permission has
been refused, serious view will be taken by the educational
authorities. The appeal filed by the writ petitioner to the
State Government was rejected by the latter by its order
dated May 10/16th, 1966. The applicant filed Special Civil
Application No. 421 of 1966 praying for striking down r. 3
of the Grant-in-aid Code as unconstitutional and violative
of Art. 19(1)(c) of the Constitution. The orders refusing
permission to the Society to start a school were also sought
to be quashed. A further prayer was made for directions
being issued to the authorities to grant permission to the
Society to start a second school at Shirkhed as desired by
it.
The State Government contested both the Special Civil Appli-
cations. It was pointed out that the rules contained in the
Grant in-aid Code were all executive instructions given by
the State to the educational authorities for proper guidance
in the matter of considering 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 competency and reliability of the management
inching of the school. There is further no provision in
these sub-clauses for hearing a party before the authorities
concerned take a decision in the matter of grant or refusal
of permission to start a school. The High Court is further
of the view that by such executive instructions the State is
able to prevent the two writ petitioners from carrying on
their legitimate
886
activities of running schools. The said clauses also do not
satisfy the test of being reasonable restrictions in public
interest. On this reasoning the High. Court has held that
the two clauses, namely, (1) and (2) of rule 3 are violative
of the rights guaranteed to the writ petitioners under Art.
19(1) of the Constitution. Though it was argued on behalf
of the writ petitioners that clauses (1) and (2) of r. 3 of
the Code contravene the provisions of Art. 19(1)(c) (g) and
(f), there is no clear indication in the judgment of the
High Court as to which clause of Art. 19(1) is violated. It
is the further view of the High Court that as the State has
no power to issue instructions as those contained in cls.
(1) and (2) of r. 3, Article 358 will not save those
provisions notwithstanding the fact that there was a
Proclamation of Emergency during the relevant period.
Though no attack based on Art. 14 was made in either of the
writ petitions, it is seen that during the course of
arguments, this article was relied on and it was contended
that the said two clauses of r. 3 are arbitrary as they
enable the State to discriminate between one institution and
another. The High Court in considering this contention has
held that in the matter of distribution of grant, the State
must comply with the fundamental requirements of
constitutional law embodied in Art. 14. According to the
High Court the effect of cls. (1) and (2) of r. 3 is that
apart from the fact that the such schools are not eligible
for receiving the grants, the students studying in such
schools cannot appear for examinations held by the Secondary
School Boards as the latter will not recognise such
institutions.As the students of such schools cannot take
their university education, cls. (1) and (2) of r. 3,
according to the High Court, offend Art. 14 and hence they
are invalid. After holding that cls. (1) and (2) of r. 3 of
the Code are violative of Arts. 14 and 19, the High Court
struck down those provisions 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.
887
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 the orders of
the educational authorities without considering the reasons
given by such authorities for rejecting the applications of
the two writ petitioners.
Dr. Barlingay, learned counsel for the contesting respon-
dents has supported the view taken by the High Court for
striking down -Is. (1) and (2) of r.3 of the Code. The
counsel relied on the reasons given by the High Court for
striking down the two clauses as violative of Arts. 14 and
19. The counsel further urged that though the two clauses
of r.3 in question may on the face of it appear to be
innocuous, nevertheless the application of those principles
by the- educational authorities may lead to possible
discrimination between the institutions concerned.
According to him no standards have been laid down to assess
the need of a school in a particular area. Further, there
is no criteria laid down to enable the educational
authorities to decide the circumstances under which the
starting of a new school may result in an unhealthy
competition with an existing school. The position is the
same also in regard to judging the competency and
reliability of a particular management who proposes to start
a school. The more serious ground of levelled against these
clauses (1) and (2) of r.3 by Dr’ Barlingay was that there
was no right given to an applicant for being heard before
his application is rejected by the educational authorities.
Before we deal with the above contentions advanced before us
on behalf of both sides, it is necessary to state that the
High Court in the judgment under attack has made certain
observations regarding what according to it should be the
policy adopted by the educational authorities in the matter
of permitting the starting of a new school or of an
additional school in a particular locality or area. It is
enough to state that the High Court has thoroughly
misunderstood the nature of the jurisdiction that was
exercised by it when dealing with the claims of the two writ
petitioners that their applications had been wrongly
rejected by the educational authorities. So long as there
is no violation of any fundamental rights and if the
principles of natural justice are not offended, it was not
for the High Court to lay down the policy that should be
adopted by the educational authorities in the matter of
granting permission for starting schools. The question of
policy is essentially for 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.
888
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 local resources in the
field of education apart from such contributions as may be
available from the funds of the State. After the States re-
organisation took place, in order to bring about uniformity
in the matter, the State of Bombay appointed in 1958 an
Integration Committee for Secondary Education to examine the
different Education Codes and administrative practices in
force at the secondary stage in the various regions which
were added to the State of Bombay under the states orga-
nisation and to make proposals for a unified system of
Secondary Education as well as the assistance to be given to
non-government Secondary schools.’ The Committee submitted
its report in 1959. In December, 1960 the Government of
Maharashtra appointed a Committee comprised of officials and
non-officials to- suggest a unified code for consideration
of the Government. A revised Draft Code was submitted by
the Committee to the Government in or about August, 1961.
The Secondary Schools Code, with which we are now concerned
was framed by the Government as a common code for the
recognition of and grant-in-aid to nongovernmental secondary
schools throughout the State. The said Code came into force
with effect from the year 1963-64. Chapter 11 related to
recognition and grant-in-aid. Rule 1 dealing with,
recognition provided that secondary schools may be
recognised by the Department provided they conform to the
rules contained in the Code. Rule 2 dealt with the matters
relating to the applications for starting and recognition of
schools. Under r. 2.1 an application for permission to
start a secondary school has to be made in the form given in
appendix 1 (1) of the Code to the authorities referred to
therein and such; applications have to reach those
authorities by the end of October, in the year preceding the
year in which the school is proposed to be started. The
said clause further provided that no school should be
started unless the written previous permission of the
Department had been obtained and that the schools started
without such permission shall not
889
ordinarily be considered for recognition. Under r. 2.2, the
management which is permitted to open a school has to apply
for re,cognition of the school in the form given in appendix
1(2) of the Code within one month of the opening of the
school.
Rule 3 which consists of 16 clauses deals with the
conditions of recognition. The 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
“Proprietary schools (i.e. schools not
registered under either the Societies’
Registration Act XXI of 1860 or the Bombay
Public Trust Act, 1950 or any other Act that
may be specified by Government and communal
schools will not be eligible for any kind of
grant from public funds.”
At this stage we may mention that the provisions contained
in r. 2.1 that an application for starting a Secondary
School has to be in the form given in appendix 1 (1) of the
Code and that the application should reach the educational
authorities within n the further provision under
890
r.86.2 that the schools which are not registered under
the Societies Registration Act, will not be eligible for
grant, win have a considerable bearing when considering
Civil Appeal ‘No. 161 of’ 1968,
On October 6, 1965 the State of Maharashtra issued a press,
note, copies of which were sent to all the educational
authorities. The Director of Publicity was also directed to
give wide publicity to the press note by publishing the same
in all the Dailies in the cities and districts. By that
press note the attention of all the managements intending,to
start new Secondary Schools was drawn to the provisions
contained in r. 2 of the Code regarding the applications
being. made in the prescribed form to the concerned office
and to the applications being made sufficiently early so as
to reach the authorities concerned at the latest by the end
of October. in the year preceding the year in which the
school is proposed to be started. It was further stated in
the press note that the applications received for starting
new schools will be considered by the District Committee
comprising of the Chairman of the Education Committee, Zila
Parishad, Parishad Education Officer and a member of the
Secondary School Certificate Examination Board, Poona or
Vidarbha Board of Secondary Education, Nagpur and that
permission to start new schools will be communicated to the
applicants concerned by the Deputy Director of’ Education of
the region by the end of February, 1966. The proposed
applicants were also informed that appeals to the Government
against the orders of the Deputy Director of Education can
be filed upto the end of March;, 1966. This press note
emphasised: (a) that the applications be made in the
prescribed form and (b) that the applications should be
received by the educational authorities at the 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’
891
the district concerned, the Deputy Director of Education of
the region’ and the Director of Education, Poona under
intimation to the Government.
The State also sent a circular dated October 5, 1965 to the
various educational authorities drawing their attention to
r. 2 of the Code. They were also informed that the
Government had directed that the applications for opening
new secondary schools should be considered by the District
Committee comprised of the various persons mentioned
therein. It was further stated that the District Committee
should bear in mind when considering the applications, the
various matters enumerated as item Nos. 1 to 14. Those
various matters to be taken into account relate to the
requirement of a school or an additional school in a
particular area, its financial stability, the nature and
competency of the management and several allied matters. It
was obligatory on the District Committee to record its
reasons in writing for recommending or not recommending a
particular application. In paragraph 4 of the circular it
was stated that permission to start a new school may be
granted by the Deputy Director of Education of the concerned
region after taking into consideration the recommendations
of the District Committee and with the prior approval of the
Government. The educational authorities were also directed
to dispose of the applications within the period mentioned
in the circular.
From the relevant provisions of the Code read with the press
note and the circular referred to above, it is clear that
though the applications are made to the educational
authorities, they are not disposed of by those authorities
or their own individual discretion. On the other hand, it
is clear that the applications are dealt with by the
District Committees, whose members are familiar with the
conditions prevailing in particular areas or localities and
who also are in the know of things regarding the requirement
of a new or an additional school in the particular areas.
It is really on the basis of the recommendations made by
such Committees that the educational authorities take a
decision one way or the other.
After having cleared the grounds, as stated above, we will
now deal with the contentions of the learned Attorney-
General. The learned Attorney-General is well-founded in
his contention that the High Court was not justified in
invoking Art. 19 in the circumstances of this case. We have
already given the relevant dates when the applications 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
892
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
Government was competent to issue those executive
instructions for the guidance of the educational authorities
dealing with applications for grant of permission to start
schools. If so, it follows that the view of the High Court
that Art. 358 does not save cls. (1) and (2) of r. 3 is
erroneous. In this view Art 19 could not have been invoked
by the writ petitioners during the period when the
Proclamation of Emergency was admittedly in operation. As
Art. 19 is thus out of the picture, the question whether
cls. (1) and (2) of r. 3 impose reasonable restrictions and
are thus saved, does not arise for consideration. We may
state that Dr. Barlingay found considerable difficulty in
supporting the judgment of the High Court on this aspect in
the face of Art. 358 of the Constitution. This disposes of
the first and second contentions of the learned Attorney-
General.
Coming to Art. 14, it is accepted by the High Court that the
writ petitioners did not make in their petitions any attack
on cls. (1) and (2) of r. 3 based upon the said article. It
was only during the course of arguments that Art. 14 appears
to have been invoked. The High Court struck down the two
sub-clauses on the ground that unless a school is started in
accordance with the rules contained in the Code, they will
not be recognised by the Secondary School Boards and the
students studying in such schools cannot appear for the
examinations held by the Board and the University. The
approach made by the High Court in our view in this regard
is erroneous. The provisions regarding grant of permission
and recognition of schools under the Code are mainly
intended for the purpose of receiving grant from the
Government. We are not concerned in these proceedings
regardIng the effect of starting a school without complying
with the requirements of the provisions of the Code or in
the face of refusal
893
of permission by the educational authorities when such
schools so started do not require or receive any grant from
the State. That problem does not arise for consideration
before us. Hence we do-not think it necessary to refer to
the provisions of the Maharashtra Secondary Education Board
Regulation, 1966, the effect of which may be that no student
having education in a school for the starting of which no
permission has been given or such permission has been
refused, may not be able to appear for the examinations held
by the Boards 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 factors contained not only in the Code
but also specifically emphasised in the circular letter of
the Government dated October 5, 1965. It is only on the
basis of the recommendations made by those Committees, that
the educational authorities take a decision regarding the
grant or refusal of permission to start a school. The
District Committees are also bound to record their reasons
in writing for recommending or not recommending the
application. An appeal lies against the order passed by the
Deputy Director of Education to the Government. It is not
the case of any of the writ petitioners that the District
Committees have acted arbitrarily. Nor is it their case
that the Deputy Director of Education of the region has not
based his decision on the recommendations of the District
Committees. We are not satisfied that there is any
violation of Art. 14.
From the mere fact that there is no right provided for
the appellant being heard before his application is
rejected, it cannot be held that there is a violation of the
principles of natural justice. On the other hand, it is
seen that the District Committees have considered the claims
of the writ petitioners as well as of the respective third
respondents therein and recommended to the
894
educational authorities that the claims of the latter are to
be accepted. The reasons for rejection of the applications
have also been given in the orders passed by the educational
authorities.
When all the relevant circumstances have been taken into
account by the District Committee and the educational autho-
rities, there is no violation of any principle of natural
justice merely for the reason that the applicants were not
given a hearing by the educational authorities before their
applications weren’t ejected. The particulars which have to
be mentioned in the prescribed application form are very
elaborate and complete. The provisions in the Code read
along with the instructions given by the State in the
circular letter dated October 5, 1965 refer to various
relevant and material factors that had to be taken into
account for the purpose of deciding whether the application
is to be granted or not. As we have already pointed out, it
is not the case of any of the writ petitioner that these
relevant factors have not been considered by the District
Committees. Nor is it their case that the reasons given for
rejection of the applications 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) of r. 3 are executive
instructions, two questions arise, namely, (1) whether the
High Court was justified in striking down such executive
instructions even assuming that those instructions were
vague and (2) whether the said clauses are vague. The
learned Attomey-General invited our attention to the two
decisions of this Court reported in State of Assam and
Another v. Ajit Kumar Sharma and others(1) and Municipal
Committee, Amritsar and another V. State of Punjab and Ors.
(1)
(2) [1969] 3 S. C. R. 447.
(1) [1965] 1 S.C.R. 890.
895
In the first decision this Court has laid down that where
conditions for receiving grant-in-aid are laid down by mere
executive instructions, it is open to a private institution
to accept those instructions or not to accept them. That is
a matter entirely between the Government and the private
institution concerned. In the second decision it was laid
down that “the rule that an Act of a ,competent legislature
may be “struck down” by the Courts on the ground of
vagueness is alien to our Constitutional system…… A law
may be declared invalid by the superior Courts in India if
the Legislature has no power to enact the law or that the
law violates any of the fundamental rights guaranteed in
Part III of the Constitution or is inconsistent with, any
constitutional provision, but not on the ground that it is
vague…….. Based upon these two decisions, the learned
Attomey-General urged that even on the basis that the two
sub-clauses in question are vague, they could not have been
struck down on that ground. Alternatively, his further
contention is that those clauses are not vague. We do not
think it necessary to go into the question whether the
courts have got powers to strike down even executive
instructions on the ground of their being vague when such
executive instructions are admittedly issued by the
authorities concerned for the guidance and for being acted
upon. We express no opinion on that point in these
proceedings. We are of the view that the two clauses in
question are not vague or ambiguous in any respect. The
fallacy committed by the High Court consists in considering
cls. (1) and (2) of r. 3 in isolation. We have already
pointed out that r. 3 of the Code consists of as many as 16
clauses, which are conditions to be fulfilled for
recognition being accorded. We have also referred to the
circular letter dated October 5, 1965 issued by the State
Government enumerating 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 to the various matters.
896
referred to by us earlier. Therefore. we are of the opinion
that the striking down of cls. (1) and (2) of r. 3 by the
High Court as being vague, is erroneous.
The last contention of the learned Attomey-General which is
on merits is that without considering the reasons given by
the Deputy Director of Education for rejecting the two
applications of the two writ petitioners, the High Court has
issued a mandamus to the State to grant permission to those
two applicants. In our opinion, this contention is also
well-founded. The application of the petitioner in Special
Civil Application No. 420 of 1966 which is the subject
matter of Civil Appeal No. 160 of 1968 was rejected by the
Deputy Director of Education on the ground that the need of
the place has been fulfilled by permitting another society
to open the school at the place. The appeal filed to the
State Government was unsuccessful. In the counter-affidavit
filed by the State in the writ petition they had
categorically referred to the recommendations of the
District Committee on the applications filed by the said
writ petitioner as also the third respondent therein.
Regarding the writ petitioner the report of the District
Committee was that it had no funds and that it was
recommending another society with good financial position
and experience. In this view the District Committee stated
that it was not recommending the writ petitioner for the
grant of permission. On the other hand, the District
Committee recommended the application of Ashok Education
Society, Ashoknagar (third respondent) on the ground that it
was financially sound and it was a very good and experienced
society and that it was also a popular society. For these
reasons the application of this society was recommended to
be granted by the District Committee. It was on the basis
of this recommendation of the District Committee that the
Deputy Director of Education rejected the application of the
writ petitioner and granted permission to the third
respondent therein. The applications of both the writ
petitioner and the third respondent were before the District
Committee. The High Court has not found fault with these
recommendations. On the other hand it has held that it is
open to the authorities to refuse permission if the school
is not in a financially sound position. The writ petitioner
also was not able to satisfy us that 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
897
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 schools
which are not registered under the Societies Registration
Act, will not be eligible for any kind of grant from the
public funds. Even in the application filed by the writ
petitioner in the prescribed form on November 3, 1965, it
was stated under head No. 4 that the management was not
registered and that it intends to get itself referred within
a month. So apart from two infirmities, pointed out above,
there was this additional infirmity of nonregistration.
Even on the date when the appeal was filed to the State
Government on April 26, 1966, the society was not regis-
tered. As admitted by the said society in its writ
petition, it was registered under the Societies Registration
Act, 1860, only on April 27, 1966. The order dated April
11, 1966 of the Deputy Directorof Education rejecting
the application was based on two grounds:(a) that the
application was sent after the prescribed date and(b) that
the society was not registered. That these two reasons are
valid is clear from the facts mentioned above. The appeal
taken to the State Government was unsuccessful. From the
above circumstances it is clear that the rejection of the
application was on valid grounds. The High Court, so far as
we could see, has not found that these reasons are not based
on the materials on record. No such contention has also
been taken before us by the said writ petitioner. If so, it
follows that the order of the High Court directing the State
Government to issue permission to the two writ petitioners
ignoring the above circumstances is clearly erroneous.
From what is stated above, the judgment of the High Court
allowing Special Civil Application Nos. 420 and 421 of 1966
cannot be sustained.
Coming to appeal No. 878 of 1968, the facts lie within a
very narrow compass. For the year 1965-66, the third
respondent in Special Civil Application No. 694 of 1965, out
of which the appeal arises, had made an application on
October 29, 1964 for starting a new school at Sakharkherda
during the year 1965-66. The writ petitioner filed
objections to the grant of permission to the third
respondent. On the recommendation of the District
Committee. the third respondent was allowed to open
standards VIII and IX
898
with one division only during the year 1965-66. The writ
petitioner was filed to quash the permission granted to the
third respondent. The State Government in its counter-
affidavit has very elaborately 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 (2) of r. 3. According to the writ petitioner
the locality was not in need of any additional school as it
will involve unhealthy competition. The High Court rejected
the writ petition on the ground that the petitioner therein
cannot make any grievance of the grant made to the third
respondent to start a school after a proper consideration of
the merits of the claim of the latter.
Dr. Barlingay, learned counsel for the writ petitioner, who
is appellant in this appeal, found considerable difficulty
to satisfy us that any legal rights of the appellant herein
had been infringed by grant of permission to the third
respondent. We have already referred to the fact that the
State has pointed out that even when the writ petitioner was
running a school with classes V to X, the Zila Parishad was
running another school in the same area with classes V to
VII. The State had also pointed out that the population of
the area demanded an additional school. From the mere fact
that by the opening of another school, some of the students
of the appellant school may seek admission in the new school
it cannot be stated that any of the appellant’s legal rights
have been infringed. Dr. Barlingay has not been able to
satisfy us that in granting permission to the third
respondent any extraneous or irrelevant matters have been
taken into account by the District Committee or the
educational authorities. Nor was he able to satisfy us that
the reasons given by the District Committee for the grant of
permission to. the third respondent on the ground
899
that it had a long experience in running schools and that
its financial position is also good, are erroneous. If so,
it follows that there is no merit in this appeal.
In the result the judgment and order of the High Court
allowing Special Civil Applications Nos. 420 and 421 of 1966
are set aside and Civil Appeals Nos. 160 and 161 of 1968 are
allowed. The writ petitioners in Special Civil Applications
Nos. 420 and 421 of 1966 will pay the costs of the
appellants in both the appeals. There will be only one
hearing fee to be paid by the two writ petitioners in equal
proportion.
The judgment and order of the High Court dismissing Special
Civil Application No. 694 of 1965 are confirmed and Civil
Appeal No. 878 of 1968 will stand dismissed. The appellants
will pay the costs of the first respondent therein.
V.P.S.
900