IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 WP(C).No. 18465 of 2007(W) PETITIONERS: SREE NARAYANA EDUCATIONAL SOCIETY, REPRESENTED BY ITS SECRETARY M.RADHAKRISHNAN, EAST VILLAGE, PALLASSANA, PALAKKAD DISTRICT. BY ADVOVATES M/S.P.R.VENKATESH ASHA CHACKO AND MEERA SIDHARDHAN RESPONDENTS: 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 3. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE G.O.DATED 16.9.2004. EXT.P2 TRUE COPY OF THE ORDER DATED 3.5.2005 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER, KOLLENGODE. EXT.P3 TRUE COPY OF THE APPLICATION DATED 18.6.2005. EXT.P4 TRUE COPY OF THE ORDER DATED 15.5.2007 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. EXT.P5 TRUE COPY OF THE LETTER DATED 18.6.2005 SUBMITTED BY THE PETITIONER TO THE SECOND RESPONDENT. EXT.P6 TRUE COPY OF THE ORDER DATED 23.3.2007 ISSUED BY THE GOVERNMENT. EXT.P7 TRUE COPY OF THE ORDER DATED 25.5.2007 PASSED BY THE GOVERNMENT. EXT.P8 TRUE COPY OF REPRESENTATION DATED 14.4.2008 SUBMITTED BEFORE THE DIRECTOR OF PUBLIC INSTRUCTIONS WITH THE ACKNOWLEDGEMENT SEAL FROM THE OFFICE OF THE DPI DATED 18.4.2008. EXT.P9 TRUE COPY OF THE RESOLUTION DATED 31.7.2007 OF THE PALLASSANA GRAMA PANCHAYATH. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 18465 OF 2007 W ------------------------------------------------------ Dated this the 6th January, 2009 JUDGMENT The petitioner, Sree Narayana Educational Society, runs an educational institution, namely, Sree Narayana English Medium School at Pallassana, Palakkad District. As per Ext.P1 Government Order dated 16.9.2004, permission was granted for conducting L.P.School. It is stated that the School was functioning. In 2005, the petitioner applied for upgradation of the School seeking recognition for U.P.classes. It is stated that the proposal was recommended by the District Educational authorities. The application is stated to be pending before the Government. 2. The relief prayed for by the petitioner is for the issue of a writ of mandamus directing the Government to dispose of the application for recognition of Upper Primary School submitted by the petitioner. There is also a prayer for the issue of a writ of mandamus directing the respondents to permit the pupils who are admitted to UP classes to continue their studies. 3. In view of the decision of the Supreme Court in State of Kerala W.P.(C) NO.18465 OF 2007 :: 2 :: v. Prasad (2007 (3) KLT 531 (SC)), the reliefs prayed for in the Writ Petitions are not liable to be granted. It was held by the Supreme Court thus: “10. The two Rules, quoted above, lay down a comprehensive procedure for opening of new schools in particular areas; their recognition and upgradation. It is manifest that a decision in this behalf has to be primarily by the Government on an application made for that purpose under R.2A. The Rules also lay down the guidelines which are to be taken into consideration for preparing the list in terms of sub r.(1) of R.2. On the lists being finalized, after their publication and consideration of objections, if any, the same have to be sent to the Government for its approval, with or without modification. Nevertheless the decision by the Government whether opening of new school is to be sanctioned or whether an existing school is to be allowed to be upgraded has to be taken on consideration of the matters enumerated in clauses (a) to (e) of R.2(1) of the Rules. Similarly, an application for either opening of new school or for upgradation of an existing aided school can be submitted only after the Director publishes a final list of areas where new schools are to be opened or existing schools are to be upgraded under sub-r.(4) of R.2. Any application received otherwise cannot be considered. In view of such comprehensive procedure laid down in the statute, an application for upgradation has necessarily to be made and considered strictly in a manner in consonance with the Rules. It needs little emphasis that Rules are meant to be and have to be complied with and enforced scrupulously. Waiver or even relaxation of any Rule, unless such power exists under the Rules, is bound to provide scope for discrimination, arbitrariness and favouritism, which is totally opposed to the rule of law and our constitutional values. It goes without saying that even an executive order is required to be made strictly in consonance with the Rules. Therefore, when an executive order is called in question, while exercising the power of judicial review the Court is required to see whether the Government has departed from such Rules and if so, the action, of the Government is liable to be struck down.” W.P.(C) NO.18465 OF 2007 :: 3 :: In the present case, no notification was published and no publication of final list of areas where existing schools are to be upgraded was made. In view of the decision of the Supreme Court in Prasad's case, the Writ Petition is liable to be dismissed. It is made clear that the dismissal of the Writ Petition would not stand in the way of the petitioner making an application after issuing all the necessary notifications by the Government. (K.T.SANKARAN) Judge ahz/