STATE OF MAHAKASHTRA & ANR.

LOK SHIKSHAN SANSATHA & ORS.

July 26. 1971

[S. M. Surn, C. J., G. K. MITTER, C. A. VAIDIALINGAM,

P. JAGANMOHAN REDDY AND I. D. DUA, JJ.]

Education-Grant-in-aid System, r. 3(1) and (2)-lf vague or ambigu- .ous-Executive instructions. Constitution of India, 1950, Arts. 14, 226 and .. 358-Jurisdiction of High Court in relation to policy of giving grants to educational institutions.

Grant-in-aid Code if violative of Art. 14. Period of Emergency-Artitle 358 if protects Executive instructions from attack under Art. 19.

The grant-in-aid system was introduced in 1859 and its main object was to permit voluntary effort and reliance on local resources in the field of education apart from such contributions as may be available from the funds of the State. After the re-organisation of the State of Bombay a unified code of grant-in-aid to non-government secondary schools throughout the State was introduced by the State from the yeas 1963-64. Under

r. 2(1) an application for permission to start a secondary sch~ has to be made in the prescribed form and such application has Y> reach the presl!dbed authorities by the end of October in the year preceding the year in which the school was proposed to be started. Under r.

2) the manage~ ment which was permitted to open a school has so ap y for recognit!on of the school and under r. 3, a school seeking rec nition shall satisfy the Department that the school was actually nee in the locality that it did not involve any unhealthy competition with any existing institution and that the management was competent, reliable and was in the hands of a properly constituted authority or committee.

Under r. 3(3) one of the conditions which bas to be satisfied is regarding the financial stability of the proposed school. Other conditions which had to be satisfied by a pro posed school are enumerated in the remaining 13, clallses of the rule. Rule 86(2) provides that schools which are not registered under the Societies

Registration Act, would not be eligible for grant.

On October 'ti, 1965, the State issued a press-note calling attention of all the managements intending to start new secondary schools to the relevant provisions of the Code. It was also stated that applications received for starting new schools would be scrutinised and considered by the District Committee comprising of the Chairman of the Education Committee, Zila Parishad, Parishad Education Officer and a member of the S:condary

Schodl Certificate Examination Board, Poona, or Vidarbha Board of G Secondary Education, Nagpur, that is, by persons who were familiar with the conditions prevailing in the particular areas, and the requirements in the area for a new or additional school, and that permission to start a new school would be communicated to the applicants concerned by the Deputy Director of Education of the region by the end of February. The applicants were also informed that the appeals to the Government against the orders of the Depu}:y Director of Education could be filed up to end of March, 1966. On the same date, B Government sent communicationsfor taking steps for constituting the

District Committees. The State also sent a circulas on the same date to the various educational authorities stating that the Disrict Committees

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F •

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should bear in mind, whea considering the applictions, the various.matters enumerated in items 1 to 14 which relatc:d to the requirement of a school or an additional school in a particular are:a, its financial stability, the nature and competency of the management and several allied matters. It was obligatory on the District Committee to record its reasons in writing for recommending or not recommending a particular application, which would be considered by the Deputy Director of Education of the concerned region before granting or refusing permission to start a new school.

The applications of the three applk:ants-societies were scrutinised b~ the concerned District Committees along with the applications and objec tions of rival applicants. In the case of the first applicant-society the District Committee recommended the rival applicant on the grounds that the applicant society had no funds but that the rival applicant was of good financial position and experience. 'fhe Deputy Director of Education accepted the recommendation and rejected the first applicants• application stating that the need of the place had been fulfilled by permitting the rival society to open a school at the place.

In the case of the second applicant the Deputy Director of Education rejected the application on two grounds, namely: (a) that the application was made after the prescribed date, and (b) that the society was not registered. The appeals of these applicants to the State Government were rejected and they filed writ petitions in the 1-ligh Court for striking down r. 3 of the Grant-in-aid Code.

In the case of the third applicant, in spite of objections by a rival who was already conducting a school in that area the District Committee recommended the grant of permission to the applicant on the grounds that the applicant society was a good, experienced and popular society and it was also financiaHy sounC.; and that the: population of the areas demanded as an absolµte necessity an additional S<:bool from standard VIII onwards.

The society which was already runnin1: a school filed a writ petition to quash the permission granted to the third applcant.

The High Court struck down els. 1 and 2 of r. 3 of the Code as violative of Arts. 14 and 19 of the Constitution and directed the educational authorities to grant permission to the first two applicants to start schools as desired by them. It dismissed the 'vrit petition filed for quashing the permission granted to the third applic:ant.

The High Court also made certain observations regarding the policy that should be adopted by the educational authorities in the matter of permitting the starting of a new school or an additional school in a particular area.

In appeals to this Court,

HELD : (I) The High Court had misunderstood the nature of its jurisdiction when dealing with the claims of the first two applicants. It was not for the High Court to lay dowo the policy that should be adopted by the educational authorities in the matter of granting permission for starting schools.

The question of poHcy is essentially for the State and such policy will depend upon an overall assessment of the requirements of the residents of a particular locality and other categories of persons far whom it is essential to provide for education. If the overall assessment is arrived at after pror classification on a reasonable basis, it is not for courts to interfere with the policy leadi11l! up to such assessment. [887E-H]

(2) aauses (I) and (2) of r. 3 are not vague or ambiguous in any respect. Tuey should not be considered in isolation. If Ibey are interpreted having due regard to the various othe:c matters contained in other clauses of the rule and the detailed instructions contained. ·

l(AHARASHTRA v. LOKSHIP:SHAN SANSTHA (Vaidialingam. J.) 881

of the rule and -the detailed instructions contained in the cjrcular letter. the District Committee had ample guidance for deciding the need of a particular locality to have a school or an additional school, as also the further questions regarding the competency and reliability of the management. [895D-E; F-H]

(3) The provisions of the Code are executive instructions and are in the nature of administrative instructions without any constitutional f.Jrce.

The State Government was competent to issue those executive instructions for the guidance of the educational authorities dealing with the applications for grant of permission to start schools, and they are perfectly valid. The applications in the present case were considered during the period when the Proclamation of Emergency was in operation.

Article 19 could not therefore be invoked by the first two applicants and the view of the High Cowrt that Art. 358 did not save t, he two clauses of r. 3 was erroneouse.

[888A-B; 892C-E]

(4) (a) The High Court erred in striking down the two clauses on the ground that unless a school was started in accordance with the rules con~ tained in the Code they would not be recognised by the Secondary School

Boards and students studying in such schoois would not be able to appear for the 'examinations held by the Board and the University, and therefore, were violative of Art. 14. The provisions regarding grant of permission and recognition of schools under the Code are merely intended for the purpose of receiving grant from the Government, and are not concerned with the effect of starting e. school without complying with the require~ merits of the provisions of the Code or in the face of refusal of permission by the educational authorities.

So far as the distribution of grant to the schools recognised under the Code was concerned it was not the case of any of the applicants that such grants were being made arbitrarily or any discrimination was sliown in that regard.

It was also not the case of the applicants that the District Committees had acted arbitrarily, nor was it their case that the Depuy Director of Education had not based his decision on the recommendations of the District Committees. There was thus no violation of Art. 14. [892G-H; 893B-C, D-1]

(b) The mere fact that there was no right provided for the applicant being heard before the application was rejected could not be a ground for holding that there was violation of the principles of natural justice. The particulars which had to be mentioned in the prescribed application, form

are very elaborate and complete. The provisions in the Code read along F with the instructions given by the State in its circular letter referred to various relevant material factors that had to be taken into account for the purpose of deciding whether the application was to be granted or not.

When all the relevant circumstances, claims and objections of the applicants and their rivals had been taken into account by the District Committees and the educational authorities there was no violation of any principle of natural jvstice. It was not the case of the applicants that the reasons given for rejection of their applications were not covered by the provisions con G tained in the Code. [893H ; 894D-EJ (S) The High Court erred in issuing a mandamus to the State without considering the •arious reasons given by the Deputy Director of Educa .. tion for rejecting the aJiplication of tho first two applicants.

(a) Tho reason given by tho Deputy Director ot Education with respect to the first al!Plicant for rejecting i!S application was. that tho need of the place had been fulfilled by permitting another society to open the H school at the place, on the recommendations of the District Committee.

It wu open to the authorities to refuse permission if tho school is not in a finanoially sound position.

[896B-D, GJ 56-1 S.C.India/71

882 SUPREME COURT Rll!ORTS

(J97J)"6UPP. S.C.R.

(b) In the case of the second applicant the reasons given were that

the. application was sent after the prescribed date and th1t the society was not registered. Therefore the rejection was on valid grounds. [897D-E]

(6) In the case of the third applica.nt, from the mere fact that by giving it permission to open another school some of the students of the rival society's school may seek admissicin in the new school, could not be a ground for stating that the rival silciety's legal rights had been ina... fringed.

In granting permission to another society no extraneous or irre~ levant matters had been taken into accoJJnt by the District Committee or the educational authorities.· The reasdns given by the District Committee for granting permission were valid rea~.ons and the High Court rightly rejected the petition of the rival society. [8980-HJ

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 160, 161 c and 878 of 1968.

Appeals from the judgment and order dated December 2, 1966 of the Bombay High Court, Nagpur Bench in Special Civil Applications Nos. 420 and 421 of 1966 and 694 of 1965.

Niren De, Attorney General, B. D. Sharma and S. P. Nayar, D for the appellants (in C.As. Nos. 160 and 161 of 1968).

W. S. Barlingay and A. G. Ramaparkhi, for the appellant (in C.A. No. 878 of 1968) and respondents Nos. 1 and 2 (in C.A.

No. 160 of 1968).

A. G. Ratnaparkhi, for respondents Nos. 1 and 2 (in C. A.

No. 161 of 1968).

M. R. K. Pillai, for respondent No. 2 (in C. A. No. 160 of 1968).

Niren De, Attorney General, B. D. Sharma and S. P. Nayar, for respondent Nos. 1 and 2 (in C.A. No. 878 of 1968).

Bishan Narain, S. K. Bisaria and T. L. Garg, for respondent No. 3 (in C.A. No. 1878 of 1968).

The Judgment of the Court was delivered by

Vaidialingam, J.-AJl these three appeals, on certificate, are directed against the common judgement and order elated December 2, 1966 of the Bombay High Court in Special Civil Applications Nos. 694 of 1965 and 420 and 421 of .1966. Civil Appeals Nos. 160 and 161 of 1968 are fifod by the State of Maharashtra and the Deputy Director of Education, Nagpur against that part of the order 'of the High Court allowing Special Civil Applications Nos. 420 and 421 of 1966 after holding that ds. (I) and (2) of s. 3 of the Grant-in-aid Code (hereinafter to be referred as the Code) are invalid and directing the State of Maharashtra to grant

MAHARASHTRA v. LOKSll!KSllAN SANSATllA (Vaidialingam, J.)

the petitioners in the said Special Civil Applications permission to start schools in the areas concerned as desired by them. Civil Appeal No. 878 of 1968 is by the applicant in Special Civil Application No. 694 of 1965 against the order of the High Court dismis- .sing his writ petition and declining to interfere with the order of the State and educational authorities granting permission to the third respondent in the appeal to open, a new school at Sakhar- Jcherda with VIII and IX classes.

We will first deal with Civil Appeals 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 appiication 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, teaehers library and pupil's library. The break up of the figures under these heads was also given. In col. IS 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 requested for favourable consideration of his application, already submitted, to the authorities. The District Commitee which scrutinized the applications of both the parties re- commended that the application of the wr\t petitioner should be Tejected as it had no funds. Another Society with good financial

position and experience was recommended by the Committee.

The District Com, mittee recommended that Ashok .Education Soeiety should he granted permission as it was a good, experienced aad popular society and it wafalso financially sound. The Deputy Director of Educationliy his order .dated April 12,1966 rejected the application of the wtit petitioner on the ground that the need

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SUPREME COURT REPORTS [1971] SUPP. s.c.R

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 petitioner 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 tq open a school. This appeal was rejected by the Government by its order dated IO!l6th May, 1966.

The applicant society filed writ petition and prayed for striking down r. 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 Soc:.ety to start a schod! at Anjansinghi. The applicant further prayed for a direction being issued to the educational authorities to grant permission to start the school as requested by it.

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.

Civil Appeal No. 161 of 1968 arises out of Special Civil Application No. 421 of 1966. The applicant therein Sri Nana Guru Shlkshan 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 Cc.!umn No. 4 under the heading "whether the management is regb:tered" the answer given wa• "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, th.e expenditure proposed to be incurred regarding furniture: etc. the applicant stated that about Rs. 800 was intended to be i; pent. The break up in respect of the various items was also given. Under column 15 regarding funds at the disposal of the manageent, it was stated tat a su~ of Rs. 5,000 was available. The thtrd respondent therem Swann Vivekanand Shikashan Sanstha, Lehgaon had also made aru

MAHARASHTRA v. LOKSHIKSllAN SANSAllIA (Vaidialingam, J.) . 88 5

application. for. opening a school at Shirkh~. The applicant fi!ed. an objection on January 5, 1966 to the grant of any penniss1on to the thrrd respondent. The Deputy Director of Education by. his o_rer dated April 11, 1966 rejected the application of th.e wnt petitioner on two grounds namely, "(!) the application is after th7 .Prescribed dat~ and (2) the Society is not registered.'; The pettt10ner was also mformed 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 r. 3 of the Grant-in, aid Code as unconstitutional and violative of Art. 19(l)(c) of the Constitution.

The orders refusing permission to the Society to start a school were also sought to be quash. ed. 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.

1 The State Government contested both the Special Civil Appli cations. It was pcYinted out that the rules contained in the Grant-'

in-aid Code were all executive instructions given by the State to th.e 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 gene

ral public. No restriction has been placed on the applicants form ing associations or unions as contemplated under Art. 19(! )(c) and that in any event the restrictions were saved by Cl. (ivJ of Art. 19. The reasons given by th.e Deputy Director .:if 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 pennission to the respective third respondents therein.

The High Court by its common judgment has taken the view that els. (!) and (2) of r. 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 G 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 incharge of the school. There is further no pro vision in these sub-clauses for hearing a party before the autho rities concerned take a decisicin in the matter of grant or refusal H of pemiission to start a school. The High Court is further of t!?e view that by such executive instructions the State is able to prevent the two writ petitioners from carrying on their legitimate

SUPREMB COURT REPORTS [1971] SUPP. s.c.R.

activities of running schools. The said clauses also do not satisfy the test of being reasonable restrictions in public interest. On tbis reasoning the High Court has held that the two clauses, namely,

(!) and (2) of rule 3 are violative of the rights guaranteed to the writ petitioners under Art. 19(1) of t!te_., Constitution. Though it was argued on behalf of the writ petitioners thlit clauses (I) and

(2) of r. 3 of the Code contravene the provisions of Art. 19(l)(c),

(g) and (f), there is i!O clear indication in the judgment of tbe High Court as to which clause of Art. 19(1) is violated. It is the further view of the High Court tha1 as the State has no power to issue instructions as those contained in els. (!) and (2) of r. 3, Articic c58 will not save tbose provisions notwithstanding the facl iat there was a Prociamation of Emergency during the rele VJnt period.

Though no attack based on Art. 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 r. 3 are arbitrary as they enable the State to dncriminate between one institution and another.

The High Court in considering this contention has held that in the matter of distribt:tion 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 els. (1) and (2) of r. 3 is that apart from the fact that th'! sue& schools are not eligible foc receivi<1g the grants, the students studying in such schools c'' not appear for examinations held by the Secondary School Boards as the latter will not reco~; nise such institutions. As the 'tw!ents of such schools cannot take their university education, c:.;. (!) and (2) of r. 3, according to the High Court, offend Art. 14 and hence they are invalid. After holding that els. (!) and (2) of r. 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 tw~· writ petitioners to start schools as desired by them.

The learned Attorney-General,. appearing on behalf of the State in Civil Appeals Nos. 160 and 161of1968 raised.the following contentions: (I) The High Court has committed a ve"y serious mistake in invoking Art. 19 in view of the mandatory provisions of Art. 358 of the Constitution, Cl) even assuming that Art. 19 can be invoked, the provisions contained in els. (1) and (2) of r.3 are reosonable restrictions in the interest of general public and as such those clauses are valid; (3) t'lie view of the High. Court that the said clauses offend Art. 14 is erroneous; (4) that the clauses struck down by the High Court are mere executive instructions given by the State for the guidance of the educational authorities when considering the applications received for permission to open schools in particular areas. Such executive instructions cannot be struck down on the ground tbat they are vague.

Alternatively.

MAHARASHTRA v. L()K SHIKSHAN SANSATHA (Vaidia/ingam, J.)

under this head it was contended that the two clauses are not vague in any respect; and (5) the High Court has committed a serious mistake in striking down the orders of the educational authorities without considering the reasons given by such authorities for rejecting the applications of the two writ petitioners.

Dr. Barlingay, learned counsel for the contesting respondnts has supported the view taken by the High Court for striking down els. (I) and (2) of r.3 of the Code. The counsel relied on the reasons given by the High Court for striking down the two clauses as violative of Arts. 14 and 19. The counsel further urged that though the two clauses of r.3 in question may on the face of it appear to be innocuous, nevertheless the application of those principles by the educational authorities may lead to possible discrimination between the institutions concerned. According to him no standards have been laid down to assess the need of a school in a particular area. Further, there is no criteria laid down to enable the educational authorities to decide the circumstances under which the starting of a new school may rsult in an unhealthy competition with an existing school. The pbsition is the same also in regard to judging the competency and reliability of a particular management who proposes to start a school. The more serious ground of levelled against these clauses (I) and (2) of r . .3 by Dr. Barlingay was that there was no right give~ to an applicant for being heard before his application is rejected by the educational authorities.

Before we deal with the above contentions advanced before us on behalf of both sides, it is necessary to state that the High Court in the judgment under attack has made certain observatio-, s regarding what according to it should be the policy adopteJ by the educational authorities in the matter of permitting the starting of a new school or of an additional school in a particular locality or area. It is enough to state that the High Court has thoroughly misunderstood the nature of the jurisdiction that was exercised by it when dealing with the claims of the two writ petitioners that their applications had been wrongly rejected by the educational authorities. So long as there is no violation of any fund3mental rights and if the principles of natural justice are not offended, it was not for the High Court to lay down the policy that should be adopted by the educational authorities in tl:e matter of granting permission for starting schools. The question of policy is essentially for the State and such policy will depend upon an rall assessment and summary of the requirements of residents of a particular locality and other. categories of persons for whom it is essential to provide facilities for education. If the overall assessment is arrived at after a proper classification on a reasonable basis, it is not for the courts to interfere with the policy . eading up to such assessment.

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(1971] SUPP. S.C.R.

It should also be made clear that as accepted by the State in its counter-affidavit filed before the High Court the provisions of the Code are executive instructions and are in the nature of administrative instructions without any constitutional force.

It is on this basis that we have to consider the correctness of the decision of the High Court when it struck down els. (!) and (2) of r. 3 of the Code.

It is necessary to advert to the drcumstances under which the Code came to be framed as also to certain instructions given by the State to the educational author:ities when considering the applications for the grant of permission to open schools.

The Grant-in-aid system appears to have been first introduced in 1859 and its main object was to promote voluntary effort and reliance on local resources in the field of education apart from such contributions as may be available from the funds of the State. After the States re-organisation took place, in order to bring about uniformity in the matter, the State of Bombay appointed in 1958 an Integration Committee for Secondary Education to examine the different Education Codes and administrative practices in. force at the secondary stage in the various regions which were added to the State of Bombay under the states organisation and to make proposals for a unified system of Secondary Education as well as the assistance to be given to non-government

Seconda~· Schools. The Committee submitted its report in 1959.

In December, 1960 the Government of Maharashtra appointed a Committee comprised of officials and non-officfals to suggest a unijied code for consideration of the Government. A revised Draft Code was submitted by the Committee to the Government in or about August, 1961.

The Secondary Schools Code, with which we are now concerned was framed by the Government as a common code for the recognition of and grant-in-aid to nongovernment secondary schools throughout the State.

The said Code came into force with effect from the year 1963-64. Chapter II related to recognition and grant-in-aid. Rule 1 dealing with recognition provided that secondary schools may be recognised by the Department provided they conform to the rules contained in the Code. Rule 2 dealt with the matters relating to the applications for starting and recognition of schools.

Under r. 2.1 an application for permission to start a secondary school has to be made in the form given in appendix 1 (!) of the Code to the authorities referred to therein and such. applications have to reach those authorities by the end of October, in the year preceding the year in which the school is proposed to be started. The said clause further provided that n'o school should be started unless the written previous permission of the D(!partment had been obtained and that the schools started Without such permission shall not

. i (

1fAHARA$HTRA v. L011 SHIKSHAN SANSAmA (Vaidialingam, J.)

ordinarily be considered for recognition. Under r. 2.2, the management which is permitted to open a school has to apply for recognition of the schodl in the form given in appendix 1 (2) of the Code within one month of the opening of the school.

Rule. 3 which consists of 16 clauses deals with the conditions of recognition. The said rule provides that a school seeking re-' cognition has to satisfy the Department as regards the conditions enumerated in els. 1 to 16 therein. Oauses (I) and (2) of r. 3 which are attacked as invalid are as follows :

"Rule 3 : Conditions of Recognition:

A school seeking recognition shall satisfy the De partment as regards the following conditions :-

(!) The school is actually needed in the locality and it does not involve any unhealthy competition with any existing Institution of the same category in the neighbourhood ..

(2) The Management is competent and reliable and is in the hands of a properly constituted authority or managing Committee.

We may at this stage point out that one of the . conditions which has to he satisfied under r. 3 is regarding the financial stability of the proposed school as stated in cl. (3) of r. 3 therein.

This aspect may have a bearing in considering the correctness of

the High Court's deeision in Civil Appeal No. 160 of 1968.

Rule 86 deals with "Kinds of Grants". Rule 86.1 enumerates the various types of grants which a recognised school is eligible to get from the Government.

Rule 86.2 provides as follows :

"Proprietary schools (i.e. schools not registered under either the Societies' Registration Act XXI of

1860 or the Bombay Public Trust Act, 1950 or any other G Act that may be specified by Government and communal schools will not be eligible for any kind of grant from public funds."

At this stage we may mention that the provisions contained in r. 2.1 that an application for starting a Secondary School has to be in the form given in appendix 1(1) of the Code and that the application should reach the educational authorities within the period referred to therein and the further provision under

SUPREME COURT Rl!PORTS [1971] SUPP. s.c.R.

r: 86.2 that the schools which are not registered under the Socieues Registration Act, will not be 1:ligible for grant, will have a considerable bearing when considering Civil Appeal No. 161 of 1968.

On <; Jctober 6~ 1965 the State of Maharasl1tra issued a press. note, copies of wh>ch were sent to all the educational authorities.

The Director of Publicity was also directed to give wide publicity to the press note by publishing the same in all the Dailies in the cities and districts.

By that press note the attention of all the managements intending. to start new Secondary Schools was drawn to the provisions contained in r. 2 of the Code regarding the applications being made in the prescribed form to the concerned office and to the applications being made sufficiently early so as to reach the authorities concerned. at the latest by the end of October, in the year preceding the year in which the school is proposed to he started. It was further stated in the press note 1hat the applications received for starting new schools will be considered by the District Committee comprising of the Chairman of the Education Committee, Zila Parishad, Parishad Education Officer and a member of the Secondary School Certificate Exami nation Board, Poona or Vidarbha Board of Secondary Education, Nagpur and that permission to start new schools will be communicated to the applicants con.cerrn~ by the Deputy Director of Education of the region by the end of February, 1966. The proposed applicants were also informed that appeals to the Govern ment against the orders of the Deputy Director of Education can be filed upto the end of MaTch, 1966. This press note empha sised: (a) that the applications be made in. the prescribed form and (b! that the applications should be received by the educa tional authorities at the latest by the end of October. No doubt some of these aspects are already, contained in r. 2 of the Code.

Another imprtant point to l:Je taten note of in this. press note is that though. the applications are made to the concerned educa tional authorities, those applications are scrutinised by the District Committees concerned, and who,; e members must be famili"r with the conditions prevailing in particular localities or areas.

On the same date the Government sent a communication to the Chairman, Secondary School Certificate Examination Board, Poona and the Chairman Vidarhha Board of Secondary Education, Nagpur on the subject of appointment of District Committees to consider .the applications received for opening new secondary schools.

The composition of the District Committees was also mentioned therein. The respective Chairmen were requested by the State to move the Board to nominate one member for each of the District Committees in the' areas with which the Board was concerned.

The Chairman was also requested to communicate the names of such members to the Parishad Education Officer of

J f

MAHARASHTRA v. LOKSHIKSllAN SAN!IATHA (Vaidialingam, J.)

S!JJ

the distritt concerned, the Deputy Director of Education of the A region and the Director of Education, Poona under intimation to the Government.

The State also sent a circular dated October 5, 1965 to the various educational authorities drawing their attention to r. 2 of the Code. They were also informed that the Government bad directed that the applications for opening new secondary schools should be considered by the District Committee comprise"d of (he various persons mentioned therein. It was further stated that the District Committee should bear in mind when considering the applications, the various matters enumerated as item Nos. 1 to

14. Those various matters to be taken into account relate to the requirement of a school or an additional school in a particular area, its financial stability, the nature and competency of the management and several allied matters. It was obligatory on the District Committee to record its reasons in writing for recommending or not recommending a particular application. In paragraph 4 of the circular it was stated tl; at permission to start a new school may be granted by the Deputy Director. of Education of the concerned region after taking into consideration the recommendations of the District Committee and with the prior approval of the Government. The educational authorities wer.e also directed to dispose of the applications within the period mentioned in the circular.

From the relevant provisions of the Code read with the press E" note and the circular referred to above, it is clear that though the applications are made to the educational authorities, they are not diiposed of by those authorities or their own individua1 discretion. On the other hand, it -is clear that the applkatTun~ are dealt with by the District Committees, whose members are familia:· with the conditions prevailing in particular areas or l:Jcalities F and who also are in the know of things regarding the requirement of a new or an additiOnal school in the particular areas. It is really on the basis of the recommendations made by such Committees that the educational authorities take a decision one way or the other.

After having cleared the grounds, as stated above, we will G" now deal with the contentions of the learned Attorney-General.

The learned Attorney-General is well-foUJlded in his contention that the High Court wa1 not justified in invoking Art. 19 in the circumstances of this case. We ha"'.e already given the relevant dates when the applications were filed by the writ , petiti'oners before the educational authorities as well as the •dates when they

H - were rejected. The judgment of the High Court is dated ecember 2. 1966. There is no controversy that the Proclamation of Emergency was issued on October 26, 1962 and it was revoked

892 SUPREME COURT Rl!PORTS

(1971) SUPP. S.C.R•

A only on January IO. 1968 The relevant part of Art. 358 is as

- H

follows :

"358. While a Proclamation of Emergency 1s in opera

tion, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take ............ "

Therefore. it will be seen that during the period when a Proclamation of Emergency is in operation, Art .. 19 will not operate as a bar in respect of any law or any executive action coming within the terms of Art. 358. We will bf: showing in the latter part of the judgment that els. (I) and (2) of r. 3 read with the various instructions issued by the State cannot be considered to be vague or ambiguous as erroneously held by the High Court.

Those instructions, in so far as tl::ey go, are perfectly valid and the State Government was competent to issue those executive instructions for the guidance of the educational authorities dealing with applications for grant of permission to start schools. If so, it follows that the view of the High Court that Art. 358 does not save els.

I I) and (2) of r. 3 is erroneous. l!n this view Art. 19 could not have been invoked by the writ petitioners during the period when the Proclamation of Emergency was admittedly in operation. As Art. 19 is thus out of the picture, the question whether els. (J) and (2) of r. 3 impose reasonable restrictions and are thus saved, does not arise for consideration. We may state that Dr. Barlingay found considerable difficulty in supporting the judgment of the High Court on this aspect in the face of Art. 358 of the Constitution. This disposes of the first and second contentions of the learned Attorney-General.

Coming to Art. 14, it is accepted by the High Court that the writ petitioners did not make in their petitions any attack on els. (!) and (2) of r. 3 based upon the said article. It was only d; i; ing the course of argcnnents 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 rnle; contained in the Code, they will not be recognised by the

~.econdary School Boards and the students studying in such schools cannot appear for the e); aminations held by the Board and the University.

The approac:h made by the High Court in our view in this regard is erroneous. The provisions regarding 1rrant of permission and recognit'ion of schools under the Code

re 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

MAHARASHTRA v. LOK SHIKSHAN SANSATHA (Vaidialingam, J.)

of permission by the educational authorities when such schools so started 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 Mab.a rashtra 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 that regard. But Dr. Barlingay pressed before us the circumstances that though els. (I) and (2) of r. 3 may appear to be innocuous, there is a potential danger of discrimination when the said clauses are applied without any guidance by the educational authorities. He also c\)ntended that there is no right given to the applicant to be heard by the educational authorities before his application is refused. On this ground the counsel urged that els. (!) and (2) of r. 3 violate Art. 14.

We have already referred to the press note and the circular letter issued by the State Government from which it is clear that the applications are dealt with in the first instance by the District Committees, whose members are familiar with the requirements of 1he particular areas or localities and the conditions prevailing therein regarding the requirements of a school or an additional school. The District Committees have to take into account several material and relevant factors contained not only in the Code but also specifically emphasised in the circular letter of the Government dated October 5, 1965. It is only on the basis of the recommendations made by those Committees, that the educational authorities take a decision regarding the grant or refusal of permission to start a school. The District Committees are-· also bound to record their reasons in writing for recommending or not

recomml\ding the application. An appeal lies against the order passed by the Deputy Director of Education to the Government.

It is not the case of any of the writ petitioners that the District Committees have acted arbitrarily. Nor is it their case that the Deputy Director of Education of the region has not based his decision on the recommendations of the District Committees.

We are not satisfied that there is any violation of Art. 14.

From the mere fact that there is no right provided for the applicant being heard before his application is rejected, it cannot be held that there ls a violation of the principles of natural justice. Oq the other hand, it is seen that the District Committees have considered the claims of the writ petitioners as well as of the respective third respondents therein and recommended to the

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

educational authorities that the claims of the latter are to be accepted. The reasons for rejection of the applications have also been given in the orders passed by the educational authorities.

When all the relevant circumstances have been taken into acco'.lnt by the District Committee and the educational authorities, there is no violation of any principle of natural fustice merely for the reason that the applicants were not given a hearing by the educational authorities before their appli•:ations were rejected. Ti1e particulars which have to be mentioned in the prescriber! application form are very daborate and complete. The provisions in the Code read along with the instructions given by the State in the circular letter dated Otober 5, 1965 refer to various relevant and material factors that had to be taken into account for the purpose of deciding whether the application is to be granted or not. As we have already pointed out, it is not the case of any of the writ petitioner 1[hat these relevant factors hve not been considered by the District Committees. Nor is it their case that the reasons given for n:jection of the opplicatioils are not covered by the provisions contained in the Code. Ciauses (\) an.! (2) of r. 3 are not to be read in isolation as has been done by the Higl1 Court. On the other hand they must be read along with the other various clauses containcc!i in the same rule as well as the deta:led instructions given by the Government in the circular letter dated October 5, 1965. It follows that the reasoning of the High Court th::t these two subclauses violate Art. 14 cannot be accepted. ·

Coming to the fourth con le :ition of the learned Attorney- General, it is evident from the judgment of the High Court that els. (\) and (2) of r. 3 have beC'l struck down for they are vague and do not z, ffo; d any standard or criteria for judging whether a school or an additional school is needed in an area or locality and whether the management is competent and reliable. We have already pointed out that 'the definite stand taken by the State in its counteraffidavit filed before the High Court was that the pnvisions of the Code are executive instr:.ictions and are in the natme of administrative instructions without any statutory force.

When it is admitted that the provisions contained in the Code, which include els. (I) and (2) of r. 3 are executive instructions, two questions arise, namelv (!) whether the High Court was justified in

strikin~ down such executive instructions even assuming that those fustructions were vague and (2) whether the said clauses are vague.

The learned AttorneyGeneral invited our attention to the two decisions of this Court reported in State of Assam and Another v. Ajit Kumar Sharma and others(') and Municipal Committee, Amritsar and anotht" v. State of Punjab and Ors. (')

(1) [196SJ 1 s.c.R. 390.

(2) [196913 s. c. R. 447.

MAHARASHTRA v. LOK Sl!IKSHAN SANSATHA ( Vaidialingam, J.) 8 9 5

In the first decision this Court has laid down that where conditions for receiving grant-in-aid are laid down by mere executive instructions, it is open to a private institution to accept those instructions or not to accept them. That is a matter entirely between the Government and the private institution concerned. In the second decision it was laid down that "the rule that an Act of a competent legislature may be "struck down" by the Courts on the ground of vagueness is alien to our Constitutional system ..... .

A law may be declared invalid by the superior Courts in India if the Legislature has no power to enact the law or that the law violates any of the fundamental rights guaranteed in Part III of the Constitution or is inconsistent with any constitutional provision, but not on the ground that It is vague ...... " Based upon these two decisions, the learned Attorney-General urged that even on the basis that the two sub-clauses in question are vague, they could not have been struck down on that ground. Alternatively, his further contention is that those clauses are not vague. We do 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 the authorities concerned for the guidance ; md 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 conists in considering els. ()) and (2) of r. 3 in isolation. We have already pointed out that r. 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 those instructions as well as the various particulars which have to be filled up in the prescribed form. If els.

()) and (2) of r. 3 are. interpreted having due regard to the various other 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 mana&ement.

There will be sufficient material before the District Committee ro consider whether the starting of a school or an additional school in a particular area or locality will im,'olve ay unhealth~ competition. In view of the clear and detailed guidance furnished not only by r. 3 but also by the instructions contained. in the cuar letter dated October 5, 1965, it is clear that there 1s no amb1gu1ty in either els. (I) or (2) of r. 3. In considering the question of vagueness _the High Court has not adverted fo the various matters

SUPRBM!l COURT REPORTS (1971] SUPP. s.c.R.

referr~ .to by us earlier. Therefore,. we are of the opinion that

th~ strikmg down of els. (I) and (2) of r. 3 by the High Court as bemg vague, 1s erroneous.

The last contention of the learned Attorney.General which is on merits is that without considering the reasons given by the Deputy Director of Education for rejecting the two applications of the two writ petitioners, the High Court has issued a mandamus to the State to grant permission to those two applicants. In our opinion, this contention is also well-founded. The application 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 ptace. 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 Distrii; t Committee on the applications filed by the said writ petitione:r as also the third respondent therein. Reg_arding the writ petitioner tl!e 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 thf: 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 if 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 the application.

Coming to the application fil1ed by the writ petitioner Special Civil Application No. 421 of 19615 which is the subject matter of Civil Appeal No. 161 of 1968, we have already referred t? the fact that the said society merely made a request for opemng a school by means of a letter dated. October 2~. 1965. Admittedly the applicant did not comply with the requtrement of r. 2.1 of

MAHARASHTRA I', LOK SHIKSHAN SA2'SA'll-!.A (Vaid:°a/i,, gap1, J.)

, the Code that the application should be in the prescribed form.

No doubt, later on, on November 3, 1965 the said society sent a fresh application in the prescribed form, but this was not within the period mentioned in r. 2.1 of the Code. So the said writ petitioner did not comply with r. 2.1 read along with the press note and the circular letter, referred to above.

That clearly shows that the application filed by the writ petitioner was not in the first instance in the prescribed form and that when it was sent in the prescribed form it was beyond time. Further, we have also referred to r. 86.2 which specifically says that the schools which are not registered under the Societies Registration Act, will not be eligible for any kind of grant from the public funds. Even in the application filed by the writ petitioner in the prescribed form on November 3, 1965, it was stated under head No. 4 that the management was not registered and that it intends to get it self registered within a month. So apart from two infirmities. pointed out. abo, ve. there was this additional infirmity of nonregistration. Even on the date when the appeal was filed to the State Government on April 26. 1966, the society was not registered. As admitted by the said society in its writ petition, it was registered under the Societic' Registration Act, 1860, only on April 27; 1966. The order dated April II, 1966 of the Deputy Director of Education rejecting the application was based on two grounds: (a) that the application was sent after the prescribed date and (bl that the society was not registered. That these two reasons are valid is clear from the facts mentioned above. The appeal taken to the State Government was unsuccessful.

From . the above circumstances it is clear that the rejection of the application was on valid grounds.

The High Court, so far as we could see, has not found that these reasons are not based on the materials on record.

No such contention has also been taken before us by the said writ petitioner. If so, it follows that the

ordr of the High. Court directing the State Government to issue permission to the two writ petitioners ignoring the ahove circumstarlces is clearly erroneous.

From what is stated above, the judgment of the High Court allowing Special Civil Application Nos. 420 and 421 of 1966 cannot be sustained.

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 app7al arises, had made an application o!1 October 29. 1964 for startm, g a new school at Sakharkherda dunng the year ~9~5-66. The v.:nt

petitioner filed objections to the grant of perm1ss1on to the thtrd respondent. On the recommendation of the District Committee. the third respondent was allowed to open standards VIII and IX

57-1 s. a. lndia/71

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

with one division only during the y1:ar 1965-66.

The writ petitioner was filed to quash the permiss:ion granted to the third respondent. The State Government in its counter-affidavit has very elaborately referred to the various matters mer:tioned by the third respondent in his application and al.so 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 conducting a school with standards V to X, there was another school run by the Zila Parisbad with standards V to VU.

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 hadi also given details regardmg the long experience that the third respondent had in running schools in several places as also the: soundness of its financial position.

Before the High Court the attack made by the writ petitioner was slightly different from that of the other two writ petitioners in Special Civil Applications Nos. 420 and 421 of 1966.

The _attack on the grant of permission t~ the tb.ird respondent was

made by this writ petitioner really based on els. (!) and (2) of r. 3. According to the writ petitioneir the locality was not in need of any additional school as it will involve' unhealthy competition.

The High Court rejected the writ petition on the ground that the petitioner therein cannot make any grievance of the grant made to the thJrd respondent to start a school after a proper consideration of the merits of the claim of the latter.

Dr. Barlingay, learned counsel for the writ petitioner, who is appellant. in this appeal, found considerable difficulty to satisfy us that any legal rights of the appe!tmt herein had been infringed by grant of permission to the third respondent. We have 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 appellant's legal rights have been infringed. Dr. Barlingay has not been able to satisfy us that in granting permission to the third respondent any extra neous 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

MAHARASHTRA v. LOK SHIKSHAN SANSATHA (Vaidialingam, J.)

that it had a long experience in running schools and that its finan cial position is also good, are erroneous. If so, it follows that there is no merit in this appeal.

In the result the judgment and order of the High Court allowing Special Civil Applications Nos. 420 and 421 of 1966 are set aside and Civil Appeals Nos. 160 and 161 of 1968 are allowed.

The writ petitioners in Special Civil Applications Nos. 420 and 421 of 1966 will pay the costs of the appellants in both the appeals.

There will be only on~ hearing fee to be paid by the two writ petitioners in equal proportion.

The judgment and order of the High Court dismissing Special Civil Application No. 694 of 1965 are confirmed and Civil Appeal No. 878 of 1968 will stand dismissed.

The appellants will pay the costs of the first respondent therein.

V.P.S.