IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 WP(C).No. 11167 of 2006(D) -------------------------------------- PETITIONER: ------------------ SECRETARY, CANNANORE DISTRICT MUSLIM EDUCATIONAL ASSOCIATION, KANNUR, KARIMBAM-670 142. BY ADV. SRI.T.P.KELU NAMBIAR (SR.) SRI. A.A. ABUL HASSAN RESPONDENTS: ---------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SHANTHI NAGAR, THIRUVANANTHAPURAM-1. 3. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. *4. DR. K.V. JANARDHANAN NAMBIAR, MANAGER, MOOTHEDATH HIGH SCHOOL, P.O. TALIPARAMBA, KANNUR DIST. *ADDL. R4 IS IMPLEADED AS PER ORDER DATED 20/12/2006 IN IA NO. 17165/2006. ADV. SRI. K.ALEESWARAM RAJ FOR R4 GOVERNMENT PLEADER SMT. N. SUDHADEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/12/2007 ALONG WITH OP NO. 2358/2002 AND CONNECTED CASES, THE COURT ON 11/01/2008 DELIVERED THE FOLLOWING: WP(C) NO: 11167/2006 D APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE JUDGMENT IN WA NO. 2716/00 DATED 29/08/2002 PASSED BY THE DIVISION BENCH OF THIS COURT. EXT.P2. COPY OF THE JUDGMENT IN WPC NO. 16800/04 DT. 15/7/04 BY THIS COURT. EXT.P3. COPY OF THE JUDGMENT IN WPC NO. 18004/2003 DT. 8/7/05 BY THIS COURT. EXT.P4. COPY OF THE INTERIM ORDER IN WPC NO. 29124/2003 DT. 23/3/2004 BY THIS COURT. EXT.P5. COPY OF THE GOVT. ORDER GO RT NO. 3160/2004/G.EDN DT.24/07/2004 BY THE R1. EXT.P6. COPY OF THE REPRESENTATION DT. 21/3/2005 FILED BY THE PETITIONER BEFORE THE GOVT. OF KERALA. EXT.P7. COPY OF THE REPRESENTATION DT. 6/3/2005 FILED BY THE PETITIONER BEFORE THE R2. EXT.P8. COPY OF THE IA NO. 1816/2006 IN WPC NO. 22532/2004 FILED BY THE GOVT. OF KERALA. EXT.P9. COPY OF THE CERTIFICATE DT. 13/12/2007 ISSUED BY THE TALIPARAMBA MUNICIPALITY. RESPONDENT'S EXHIBITS EXT.R1A. COPY OF THE GO RT NO. 3691/06/EDN DT. 19/08/06. EXT.R1B. COPY OF THE GO RT NO. 3739/06/G.EDN DT. 22/08/06. EXT.R4A. COPY OF THE ORDER DT. 3/1/2007 PASSED BY THE COMMISSIONER FOR EXAMINATION. EXT.R4B. COPY OF THE JUDGMENT DT. 12/2/2007 IN WPC NO. 1220/2007. EXT.R4C. COPY OF THE DETAILS OF MOOTHEDATH HIGH SCHOOL FOR THE YEARS 2004-05, 2005-06 AND 2006-07. EXT.R4D. COPY OF THE ORDER DT. 29/11/2007. EXT.R4E. COPY OF THE ORDER DATED 15/11/2007. EXT.R4F. COPY OF THE ORDER DT. 15/11/2007. WP(C) NO: 11167/2006 D EXT.R4G. COPY OF THE ORDER DT. 23/11/2007. EXT.R4H. COPY OF THE STAFF FIXATION ORDER DT. 6/12/2005. EXT.R4(I). COPY OF THE STAFF FIXATION ORDER DT. 14/07/2004. EXT.R4J. COPY OF THE STAFF FIXATION ORDER DT. 5/12/2006. EXT.R4K. COPY OF THE MAP OF WARDS IN TALIPARAMBA MUNICIPALITY. True copy tga K.BALAKRISHNAN NAIR & K.P.BALACHANDRAN, JJ. ----------------------------------------- O.P.NO.2358/2002, W.P.(C) NOS. 24601, 24614, 24933, 24943 & 28855/2004, 14793 & 24960/2005 AND 11167 OF 2006 ----------------------------------------- Dated 11th January, 2008. JUDGMENT Balakrishnan Nair, J. Since the issues to be resolved in these writ petitions are connected, they are being heard and disposed of by this common judgment. W.P.(C) No.11167/2006: 2. This writ petition is treated as the main case. The brief facts of this case are the following: The petitioner is the Secretary of Cannanore District Muslim Educational Association, Karimbam (hereinafter referred to as the Association), which is a Society registered under the Societies Registration Act (Central Act 21/1860). The Association has established Sir Syed College in 1967. The college grew into a full-fledged college in due course. It was also running several batches of Pre-degree courses with different optional subjects in the said College. While so, the Government, some time back took a policy decision to abolish the Pre-degree Courses WPC No.11167/06 etc. 2 conducted in the colleges and to attach Higher Secondary courses to the existing High Schools. The Government also decided to sanction Higher Secondary courses to the existing High Schools run by the Managers of colleges, who have lost the Pre-degree courses. In some cases, the college managements were not having any High Schools. Therefore, it was resolved to grant High Schools to such managements and thereafter to sanction Higher Secondary courses to such High Schools. The policy decision of the Government in this regard was upheld by the Division Bench of this Court, by Ext.P1 judgment dated 29.8.2002 in W.A.No.2716/2000. When the said policy was implemented, the Government allegedly practised discrimination. The affected managements approached this Court. Ext.P2 is the judgment in one such case. This Court ordered to grant Higher Secondary courses to the petitioner therein. Challenge against such grants was the subject-matter of W.P.(C) No.18004/03. The said writ petition was dismissed by this Court by Ext.P3 judgment. 3. The petitioner had been applying for Higher Secondary courses eversince 1996. Those applications were not being considered by the Government, taking shelter behind the policy that Higher Secondary courses will be sanctioned only to managements having existing High Schools. But, WPC No.11167/06 etc. 3 later, the Government decided to grant High Schools as well as Higher Secondary Schools. The petitioner's application for sanctioning a High School was finally allowed by Ext.P5 Government order dated 24.7.2004. Pursuant to the said order, the classes commenced during the academic year 2004-05 itself and the School became a complete High School during the academic year 2006-07. 4. When other managements were granted High Schools and Higher Secondary Schools simultaneously or immediately one after the other, the petitioner was not sanctioned Higher Secondary School after the sanction of the High School as per Ext.P5 order. Therefore, the Association represented to redress the said grievance. Ext.P6 dated 21.3.2005 is one of the representations filed by the petitioner in this regard before the Government. The petitioner also filed Ext.P7 representation dated 6.3.2005 before the Director of Higher Secondary Education. In those representations, it was pointed out that as evident from Ext.P5, the Government have decided to grant High Secondary courses, also, to the petitioner and prayed for implementing that decision. 5. The petitioner submits, the Council of Ministers at its meeting held on 8.10.2003, decided to sanction a High School and a Higher Secondary School to the petitioner in Ward No.15 of Taliparamba WPC No.11167/06 etc. 4 Municipality. But, the said decision was not implemented, as this Court passed an interim order in a writ petition filed by Fr. Mathew Villanthanam that new Higher Secondary Schools shall not be granted without further orders from this Court. The petitioner submits, based on the repeated representations of the Association, the State Cabinet on 13.10.2005 decided to grant three batches of Higher Secondary courses to the petitioner in the aided sector, after getting the permission of this Court. So, the Government filed I.A. No.1816/06 in W.P.(C) No.2252/04 and connected cases. Ext.P8 is the copy of that application. But, this Court dismissed the said application, on the ground that the aggrieved persons may approach this Court. In the above background, this writ petition is filed, seeking mainly the following relief: “To issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to sanction an aided higher secondary school to the petitioner, as was done in the case of other aided college managements, so that the higher secondary school can commence functioning during the academic year 2006-07 itself.” 6. The petitioner submits, in view of Exts.P1 to P3 judgments and also the decision contained in Ext.P5, the Government are bound to grant Higher Secondary courses to the Association. The college lost several Pre- degree batches and the Government have decided to compensate the same in WPC No.11167/06 etc. 5 the case of the petitioner as well as other managements. The Government should be compelled to implement that decision, it is submitted. 7. The 1st respondent Government filed a counter affidavit in this case in September, 2006, stating that it is proposing to review the entire matter concerning the sanctioning of High Schools and Higher Secondary Schools. It proposes to frame guidelines which are transparent and will inspire confidence among the people. For the said purpose, the Government by Ext.R1(a) order dated 19.8.2006, constituted a committee to make the necessary recommendations. The Government also submitted that it noticed that several schools were sanctioned or upgraded in the aided sector without proper assessment of the educational need and in violation of the procedure prescribed in the Kerala Education Rules after 1.1.2003. So, it has decided to review such sanctions/upgradations. For that purpose also, the Government constituted a committee as per Ext.R1(b) Government order dated 22.8.2006. So, the Government submitted that the petitioner is not entitled to get a school sanctioned on the basis of the earlier assurance given by it. Now, the sanctioning of the High School to the petitioner has to be reviewed and the need for sanctioning Higher Secondary courses, if any, has also to be examined in the light of the new norms to be notified, it is submitted. WPC No.11167/06 etc. 6 8. The additional 4th respondent, who is the Manager of a neighbouring school, has got himself impleaded and has filed a counter affidavit, resisting the prayers in the writ petition. According to him, the sanctioning of the High School to the petitioner itself is illegal and has been made in violation of the Rules in Chapter V of the K.E.R. Further, seven Higher Secondary Schools affiliated to the C.B.S.E are functioning in the neighbourhood. Therefore, there is no need for sanctioning another Higher Secondary School in that area. Further, it is pointed out that the said respondent's school and other schools in the neighbourhood are substantially affected by the sanctioning of the new High School to the petitioner. He also pointed out that the petitioner's school has not been recognized as an examination centre, as evident from Ext.R4(a) order dated 3.1.2007, passed by the Commissioner for Government Examinations. The challenge against that order has been repelled by this Court as per Ext.R4(b) judgment dated 12.2.2007. The said respondent has filed an additional counter affidavit also. The petitioner has filed a reply affidavit to the said additional counter affidavit. 9. Heard Sri.T.P.Kelu Nambiar, senior counsel and Sri.A.A.Abul Hassan for the writ petitioner. We heard learned Government Pleader Smt.N.Sudhadevi for the official respondents and also Sri.Kaleeswaram Raj WPC No.11167/06 etc. 7 for the additional 4th respondent. We also heard M/s. M.Vijayakumar and V.A.Muhammed, learned counsel for the writ petitioners in the connected writ petitions, filed challenging the grant of a High School to the petitioner as per Ext.P5 Government order. The learned senior counsel submitted that the Government's policy of compensating with Higher Secondary courses to those college managements who lost Pre-degree courses as a result of abolition of the said course, has been upheld by this Court by Ext.P1 judgment. The Government had also promised to grant Higher Secondary courses to the petitioner, as evident from Ext.P5. Therefore, the Government are bound to grant the same. It is also submitted that the 4th respondent, who is the Manager of a neighbouring school, has no locus standi to challenge Ext.P5 order or to oppose the grant of Higher Secondary School to the petitioner. The learned Government Pleader submitted that the Government have taken a policy decision to review the grant of the High School made as per Ext.P5 and by other similar orders, which were issued after 2003. It is also submitted that the Government have also decided not to grant Higher Secondary Schools before framing transparent norms for the same. Now, the Government have issued G.O.(P) No.107/07/G.Edn dated 13.6.2007, which has been produced in this writ petition along with a memo, containing the norms for sanctioning new WPC No.11167/06 etc. 8 schools, courses etc. So, the prayer of the petitioner cannot be granted, it is submitted. The learned counsel for the 4th respondent submitted that the grant of the High School to the petitioner itself was illegal and therefore, the writ petition may be dismissed. The learned counsel also pointed out that the petitioner's claim for upgradation, made based on the ground of discrimination is untenable. The decision of the Division Bench of this Court in W.A.Nos.545 and 546 of 2004, issuing directions similar to those contained in Ext.P2 has been reversed by the Apex Court in Civil Appeal No.2913/2007. 10. In the matter of grant of schools, the Government can change its policy from time to time. While granting the schools, the Government, normally, must follow the Rules governing the same and in the case of grant of Higher Secondary courses, it has to follow the relevant executive orders. In this case, the Government took up the stand that the upgradation sought for by the petitioner cannot be granted, in view of its decision to frame new policy to govern such grants. Now, the policy has been framed and notified on 13.6.2007 and therefore, any further grant of schools can only be in accordance with the said new order issued in this regard, it is submitted. The petitioner's claim is based on an earlier decision of the Government in his favour. The point that arises for decision in this case is WPC No.11167/06 etc. 9 whether the Government should be compelled by issuing a writ of mandamus to grant a Higher Secondary School to the petitioner as per the promise held out by it earlier. 11. The sanctioning of new schools as mentioned earlier will always come within the realm of policy. Even if there is an educational need, the Government can decide not to sanction any schools, having regard to its financial position. The resources of the Government are limited. There are several competing claims for allotment of funds. A person working in the field of health would like to have the maximum funds allotted for the said field, so that all the Government hospitals are run properly and new hospitals are opened wherever necessary. A person interested in literature would like to see the Government to allot more funds to encourage literary activities and support the activities of Sahitya Academy etc. Likewise, a person interested in education would like to have the maximum funds allotted for education in every year's budget. But, the Government have to do a balancing act, taking into account the competing claims of various sectors. While considering the point whether this Court can interfere with the fixation of priorities in the matter of allotment of funds, we think, it is appropriate to refer to the decision of the Court of Appeal in R v. WPC No.11167/06 etc. 10 Cambridge Health Authority, ex p B [(1995)2 All ER 129]. It was a case concerning the validity of the decision of the Health Authority not to allot funds for the treatment of a child, as the chances of success of treatment were remote and there were other claimants for the limited funds available with the Authority. Though the Divisional Court interfered with the decision of the Health Authority, the Court of Appeal reversed it. In the said decision Sir Thomas Bingham, Master of Rolls stated as follows: “I have no doubt that in a perfect world any treatment which a patient, or a patient's family, sought would be provided if doctors were willing to give it, no matter how much it cost, particularly when a life was potentially at stake. It would however, in my view, be shutting one's eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make.” An identical point was considered by our Apex Court also in State of H.P. v. Umed Ram Sharma [(1986)2 SCC 68]. In the said decision, the High Court directed the Government to favourably consider allotment of WPC No.11167/06 etc. 11 additional funds for the construction of a road to a remote village in the Himalayas. Though the Apex Court, on the facts of the case, justified the direction, observed as follows: “21. There are detailed instructions regarding the preparation, submission etc., of applications, for reappropriation. The sum and substance of the said requirements are that total sanction of bill for a project is within the domain of the legislature and the executive has no power to exceed the total sanction without the consent or assent of the legislature and the court cannot impinge upon that field of legislature. The executive, however,on the appreciation of the priorities determine the manner of priorities to be presented to the legislature. The court cannot also, in our opinion, impinge upon the judgment of the executives as to the priorities. 22. ........................ . So far as the additional grant of the sum was required, it is entirely in the domain of the legislature to sanction it or not. The members of the legislature know the needs of the people. Under the Constitution, they are authorised and entitled to fix the priorities for the expenditure to satisfy the basic needs of the people, upon the judgment and recommendation of the executive. Xxxxx xxxxx xxxxx xxxxx 27. ..................... but it is primarily within the domain of the legislature and the executive to decide the priority as well as to determine the urgency. Judicial review of the administrative action or inaction where there is an obligation for action should be with caution and not in haste.” If this Court directs the Government to sanction a Higher Secondary School to the petitioner, it may impinge upon the budgetary allotment of funds. Further, if the Government take a policy decision not to allot any funds for WPC No.11167/06 etc. 12 some time to a particular field, it is not a matter, normally, for the courts to interfere. In that case, the appeal would lie to “the ballot and not to the courts”. Ours is a Government of people and not of courts. The courts which are not answerable to the legislature, are not supposed to interfere with executive decisions and functions, unless they are shown to be illegal or ultra vires. By keeping itself within the four corners of the law, the Government can take a wise or a foolish decision. The courts are not authorised to correct the unwise decisions of the Government. The normal mode to get an unwise policy changed in democracies is by building up enlightened public opinion and not by approaching the court. 12. In this case, as mentioned earlier, the Government have decided not to grant any new Higher Secondary Schools before revamping the existing norms and now it is decided that fresh grants will be made in accordance with the newly framed policy published on 13.6.2007 and not based on earlier decisions taken in the light of the then prevailing policy. We find nothing illegal with the stand of the Government in this regard. The petitioner does not have any statutory right to get sanctioned a Higher Secondary School and the Government do not owe any corresponding duty to him in this regard. The right of the petitioner under the earlier orders governing grant of Higher Secondary Schools is lost by the replacement of WPC No.11167/06 etc. 13 those orders by the new order G.O.(P) No.107/07/G.Edn dated 13.6.2007. The Government cannot be tied down to a policy permanently. It should be conceded freedom to change it from time to time. So, the prayer for mandamus to enforce the right claimed under the repealed policy fails. Accordingly, the writ petition is dismissed. 13. Now, we will deal with the remaining writ petitions together. Their facts are summarised below: O.P.No.2358/2002: 14. This Original Petition is filed, challenging Ext.P1 Government order dated 7.9.2001, by which the review petition filed by the 4th respondent, the Secretary, Kannur District Muslim Educational Association against the deletion of Ward No.15 of Taliparamba Municipality from the list published by the Director of Public Instruction for opening new High Schools, was disposed of by the Government. As per Ext.P1, the Government ordered to consider the 4th respondent's case for sanctioning a High School in Ward No.15 of Taliparamba Municipality, when the financial position of the Government improves. According to the petitioners, the review petition was liable to be dismissed and the 4th respondent's application should not be considered, even if the financial position of the Government improves. Hence this writ petition challenging WPC No.11167/06 etc. 14 Ext.P1. W.P.(C) No.24601/2004: 15. This writ petition is filed by the Manager and two Teachers of Seethi Sahib Higher Secondary School, Taliparamba, challenging Ext.P2 order of the Government dated 24.7.2004 (Ext.P5 in W.P.(C) No.11167/2006), sanctioning a High School to the 5th respondent, who is the Secretary of the Kannur District Muslim Educational Association. According to them, the school was sanctioned in violation of the provisions of Chapter V of the K.E.R. They submit, the decision to include Ward No.15 of Taliparamba Municipality again in the list of places for sanctioning schools was illegal. Further, the High School was sanctioned without issuing any public notification inviting applications from interested persons to start the same. Therefore, they say, the sanctioning of the High School to the 5th respondent is illegal. W.P.(C) No.24933/22004: 16. The very same order impugned in W.P.(C) No.24601/2004 is impugned in this case by two High School Assistants working in Seethi Sahib Higher Secondary School, on identical grounds. W.P.(C) No.28855/2004: 17. This Writ Petition is filed by the Secretary of the Staff Council, WPC No.11167/06 etc. 15 Moothedath High School, Taliparamba, challenging the grant of a High School to the 4th respondent Association, as per Ext.P2 order dated 24.7.2004 (Ext.P5 in W.P.(C) No.11167/2006). W.P.(C) No.14793/2005: 18. This is another writ petition filed by a High School Assistant of Moothedath High School, seeking a writ of mandamus against the Government not to sanction any High School in Taliparamba Municipality, to the 4th respondent Association. The writ petition was later amended, challenging Ext.R4(K) proceedings of the D.E.O dated 10.5.2005. W.P.(C) No.24943/2004: 19. This is a writ petition filed by the Manager of the Moothedath High School, challenging Ext.P2 Government order dated 24.7.2004 (Ext.P5 in W.P.(C) No.11167/2006), granting a High School to the 5th respondent, Secretary, Kannur District Muslim Educational Association. W.P.(C) No.24614/2004: 20. This writ petition is filed by the very same petitioners in O.P.No.2358/2002, challenging Ext.P3 Government order dated 24.7.2004 (Ext.P5 in W.P.(C) No.11167/2006), granting a High School to the 4th respondent Association. W.P.(C) No.24960/2005: WPC No.11167/06 etc. 16 21. This writ petition is filed by the Manager of Moothedath High School, Taliparamba, seeking a writ of mandamus or other appropriate writ, order or direction, commanding respondents 1 to 3 to refrain from granting aided Plus Two courses to the 4th respondent without considering the request of the petitioner for the same. 22. The above writ petitions are filed either by the Managers of aided schools in the neighbourhood or the Teachers of those schools. We notice that the High School has been sanctioned to the Association, not strictly following the relevant Rules. Ward No.15 of Taliparamba Municipality was removed from the list of places where new High Schools are to be sanctioned. But, later, the same was included irregularly, it is submitted. It is also submitted that the school has been sanctioned to the Association grossly in violation of Rule 2A of Chapter V of the K.E.R., without issuing any notification inviting applications from the public for establishing a school there. But, the learned senior counsel Sri.T.P.Kelu Nambiar appearing for the Association would support the decision of the Government by contending that those actions were taken as part of the policy decision taken by it to compensate the managements who lost Pre- degree courses as