The Supreme Court has ruled that states were not duty bound to grant recognition to unaided schools, even if it had adequate infrastructure and teaching staff, as indiscriminate recognition to unaided schools was fraught with the danger of favouritism playing a role in it.<\/p>\n
A bench of Justices K S Radhakrishnan and Dipak Misra overruled a Kerala High Court judgment, which had mandated that a state government had to grant recognition to an unaided self-financed English medium school after it found that the school met requisite conditions laid down by the education department.<\/p>\n
State of Kerala and Others .. Appellants
\nVersus
\nThe Tribal Mission .. Respondent<\/p>\n
J U D G M E N T<\/p>\n
K. S. RADHAKRISHNAN, J.<\/p>\n
1. Leave granted.<\/p>\n
2. We are, in this case, concerned with the question whether the State
\nis duty bound to grant recognition to an unaided educational institution on
\nthe touchstone of Article 21A of the Constitution of India overlooking the
\nprocedure laid down under Rule 2 and Rule 2A of Chapter V of the Kerala
\nEducation Rules (for short \u2018KER\u2019).<\/p>\n
3. Respondent established a school by name Betham English Medium School
\nin the year 2001 at Attappady in the Palakkad District, State of Kerata in
\nthe unaided sector. An application for recognition was submitted by the
\nrespondent school in the year 2003 before the Government. The Deputy
\nDirection of Education, however, forwarded a report\/letter No. B1\/8863\/07
\ndated 19.10.2007 to the State Government pointing out existence of a three
\nrecognized schools within a distance of 5 km from the respondent school
\nfollowing Tamil and Malayalam mediums having Standard 1 to 7, of which one
\nis situated within a distance of 2.5 km. Further, it was pointed out that
\nthe respondent school though was having sufficient infrastructure, granting
\nrecognition would adversely affect the other aided schools functioning in
\nthat area and the possibility of division fall in these schools could not
\nbe ruled out.<\/p>\n
4. The Government rejected the application for recognition on the ground
\nthat it would violate the Government\u2019s Policy referred to in GO (P)
\nNo.107\/07\/G Edn dated 13.06.2007. Further, it was also pointed out that the
\nprocedure for granting recognition to new schools is laid down in Chapter V
\nof KER and as per sub-rule (2) of Rule 2A of Chapter V of KER, an
\napplication for opening a school should be in response to the notification
\nunder sub-rule (1) of Rule 2A of Chapter V. Consequently, the application
\nwas rejected by the Government vide GO (Rt) No. 5321\/07\/G.Edn. dated
\n22.11.2007.<\/p>\n
5. Aggrieved by the said order, the respondent along with various others
\napproached the learned single Judge of the High Court who upheld the order.
\nRespondent took up the matter before the Division Bench of the High
\nCourt. The Division Bench of the High Court, vide its judgment dated
\n18.8.2010 allowed the appeal stating that the respondent has satisfied the
\nvarious conditions laid down in the Government\u2019s Policy dated 13.6.2007 and
\ntherefore, directed the Government to grant recognition to the respondent
\nschool as an unaided self-finance English medium school to run classes from
\nstandard 1 to 10 from the academic year 2010-11 onwards. The State is
\naggrieved by that judgment and hence this appeal.<\/p>\n
6. We have heard Ms. Bina Madhavan for the appellant and Shri M. P.
\nVinod for the respondent. Chapter V of KER deals with the opening and
\nrecognition of schools. For easy reference, we may extract Rule 2 and Rule
\n2A of Chapter V as under:<\/p>\n
\u201c2. Procedure for determining the areas where new schools are
\nto be opened for existing schools upgraded – (1) The Director may,
\nfrom time to time, prepare two lists, one is respect of aided schools
\nand the other in respect of recognized schools, indicating the
\nlocalities were new schools or any or all grades are to be opened and
\nexisting Lower Primary School or Upper Primary Schools or both are to
\nbe upgraded. In preparing such lists he shall take into consideration
\nthe following.<\/p>\n
(a) The existing schools in and around the locality in which new
\nschools are to be opened or existing schools are to be upgraded; 26<\/p>\n
(b) The strength of the several standards and the accommodation
\navailable in each of the existing schools in that locality;<\/p>\n
(c) The distance from each of the existing schools to the area
\nwhere new schools are proposed to be opened or to the area where
\nexisting schools are to be upgraded;<\/p>\n
(d) The educational needs of the locality with reference to the
\nhabit1ation and backwardness of the area; and<\/p>\n
(e) Other matters which he considers relevant and necessary in
\nthis connection.<\/p>\n
Explanation:- for the removal of doubts it is hereby clarified
\nthat it shall not be necessary to prepare the two lists simultaneously
\nand that it shall be open to the Director to prepare only one of the
\nlists.<\/p>\n
(2) A list prepared by the Director under Sub-rule (1) shall be
\npublished in the Gazette, inviting objections or representations
\nagainst such list. Objections, if any, can be filed against the list
\npublished within one month from the date of publication of the list.
\nSuch objection shall be filed before the Assistant Educational
\nOfficers or the District Educational Officers as the case may be.
\nEvery objection filed shall be accompanied by chalan for Rs. 10\/-
\nremitted into the Treasury. Objections filed without the necessary
\nChalan receipt shall be summarily rejected.<\/p>\n
(3) The Assistant Educational Officer and the District
\nEducational Officer may thereafter conduct enquiries, hear the
\nparties, visit the areas and send their report with their views on the
\nobjections raised to the Director within two months from the last date
\nof receipt of the objections. The Director, if found necessary, may
\nalso hear the parties and finalise the list and send his
\nrecommendations with the final list to Government within two months
\nfrom the last date of the receipt of the report from the Educational
\nOfficers.<\/p>\n
(4) The Government after scrutinizing all the records may
\napprove the list with or without modification and forward the same to
\nthe Director within one month from the last date for the receipt of
\nthe recommendations of the Director. The list as approved by the
\nGovernment shall be published by the Director in the Gazette.<\/p>\n
(5) No appeal or revision shall lie against the final list
\npublished by the Director.<\/p>\n
Provided that the Government may either suo motu or on
\napplication by any person objecting to the list published by the
\nDirector under sub-rule (4) made before the expiry of thirty days from
\nthe date of such publication review their order finalizing such list
\nand make such modifications in that list as they deem fit by way of
\nadditions or omissions, if they are satisfied that any relevant ground
\nhas not been taken into consideration or any irrelevant ground has
\nbeen taken into consideration or any relevant fact has not been taken
\ninto account while finalizing the said list:<\/p>\n
Provided further that no modification shall be made under the
\npreceding proviso without giving any person likely to be affected
\nthereby an opportunity to make representation against such
\nmodifications.<\/p>\n
2A. Applications for opening of new schools and upgrading of
\nexisting schools – (1) After the publication of the final list of the
\nareas where 8[new school of any or all grades are to be opened or
\nexisting Lower Primary Schools or Upper Primary schools or both are to
\nbe upgraded the Director shall, by a notification in the Gazette [x x
\nx] call for applications for the opening of New schools of any or all
\ngrades] and for raising of the grade of existing Lower Primary Schools
\nor Upper Primary Schools or both] in the areas specified.<\/p>\n
(2) Applications for opening of new schools or for raising
\nschools shall be submitted only in response to the notification
\npublished by the Director. Applications received otherwise shall not
\nbe considered. The applications shall be submitted to the District
\nEducational Officer of the area concerned in form No. 1 with 4 copies
\nof the application and enclosures within one month from the date of
\npublication of the notification under sub- rule (1).<\/p>\n
(3) On receipt of the applications for permission to open new
\nschools or for upgrading of existing schools, the District Educational
\nOfficer shall make such enquiries as he may deem fit as to the
\ncorrectness of the statements made in the application and other
\nrelevant matters regarding such applications and forward the
\napplications with his report thereon to the Director within one month
\nfrom the last date for submitting applications under sub-rule (2).<\/p>\n
(4) The Director on receipt of the applications with the report
\nof the District Educational Officer shall forward the applications
\nwith his report to Government. within one month from the last date for
\nforwarding the report by the District Educational Officer.<\/p>\n
(5) The Government shall consider the applications in the light
\nof the report of the District Educational Officer and the Director and
\nother relevant matters which the Government think necessary to be
\nconsidered in this connection and shall take a final decision and
\npublish their decision in the Gazette with the list containing
\nnecessary particulars. within one month from the last date for
\nforwarding the report by the Director.\u201d<\/p>\n
7. The scope of the above mentioned rules came up for consideration in
\nthe case of State of Kerala & Others v. K. Prasad & Another (2007) 7 SCC
\n140, wherein this Court held as follows:<\/p>\n
10. The two Rules, quoted above, lay down a comprehensive
\nprocedure for opening of new schools in particular areas, their
\nrecognition and upgradation. It is manifest that a decision in this
\nbehalf has to be taken primarily by the Government on an application
\nmade for that purpose under Rule 2-A. The Rules also lay down the
\nguidelines which are to be taken into consideration for preparing the
\nlist in terms of sub-rule (1) of Rule 2. On the lists being finalised,
\nafter their publication and consideration of objections, if any, the
\nsame have to be sent to the Government for its approval, with or
\nwithout modification. Nevertheless the decision by the Government,
\nwhether opening of new school is to be sanctioned or whether an
\nexisting school is to be allowed to be upgraded has to be taken on
\nconsideration of the matters enumerated in Clauses (a) to (e) of Rule
\n2(1) of the Rules. Similarly, an application for either opening of new
\nschool or for upgradation of an existing aided school can be submitted
\nonly after the Director publishes a final list of areas where new
\nschools are to be opened or existing schools are to be upgraded under
\nsub-rule (4) of Rule 2. Any application received otherwise cannot be
\nconsidered. In view of such comprehensive procedure laid down in the
\nstatute, an application for upgradation has necessarily to be made and
\nconsidered strictly in a manner in consonance with the Rules. It needs
\nlittle emphasis that the Rules are meant to be and have to be complied
\nwith and enforced scrupulously. Waiver or even relaxation of any rule,
\nunless such power exists under the rules, is bound to provide scope
\nfor discrimination, arbitrariness and favouritism, which is totally
\nopposed to the rule of law and our constitutional values.\u2026\u2026\u2026\u2026.\u201d<\/p>\n
8. The Government\u2019s Policy issued vide GO(P) No.107\/07\/G Edn. dated 13
\nJune, 2007 with regard to up-gradation of existing schools and recognition
\nof unaided schools applies to respondent school as well. The operative
\nportion of the same which applies to unaided schools and grant of NOC for
\nCBSE\/ICSE Schools reads as follows:
\n\u201cRecognition of Un-aided Schools and NOC for CBSE\/ICSE Schools:<\/p>\n
1. As a policy unaided recognized Schools need not be given
\nrecognition in future.<\/p>\n
2. For those schools functioning in the state now whether they may be
\nconsidered for recognition at all a policy decision may be taken at
\nGovt. level.<\/p>\n
3. Since many of them may be answering to the demand for English
\nmedium and better quality education in the rural areas, those
\nhaving facilities as per Kerala Education Rules and maintaining
\nbetter academic standards may be considered for recognition, if the
\nlocal bodies also recommend recognition of a school acknowledging
\nthe need for such a school in the local body\u2019s jurisdiction.
\nFurther steps can be as in Chapter V Kerala Education Rules, which
\nalso envisages the setting up of recognized schools.\u201d<\/p>\n
9. Para 3 above will not give any Carte Blanche to start a school in the
\nunaided sector and then seek recognition as a matter of right because para
\n1 above indicates that as a policy unaided schools need not be given
\nrecognition in future. In the instant case, it is after starting the
\nschool in the unaided sector, the respondent school is pressing for
\nrecognition which, in our view, is not a correct procedure. Assuming that
\nthe respondent school has satisfied all the requirements stipulated in Para
\n3, still it has to undergo the procedure laid down under Rule 2 and Rule 2A
\nof Chapter V, otherwise, as held by this Court in K. Prasad case (supra),
\nit is bound to provide scope for discrimination, arbitrariness, favouritism
\nand also would affect the functioning of other recognized schools in the
\nlocality.<\/p>\n
10. The Division Bench of the High Court has expressed the view that once
\nthe respondent satisfies Para 3 of the Policy, the State Government has to
\ngrant recognition which in our view would go contrary to the view expressed
\nby this Prasad Case (supra) and violates Rule 2, 2A of Chapter V of KER.
\nThe question, as to whether, the grant of recognition would affect the
\nexisting schools is also a relevant consideration. The State spends large
\namounts by way of aid, grant etc. for running schools in the aided sector
\nas well as the State owned schools. Indiscriminate grant of recognition to
\nschools in the unaided sector may have an adverse affect on the State owned
\nschools as well as the existing schools in the aided sector, by way of
\ndivision fall, retrenchment of teachers etc. Therefore, the procedure laid
\ndown in Rules 2, 2A of Chapter V of KER cannot be overlooked.<\/p>\n
11. The State Government, in the instant case, has already granted
\nrecognition to the respondent school for conducting the classes from 1 to
\n10 in the academic year 2010-11 onwards, of course, subject to the result
\nof this SLP. Considering the fact that the local body has also recommended
\nrecognition and large number of students are now studying in the school,
\nand the same is situated in a Tribal area, we find no reason to interfere
\nwith the recognition already granted to the respondent school as a special
\ncase, but we make it clear that this order shall not be treated as a
\nprecedent. Appeal is disposed of as above. There will be no order as to
\ncosts.<\/p>\n
\u2026\u2026\u2026\u2026\u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..J.
\n(K. S. RADHAKRISHNAN)<\/p>\n
\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\u2026..J.
\n(DIPAK MISRA)
\nNew Delhi
\nSeptember 4, 2012<\/p>\n","protected":false},"excerpt":{"rendered":"
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