{"id":227282,"date":"1971-07-26T00:00:00","date_gmt":"1971-07-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-anr-vs-lok-shikshan-sansatha-ors-on-26-july-1971"},"modified":"2017-02-05T17:55:54","modified_gmt":"2017-02-05T12:25:54","slug":"state-of-maharashtra-anr-vs-lok-shikshan-sansatha-ors-on-26-july-1971","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-anr-vs-lok-shikshan-sansatha-ors-on-26-july-1971","title":{"rendered":"State Of Maharashtra & Anr vs Lok Shikshan Sansatha & Ors on 26 July, 1971"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Maharashtra & Anr vs Lok Shikshan Sansatha & Ors on 26 July, 1971<\/div>\n
Equivalent citations: 1973 AIR 588, \t\t 1971 SCR 879<\/div>\n
Author: C Vaidyialingam<\/div>\n
Bench: Sikri, S.M. (Cj), Mitter, G.K., Vaidyialingam, C.A., Reddy, P. Jaganmohan, Dua, I.D.<\/div>\n
           PETITIONER:\nSTATE OF MAHARASHTRA & ANR.\n\n\tVs.\n\nRESPONDENT:\nLOK SHIKSHAN SANSATHA & ORS.\n\nDATE OF JUDGMENT26\/07\/1971\n\nBENCH:\nVAIDYIALINGAM, C.A.\nBENCH:\nVAIDYIALINGAM, C.A.\nSIKRI, S.M. (CJ)\nMITTER, G.K.\nREDDY, P. JAGANMOHAN\nDUA, I.D.\n\nCITATION:\n 1973 AIR  588\t\t  1971 SCR  879\n 1971 SCC  (2) 410\n\n\nACT:\nEducation-Grant-in-aid\tSystem, r. 3(1) and (2)-If vague  or\nambiguous-Executive  instructions.  Constitution  of  India,\n1950,  Arts. 14, 226 and 358-Jurisdiction of High  Court  in\nrelation   to  policy  of  giving  grants   to\t educational\ninstitutions.\nGrant-in-aid  Code  if\tviolative of  Art.  14.\t  Period  of\nEmergency-Article  358\tif protects  Executive\tinstructions\nfrom attack under Art. 19.\n\n\n\nHEADNOTE:\nThe grant-in-aid system was introduced in 1859 and its\tmain\nobject was to permit voluntary effort and reliance on  local\nresources  in  the  field  ,of\teducation  apart  from\tsuch\ncontributions  as  may be available from the  funds  of\t the\nState.\t After the re-organisation of the State of Bombay  a\nunified\t code  of grant-in-aid to  non-government  secondary\nschools\t throughout  the State was introduced by  the  State\nfrom  the  year 1963-64.  Under r. 2(1) an  application\t for\npermission to start a secondary school has to be made in the\nprescribed  form  and  such application\t has  to  reach\t the\nprescribed  authorities\t by the end of October in  the\tyear\npreceding  the year in which the school was proposed  to  be\nstarted.   Under r. 2(2) the management which was  permitted\nto open a school has so apply for recognition of the  school\nand  under r. 3, a school seeking recognition shall  satisfy\nthe  Department that the school was actually needed  in\t the\nlocality  that it did not involve any unhealthy\t competition\nwith  any existing institution and that the  management\t was\ncompetent,  reliable  and  was in the hands  of\t a  properly\nconstituted  authority or committee.  Under r. 3(3)  one  of\nthe  conditions which has to be satisfied is  regarding\t the\nfinancial   stability\tof  the\t proposed   school.    Other\nconditions  which had to be satisfied by a  proposed  school\nare  enumerated\t in the remaining 13, clauses of  the  rule.\nRule  86(2) provides that schools which are  not  registered\nunder the Societies Registration Act, would not be  eligible\nfor grant.\nOn  October 6, 1965, the State issued a\t press-note  calling\nattention  of  all the managements intending  to  start\t new\nsecondary  schools to the relevant provisions of  the  Code.\nIt  was also stated that applications received for  starting\nnew  schools  would  be scrutinised and\t considered  by\t the\nDistrict  Committee  comprising\t of  the  Chairman  of\t the\nEducation   Committee,\tZila  Parishad\tParishad   Education\nOfficer\t and  a member of the Secondary\t School\t Certificate\nExamination  Board,  Poona, or Vidarbha Board  of  Secondary\nEducation,  Nagpur,  that is, by persons who  were  familiar\nwith the conditions prevailing in the particular areas,\t and\nthe requirements in the area for a new or additional school,\nand  that  permission  to  start  a  new  school  would\t  be\ncommunicated  to  the  applicants concerned  by\t the  Deputy\nDirector of Education of the region by the end of  February.\nThe  applicants were also informed that the appeals  to\t the\nGovernment  against  the orders of the\tDeputy\tDirector  of\nEducation  could be filed up to end of March, 1966.  On\t the\nsame  date, Government sent communications for taking  steps\nfor  constituting the District Committees. The\tState  also\nsent a circular on the same :date to the various educational\nauthorities stating that the Disrict Committees\n880\nshould bear in mind, when considering the applications,\t the\nvarious\t matters, enumerated in items 1 to 14 Which  related\nto the requirement of a school or an additional school in  a\nparticular  area,  its financial stability, the\t nature\t and\ncompetency of the management and several allied matters.  It\nwas  obligatory\t on  the District Committee  to\t record\t its\nreasons\t in writing for recommending or not  recommending  a\nparticular  application,  which would be considered  by\t the\nDeputy Director of Education of the concerned region  before\ngranting or refusing permission to start a new school.\n The  applications  of the three  applicants-societies\twere\nscrutinised by the concerned District Committees along\twith\nthe applications and objections of rival applicants.  In the\ncase  of the first applicant-society the District  Committee\nrecommended  the  rival applicant on the  grounds  that\t the\napplicant society had no funds but that the rival  applicant\nwas  of good financial position and experience.\t The  Deputy\nDirector  of  Education\t accepted  the\trecommendation\t and\nrejected the first applicants' application stating that\t the\nneed of the place had been fulfilled by permitting the rival\nsociety to open a school at the place.\nIn  the case of the second applicant the Deputy Director  of\nEducation  rejected the application on two grounds,  namely:\n(a) that the application was made after the prescribed date,\nand (b) that the society was not registered.  The appeals of\nthese  applicants to the State Government were rejected\t and\nthey  filed  writ petitions in the High Court  for  striking\ndown r. 3 of the Grant-in-aid Code.\nIn  the case of the third applicant, in spite of  objections\nby a rival who was already conducting a school in that\tarea\nthe  District Committee recommended the grant of  permission\nto  the applicant on the grounds that the applicant  society\nwas a good, experienced and popular society and it was\talso\nfinancially  sound  and\t that the population  of  the  areas\ndemanded as an absolute necessity an additional school\tfrom\nstandard VIII onwards, The society which was already running\na  school  filed  a writ petition to  quash  the  permission\ngranted to the third applicant.\nThe High Court struck down cls. 1 and 2 of r. 3 of the\tCode\nas  violative  of Arts. 14 and 19 of  the  Constitution\t and\ndirected the educational authorities to grant permission  to\nthe  first  two applicants to start schools, as\t desired  by\nthem.  It dismissed the writ petition filed for quashing the\npermission  granted to the third applicant.  The High  Court\nalso  made  certain observations regarding the\tpolicy\tthat\nshould\tbe  adopted by the educational\tauthorities  in\t the\nmatter\tof  permitting the starting of a new  school  or  an\nadditional school in a particular area.\nIn appeals to this Court,\nHELD:(1) The High Court had misunderstood the nature of\t its\njurisdiction  when dealing with the claims of the first\t two\napplicants.   It was not for the High Court to lay down\t the\npolicy that should be adopted by the educational authorities\nin  the matter of granting permission for starting  schools.\nThe question of policy is essentially for the State and such\npolicy\twill  depend  upon  an\toverall\t assessment  of\t the\nrequirements  of the residents of a particular locality\t and\nother  categories  of persons for whom it  is  essential  to\nprovide for education.\tIf the overall assessment is arrived\nat after proper classification on a reasonable basis, it  is\nnot  for courts to interfere with the policy leading  up  to\nsuch assessment. [887E-H]\n(2)Clauses (1) and (2) of r. 3 are not vague or ambiguous in\nany  respect.  They should not be considered  in  isolation.\nIf  they  are interpreted having due regard to\tthe  various\nother matters contained in other clauses of the rule and the\ndetailed instructions contained.\n881\nof  the rule and the detailed instructions contained in\t the\ncircular  letter, the District Committee had ample  guidance\nfor  deciding  the need of a particular locality to  have  a\nschool\tor  an\tadditional  school,  as\t also  the   further\nquestions  regarding the competency and reliability  of\t the\nmanagement. [895D-E; F-H]\n(3)The provisions of the Code are executive instructions and\nare in the nature of administrative instructions without any\nconstitutional force.  The State Government was competent to\nissue  those executive instructions for the guidance of\t the\neducational  authorities dealing with the  applications\t for\ngrant of permission to start schools, and they are perfectly\nvalid.\tThe applications in the present case were considered\nduring the period when the Proclamation of Emergency was  in\noperation.  Article 19 could not therefore be invoked by the\nfirst  two  applicants and the view of the High\t Court\tthat\nArt.  358  did\tnot  save  the\ttwo  clauses  of  r.  3\t was\nerroneouse. [888A-B; 892C-E]\n(4)(a) The High Court erred in striking down the two clauses\non the ground that unless a school was started in accordance\nwith  the  rules  contained in the Code they  would  not  be\nrecognised  by\tthe  Secondary School  Boards  and  students\nstudying in such schools would not be able to appear for the\nexaminations  held  by\tthe Board and  the  University,\t and\ntherefore,  were  violative  of\t Art.  14.   The  provisions\nregarding  grant  of permission and recognition\t of  schools\nunder  the  Code  are merely intended  for  the\t purpose  of\nreceiving  grant from the Government, and are not  concerned\nwith the effect of starting a school without complying\twith\nthe  requirements  of the provisions of the Code or  in\t the\nface   of   refusal  of\t permission   by   the\t educational\nauthorities.   So  far as the distribution of grant  to\t the\nschools\t recognised under the Code was concerned it was\t not\nthe  case  of any of the applicants that  such\tgrants\twere\nbeing  made arbitrarily or any discrimination was  shown  in\nthat  regard.\tIt was also not the case of  the  applicants\nthat the District Committees had acted arbitrarily, nor\t was\nit their case that the Deputy Director of Education had\t not\nbased  his decision on the recommendations of  the  District\nCommittees.  There was thus no violation of Art. 14.  [892G-\nH; 893B-C, D-I]\n(b)The\tmere fact that there was no right provided  for\t the\napplicant  being heard before the application  was  rejected\ncould  not be a ground for holding that there was  violation\nof the principles of natural justice.  The particulars which\nhad  to be mentioned in the prescribed application form\t are\nvery  elaborate\t and complete.\tThe provisions in  the\tCode\nread  along with the instructions given by the State in\t its\ncircular  letter  referred  to\tvarious\t relevant   material\nfactors that had to be taken into account for the purpose of\ndeciding  whether the application was to be granted or\tnot.\nWhen  all the relevant circumstances, claims and  objections\nof  the\t applicants  and their rivals had  been\t taken\tinto\naccount\t by  the  District Committees  and  the\t educational\nauthorities  there  was\t no violation of  any  principle  of\nnatural justice.  It was not the case of the applicants that\nthe  reasons given for rejection of their applications\twere\nnot covered by the provisions contained in the Code.  [893H;\n894D-E]\n(5)The\tHigh Court erred in issuing a mandamus to the  State\nwithout considering the Various reasons given by the  Deputy\nDirector  of Education for rejecting the application of\t the\nfirst two applicants.\n(a)The\treason given by the Deputy Director  of\t Education\nwith  respect  to  the first  applicant\t for  rejecting\t its\napplication  was  that\tthe  need  of  the  place  had\tbeen\nfulfilled  by permitting another society to open the  school\nat  the\t place,\t on  the  recommendations  of  the  District\nCommittee.   It\t was  open  to\tthe  authorities  to  refuse\npermission  if\tthe  school is not in  a  financially  sound\nposition. [896B-D, G]\n56-1 S.C.India\/71\n\t\t\t    882\n(b)In  the case of the second applicant the reasons  given\nwere that the application was sent after the prescribed date\nand  that  the society was not\tregistered.   Therefore\t the\nrejection was on valid grounds. [897D-E]\n(6)In the case of the third applicant, from the mere  fact\nthat by giving it permission to open another school some  of\nthe  students  of  the\trival  society's  school  may\tseek\nadmission  in  the  new school, could not be  a\t ground\t for\nstating\t that the rival society's legal rights had been\t in-\nfringed.   In  granting\t permission to\tanother\t society  no\nextraneous or irrelevant matters had been taken into account\nby  the District Committee or the  educational\tauthorities.\nThe  reasons  given by the District Committee  for  granting\npermission  were  valid reasons and the High  Court  rightly\nrejected the petition of the rival society. [898G-H]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 160,\t 161
\nand 878 of 1968.\n<\/p>\n
Appeals\t from the judgment and order dated December 2,\t1966
\nof  the\t Bombay High Court, Nagpur Bench  in  Special  Civil
\nApplications Nos. 420 and 421 of 1966 and 694 of 1965.
\nNiren  De, Attorney General, B. D. Sharma and S.  P.  Nayar,
\nfor the appellants (in C.As. Nos. 160 and 161 of 1968).
\nW.S.  Barlingay and A. G. Ratnaparkhi, for the\tappellant
\n(in C.A. No. 878 of 1968) and respondents Nos.\t1 and 2\t (in
\nC.A. No. 160 of 1968).\n<\/p>\n
A.G. Ratnaparkhi, for respondents Nos.\t1 and 2 (in C. A.
\nNo. 161 of 1968).\n<\/p>\n
M.R. K. Pillai, for respondent No. 2 (in C. A. No. 160 of
\n1968).\n<\/p>\n
Niren  De, Attorney General, B. D. Sharma and S.  P.  Nayar,
\nfor respondent Nos. 1 and 2 (in C.A. No. 878 of 1968).
\nBishan Narain, S. K. Bisaria and T. L. Garg, for  respondent
\nNo. 3 (in C.A. No. 878 of 1968).\n<\/p>\n
The Judgment of the Court was delivered by
\nVaidialingam,  J.-All these three appeals,  on\tcertificate,
\nare  directed against the common judgement and\torder  dated
\nDecember  2, 1966 of the Bombay High Court in Special  Civil
\nApplications  Nos.  694\t of 1965 and 420 and  421  of  1966.
\nCivil  Appeals\tNos. 160 and 161 of 1968 are  filed  by\t the
\nState  of Maharashtra and the Deputy Director of  Education,
\nNagpur\tagainst\t that part of the order of  the\t High  Court
\nallowing Special Civil Applications Nos. 420 and 421 of 1966
\nafter holding that cls. (1) and (2) of S. 3 of the Grant-in-
\naid  Code  (hereinafter\t to be referred\t as  the  Code)\t are
\ninvalid and directing the State of Maharashtra to grant
\n\t\t\t    883<\/span>
\nthe  petitioners  in  the said\tSpecial\t Civil\tApplications
\npermission  to\tstart  schools in  the\tareas  concerned  as
\ndesired\t by  them.  Civil Appeal No. 878 of 1968 is  by\t the
\napplicant  in  Special\tCivil Application No.  694  of\t1965
\nagainst\t the  order of the High Court  dismissing  his\twrit
\npetition  and declining to interfere with the order  of\t the
\nState and educational authorities granting permission to the
\nthird  respondent  in the appeal to open, a  new  school  at
\nSakharkherda with VIII and IX classes.\n<\/p>\n
We  will first deal with Civil Appeals Nos. 160 and  161  of
\n1968  and  refer to the facts leading up to  those  appeals.
\nCivil Appeal No. 160 of 1968, as mentioned above, arises out
\nof the ,order in Special Civil Application No. 420 of  1966.
\nThe applicant in the said application Loka Shikshan  Sanstha
\nAnjansinghi  made an application dated October 30,  1965  to
\nthe  Deputy Director of Education, Nagpur for permission  to
\nopen  a\t school during the year 1966-67\t at  Anjansinghi  in
\nAmravati  district.   The-  appli,cation  was  sent  in\t the
\nprescribed form.  Therein it was stated that the  Management
\nwas not registered and that it will get itself registered by
\nabout  the  middle  of January,\t 1966.\t Under\tthe  heading
\n“Arrangements made for necessary furniture and apparatus” in
\ncol.  13, the applicant stated that they proposed  to  spend
\nabout Rs. 2,000 in respect of furniture, science, apparatus,
\nteaching  ,Aids, teachers library and pupil’s library.\t The
\nbreak  up of the figures under these heads was\talso  given.
\nIn  col. 15 under the heading “Funds at the disposal of\t the
\nmanagement  in\taddition  to those in col.  13\tabove”,\t the
\napplicant  stated  Rs. 5,000 only.   The  applicant  further
\nstated under col. 17 that it required only a token grant  in
\nthe  first  year of recognition and a regular grant  at\t the
\nprescribed  rate from the second year.\tThe Ashok  Education
\nSociety,  Ashoknagar,  the  third  respondent  in  the\twrit
\npetition, bad also applied to the educational authorities to
\nstart  a  school during the same year at  Anjansinghi.\t The
\nwrit  petitioner  filed\t an objection dated  March  8,\t1966
\nbefore the Deputy Director of Education, Nagpur objecting to
\nthe  grant  of permission asked for by the  Ashok  Education
\nSociety,  Ashoknagar on the ground that the said Society  is
\nan  outside  agency.   In the said  petition  the  applicant
\nrequested  for favourable consideration of  his\t application
\nalready\t submitted, to the authorities.\t The District  Con,’
\nmitee which scrutinized the applications of both the parties
\nrecommended  that  the application of  the  writ  petitioner
\nshould be rejected as it had no funds.\tAnother Society with
\ngood  financial position and experience was  recommended  by
\nthe  Committee.\t  The, District Committee  recommended\tthat
\nAshok  Education Society should be granted permission as  it
\nwas a good, experienced and popular society and it was\talso
\nfinancially sound.  The Deputy Director of Education by\t his
\norder  dated April 12,1966 rejected the application  of\t the
\nwrit petitioner on the ground that the need
\n884<\/span>
\nof  the\t place\thas been  fulfilled  by\t Permitting  another
\nsociety\t to open a school at the place.\t The petitioner\t was
\nfurther\t informed  that in case any school is  started\twhen
\npermission  has been refused, serious view will be taken  by
\nthe  educational authorities.  The writ petitioner filed  an
\nappeal on April 21, 1966 to the State Government wherein  he
\nprayed\tfor  withdrawing  permission granted  to  the  Ashok
\nEducation  Society, the third respondent and also  requested
\nthat  permission may be granted to the applicant society  to
\nopen  a school.\t This appeal was rejected by the  Government
\nby its order dated 10\/16th May, 1966.  The applicant society
\nfiled writ petition and prayed for striking down r. 3 of the
\nGrant-in-aid  Code  framed by the State\t of  Maharashtra  as
\nunconstitutional   and\tviolative  of\tfundamental   rights
\nguaranteed  under Art. 19(1)(c) of the Constitution  and  to
\nquash the orders of the Deputy Director of Education and the
\nState  Government  refusing  permission\t to  the  petitioner
\nSociety\t to  start a school at Anjansinghi.   The  applicant
\nfurther\t  prayed  for  a  direction  being  issued  to\t the
\neducational  authorities  to grant permission to  start\t the
\nschool as requested by it.\n<\/p>\n
As  common  contentions\t had been raised  by  the  State  of
\nMaharashtra in this writ petition and also in Special  Civil
\nApplication  No. 421 of 1966 before the High Court, we\twill
\nrefer  to those contentions after adverting to the facts  in
\nSpecial Civil Application No. 421 of 1966.\n<\/p>\n
Civil  Appeal  No. 161 of 1968 arises out of  Special  Civil
\nApplication No. 421 of 1966.  The applicant therein Sri Nana
\nGuru  Shikshan\tSanstha, Shirkhed sought permission  of\t the
\nDeputy\tDirector of Education to start a school at  Shirkhed
\nfrom  June  1966.  The request was made by  a  letter  dated
\nOctober\t 29,1965  and the application was not  made  in\t the
\nprescribed  form.   The\t Parishad  Education  Officer,\tZila
\nParishad,  Amravati by his communication dated November\t 15,
\n1965  forwarded\t the  prescribed  application  form  to\t the
\napplicant  with a request to have the particulars  mentioned
\ntherein\t  properly  filled  in\tand  to\t submit\t  the\tsame
\nimmediately.   The  application in the prescribed  form\t was
\nsent by the applicant on November 3, 1965.  In Column No.  4
\nunder  the heading ‘ whether the management  is\t registered”
\nthe  answer given was, “no”.  Under the same column  to\t the
\nfurther\t query\t“if not, whether it is intended\t to  get  it
\nregistered.   If  so when” the answer given  was  “within  a
\nmonth”.\t  In  column  13, the  expenditure  proposed  to  be
\nincurred regarding furniture etc. the applicant stated\tthat
\nabout  Rs.  800 was intended to be spent.  The break  up  in
\nrespect\t of the various items was also given.  Under  column
\n15 regarding funds at the disposal of the management, it was
\nstated\tthat  a sum of Rs. 5,000 was available.\t  The  third
\nrespondent  therein  Swami Vivekan  and\t Shikashan  Sanstha,
\nLehgaon had also made an
\n885<\/span>
\napplication for opening a school at Shirkhed.  The applicant
\nfiled  an objection on January 5, 1966 to the grant  of\t any
\npermission to the third respondent.  The Deputy Director  of
\nEducation  by  his order dated April 11, 1966  rejected\t the
\napplication  of the writ petitioner on two  grounds  namely,
\n“(1)  the application is after the prescribed date  and\t (2)
\nthe  Society  is not registered.” The  petitioner  was\talso
\ninformed  that\tif a school is started when  permission\t has
\nbeen refused, serious view will be taken by the\t educational
\nauthorities.  The appeal filed by the writ petitioner to the
\nState  Government  was rejected by the latter by  its  order
\ndated May 10\/16th, 1966.  The applicant filed Special  Civil
\nApplication  No. 421 of 1966 praying for striking down r.  3
\nof  the Grant-in-aid Code as unconstitutional and  violative
\nof  Art. 19(1)(c) of the Constitution.\tThe orders  refusing
\npermission to the Society to start a school were also sought
\nto  be\tquashed. A further prayer was  made  for  directions
\nbeing  issued to the authorities to grant permission to\t the
\nSociety\t to start a second school at Shirkhed as desired  by
\nit.\n<\/p>\n
The State Government contested both the Special Civil Appli-
\ncations.  It was pointed out that the rules contained in the
\nGrant  in-aid Code were all executive instructions given  by
\nthe State to the educational authorities for proper guidance
\nin  the\t matter\t of considering\t applications  for  starting
\nschools which required grants to be made by the\t Government.
\nNone of the rules contained therein violated any fundamental
\nrights\tof the applicants.  Even if Art. 19 can be  invoked,
\nthe restrictions regarding the starting of schools were\t all
\nreasonable  restrictions in the interest of general  public.
\nNo  restriction\t has been placed on the\t applicants  forming
\nassociations  or unions as contemplated under Art.  19(1)(c)
\nand  that  in any event the restrictions were saved  by\t Cl.\n<\/p>\n
(iv)  of Art. 19.  The reasons given by the Deputy  Director
\nof  Education  for  rejecting the applications\tof  the\t two
\npetitioners were valid as the District Committee constituted
\nfor  the  purpose had considered all  the  relevant  matters
\nbefore rejecting their applications and granting  permission
\nto the respective third respondents therein.
\nThe  High  Court by its common judgment has taken  the\tview
\nthat  cls. (1) and (2) of r. 3 of the Grant-in-aid Code\t are
\ninvalid as they are too vague to afford any standard both as
\nto  the need of a school in the locality and also as to\t the
\nunhealthy  competition\twith an existing school.   The\tsaid
\nclauses\t are equally vague as there is no standard  to\tfind
\nout  the  competency  and  reliability\tof  the\t  management
\ninching\t of  the school.  There is further no  provision  in
\nthese sub-clauses for hearing a party before the authorities
\nconcerned take a decision in the matter of grant or  refusal
\nof permission to start a school.  The High Court is  further
\nof the view that by such executive instructions the State is
\nable  to prevent the two writ petitioners from\tcarrying  on
\ntheir legitimate
\n886<\/span>
\nactivities of running schools.\tThe said clauses also do not
\nsatisfy the test of being reasonable restrictions in  public
\ninterest.  On this reasoning the High.\tCourt has held\tthat
\nthe two clauses, namely, (1) and (2) of rule 3 are violative
\nof the rights guaranteed to the writ petitioners under\tArt.
\n19(1)  of the Constitution.  Though it was argued on  behalf
\nof the writ petitioners that clauses (1) and (2)  of r. 3 of
\nthe Code contravene the provisions of Art. 19(1)(c) (g)\t and\n<\/p>\n
(f),  there  is no clear indication in the judgment  of\t the
\nHigh Court as to which clause of Art. 19(1) is violated.  It
\nis the further view of the High Court that as the State\t has
\nno  power to issue instructions as those contained  in\tcls.
\n(1)  and  (2)  of  r. 3, Article 358  will  not\t save  those
\nprovisions  notwithstanding  the  fact\tthat  there  was   a
\nProclamation  of  Emergency  during  the  relevant   period.
\nThough no attack based on Art. 14 was made in either of\t the
\nwrit  petitions,  it  is  seen that  during  the  course  of
\narguments,  this article was relied on and it was  contended
\nthat  the  said two clauses of r. 3 are\t arbitrary  as\tthey
\nenable the State to discriminate between one institution and
\nanother.  The High Court in considering this contention\t has
\nheld that in the matter of distribution of grant, the  State
\nmust   comply\twith   the   fundamental   requirements\t  of
\nconstitutional\tlaw embodied in Art. 14.  According  to\t the
\nHigh  Court the effect of cls. (1) and (2) of r. 3  is\tthat
\napart  from the fact that the such schools are not  eligible
\nfor  receiving\tthe grants, the students  studying  in\tsuch
\nschools cannot appear for examinations held by the Secondary
\nSchool\tBoards\tas  the\t latter\t will  not  recognise\tsuch
\ninstitutions.As\t the students of such schools cannot  take
\ntheir  university  education,  cls. (1) and  (2)  of  r.  3,
\naccording  to the High Court, offend Art. 14 and hence\tthey
\nare invalid.  After holding that cls. (1) and (2) of r. 3 of
\nthe  Code are violative of Arts. 14 and 19, the\t High  Court
\nstruck\tdown those provisions and directed  the\t educational
\nauthorities to grant permission to the two writ\t petitioners
\nto start schools as desired by them.\n<\/p>\n
The  learned  Attorney-General, appearing on behalf  of\t the
\nState  in Civil Appeals Nos. 160 and 161 of 1968 raised\t the
\nfollowing  contentions: (1) The High Court has\tcommitted  a
\nvery  serious  mistake in invoking Art. 19 in  view  of\t the
\nmandatory  provisions of Art. 358 of the  Constitution,\t (2)
\neven  assuming that Art. 19 can be invoked,  the  provisions
\ncontained  in  cls.  (1)  and  (2)  of\tr.3  are  reasonable
\nrestrictions  in the interest of general public and as\tsuch
\nthose clauses are valid; (3) the view of the High Court that
\nthe  said clauses offend Art. 14 is erroneous; (4) that\t the
\nclauses\t struck down by the High Court. are  mere  executive
\ninstructions  given  by the State for the  guidance  of\t the
\neducational  authorities when considering  the\tapplications
\nreceived for permission to open schools in particular areas.
\nSuch  executive\t instructions cannot be struck down  on\t the
\nground that they are vague., Alternatively.\n<\/p>\n
887<\/span><\/p>\n
under  this head it was contended that the two\tclauses\t are
\nnot  vague  in\tany  respect; and (5)  the  High  Court\t has
\ncommitted  a serious mistake in striking down the orders  of
\nthe educational authorities without considering the  reasons
\ngiven by such authorities for rejecting the applications  of
\nthe two writ petitioners.\n<\/p>\n
Dr.  Barlingay, learned counsel for the\t contesting  respon-
\ndents  has  supported the view taken by the High  Court\t for
\nstriking  down -Is. (1) and (2) of r.3 of the  Code.   The
\ncounsel\t relied on the reasons given by the High  Court\t for
\nstriking  down the two clauses as violative of Arts. 14\t and\n<\/p>\n
19.   The counsel further urged that though the two  clauses
\nof  r.3\t in  question may on the face of  it  appear  to  be
\ninnocuous, nevertheless the application of those  principles
\nby  the-  educational  authorities  may\t lead  to   possible
\ndiscrimination\t  between   the\t  institutions\t  concerned.
\nAccording to him no standards have been laid down to  assess
\nthe  need of a school in a particular area.  Further,  there
\nis   no\t criteria  laid\t down  to  enable  the\t educational
\nauthorities  to\t decide the circumstances  under  which\t the
\nstarting  of  a\t new  school  may  result  in  an  unhealthy
\ncompetition  with an existing school.  The position  is\t the
\nsame   also  in\t regard\t to  judging  the   competency\t and
\nreliability of a particular management who proposes to start
\na school.  The more serious ground of levelled against these
\nclauses\t (1) and (2) of r.3 by Dr’ Barlingay was that  there
\nwas  no right given to an applicant for being  heard  before
\nhis application is rejected by the educational authorities.
\nBefore we deal with the above contentions advanced before us
\non  behalf of both sides, it is necessary to state that\t the
\nHigh  Court  in the judgment under attack has  made  certain
\nobservations  regarding what according to it should  be\t the
\npolicy adopted by the educational authorities in the  matter
\nof  permitting\tthe  starting  of a  new  school  or  of  an
\nadditional  school in a particular locality or area.  It  is
\nenough\t to  state  that  the  High  Court  has\t  thoroughly
\nmisunderstood  the  nature  of\tthe  jurisdiction  that\t was
\nexercised by it when dealing with the claims of the two writ
\npetitioners   that  their  applications\t had  been   wrongly
\nrejected  by the educational authorities.  So long as  there
\nis  no\tviolation  of  any fundamental\trights\tand  if\t the
\nprinciples  of natural justice are not offended, it was\t not
\nfor  the  High Court to lay down the policy that  should  be
\nadopted\t by  the educational authorities in  the  matter  of
\ngranting  permission for starting schools.  The question  of
\npolicy\tis  essentially for the State and such\tpolicy\twill
\ndepend\tupon  an  overall  assessment  and  summary  of\t the
\nrequirements of residents of a particular locality and other
\ncategories  of persons for whom it is essential\t to  provide
\nfacilities  for\t education.  If the  overall  assessment  is
\narrived\t at  after a proper classification on  a  reasonable
\nbasis, it is not for the courts to interfere with the policy
\nleading up to such assessment.\n<\/p>\n
888<\/span><\/p>\n
It  should also be made clear that as accepted by the  State
\nin  its\t counter-affidavit filed before the High  Court\t the
\nprovisions of the Code are executive instructions and are in
\nthe  nature  of\t administrative\t instructions  without\t any
\nconstitutional force.  It is on this. basis that we have  to
\nconsider  the correctness of the decision of the High  Court
\nwhen it struck down cls. (1) and of r. 3 of the Code.
\nIt  is necessary to advert to the circumstances under  which
\nthe  Code came to be framed as also to certain\tinstructions
\ngiven  by  the\tState to the  educational  authorities\twhen
\nconsidering the applications for the grant of permission  to
\nopen schools.\n<\/p>\n
The   Grant-in-aid  system  appears  to\t have\tbeen   first
\nintroduced  in\t1859  and its main  object  was\t to  promote
\nvoluntary  effort  and reliance on local  resources  in\t the
\nfield  of education apart from such contributions as may  be
\navailable from the funds of the State.\tAfter the States re-
\norganisation took place, in order to bring about  uniformity
\nin  the\t matter, the State of Bombay appointed\tin  1958  an
\nIntegration Committee for Secondary Education to examine the
\ndifferent  Education Codes and administrative  practices  in
\nforce  at the secondary stage in the various  regions  which
\nwere  added  to the State of Bombay under the  states  orga-
\nnisation  and  to  make proposals for a\t unified  system  of
\nSecondary Education as well as the assistance to be given to
\nnon-government\tSecondary schools.’ The Committee  submitted
\nits  report  in 1959.  In December, 1960 the  Government  of
\nMaharashtra appointed a Committee comprised of officials and
\nnon-officials  to- suggest a unified code for  consideration
\nof  the Government.  A revised Draft Code was  submitted  by
\nthe  Committee to the Government in or about  August,  1961.
\nThe Secondary Schools Code, with which we are now  concerned
\nwas  framed  by\t the Government as a  common  code  for\t the
\nrecognition of and grant-in-aid to nongovernmental secondary
\nschools throughout the State.  The said Code came into force
\nwith  effect from the year 1963-64.  Chapter 11\t related  to
\nrecognition   and  grant-in-aid.   Rule\t 1   dealing   with,
\nrecognition   provided\t that  secondary  schools   may\t  be
\nrecognised  by the Department provided they conform  to\t the
\nrules contained in the Code.  Rule 2 dealt with the  matters
\nrelating to the applications for starting and recognition of
\nschools.   Under  r. 2.1 an application\t for  permission  to
\nstart a secondary school has to be made in the form given in
\nappendix  1 (1) of the Code to the authorities\treferred  to
\ntherein\t  and  such;  applications  have  to   reach   those
\nauthorities by the end of October, in the year preceding the
\nyear  in  which the school is proposed to be  started.\t The
\nsaid  clause  further  provided that  no  school  should  be
\nstarted\t unless\t the  written  previous\t permission  of\t the
\nDepartment  had been obtained and that the  schools  started
\nwithout such permission shall not
\n889<\/span>
\nordinarily be considered for recognition.  Under r. 2.2, the
\nmanagement which is permitted to open a school has to  apply
\nfor re,cognition of the school in the form given in appendix
\n1(2)  of  the Code within one month of the  opening  of\t the
\nschool.\n<\/p>\n
Rule  3\t which\tconsists  of  16  clauses  deals  with\t the
\nconditions of recognition.  The said rule provides that\t a
\nschool seeking recognition has to satisfy the Department  as
\nregards the conditions enumerated in cls.  1 to 16  therein.
\nClauses\t (1) and (2) of r. 3 which are attacked\t as  invalid
\nare as follows:\n<\/p>\n
\t      “Rule 3: Conditions of Recognition:
\n\t      A school seeking recognition shall satisfy the
\n\t      Department    as\t regards    the\t   following
\n\t      conditions:-\n<\/p><\/blockquote>\n
\t      (1)   The\t school\t is actually needed  in\t the
\n\t      locality and it does not involve any unhealthy
\n\t      competition  with any existing institution  of
\n\t      the same category in the neighborhood.
\n\t      (2)   The Management is competent and reliable
\n\t      and is in the hands of a properly\t constituted
\n\t      authority or managing Committee.\n<\/p><\/blockquote>\n
\t       …     …\t…\t…    …”<\/p>\n
We  may at this stage point out that one of  the  conditions
\nwhich  has  to\tbe satisfied under r.  3  is  regarding\t the
\nfinancial stability of the proposed school as stated in cl.
\n(3)  of\t r. 3 therein.\tThis aspect may have  a\t bearing  in
\nconsidering the correctness of the High Court’s decision  in
\nCivil Appeal No. 160 of 1968.\n<\/p>\n
Rule 86 deals with “Kinds of Grants”.  Rule 86.1  enumerates
\nthe  various  types of grants which a recognised  school  is
\neligible to get from the Government.\n<\/p>\n
\t      Rule 86.2 provides as follows
\n\t      “Proprietary   schools   (i.e.   schools\t not
\n\t      registered   under   either   the\t  Societies’
\n\t      Registration  Act\t XXI of 1860 or\t the  Bombay
\n\t      Public  Trust Act, 1950 or any other Act\tthat
\n\t      may  be specified by Government  and  communal
\n\t      schools  will not be eligible for any kind  of
\n\t      grant from public funds.”\n<\/p>\n
At  this stage we may mention that the provisions  contained
\nin  r.\t2.1  that an application for  starting\ta  Secondary
\nSchool has to be in the form given in appendix 1 (1) of\t the
\nCode  and that the application should reach the\t educational
\nauthorities within n the further provision under
\n890<\/span>
\nr.86.2\tthat the schools which are not\tregistered  under
\nthe  Societies\tRegistration Act, will not be  eligible\t for
\ngrant,\twin  have a considerable  bearing  when\t considering
\nCivil Appeal ‘No. 161 of’ 1968,
\nOn October 6, 1965 the State of Maharashtra issued a  press,
\nnote,  copies  of  which were sent to  all  the\t educational
\nauthorities.  The Director of Publicity was also directed to
\ngive wide publicity to the press note by publishing the same
\nin  all\t the Dailies in the cities and districts.   By\tthat
\npress note the attention of all the managements intending,to
\nstart  new  Secondary Schools was drawn\t to  the  provisions
\ncontained  in  r. 2 of the Code regarding  the\tapplications
\nbeing.\tmade in the prescribed form to the concerned  office
\nand to the applications being made sufficiently early so  as
\nto reach the authorities concerned at the latest by the\t end
\nof  October.  in the year preceding the year  in  which\t the
\nschool is proposed to be started.  It was further stated  in
\nthe  press note that the applications received for  starting
\nnew  schools  will be considered by the\t District  Committee
\ncomprising of the Chairman of the Education Committee,\tZila
\nParishad,  Parishad  Education Officer and a member  of\t the
\nSecondary  School  Certificate Examination Board,  Poona  or
\nVidarbha  Board\t of  Secondary Education,  Nagpur  and\tthat
\npermission to start new schools will be communicated to\t the
\napplicants concerned by the Deputy Director of’ Education of
\nthe  region  by\t the end of February,  1966.   The  proposed
\napplicants were also informed that appeals to the Government
\nagainst\t the orders of the Deputy Director of Education\t can
\nbe  filed  upto the end of March;, 1966.   This\t press\tnote
\nemphasised:  (a)  that\tthe  applications  be  made  in\t the
\nprescribed  form  and (b) that the  applications  should  be
\nreceived by the educational authorities at the latest by the
\nend of October.\t No doubt some of these aspects are  already
\ncontained  in r. 2 of the Code.\t Another important point  to
\nbe  taken  note\t of in this press note is  that\t though\t the
\napplications   are   made  to  the   concerned\t educational
\nauthorities,  those  applications  are\tscrutinised  by\t the
\nDistrict  Committees  concerned, and whose members  must  be
\nfamiliar  with\tthe  conditions\t prevailing  in\t  particular
\nlocalities or areas.\n<\/p>\n
On the same date the Government sent a communication to\t the
\nChairman,  Secondary School Certificate\t Examination  Board.
\nPoona  and the Chairman Vidarbha Board of  Secondary  Educa-
\ntion,  Nagpur  on  the subject of  appointment\tof  District
\nCommittees to consider the applications received for opening
\nnew  secondary\tschools.  The composition  of  the  District
\nCommittees  was\t also’ mentioned  therein.   The  respective
\nChairmen  were requested by the State to move the  Board  to
\nnominate  one member for each of the District Committees  in
\nthe areas with which the Board was concerned.  The  Chairman
\nwas also requested to communicate the names of such  members
\nto the Parishad Education Officer of’
\n\t\t\t    891<\/span>
\nthe district concerned, the Deputy Director of Education  of
\nthe  region’  and  the Director of  Education,\tPoona  under
\nintimation to the Government.\n<\/p>\n
The State also sent a circular dated October 5, 1965 to\t the
\nvarious\t educational authorities drawing their attention  to
\nr.  2  of  the\tCode.  They  were  also\t informed  that\t the
\nGovernment  had directed that the applications\tfor  opening
\nnew  secondary schools should be considered by the  District
\nCommittee   comprised  of  the\tvarious\t persons   mentioned
\ntherein.  It was further stated that the District  Committee
\nshould\tbear in mind when considering the applications,\t the
\nvarious\t matters  enumerated  as item Nos. 1  to  14.  Those
\nvarious\t matters  to  be taken into account  relate  to\t the
\nrequirement  of\t a  school  or an  additional  school  in  a
\nparticular  area,  its financial stability, the\t nature\t and
\ncompetency of the management and several allied matters.  It
\nwas  obligatory\t on  the District Committee  to\t record\t its
\nreasons\t in writing for recommending or not  recommending  a
\nparticular  application.  In paragraph 4 of the circular  it
\nwas  stated  that permission to start a new  school  may  be
\ngranted by the Deputy Director of Education of the concerned
\nregion\tafter taking into consideration the  recommendations
\nof the District Committee and with the prior approval of the
\nGovernment.  The educational authorities were also  directed
\nto  dispose of the applications within the period  mentioned
\nin the circular.\n<\/p>\n
From the relevant provisions of the Code read with the press
\nnote  and the circular referred to above, it is\t clear\tthat
\nthough\t the  applications  are\t made  to  the\t educational
\nauthorities,  they are not disposed of by those\t authorities
\nor  their own individual discretion.  On the other hand,  it
\nis  clear  that\t the  applications are\tdealt  with  by\t the
\nDistrict  Committees,  whose members are familiar  with\t the
\nconditions prevailing in particular areas or localities\t and
\nwho also are in the know of things regarding the requirement
\nof  a new or an additional school in the  particular  areas.
\nIt  is\treally on the basis of the recommendations  made  by
\nsuch  Committees  that the educational\tauthorities  take  a
\ndecision one way or the other.\n<\/p>\n
After  having cleared the grounds, as stated above, we\twill
\nnow  deal  with\t the contentions of  the  learned  Attorney-
\nGeneral.   The learned Attorney-General is  well-founded  in
\nhis  contention\t that the High Court was  not  justified  in
\ninvoking Art. 19 in the circumstances of this case.  We have
\nalready given the relevant dates when the applications\twere
\nfiled  by  the\twrit  petitioners  before  the\t educational
\nauthorities  as well as the dates when they  were  rejected.
\nThe  judgment of the High Court is dated December  2,  1966.
\nThere  is no controversy that the Proclamation of  Emergency
\nwas issued on October 26, 1962 and it was. revoked
\n892<\/span>
\nonly on January 10, 1968 The relevant part of Art, 358 is as
\nfollows :\n<\/p>\n
\t      “358.  While a Proclamation of Emergency is in
\n\t      operation,   nothing  in\tarticle\t  19   shall
\n\t      restrict the power of the State as defined  in
\n\t      Part  III\t to  make any law  or  to  take\t any
\n\t      executive action which the State would but for
\n\t      the  provisions  contained  in  that  Part  be
\n\t      competent to make or to take…………..”\n<\/p><\/blockquote>\n
Therefore,  it\twill be seen that during the period  when  a
\nProclamation of Emergency is in operation, Art. 19 will\t not
\noperate\t as  a bar in respect of any law or  any  executive
\naction\tcoming\twithin the terms of Art. 358.\tWe  will  be
\nshowing in the latter part of the judgment that cls. (1) and
\n(2) of r. 3 read with the various instructions issued by the
\nState  cannot  be  considered to be vague  or  ambiguous  as
\nerroneously held by the High Court.  Those instructions,  in
\nso  far\t as  they  go, are perfectly  valid  and  the  State
\nGovernment   was   competent  to   issue   those   executive
\ninstructions for the guidance of the educational authorities
\ndealing\t with applications for grant of permission to  start
\nschools.  If so, it follows that the view of the High  Court
\nthat  Art.  358 does not save cls. (1) and (2) of  r.  3  is
\nerroneous.  In this view Art 19 could not have been  invoked
\nby   the  writ\tpetitioners  during  the  period  when\t the
\nProclamation  of Emergency was admittedly in operation.\t  As
\nArt.  19  is thus out of the picture, the  question  whether
\ncls. (1) and (2) of r. 3 impose reasonable restrictions\t and
\nare  thus saved, does not arise for consideration.   We\t may
\nstate  that Dr. Barlingay found considerable  difficulty  in
\nsupporting the judgment of the High Court on this aspect  in
\nthe face of Art. 358 of the Constitution.  This disposes  of
\nthe  first and second contentions of the  learned  Attorney-
\nGeneral.\n<\/p>\n
Coming to Art. 14, it is accepted by the High Court that the
\nwrit petitioners did not make in their petitions any  attack
\non cls. (1) and (2) of r. 3 based upon the said article.  It
\nwas only during the course of arguments that Art. 14 appears
\nto  have been invoked.\tThe High Court struck down  the\t two
\nsub-clauses on the ground that unless a school is started in
\naccordance  with the rules contained in the Code, they\twill
\nnot  be\t recognised by the Secondary School Boards  and\t the
\nstudents  studying  in such schools cannot  appear  for\t the
\nexaminations  held  by the Board and  the  University.\t The
\napproach  made by the High Court in our view in this  regard
\nis erroneous.  The provisions regarding grant of  permission
\nand  recognition  of  schools  under  the  Code\t are  mainly
\nintended  for  the  purpose  of\t receiving  grant  from\t the
\nGovernment.   We  are  not concerned  in  these\t proceedings
\nregardIng the effect of starting a school without  complying
\nwith  the requirements of the provisions of the Code  or  in
\nthe face of refusal
\n893<\/span>
\nof  permission\tby  the educational  authorities  when\tsuch
\nschools so started do not require or receive any grant\tfrom
\nthe  State.  That problem does not arise  for  consideration
\nbefore\tus.  Hence we do-not think it necessary to refer  to
\nthe provisions of the Maharashtra Secondary Education  Board
\nRegulation, 1966, the effect of which may be that no student
\nhaving\teducation in a school for the starting of  which  no
\npermission  has\t been  given or\t such  permission  has\tbeen
\nrefused, may not be able to appear for the examinations held
\nby  the\t Boards concerned.  So far as  the  distribution  of
\ngrant to the schools recognised under the Code is concerned,
\nit  is\tnot  the case of any of the  petitioners  that\tsuch
\ngrants\tare being made arbitrarily or any discrimination  is
\nshown  in that regard.\tBut Dr. Barlingay pressed before  us
\nthe  circumstances that though cls. (1) and (2) of r. 3\t may
\nappear\tto  be\tinnocuous, there is a  potential  danger  of
\ndiscrimination when the said clauses are applied without any
\nguidance by the educational authorities.  He also  contended
\nthat there is no right given to the applicant to be heard by
\nthe  educational authorities before his application  is\t re-
\nfused.\t On this ground the counsel urged that cls. (1)\t and
\n(2) of r. 3 violate Art. 14.\n<\/p>\n
We have already referred to the press note and the  circular
\nletter\tissued\tby the State Government from  which,  it  is
\nclear  that  the applications are dealt with  in  the  first
\ninstance  by  the  District Committees,\t whose\tmembers\t are
\nfamiliar  with the requirements of the particular  areas  or
\nlocalities  and the conditions prevailing therein  regarding
\nthe  requirements of a school or an additional school.\t The
\ndistrict  Committees  have  to\ttake  into  account  several
\nmaterial and relevant factors contained not only in the Code
\nbut  also specifically emphasised in the circular letter  of
\nthe  Government\t dated October 5, 1965.\t It is only  on\t the
\nbasis of the recommendations made by those Committees,\tthat
\nthe  educational authorities take a decision  regarding\t the
\ngrant  or  refusal  of permission to start  a  school.\t The
\nDistrict  Committees are also bound to record their  reasons
\nin   writing  for  recommending\t or  not  recommending\t the
\napplication.  An appeal lies against the order passed by the
\nDeputy\tDirector of Education to the Government.  It is\t not
\nthe  case of any of the writ petitioners that  the  District
\nCommittees  have  acted arbitrarily.  Nor is it\t their\tcase
\nthat the Deputy Director of Education of the region has\t not
\nbased  his decision on the recommendations of  the  District
\nCommittees.   We  are  not  satisfied  that  there  is\t any
\nviolation of Art. 14.\n<\/p>\n
   From\t the mere fact that there is no right  provided\t for
\nthe   appellant\t being\theard  before  his  application\t  is
\nrejected, it cannot be held that there is a violation of the
\nprinciples  of\tnatural justice.  On the other hand,  it  is
\nseen that the District Committees have considered the claims
\nof  the writ petitioners as well as of the respective  third
\nrespondents therein and recommended to the
\n894<\/span>
\neducational authorities that the claims of the latter are to
\nbe accepted.  The reasons for rejection of the\tapplications
\nhave also been given in the orders passed by the educational
\nauthorities.\n<\/p>\n
When  all  the relevant circumstances have been\t taken\tinto
\naccount by the District Committee and the educational autho-
\nrities,\t there is no violation of any principle\t of  natural
\njustice\t merely for the reason that the applicants were\t not
\ngiven a hearing by the educational authorities before  their
\napplications weren’t ejected.  The particulars which have to
\nbe  mentioned  in the prescribed application form  are\tvery
\nelaborate  and\tcomplete.  The provisions in the  Code\tread
\nalong  with  the  instructions given by\t the  State  in\t the
\ncircular  letter  dated\t October 5, 1965  refer\t to  various
\nrelevant  and  material factors that had to  be\t taken\tinto
\naccount for the purpose of deciding whether the\t application
\nis to be granted or not.  As we have already pointed out, it
\nis  not\t the case of any of the writ petitioner\t that  these
\nrelevant  factors have not been considered by  the  District
\nCommittees.  Nor is it their case that the reasons given for
\nrejection  of  the  applications  are  not  covered  by\t the
\nprovisions contained in the Code.  Clauses (1) and (2) of r.
\n3  are not to be read in isolation as has been done  by\t the
\nHigh Court.  On the other hand they must be read along\twith
\nthe other various clauses contained in the same rule as well
\nas the detailed instructions given by the Government in\t the
\ncircular letter dated October 5, 1965.\tIt follows that\t the
\nreasoning  of  the  High Court that  these  two\t sub-clauses
\nviolate Art. 14 cannot be accepted.\n<\/p>\n
Coming to the fourth contention of the learned Attorney,  it
\nis evident from the judgment of the High Court that cls. (1)
\nand (2) of r. 3 have been struck down for they are vague and
\ndo not afford any standard or criteria for judging whether a
\nschool\tor  an\tadditional school is needed in\tan  area  or
\nlocality  and  whether\tthe  management\t is  competent\t and
\nreliable.   We\thave already pointed out that  the  definite
\nstand  taken  by the State in its  counter  affidavit  filed
\nbefore\tthe High Court was that the provisions of  the\tCode
\nare  executive\tinstructions  and  are\tin  the\t nature\t  of
\nadministrative\tinstructions  without any  statutory  force.
\nWhen  it  is admitted that the provisions contained  in\t the
\nCode,  which include cls. (1) and (2) of r. 3 are  executive
\ninstructions,  two questions arise, namely, (1) whether\t the
\nHigh  Court  was justified in striking down  such  executive
\ninstructions  even  assuming that  those  instructions\twere
\nvague  and  (2)\t whether the said clauses  are\tvague.\t The
\nlearned\t Attomey-General  invited our attention to  the\t two
\ndecisions  of  this  Court reported in State  of  Assam\t and
\nAnother\t v.  Ajit Kumar Sharma and others<\/a>(1)  and  Municipal
\nCommittee, Amritsar and another V. State of Punjab and\tOrs.\n<\/p>\n
(1)<\/span><\/p>\n
(2)  [1969] 3 S. C. R. 447.\n<\/p>\n
(1) [1965] 1 S.C.R. 890.\n<\/p>\n
895<\/span><\/p>\n
In  the first decision this Court has laid down\t that  where
\nconditions for receiving grant-in-aid are laid down by\tmere
\nexecutive instructions, it is open to a private\t institution
\nto accept those instructions or not to accept them.  That is
\na  matter  entirely between the Government and\tthe  private
\ninstitution  concerned.\t In the second decision it was\tlaid
\ndown that “the rule that an Act of a ,competent\t legislature
\nmay  be\t “struck  down”\t by the\t Courts\t on  the  ground  of
\nvagueness is alien to our Constitutional system…… A\t law
\nmay  be declared invalid by the superior Courts in India  if
\nthe  Legislature has no power to enact the law or  that\t the
\nlaw violates any of the fundamental rights  guaranteed\tin
\nPart  III of the Constitution or is inconsistent  with,\t any
\nconstitutional\tprovision, but not on the ground that it  is
\nvague……..  Based upon these two decisions,\tthe  learned
\nAttomey-General\t urged that even on the basis that  the\t two
\nsub-clauses in question are vague, they could not have\tbeen
\nstruck\tdown  on that ground.\tAlternatively,\this  further
\ncontention  is that those clauses are not vague.  We do\t not
\nthink  it  necessary  to go into the  question\twhether\t the
\ncourts\thave  got  powers  to  strike  down  even  executive
\ninstructions  on the ground of their being vague  when\tsuch
\nexecutive   instructions  are  admittedly  issued   by\t the
\nauthorities  concerned for the guidance and for being  acted
\nupon.\tWe  express  no\t opinion  on  that  point  in  these
\nproceedings.   We  are of the view that the two\t clauses  in
\nquestion  are  not vague or ambiguous in any  respect.\t The
\nfallacy committed by the High Court consists in\t considering
\ncls.  (1)  and (2) of r. 3 in isolation.   We  have  already
\npointed out that r. 3 of the Code consists of as many as  16
\nclauses,   which   are\tconditions  to\tbe   fulfilled\t for
\nrecognition  being accorded.  We have also referred  to\t the
\ncircular  letter dated October 5, 1965 issued by  the  State
\nGovernment enumerating the various matters to be taken\tinto
\naccount\t by the District Committees when considering  appli-
\ncations\t for  grant of permission to start a school  or\t for
\nhaving\tan  additional school in the area or  the  locality.
\nRule 3 will have to be read along with those instructions as
\nwell  as the various particulars which have to be filled  up
\nin  the\t prescribed form.  If cls. (1) and (2) of r.  3\t are
\ninterpreted having due regard to the various other  matters,
\nreferred  to  above, the District Committee  has  got  ample
\nguidance to decide the need of a particular locality to have
\na  school  or  an  additional school  as  also\tthe  further
\nquestion  regarding  the competency and reliability  of\t the
\nmanagement.   There will be sufficient material\t before\t the
\nDistrict  Committee  to consider whether the starting  of  a
\nschool\tor  an additional school into a particular  area  or
\nlocality will involve any unhealthy competition.  In view of
\nthe  clear and detailed guidance furnished not only by r.  3
\nbut  also  by  the instructions contained  in  the  circular
\nletter dated October 5, 1965, it is clear that there is\t no-
\nambiguity  in.\teither.\t cls.  (1)  or\t(2)  of\t r.  3.\t  In
\nconsidering the question of vagueness the High Court has not
\nadverted to the various matters.\n<\/p>\n
896<\/span><\/p>\n
referred to by us earlier.  Therefore. we are of the opinion
\nthat  the striking down of cls. (1) and (2) of r. 3  by\t the
\nHigh Court as being vague, is erroneous.\n<\/p>\n
The last contention of the learned Attomey-General which  is
\non  merits is that without considering the reasons given  by
\nthe  Deputy  Director  of Education for\t rejecting  the\t two
\napplications of the two writ petitioners, the High Court has
\nissued a mandamus to the State to grant permission to  those
\ntwo  applicants.   In our opinion, this contention  is\talso
\nwell-founded.  The application of the petitioner in  Special
\nCivil  Application  No.\t 420 of 1966 which  is\tthe  subject
\nmatter\tof Civil Appeal No. 160 of 1968 was rejected by\t the
\nDeputy Director of Education on the ground that the need  of
\nthe  place has been fulfilled by permitting another  society
\nto  open the school at the place.  The appeal filed  to\t the
\nState Government was unsuccessful.  In the counter-affidavit
\nfiled\tby  the\t State\tin  the\t writ  petition\t  they\t had
\ncategorically\treferred  to  the  recommendations  of\t the
\nDistrict  Committee  on the applications filed by  the\tsaid
\nwrit  petitioner  as  also  the\t third\trespondent  therein.
\nRegarding  the\twrit petitioner the report of  the  District
\nCommittee  was\tthat  it  had  no  funds  and  that  it\t was
\nrecommending  another society with good\t financial  position
\nand experience.\t In this view the District Committee  stated
\nthat  it  was not recommending the writ petitioner  for\t the
\ngrant  of  permission.\t On the\t other\thand,  the  District
\nCommittee  recommended\tthe application of  Ashok  Education
\nSociety, Ashoknagar (third respondent) on the ground that it
\nwas financially sound and it was a very good and experienced
\nsociety\t and that it was also a popular society. For  these
\nreasons\t the application of this society was recommended  to
\nbe  granted by the District Committee.\tIt was on the  basis
\nof  this recommendation of the District Committee  that\t the
\nDeputy Director of Education rejected the application of the
\nwrit   petitioner  and\tgranted\t permission  to\t the   third
\nrespondent  therein.   The  applications of  both  the\twrit
\npetitioner and the third respondent were before the District
\nCommittee.   The High Court has not found fault\t with  these
\nrecommendations.   On the other hand it has held that it  is
\nopen  to the authorities to refuse permission if the  school
\nis not in a financially sound position.\t The writ petitioner
\nalso was not able to satisfy us that the conclusions arrived
\nat  by\tthe District Committee, which were accepted  by\t the
\nDeputy Director of Education were not based upon particulars
\nfurnished in the application.\n<\/p>\n
Coming\tto  the\t application filed by  the  writ  petitioner
\nSpecial\t Civil\tApplication  No. 421 of 1966  which  is\t the
\nsubject\t matter\t of Civil Appeal No. 161 of  1968.  we\thave
\nalready\t referred to the fact that-the said  society  merely
\nmade  a\t request for opening a school by means of  a  letter
\ndated  October 29. 1965.  Admittedly the applicant  did\t not
\ncomply with the requirement of r. 2.1 Of
\n897<\/span>
\nthe  Code that the application should be in  the  prescribed
\nform.\tNo  doubt, later on ‘ on November 3, 1965  the\tsaid
\nsociety sent a fresh application in the prescribed form, but
\nthis  was not within the period mentioned in r. 2.1  of\t the
\nCode.\tSo the said writ petitioner did not comply  with  r.
\n2.1 read along with the press note and the circular  letter,
\nreferred to above.  That clearly shows that the\t application
\nfiled  by the writ petitioner was not in the first  instance
\nin  the\t prescribed form and that when it was  sent  in\t the
\nprescribed  form it was beyond time.  Further, we have\talso
\nreferred to r. 86.2 which specifically says that the schools
\nwhich  are not registered under the  Societies\tRegistration
\nAct,  will  not be eligible for any kind of grant  from\t the
\npublic\tfunds.\t Even in the application filed by  the\twrit
\npetitioner  in the prescribed form on November 3,  1965,  it
\nwas  stated  under head No. 4 that the\tmanagement  was\t not
\nregistered and that it intends to get itself referred within
\na month.  So apart from two infirmities, pointed out  above,
\nthere  was  this additional  infirmity\tof  nonregistration.
\nEven  on  the date when the appeal was filed  to  the  State
\nGovernment  on\tApril 26, 1966, the society was\t not  regis-
\ntered.\t As  admitted  by  the\tsaid  society  in  its\twrit
\npetition, it was registered under the Societies Registration
\nAct,  1860, only on April 27, 1966.  The order\tdated  April
\n11, 1966 of the Deputy Directorof  Education   rejecting
\nthe  application  was  based on\t two  grounds:(a)  that\t the
\napplication  was sent after the prescribed date and(b)\tthat
\nthe society was not registered.\t That these two reasons\t are
\nvalid  is clear from the facts mentioned above.\t The  appeal
\ntaken  to the State Government was unsuccessful.   From\t the
\nabove  circumstances it is clear that the rejection  of\t the
\napplication was on valid grounds.  The High Court, so far as
\nwe could see, has not found that these reasons are not based
\non  the\t materials on record.  No such contention  has\talso
\nbeen taken before us by the said writ petitioner.  If so, it
\nfollows that the order of the High Court directing the State
\nGovernment  to issue permission to the two writ\t petitioners
\nignoring the above circumstances is clearly erroneous.
\nFrom  what is stated above, the judgment of the\t High  Court
\nallowing Special Civil Application Nos. 420 and 421 of\t1966
\ncannot be sustained.\n<\/p>\n
Coming\tto  appeal No. 878 of 1968, the facts lie  within  a
\nvery  narrow  compass.\t For the  year\t1965-66,  the  third
\nrespondent in Special Civil Application No. 694 of 1965, out
\nof  which  the\tappeal arises, had made\t an  application  on
\nOctober\t 29, 1964 for starting a new school at\tSakharkherda
\nduring\t the  year  1965-66.   The  writ  petitioner   filed
\nobjections   to\t the  grant  of\t permission  to\t the   third
\nrespondent.    On   the\t recommendation\t of   the   District
\nCommittee.   the  third\t respondent  was  allowed  to\topen
\nstandards VIII and IX
\n898<\/span>
\nwith  one division only during the year 1965-66.   The\twrit
\npetitioner was filed to quash the permission granted to\t the
\nthird  respondent.   The State Government  in  its  counter-
\naffidavit  has\tvery  elaborately referred  to\tthe  various
\nmatters mentioned by the third respondent in his application
\nand  also  to  the  recommendation  made  by  the   District
\nCommittee.    The   District   Committee   had\t recommended
\npermission  being  granted to the third\t respondent  on\t the
\nground\tthat  the  management had very\tgood  experience  in
\nrunning schools and that it was also financially sound.\t  It
\nwas also stated that at the place in question even when\t the
\nwrit petitioner was conducting a school with standards V  to
\nX,  there was another school run by the Zila  Parishad\twith
\nstandards  V to VII.  It was pointed out by the\t State\tthat
\nthe  population in the area demanded additional school\twith
\nstandard  VIII\tonwards and it was  an\tabsolute  necessity.
\nThey  had also given details regarchng the  long  experience
\nthat the third respondent bad in running schools in  several
\nplaces as also the soundness of its financial position.
\nBefore the High Court the attack made by the writ petitioner
\nwas  slightly  different  from that of the  other  two\twrit
\npetitioners  in Special Civil Applications Nos. 420 and\t 421
\nof 1966.  The attack on the grant of permission to the third
\nrespondent was made by this writ petitioner really based  on
\ncls.  (1) and (2) of r. 3. According to the writ  petitioner
\nthe locality was not in need of any additional school as  it
\nwill involve unhealthy competition.  The High Court rejected
\nthe writ petition on the ground that the petitioner  therein
\ncannot\tmake  any grievance of the grant made to  the  third
\nrespondent to start a school after a proper consideration of
\nthe merits of the claim of the latter.\n<\/p>\n
Dr. Barlingay, learned counsel for the writ petitioner,\t who
\nis  appellant in this appeal, found considerable  difficulty
\nto satisfy us that any legal rights of the appellant  herein
\nhad  been  infringed  by grant of permission  to  the  third
\nrespondent.   We have already referred to the fact that\t the
\nState has pointed out that even when the writ petitioner was
\nrunning a school with classes V to X, the Zila Parishad\t was
\nrunning\t another school in the same area with classes  V  to
\nVII.  The State had also pointed out that the population  of
\nthe area demanded an additional school.\t From the mere\tfact
\nthat by the opening of another school, some of the  students
\nof the appellant school may seek admission in the new school
\nit cannot be stated that any of the appellant’s legal rights
\nhave  been  infringed.\tDr. Barlingay has not been  able  to
\nsatisfy\t us  that  in  granting\t permission  to\t the   third
\nrespondent  any extraneous or irrelevant matters  have\tbeen
\ntaken  into  account  by  the  District\t Committee  or\t the
\neducational authorities.  Nor was he able to satisfy us that
\nthe reasons given by the District Committee for the grant of
\npermission to. the third respondent on the ground
\n899<\/span>
\nthat  it had a long experience in running schools  and\tthat
\nits financial position is also good, are erroneous.  If\t so,
\nit follows that there is no merit in this appeal.
\nIn  the\t result\t the judgment and order of  the\t High  Court
\nallowing Special Civil Applications Nos. 420 and 421 of 1966
\nare set aside and Civil Appeals Nos. 160 and 161 of 1968 are
\nallowed.  The writ petitioners in Special Civil Applications
\nNos.  420  and\t421  of\t 1966 will  pay\t the  costs  of\t the
\nappellants  in\tboth the appeals.  There will  be  only\t one
\nhearing fee to be paid by the two writ petitioners in  equal
\nproportion.\n<\/p>\n
The judgment and order of the High Court dismissing  Special
\nCivil  Application No. 694 of 1965 are confirmed  and  Civil
\nAppeal No. 878 of 1968 will stand dismissed.  The appellants
\nwill pay the costs of the first respondent therein.
\nV.P.S.\n<\/p>\n
900<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Maharashtra & Anr vs Lok Shikshan Sansatha & Ors on 26 July, 1971 Equivalent citations: 1973 AIR 588, 1971 SCR 879 Author: C Vaidyialingam Bench: Sikri, S.M. (Cj), Mitter, G.K., Vaidyialingam, C.A., Reddy, P. Jaganmohan, Dua, I.D. PETITIONER: STATE OF MAHARASHTRA & ANR. Vs. RESPONDENT: LOK SHIKSHAN SANSATHA & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-227282","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Maharashtra & Anr vs Lok Shikshan Sansatha & Ors on 26 July, 1971 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-anr-vs-lok-shikshan-sansatha-ors-on-26-july-1971\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Maharashtra & Anr vs Lok Shikshan Sansatha & Ors on 26 July, 1971 - 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