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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.     6267     OF     2012   [Arising out of SLP (Civil) No. 34988 of 2010]

State of Kerala and Others .. Appellants

Versus

The Tribal Mission .. Respondent

J     U     D     G     M     E     N     T   

K.     S.     RADHAKRISHNAN,     J.   

1. Leave granted.

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 Kerala Education 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,

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State of Kerata in the unaided sector.  An application for recognition  

was submitted by the respondent school in the year 2003 before the  

Government.  The Deputy Direction of Education, however, forwarded  

a report/letter No. B1/8863/07 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  

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 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. 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.

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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 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 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.

6. We have heard Ms. Bina Madhavan for the appellant and Shri M.  

P. Vinod 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:

“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

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other in respect of recognized schools, indicating the  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 upgraded.  In preparing such lists  he shall take into consideration the following.  

(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  accommodation available in each of the existing schools 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;  

(d) The educational needs of the locality with  reference to the habit1ation and backwardness of the area;  and  

(e) Other matters which he considers relevant and  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  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 the  date of publication of the list.  Such objection shall be filed  before the Assistant Educational Officers or 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 necessary  Chalan receipt shall be summarily rejected.

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(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  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.  

(4) The Government after scrutinizing all the records  may approve the list 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  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 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 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:  

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.

 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

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or Upper Primary schools or both are to be upgraded the  Director shall, by a notification in the Gazette [x x x] 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.  

(2) Applications for opening of new schools or for  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 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  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 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  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 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.”

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7. The scope of the above mentioned rules came up for  

consideration in the case of State of Kerala & Others v. K. Prasad  

& Another (2007) 7 SCC 140, wherein this Court held as follows:

10. The two Rules, quoted above, lay down a  comprehensive procedure for opening of new schools in  particular areas, their recognition and upgradation. It is  manifest that a decision in this behalf has to be taken  primarily by the Government on an application made for  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 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 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 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 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 the rule of law and our constitutional  values.………….”

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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 respondent school as  

well.  The operative portion of the same which applies to unaided  

schools and grant of NOC for CBSE/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 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.

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 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 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 unaided schools need

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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, 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 recognized schools in the locality.   

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 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 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

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fall, retrenchment of teachers etc.  Therefore, the procedure laid down  

in Rules 2, 2A of Chapter V of KER cannot be overlooked.

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 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  

order shall not be treated as a precedent.  Appeal is disposed of as  

above.  There will be no order as to costs.

……………….……………………..J. (K. S. RADHAKRISHNAN)

………………………………….…..J. (DIPAK MISRA)

New Delhi September 4, 2012