IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 WP(C).No. 19789 of 2008(E) PETITIONER: ------------ DR.B.R. AMBEDKAR MEMORIAL WELFARE TRUST, KERALA, ARUN NIVAS, MANJALLOOR, PATHANAPURAM.P.O, KOLLAM DISTRICT REPRESENTED BY R.NANU, CHAIRMAN AND MANAGING TRUSTEE. BY ADV. SRI.C.RAJENDRAN RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 4. THE DISTRICT EDUCATIONAL OFFICE, EDUCATION OFFICE, PUNALUR. 5. SECRETARY TO SC/ST WELFARE DEPARTMENT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.K.R.SABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------------- W.P.(C) NO. 19789 OF 2008 E -------------------------------------------- Dated this the 18th August, 2008 JUDGMENT The petitioner is a Registered Trust. It is stated that the Trust decided to open an educational institution to afford opportunity to the children belonging to Scheduled Castes and also to poor students. Accordingly, Ext.P2 application was submitted to open a new school/TTC/Technical Institution in the name of Dr.B.R.Ambedkar Memorial Welfare Trust. Ext.P4 application was submitted by the Trust to open a new higher secondary school. The Trust also submitted Ext.P6 application to allot sufficient landed property for establishing the Technical Institution. Several representations followed. 2. Exts.P16 and P17 orders were passed by the first respondent on 19.4.2008 and 31.5.2008, rejecting the request for granting permission to open a new school as requested for by the petitioner. 3. The reliefs prayed for in the Writ Petition are the following: i) To call for the records leading to Ext.P16 and P17 and quash the same by issuance of writ in the nature of CERTIORARI or by any appropriate writ order or writ W.P.(C) NO.19789 OF 2008 :: 2 :: ii) To issue a writ in the nature of mandamus or any other appropriate writ, order of direction compelling and commanding the respondents 1 to 4 to give to sanction for an aided school from LKG to VII standard (LKG, UKG, LP & UP) to the trust in Kadakkamon in Pathanapuram Taluk in Kollam District. iii) To issue a writ in the nature of mandamus or any other appropriate writ, order of direction compelling and commanding the respondents 1 and 5 to provide land and infrastructural facilities to the trust for establishing an aided school in Kadakkamon in Pathanapuram Taluk in Kollam District. iv) Declare that the Kadakkamon in Pathanapuram Taluk wherein the school of the trust is to be function is an educationally backward area and there is educational need is there and as such the trust is entitled to get an aided school sanction in its name. v) To issue a writ in the nature of mandamus or any other appropriate writ, order of direction compelling and commanding the respondents 1 and 4 to sanction an atleast an unaided school to the trust with all rights and privileges of other unaided recognized schools. vi) Issue any other appropriate writ, order or direction to meet the ends of justice under the circumstance of the above case. 4. The Honourable Supreme Court in State of Kerala v. Prasad (2007 (3) KLT 531(SC)), has held as follows: “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 W.P.(C) NO.19789 OF 2008 :: 3 :: 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, W.P.(C) NO.19789 OF 2008 :: 4 :: 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.” 5. In view of the decision of the Supreme Court in State of Kerala v. Prasad (2007 (3) KLT 531 (SC)), I do not think that the petitioner is entitled to any of the reliefs prayed for in the Writ Petition. However, it is made clear that when a notification is issued, the petitioner will be entitled to make necessary applications for opening a new school and request for consideration of the same in accordance with law. The Writ Petition is accordingly closed with the above observations. (K.T.SANKARAN) Judge ahz/