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CASE NO.: Appeal (civil)  2913 of 2007

PETITIONER: STATE OF KERALA & ORS

RESPONDENT: K. PRASAD & ANR

DATE OF JUDGMENT: 09/07/2007

BENCH: ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO 2913      OF 2007 [Arising out of S.L.P.(Civil) No.19854 of 2006)

D.K. JAIN, J.:

       Leave granted. 2.      Challenge in this Appeal by the State of Kerala is to the  common judgment rendered by a Division Bench of the Kerala  High Court in Writ Appeals No.545 and 546 of 2004, reversing  the view of the learned Single Judge in regard to the  upgradation of two aided schools in the State.  By the  impugned order, the Division Bench has directed the State to  treat both the schools at par with the two other schools which  had been upgraded in the past. 3.      As noted above, both the respondent schools are aided  schools.  They made representations to the State (one of them  pursuant to the direction of the High Court) praying for  upgradation of the schools from primary to secondary level.   However, the request was declined by the State authorities  because of lack of funds.  The validity of the said decision was  questioned by the respondents in the High Court mainly on  the ground that they had been discriminated against  inasmuch as the privilege given to two similarly situated  schools had been denied to them.  The argument did not find  favour with the learned Single Judge, who came to the  conclusion that since the schools could be upgraded only as  per the procedure laid in Chapter V of the Kerala Education  Rules, 1959 (for short ’the Rules’) no positive direction could  be issued to the State to upgrade the schools by ignoring the  statutory provisions, particularly when there was no challenge  to the validity of the Rules.  Learned Single Judge held that  merely because two schools had been upgraded without  following the Rules, no legal right had accrued in favour of the  writ petitioners’ schools to have them upgraded without  following the mandatory rules.  The plea of financial  constraints urged by the State was also found to be a valid  ground for rejection of the representations.  Aggrieved, the    matter was carried in appeals to the Division Bench.   Accepting the plea of discrimination, the Division Bench  directed the State authorities to give same treatment to the  respondents herein as was given to the two other schools.  The  State was, thus, directed to grant upgradation to the  respondent schools. 4.      It is this common judgment which is questioned in this

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appeal. 5.      Learned counsel appearing for the appellant has  submitted that upgradation of an aided and unaided school  has to be strictly in accordance with the procedure prescribed  in the Rules and since the case of the respondents did not fit  in the criteria and the procedure contemplated in the Rules,  direction for upgradation of the schools was unwarranted.  It  is urged that merely because two aided schools had been  upgraded by relaxing the Rules, as a special case, because of  the directions of the Court, it could not be said that the  respondents had been discriminated against, particularly  when a policy decision had been taken by the State that no  aided school shall be upgraded till the financial position of the  State improves.   It is, thus, pleaded that the impugned  direction is not only against the specific provisions, it will also  put unbearable heavy financial burden on the State Exchequer  if the same is required to be given effect to, which, as observed  in Secretary, State of Karnataka & Ors. Vs. Umadevi &  Ors. , may prove to be counter productive.  It is also asserted  that the impugned direction, in fact, amounts to amendment  of the existing government policy by a judicial order, which is  not permitted.  In support, reliance is placed on a decision of  this Court in Principal, Madhav Institute of Technology  and Science Vs. Rajendra Singh Yadav & Ors.  wherein a  direction contrary to the government policy in vogue at the  relevant time was disapproved.  It is also pointed out that  several special leave petitions, filed by the school  managements against the decisions of the High Court  declining to issue directions for upgradation of their schools  have already been dismissed. 6.      On the other hand, learned counsel for the respondents,  while supporting the direction of the Division Bench has  submitted that two other similarly situated schools having  been upgraded by the government during the relevant period,  the stand of the State regarding financial stringency is per se  arbitrary as equals have been treated as unequals and as such  Article 14 of the Constitution is violated. 7.      Having heard learned counsel for the parties, we are of  the view that on facts in hand respondents’ plea of  discrimination, which found favour with the Division Bench, is  clearly untenable and, therefore, the impugned direction  cannot be sustained.   8.      Chapter V of the Rules embodies rules for the regulation  of opening and recognition of schools in the State of Kerala.   Rule 2 lays down the procedure for determining the areas  where new schools are to be opened or the existing schools are  to be upgraded.  The Rule, insofar as it is relevant for our  purpose, reads as under: "2. (1) The Director may, from time to  time, prepare two lists, one in respect of  aided schools, and other in respect of  recognised schools indicating the  localities where new Schools of any or all  grades are to be opened and existing  Lower Primary Schools 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; (b)     the strength of the several  standards and the accommodation  available in each of the existing

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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 habitation 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  representation 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 a chalan for Rs.10/  remitted into the Treasury.  Objections  filed without the necessary chalan receipt  shall be summarily rejected. (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  recommendation 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 scrutinising  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)     xxx     xxx     xxx. (5A)    xxx     xxx     xxx. (6)     xxx     xxx     xxx."

9.      Rule 2A of the Rules provides for inviting applications for  opening of new schools and upgrading of existing schools.  For  the sake of ready reference, the relevant provision is also  reproduced hereunder: "2A. (1) After the publication of the final

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list of the areas where new school of any  or all grades are to be opened or existing  Lower Primary Schools or Upper Primary  schools or both are to be upgraded the  Director shall, by a notification in the  Gazette call for applications for 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 of grade of existing  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 last 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  applications 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.

(6)     xxx     xxx     xxx.

(7)     xxx     xxx     xxx.

(8)     xxx     xxx     xxx."

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

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this behalf has to be primarily by the government on an  application made for that purpose under Rule 2A. 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 finalized, 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 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.  It  goes without saying that even an executive order is required to  be made strictly in consonance with the Rules.  Therefore,  when an executive order is called in question, while exercising  the power of judicial review the Court is required to see  whether the government has departed from such Rules and if  so, the action, of the government is liable to be struck down. 11.     This Court in Shrilekha Vidyarthi (Kumari) Vs. State  of U.P.  held that every State action, in order to survive, must  not be susceptible to the vice of arbitrariness which is the crux  of Article 14 and basic to the rule of law, the system which  governs us, arbitrariness being the negation of the rule of law.   Non-arbitrariness, being a necessary concomitant of the rule  of law, it is imperative that all actions of every public  functionary in whatever sphere must be guided by reason and  not humour, whim, caprice or personal predilections of the  persons entrusted with the task on behalf of the State and  exercise of all powers must be for public good instead of being  an abuse of power. 12.     Having examined the instant matter on the touchstone of  the aforementioned settled principles, we find it difficult to  hold that the decision of the appellant not to sanction  upgradation of respondent schools because of paucity of funds  was either arbitrary or unreasonable or manifestly erroneous  to warrant interference by the Court.  There is no denying the  fact that opening of new schools or upgradation of aided  schools does involve considerable financial commitment for  the State.  Moreover, insofar as the present cases are  concerned, indubitably, applications for upgrading the existing  schools had not been invited by the Director as stipulated in  sub rule (2) of Rule 2A and, therefore, the representations  made by the respondents for upgrading their schools could not  be considered by the government unless it was shown that the  Director or the State Government were not finalizing the list in  terms of Rule 2A for some extraneous considerations, which  was not the case of the respondents.  Thus, in the absence of  gazette notification, calling for applications for raising of the  grade of an existing school, the question of consideration of  respondents applications/representations did not arise.  In  fact, sub rule (2) of Rule 2A puts a complete embargo on

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consideration of an application which is submitted otherwise  than in response to notification under sub rule (1) of Rule 2A.   We are constrained to observe that the Division Bench of the  High Court has failed to keep all these aspects in mind while  issuing the impugned directions.   13.     We may now deal with the plea of the respondents that  they have been discriminated against.  It is true that Article 14  of the Constitution embodies a guarantee against arbitrariness  but it does not assume uniformity in erroneous actions or  decisions.  It is trite to say that guarantee of equality being a  positive concept, cannot be enforced in a negative manner.  To  put it differently, if an illegality or irregularity has been  committed in favour of an individual or even a group of  individuals, others, though falling in the same category,  cannot invoke the jurisdiction of the writ courts for  enforcement of the same irregularity on the reasoning that the  similar benefit has been denied to them.  Any direction for  enforcement of such claim shall tantamount to perpetuating  an illegality, which cannot be permitted.  A claim based on  equality clause has to be just and legal. 14.     Dealing with such pleas at some length, this Court in  Chandigarh Administration & Anr. Vs. Jagjit Singh &  Anr. , has held that if the order in favour of the other person  is found to be contrary to law or not warranted in the facts  and circumstances of his case, it is obvious that such illegal or  unwarranted order cannot be made the basis of issuing a writ  compelling the authority to repeat the illegality or to pass  another unwarranted order. The extra-ordinary and  discretionary power of the High Court under Article 226  cannot be exercised for such a purpose. This position in law is  well settled by a catena of decisions of this Court. [See:  Secretary, Jaipur Development Authority, Jaipur Vs.  Daulat Mal Jain & Ors.  and Ekta Shakti Foundation  Vs. Govt. of NCT of Delhi ].  It would, thus, suffice to say that  an order made in favour of a person in violation of the  prescribed procedure cannot form a legal premise for any  other person to claim parity with the said illegal or irregular  order.  A judicial forum cannot be used to perpetuate the  illegalities.  15.     Adverting to the facts of the two cases, stated  hereinabove, we are of the considered view that having been  made aware of the fact that the relied upon orders of  upgradation had been passed in utter disregard of the  statutory rules, the Division Bench fell in grave error in  importing the theory of discrimination, particularly when  respondents’ applications seeking upgradation, were per se  not as per the prescribed procedure.   16.     We are, therefore, of the opinion that the Division Bench  was not justified in directing the State Government to accord  the same treatment which had been given to two other  schools, which had been upgraded ignoring the statutory rules  and upgrade the respondents’ schools.  In this view of the  matter, decision of the High Court is clearly unsustainable  and deserves to be set aside.   17.     In the result, the appeal is allowed; the judgment of the  Division Bench is set aside and both the writ petitions are  dismissed.  There will, however, be no order as to costs.