Case: State of Maharashtra &amp; Others Vs. Lok Shikshan Sansatha &amp; Others

2. We will first deal with Civil Appeal Nos. 160 and 161 of 1968 and refer to the facts leading up to those appeals. Civil Appeal No. 160 of 1968, as mentioned above, arises out of the order in Special Civil Application No. 420 of 1966. The applicant in the said application Loka Shikshan Sanstha Anjansinghi made an application dated October 30, 1965, to the Deputy Director of Education, Nagpur for permission to open a school during the year 1966-67 at Anjansinghi in Amravati district. The application was sent in the prescribed form. Therein it was stated that the Management was not registered and that it will get itself registered by about the middle of January, 1966. Under the heading "Arrangements made for necessary furniture and apparatus" in Col. 13, the applicant stated that they proposed to spend about Rs. 2,000/- in respect of furniture, science apparatus, teaching aids, teachers library and pupils library. The break up of the figures under these heads was also given. In col. 15 under the heading "Funds at the disposal of the management in addition to those in Col. 13 above", the applicant stated Rs. 5,000/- only. The applicant further stated under col. 17 that it required only a token grant in the first year of recognition and a regular grant at the prescribed rate from the second year. The Ashok Education Society, Ashoknagar, the third respondent in the writ petition had also applied to the educational authorities to start a school during the same year at Anjansinghi: the writ petitioner filed an objection dated March 8, 1966 before the Deputy Director of Education, Nagpur objecting to the grant of permission asked for by the Ashok Education Society, Ashoknagar on the ground that the said Society is an outside agency. In the said petition the applicant reuqested for favourable consideration of his application, already submitted, to the authorities. The District Committee which scrutinized the applications of both the parties, recommended that the application of the writ petitioner should be rejected as it had no funds. Another Society with good financial position and experience was recommended by the Committee. The District Committee recommended that Ashok Education Society should be granted permission as it was a good, experienced and popular society and it was also financially sound. The Deputy Director of Education by his order dated April 12, 1966 rejected the application of the writ petitioner on the ground that the need of the place has been fulfilled by permitting another society to open a school at the place. The petitioner was further informed that in case any school is started when permission has been refused, serious view will be taken by the educational authorities. The writ petition filed an appeal on April 21, 1966 to the State Government wherein he prayed for withdrawing permission granted to the Ashok Education Society, the third respondent and also requested that permission may be granted to the applicant society to open a school. This appeal was rejected by the Government by its order dated 10/16th May, 1966. The applicant society filed the writ petition and prayed for striking down Rule 3 of the Grant-in-aid Code framed by the State of Maharashtra as unconstitutional and violative of fundamental rights guaranteed under Art. 19 (1) (c) of the Constitution and to quash the orders of the Deputy Director of Education and the State Government refusing permission to the petitioner Society to start a school at Ajansinghi. The applicant further prayed for a direction being issued to the educational authorities to grant permission to start the school as requested by it.3. As common contentions had been raised by the State of Maharashtra in this writ petition and also in Special Civil Application No. 421 of 1966 before the High Court, we will refer to those contentions after adverting to the facts in Special Civil Application No. 421 of 1966.4. Civil Appeal No. 161 of 1968 arises out of Special Civil Application No. 421 of 1966. The applicant therein Sri Nana Guru Shikshan Sanstha, Shirkhed sought permission of the Deputy Director of Education to start a school at Shirkhed from June 1966. The request was made by a letter dated October 29, 1965 and the application was not made in the prescribed form. The Parishad Education Officer, Zila Parishad, Amravati by his communication dated November 15, 1965 forwarded the prescribed application form to the applicant with a request to have the particulars mentioned therein properly filled in and to submit the same immediately. The application in the prescribed form was sent by the applicant on November 3, 1965. In Column No. 4 under the heading "whether the management is registered" the answer given was "no". Under the same column to the further query "if not" whether it is intended to get it registered. "If so when," the answer given was "within a month". In column 13, the expenditure proposed to be incurred regarding furniture etc. the applicant stated that about Rs. 800/- was intended to be spent. The break up in respect of the various items was also given. Under column 15 regarding funds at the disposal of the management, it was stated that a sum of Rs. 5,000/- was available. The third respondent therein Swami Vivekanand Shikshan Sanstha, Lehgaon had also made an application for opening a school at Shirkhed. The applicant filed an objection on January 5, 1966 to the grant of any permission to the third respondent. The Deputy Director of Education by his order dated April 11, 1966 rejected the application of the writ petitioner on two grounds, namely, "(1) the application is after the prescribed date and (2) the Society is dnot registered". The petitioner was also informed that if a school is started when permission has been refused, serious view will be taken by the educational authorities. The appeal filed by the writ petitioner to the State Government was rejected by the latter by its order dated May 10/16th 1966. The applicant filed Special Civil Application No. 421 of 1966 praying for striking down Rule 3 of the Grant-in-aid Code as unconstitutional and violative of Art. 19 (1) (c) of the Constitution. The orders refusing permission to the Society to start a school were also sought to be quashed. A further prayer was made for directions being issued to the authorities to grant permission to the Society to start a second school at Shirkhed as desired by it.5. The State Government contested both the Special Civil Applications. It was pointed out that the rules contained in the Grant-in-aid Code were all executive instructions given by the State to the educational authorities for proper guidance in the matter of considering applications for starting schools which required grants to be made by the Government. None of the rules contained therein violated any fundamental rights of the applicants. Even if Art. 19 can be invoked, the restrictions regarding the starting of schools were all reasonable restrictions in the interest of general public. No restriction has been placed on the applicants forming associations or unions as contemplated under Art. 19 (1) (c) and that in any event the restrictions were saved by Cl. (iv) of Art. 19. The reasons given by the Deputy Director of Education for rejecting the applications of the two petitioners were valid as the District Committee constituted for the purpose had considered all the relevant matters before rejecting their applications and granting permission to the respective third respondents therein.6. The High Court by its common judgment had taken the view that clauses (1) and (2) of Rule 3 of the Grant-in-aid Code are invalid as they are too vague to afford any standard both as to the need of a school in the locality and also as to the unhealthy competition with an existing school. The said clauses are equally vague as there is no standard to find out the competency and reliability of the management in-charge of the school. There is further no provision in these sub-clauses for hearing a party before the authorities concerned take a decision in the matter of grant or refusal of permission to start a school. The High Court is further of the view that by such executive instructions the State is able to prevent the two writ petitioners from carrying on their legitimate activities of running schools. The said clauses also do not satisfy the test of being reasonable restrictions in public interest. On this reasoning the High Court has held that the two clauses, namely, (1) and (2) of Rule 3 are violative of the rights guaranteed to the writ petitioners under Art. 19 (1) of the Constitution. Though it was argued on behalf of the writ petitioners that clauses (1) and (2) of Rule 3 of the Code contravene the provisions of Art. 19 (1) (c), (g) and (f), there is no clear indication in the judgment of the High Court as to which Clause of Art. 19 (1) is violated. It is the further view of the High Court that as the State has no power to issue instructions as those contained in clauses (1) and (2) of Rule 3, Article 358 will not save those provisions notwithstanding the fact that there was a Proclamation of Emergency during the relevant period. Though no attack based on Article 14 was made in either of the writ petitions, it is seen that during the course of arguments, this Article was relied on and it was contended that the said two clauses of Rule 3 are arbitrary as they enable the State to discriminate between one institution and another. The High Court in considering this contention has held that in the matter of distribution of grant, the State must comply with the fundamental requirements of constitutional law embodied in Art. 14. According to the High Court the effect of clauses (1) and (2) of Rule 3 is that apart from the fact that such schools are not eligible for receiving the grants, the students studying in such schools cannot appear for examinations held by the Secondary Schools Boards as the latter will not recognise such institutions. As the students of such schools cannot take their university education, clauses (1) and (2) of Rule 3, according to the High Court, offend Art. 14 and hence they are invalid. After holding that clauses (1) and (2) of Rule 3 of the Code, are violative of Arts. 14 and 19, the High Court struck down those provisions and directed the educational authorities to grant permission to the two writ petitioners to start schools as desired by them.Coming to Appeal No. 878 of 1968, the facts lie within a very narrow compass. For the year 1965-66, the third respondent in Special Civil Application No. 694 of 1965, out of which the appeal arises, had made an application on October 29, 1964 for starting a new school at Sakharkherda during the year 1965-66. The writ petitioner filed objections to the grant of permission to the third respondent. On the recommendation of the District Committee, the third respondent was allowed to open standards VIII and IX with one division only during the year 1965-66. The writ petitioner was filed to quash the permission granted to the third respondent. The State Government in its counter-affidavit has very elaborately referred to the various matters mentioned by the third respondent in his application and also to the recommendation made by the District Committee. The District Committee had recommended permission being granted to the third respondent on the ground that the management had very good experience in running schools and that it was also financially sound. It was also stated that at the place in question even when the writ petitioner was concucting a school with standards V to X, there was another school run by the Zila Parishad with standards run by the Zila Parishad with standards V to VII. It was pointed out by the State that the population in the area demanded additional school with standard VIII onwards and it was an absolute necessity. They had also given details regarding the long experience that the third respondent had in running schools in several places as also the soundness of its financial position.

Reasoning:
23. Coming to Art. 14, it is accepted by the High Court that the writ petitioners did not make in their petitions any attack on clauses (1) and (2) of Rule 3 based upon the said Article. It was only during the course of arguments that Art. 14 appears to have been invoked. The High Court struck down the two sub-clauses on the ground that unless a school is started in accordance with the rules contained in the Code, they will not be recognised by the Secondary Schools Boards and the students studying in such schools cannot appear for the examinations held by the Board and the University. The approach made by the High Court in our view in this regard is erroneous. The provisions regarding grant of permission and recognition of schools under the Code are mainly intended for the purpose of receiving grant from the Government. We are not concerned in these proceedings regarding the effect of starting a school without complying with the requirements of the provisions of the Code or in the face of refusal of permission by the educational authorities when such schools so stated do not require or receive any grant from the State. That problem does not arise for consideration before us. Hence we do not think it necessary to refer to the provisions of the Maharashtra Secondary Education Board Regulation, 1966, the effect of which may be that no student having education in a school for the starting of which no permission has been given or such permission has been refused, may not be able to appear for the examinations held by the Boards concerned. So far as the distribution of grant to the schools recognised under the Code is concerned, it is not the case of any of the petitioners that such grants are being made arbitrarily or any discrimination is shown in thatdo not think it necessary to go into the question whether the Courts have got powers to strike down even executive instructions on the ground of their being vague when such executive instructions are admittedly issued by authorities concerned for the guidance and for being acted upon. We express no opinion on that point in these proceedings. We are of the view that the two clauses in question are not vague or ambiguous in any respect. The fallacy committed by the High Court consist in considering clauses (1) and (2) of Rule 3 in isolation. We have already pointed out that Rule 3 of the Code consists of as many as 16 clauses, which are conditions to be fulfilled for recognition being accorded. We have also referred to the circular letter dated October 5, 1965 issued by the State Government enumerating the various matters to be taken into account by the District Committees when considering applications for grant of permission to start a school or for having an additional school in the area or the locality. Rule 3 will have to be read along with these instructions as well as the various particulars which have to be filled up in the prescribed form. If clauses (1) and (2) of Rule 3 are interpreted having due regard to the various others matters, referred to above, the District Committee has got ample guidance to decide the need of a particular locality to have a school or an additional school as also the further question regarding the competency and reliability of the management. There will be sufficient material before the District Committee to consider whether the starting of a school or an additional school in a particular area or locality will involve any unhealthy competition. In view of the clear and detailed guidance furnished not only by Rule 3 but also by the instructions contained in the circular letter dated October 5, 1965, it is clear that there is no ambiguity in either clauses (1) or (2) of Rule 3. In considering the question of vagueness the High Court has not adverted to the various matters referred to by us earlier. Therefore, we are of the opinion that the striking down of clauses (1) and (2) of Rule 3 by the High Court as being, vague, isapplication of the petitioner in Special Civil Application No. 420 of 1966 which is the subject-matter of Civil Appeal No. 160 of 1968 was rejected by the Deputy Director of Education on the ground that the need of the place has been fulfilled by permitting another society to open the school at the place. The appeal filed to the State Government was unsuccessful. In the counter-affidavit filed by the State in the writ petition they had categorically referred to the recommendations of the District Committee on the applications filed by the said writ petitioner as also the third respondent therein. Regarding the writ petitioner the report of the District Committee was that it had no funds and that it was recommending another society with good financial position and experience. In this view the District Committee stated that it was not recommending the writ petitioner for the grant of permission. On the other hand the District Committee recommended the application of Ashok Education Society, Ashoknagar (third respondent) on the ground that it was financially sound and it was a very good and experienced society and that it was also a popular society. For these reasons the application of this society was recommended to be granted by the District Committee. It was on the basis of this recommendation of the District Committee that the Deputy Director of Education rejected the application of the writ petitioner and granted permission to the third respondent therein. The applications of both the writ petitioner and the third respondent were before the District Committee. The High Court has not found fault with these recommendations. On the other hand it has held that it is open to the authorities to refuse permission of the school is not in a financially sound position. The writ petitioner also was not able to satisfy us that the conclusions arrived at by the District Committee, which were accepted by the Deputy Director of Education were not based upon particulars furnished in thehave already referred to the fact that the State has pointed out that even when the writ petitioner was running a school with classes V to X, the Zila Parishad was running another school in the same area with classes V to VII. The State had also pointed out that the population of the area demanded an additional school. From the mere fact that by the opening of another school some of the students of the appellant school may seek admission in the new school, it cannot be stated that any of the appellants legal rights have been infringed. Dr. Barlingay has not been able to satisfy us that in granting permission to the third respondent any extraneous or irrelevant matters have been taken into account by the District Committee or the educational authorities. Nor was he able to satisfy us that the reasons given by the District Committee for the grant of permission to the third respondent on the ground that it had a long experience in running schools and that his financial position is also good, are erroneous. If so, it follows that there is no merit in this appeal.