STATE OF KERALA AND OTHERSversusTHE TRIBAL MISSION

                        [2012] 7 S.C.R. 502


A               STATE OF KERALA AND OTHERS
                                  v.
                        THE TRIBAL MISSION
                  (Civil Appeal No. 6267 of 2012)
                       SEPTEMBER 4, 2012
B
       [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

        KERALA EDUCATION RULES 1959:

c       rr. 2 and 2A read with Government's Policy dated
  13. 6. 2007 - Granting of recognition to schools in unaided
  sector - Held:· Indiscriminate grant of recognition to schools
  in the unaided sector may have an adverse affect on the State
  owned schools as well as the existing schools in the aided
0 sector, by way of division fall, retrenchment of teachers etc. -
  Therefore, the procedure laid down in rr. 2, 2A cpnnot be
  overlooked, otherwise it is bound to provide scope for
  discrimination, arbitrariness, favouritism - Besides, - Para 1 of
  the Policy indicates that unaided schools need not be given
E recognition in future - However, the recognition granted by
  State Government to the respondent school for conducting
  classes 1 to 10 from the academic year 2010-11 onwards, in
  tlie peculiar circumstances of the case, is not interfered with,
  but it shall not be treated as a precedent - Education!
  Educational institutions.
F
       The respondent-Tribal Mission established an
  English Medium school in the year 2001 in the State of
  Kerala in the unaided sector, and applied for recognition
  to the school in the year 2003. The Deputy Director of
G Education forwarded a report dated 19.10.2007 to the
  State Government pointing out existence of three
  recognized schools within a distance of 2.5-5 kms from
  the respondent school. It was further pointed out that
  granting recognition would adversely affect the other
H                            502
 STATE OF KERALA AND ORS. v. TRIBAL MISSION 503


aided schools functioning in the area and there was also           A
the possibility of division fall in the said schools. The
application of the respondent was rejected. The Single
Judge of the High Court upheld the order, but the
Division Bench directed the State Government to grant
recognition to the respondent school as a self-Finance             B
English medium school to run classes from 1 to 10 from
the academic year 2010-2011. Aggrieved, the State
Government filed the appeal.

    Disposing of the appeal, the Court                             c
     HELD: 1.1 The Government's Policy issued by GO
(P) No.107/07/G Edn. dated 13.6.2007 with regard to up-
gradation of existing schools and recognition of unaided
schools applies to the respondent school as well. Para
3 of the said policy will not give any Carte Blanche to start      D
a school in the unaided sector and then seek recognition
as a matter of right, because Para 1 thereof indicates that,
as a policy, unaided schools need not be given
recognition in future. In the instant case, it is after starting
the school that the respondent school is pressing for              E
recognition which is not a correct procedure. Assuming
that the respondent school has satisfied all the
requirements stipulated in Para 3, still it has to undergo
the procedure laid down under r. 2 and r. 2A of Chapter
V of KER, otherwise, as held by this Court in K. Prasad's          F
case*, it is bound to provide scope for discrimination,
arbitrariness, favouritism and also would affect the
functioning of other recognized schools in the locality.
The view of the Division Bench of the High Court that
once the respondent satisfies Para 3 of the Policy, the            G
State Government has to grant recognition would go
contrary to the view expressed by this Court in K. Prasad'
Case and violates rr.2 and 2A of Chapter V of KER. [Para
8-10]
                                                                   H
    504      SUPREME COURT REPORTS             [2012] 7 S.C.R.


A         State of Kera/a & Others v. K. Prasad & Another 2007
    (8) SCR 115 = (2007) 7 sec 140 - relied on

       1.2 The question, as to whether, the grant of
  recognition would affect the existing schools is also a
  relevant consideration. The State spends large amounts
8
  by way of aid, grant etc. for running schools in the aided
  sector as well as the State owned schools. Indiscriminate
  grant of recognition to schools in the unaided sector may
  have an adverse affect on the State owned schools as
  well as the existing schools in the aided sector, by way
C of division fall, retrenchment of teachers etc. Therefore,
  the procedure laid down in rr. 2, 2A of Chapter V of KER
  cannot be overlooked. [Para 10] [512-8-C]

       1.3 The State Government, in the instant case, has
D already granted recognition to the respondent school for
  conducting the classes from 1 to 1O in the academic year
  2010-11 onwards, of course, subject to the result of this
  appeal. Considering the fact that the local body has also
  recommended recognition and large number of students
E are now studying in the school, and the same is situated
  in a Tribal area, there is no reason to interfere with the
  recognition already granted to the respondent school as
  a special case, but it is made clear that this order shall
  not be treated as a precedent. [Para 11] [512-D-F]
F                        Case Law Reference:
          2007 (8) SCR 115        relied on         para 7
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    6267 of 2012.
G
        From the Judgment and Order dated 18.08.2010 of the
    High Court of Kerala at Ernakulam in W.A. No. 896 of 2010.

          Bina Madhavan for the Appellants.
H
 STATE OF KERALA AND ORS. v. TRIBAL MISSION                 505


     George Poonthottam, M.P. Vinod, Dileep Pillai, Ajay K.        A
Jain, Neelam Saini for the Respondent.

    The Judgment of the Court was delivered by

     K.S. RADHAKRISHNAN, J. 1. Leave granted.
                                                                   B
     2. We are, in this case, concerned with the question
whether the State is duty bound to grant recognition to an
unaided educational institution on the touchstone of Article 21A
of the Constitution of India overlooking the procedure laid down
under Rule 2 and Rule 2A of Chapter V of the Kera la Education     c
Rules (for short 'KER').

      3. Respondent established a school by name Betham
English Medium School in the year 2001. at Attappady in the
Palakkad District, State of Kerata in the unaided sector. An
application for recognition was submitted by the respondent        D
school in the year 2003 before the Government. The Deputy
Direction of Education, however, forwarded a report/letter No.
B 1/8863/07 dated 19.10.2007 to the State Government
pointing out existence of a three recognized schools within a
distance of 5 km from the respondent school following Tamil        E
and Malayalam mediums having Standard 1 to 7, of which one
is situated within a distance of 2.5 km. Further, it was pointed
out that the respondent school though was having sufficient
infrastructure, granting recognition would adversely affect the
other aided schools functioning in that area and the possibility   F
of division fall in these schools could not be ruled out.

     4. The Government rejected the application for recognition
on the ground that it would violate the Government's Policy
referred to in GO (P) No.107/07/G Edn dated 13.06.2007.            G
Further, it was also pointed out that the procedure for granting
recognition to new schools is laid down in Chapter V of KER
and as per sub-rule (2) of Rule 2A of Chapter V of KER, an
application for opening a school should be in response to the
notification under sub-rule (1) of Rule 2A of Chapter V.
                                                                   H
    506      SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A   Consequently, the application was rejected by the Government
    vide GO (Rt) No. 5321/07/G.Edn. dated 22.11.2007.

       5. Aggrieved by the said order, the respondent along with
  various others approached the learned single Judge of the High
B Court who upheld the order. Respondent took up the matter
  before the Division Bench of the High Court. The Division
  Bench of the High Court, vide its judgment dated 18.8.2010
  allowed the appeal stating that the respondent has satisfied the
  various conditions laid down in the Government's Policy dated
  13.6.2007 and therefore, directed the Government to grant
C recognition to the respondent school as an unaided self-finance
  English medium school to run classes from standard 1 to 10
  from the academic year 2010-11 onwards. The State is
  aggrieved by that judgment and hence this appeal.

D        6. We have heard Ms. Bina Madhavan for the appellant
    and Shri M. P. Vi nod for the respondent. Chapter V of KER
    deals with the opening and recognition of schools. For easy
    reference, we may extract Rule 2 and Rule 2A of Chapter V
    as under:
E
                 "2. Procedure for determining the areas where
          new schools are to be opened for existing schools
          upgraded - (1) The Director may, from time to time,
          prepare two lists, one is respect of aided schools and the
          other in respect of recognized schools, indicating the
F         localities were new schools or any or all grades are to be
          opened and existing Lower Primary School or Upper
          Primary Schools or both are to be upg~aded. In preparing
          such lists he shall take into consideration the following.

G               (a) The existing schools in and around the locality in
          which new schools are to be opened or existing schools
          are to be upgraded; 26

                (b) The strength of the several standards and the
H
STATE OF KERALA AND ORS. v. TRIBAL MISSION 507
          [K.S. RADHAKRISHNAN, J.]

  accommodation available in each of the existing schools          A
  in that locality;

         (c) The distance from each of the existing schools
  to the area where new schools are proposed to be opened
  or to the area where existing schools are to be upgraded;
                                                                   B
        (d) The educational needs of the locality with
  reference to the habit1 ation and backwardness of the
  area; and

       (e) Other matters which he considers relevant and           c
  necessary in this connection.

          Explanation:- for the removal of doubts it is hereby
  clarified that it shall not be necessary to prepare the two
  lists simultaneously and that it shall be open to the Director   D
  to prepare only one of the lists.

         (2) A list prepared by the Director under Sub-rule (1)
  shall be published in the Gazette, inviting objections or
  representations against such list. Objections, if any, can
  be filed against the list published within one month from        E
  the date of publication of the list. Such objection shall be
  filed before the Assistant Educational Officers c r the
  District Educational Officers as the case may be. Every
  objection filed shall be accompanied by chalan for Rs. 10/
  - remitted into the Treasury. Objections filed without the       F
  necessary Chalan receipt shall be summarily reject:id.

          (3) The Assistant Educational Officer and the District
  Educational Officer may thereafter conduct enquiries, hear
  the parties, visit the areas and send their report with their    G
  views on the objections raised to the Director within two
  months from the last date of receipt of the objections. The
  Director, if found necessary, may also hear the parties and
  finalise the list and send his recommendations with the
  final list to Government within two months from the last date
  of the receipt of the report from the Educational Officers.      H
    508       SUPREME COURT REPORTS                    [2012] 7 S.C.R.


A               (4} The Government after scrutinizing all the records
          may approve the iist with or without modification and
          forward the same to the "Director within one month from the
          last date for the receipt of the recommendations of the
          Director. The list as approved by the Government shall be
B         published by the Director in the Gazette.

                 (5) No appeal or revision shall lie against the final
          list published by the Director.

                 Provided that the Government may either suo motu
c         or on application by any person objecting to the list
          published by the Director under sub-rule (4) made before
          the expiry of thirty days from the date of such publication
          review their order finalizing such list and make such
          modifications in that list as they deem fit by way of additions
D         or omissions, if they are satisfied that any relevant ground
          has not been taken into consideration or any irrelevant
          ground has been taken into consideration or any relevant
          fact has not been taken into account while finalizing the
          said list:
E
                Provided further that no modification shall be made
          under the preceding proviso without giving any person
          likely to be affected thereby an opportunity to make
          representation against such modifications.
F               2A. Applications for opening of new schools
          and upgrading of existing schools - (1) After the
          publication of the final list of the areas where 8[new school
          of any or all grades are to be opened or existing Lower
          Primary Schools or Upper Primary schools or both are to
G         be upgraded the Director shall, by a notification in the
          Gazette [x xx] call for applications for the opening of New
          schools of any or all grades] and for raising of the grade
          of existing Lower Primary Schools or Upper Primary
          Schools or both] in the areas specified.
H
STATE OF KERALA AND ORS. v. TRIBAL MISSION                   509
          [K.S. RADHAKRISHNAN, J.]
           (2) Applications for opening of new schools or for        A
    raising schools shall be submitted only in response to the
    notification published by the Director. Applications
    received otherwise shall not be considered. The
    applications shall be submitted to the District Educational
    Officer of the area concerned in form No. 1 with 4 copies        B
    of the application and enclosures within one month from
    the date of publication of the notification under sub- rule
    (1 ).

           (3) On receipt of the applications for permission to
    open new schools or for upgrading of existing schools, the       C
    District Educational Officer shall make such enquiries as
    he may deem fit as to the correctness of the statements
    made in the application and other relevant matters
    regarding such applications and forward the applications
    with his report thereon to the Director within one month from    D
    the last date for submitting applications under sub-rule (2).

           (4) The Director on receipt of the applications with
    the report of the District Educational Officer shall forward
    the applications with his report to Government. within one       E
    month from the last date for forwarding the report by the
    District Educational Officer.

          (5) The Government shall consider the applications
    in the light of the report of the District Educational Officer   F
    and the Director and other relevant matters which the
    Government think necessary to be considered in this
    connection and shall take a final decision and publish their
    decision in the Gazette with the list containing necessary
    particulars. within one month from the last date for
    forwarding the report by the Director."                          G

     7. The scope of the above mentioned rules came up for
consideration in the case of State of Kera/a & Others v. K.
Prasad & Another (2007) 7 SCC 140, wherein this Court held
as follows:                                                          H
    510       SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A                10. The two Rules, quoted above, lay down a
           comprehensive procedure for opening of new schools in
           particular areas, their recognition and upgradation. It is
           manifest that a decision in this behalf has to be taken
           primarily by the Government on an application made for
B         that purpose under Rule 2-A. The Rules also lay down the
          guidelines which are to be taken into consideration for
           preparing the list in terms of sub-rule (1) of Rule 2. On the
           lists being finalised, after their publication and
           consideration of objections, if any, the same have to be
c          sent to the Government for its approval, with or without
           modification. Nevertheless the decision by the
           Government, whether opening of new school is to be
           sanctioned or whether an existing school is to be allowed
          to be upgraded has to be taken on consideration of the
          matters enumerated in Clauses (a) to (e) of Rule 2(1) of
D
          the Rules. Similarly, an application for either opening of
           new school or for upgradation of an existing aided school
          can be submitted only after the Director publishes a final
          list of areas where new schools are to be opened or
          existing schools are to be upgraded under sub-rule (4) of
E         Rule 2. Any application received otherwise cannot be
          considered. In view of such comprehensive procedure laid
          down in the statute, an application for upgradation has
          necessarily to be made and considered strictly in a
          manner in consonance with the Rules. It needs little
F         emphasis that the Rules are meant to be and have to be
          complied with and enforced scrupulously. Waiver or even
          relaxation of any rule, unless such power exists under the
          rules, is bound to provide scope for discrimination,
          arbitrariness and favouritism, which is totally opposed to
G         the rule of law and our constitutional values .............. "

       8. The Government's Policy issued vide GO(P) No.107/07/
  G Edn. dated 13 June, 2007 with regard to up-gradation of
  existing schools and recognition of unaided schools applies to
H respondent school as well. The operative portion of the same
 STATE OF KERALA AND ORS. v. TRIBAL MISSION                    511
          [K.S. RADHAKRISHNAN, J.]

which applies to unaided schools and grant of NOC for CBSE/            A
ICSE Schools reads as follows:

         "Recognition of Un-aided Schools and NOC for
     CBSE/ICSE Schools:

      1.    As a policy unaided recognized Schools need not            B
            be given recognition in future.

      2.    For those schools functioning in the state now
            whether they may be considered for recognition at
            all a policy decision may be taken at Govt. level.         C

      3.    Since many of them may be answering to the
            demand for English medium and better quality
            education in the rural areas, those having facilities
            as per Kerala Education Rules and maintaining
                                                                       0
            better academic standards may be considered for
            recognition, if the local bodies also recommend
            recognition of a school acknowledging the need for
            such a school in the local body's jurisdiction. Further
            steps can be as in Chapter V Kerala Education
            Rules, which also envisages the setting up of              E
            recognized schools."

        9. Para 3 above will not give any Carte Blanche to start a
school in the unaided sector and then seek recognition as a
matter of right because para 1 above indicates that as a policy        F
unaided schools need not be given recognition in future. In the
instant case, it is after starting the school in the unaided sector,
the respondent school is pressing for recognition which, in our
view, is not a correct procedure. Assuming that the respondent
school has satisfied all the requirements stipulated in Para 3,        G
still it has to undergo the procedure laid down under Rule 2 and
Rule 2A of Chapter V, otherwise, as held by this Court in K.
Prasad case (supra), it is bound to provide scope for
discrimination, arbitrariness, favouritism and also would affect
the functioning of other recognizeJ schools in the locality.
                                                                       H
    512     SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A      10. The Division Bench of the High Court has expressed
  the view that once the respondent satisfies Para 3 of the Policy,
  the State Government has to grant recognition which in our view
  would go contrary to the view expressed by this Prasad Case
  (supra) and violates Rule 2, 2A of Chapter V of KER. The
B question, as to whether, the grant of recognition would affect
  the existing schools is also a relevant consideration. The State
  spends large amounts by way of aid, grant etc. for running
  schools in the aided sector as well as the State owned schools.
  Indiscriminate grant of recognition to schools in the unaided
c sector may have an adverse affect on the State owned schools
  as well as the existing schools in the aided sector, by way of
  division fall, retrenchment of teachers etc. Therefore, the
  procedure laid down in Rules 2, 2A of Chapter V of KER
  cannot be overlooked.
D       11. The State Government, in the instant case, has already
  granted recognition to the respondent school for conducting the
  classes from 1 to 10 in the academic year 2010-11 onwards,
  of course, subject to the result of this SLP. Considering the fact
  that the local body has also recommended recognition and
E large number of students are now studying in the school, and
  the same is situated in a Tribal area, we find no reason to
  interfere with the recognition already granted to the respondent
  school as a special case, but we make it clear that this or9er
  shall not be treated as a precedent. Appeal is disposed of as
F above. There will be no order as to costs.

    R.P.                                     Appeal disposed of.