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PETITIONER: SHREE DAMODAR KALVAIBHAV EDUCATION SOCIETY

       Vs.

RESPONDENT: DIRECTOR OF EDUCATION, GOA AND ANR.

DATE OF JUDGMENT:       02/08/2000

BENCH: M. Jagannadha Rao, J. & K.G. Balakrishnan, J.

JUDGMENT:

Balakrishnan, J. L....I..........T.......T.......T.......T.......T.......T..J

    The appellant-Society has been running a school by name Keshav  Smriti  School at Alto-Dabolim, Vasco Da  Gama,  Goa since  the  year  1994- 95.  The school began  as  a  middle school with Vth standard and gradually every year permission was  sought  to start VI th and VIIth standard and  approval was granted by the authorities.  On 15.11.96, the appellant- Society  applied  for opening VIIIth standard in the  school from  academic  year  1997-98.  The appellant  -Society  was informed  that  permission to open VIIIth standard had  been rejected  on  the ground that there were other three  higher secondary  schools  within  a  radius of 5  kms.   from  the appellant’s  school  and  as  the opening of  a  new  higher secondary  school  would  adversely affect  the  neighboring schools  and  there would be an unhealthy competition  among the  existing  schools.  The appellant was also informed  by the  impugned  order  that an action to start a  new  school within the radius of 5 kms.  from the existing schools would lead  to violation of Rule 31(3)(iii) of Goa, Daman and  Diu School  Education Rules, 1986 (hereinafter being referred as the  "Rules").  The appellant- Society filed a Writ Petition No.  275/97 before the Panaji Bench of the Bombay High Court challenging  the order of rejection dated 14.5.97.  The said writ  petition was later withdrawn by the appellant pursuant to  a statement made by the counsel for the Government  that fresh guidelines were being framed regarding the starting of new  schools.  In pursuance of a decision of the High Court, certain  guidelines were framed.  A survey was conducted  to find  out  the  educational needs of the localities  and  to identify the localities where the school in different grades are  required  to  be  opened  in the  State  of  Goa.   The appellant’s  case was examined and it was found that it  was not  desirous to allow the appellant-Society to start a  new school and the Director, School Education passed an order on 26.11.97  and the appellant was informed that his request to open  a  new  school in 1998-99 cannot be  considered.   The Order  dated  26.11.97  was challenged by the  appellant  by filing  Writ  Petition No.  86/98 before the High  Court  of Bombay, Panaji.  The said writ petition was dismissed.  This appeal is directed against that decision.

    We  heard the appellant’s counsel and also the  counsel for  the  respondent.   The contention  of  the  appellant’s counsel is that the Director of Education, Government of Goa

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has  wrongly rejected the claim of the appellant.  The  main thrust  of  the argument of the appellant’s counsel is  that the  Rule 31 of the Goa, Daman and Diu Education Rules, 1986 has no application.  According to the appellant, the request of  the appellant was to start VIIIth standard which  should have  been  considered in the light of Rule 32 of  the  said Rules.   The  contention of the appellant’s counsel is  that the  appellant  - Society is having an existing  school  and starting  of VIIIth standard in that school does not  amount to  creation  of a new school but rather an addition of  one more standard to the existing school.

    In  order to appreciate the contention advanced by  the appellant’s  counsel,  it is necessary to look into some  of the  relevant rules which are applicable to the starting  of new school and opening of new classes.  In the State of Goa, Daman  and Diu, the schools are classified into five stages, namely,  pre-primary  stage,  primary stage,  middle  stage, secondary  stage  and higher secondary stage.   The  primary stage consists of classes from Ist to Ivth (both inclusive), the  middle  stage includes classes from Vth to VIIth  (both inclusive), the secondary stage includes classes from VIIIth to  Xth  (both  inclusive) and the  higher  secondary  stage includes  classes  above class Xth.  The definition  of  the stages  has  been given in Rule 2 of the said Rules.   While giving  the definition of the secondary stage, the following definition  which  is  given in Rule 2(1)(i) is  as  under:- "Secondary  stage"  means stage of school  education  having VIII-X  classes  or V-X classes as the case may  be;   (both inclusive)."

The above definition indicates that even if in a particular school,  both middle and secondary stage classes are  there, it would not be known as secondary school.

    Rule  31 deals with the guidelines relating to  opening of new schools or classes or closure of the existing schools or classes.  Proviso to Rule 31(3) says that no school shall be  permitted  more  than one class at each  stage,  namely, primary,  middle,  secondary or higher secondary  and  after recognition,  no  school shall be permitted to add one  more higher  class  each year at each stage.  Rule 31(3)(i)  says that  no primary school of that category shall be  permitted within  a  radius of 1 Km.  and Rule 31(3)(ii) says that  no middle  school  of that category within a radius of  3  Kms. The  third  proviso  to Rule 31(3) reads  as  follows:-  "No secondary  school of that category within a radius of 5 Kms. from  the existing schools, unless the Director of Education is  satisfied  that the existing school is  overcrowded  and there is no scope for further expansion, or there is no easy access  to the existing school due to natural barriers  like forest  area,  rivers  with running water, or  the  proposed school  is  entirely  for  the  benefit  of  backward  class community, scheduled caste or Tribal pupils.

    Nothing  contained  in  this provision shall  apply  to unaided minority schools."

    Rule  32  deals  with  the opening of  new  classes  in schools.   The  relevant  provisos are as follows:-  (1)  No@@                 JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ recognised  schools,  not being an unaided minority  school, without  giving full justification, shall open any new class or division other than the ones which have received approval from  the  appropriate  authority, without  obtaining  prior

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sanction  of  the Director of Education or  any  subordinate authority authorised by him.

    (2) In the case of unaided minority schools, opening of new  classes/divisions shall be subject to such norms as may be specified by the Director of Education.

    (3)  the  norms  for granting additional  divisions  in Middle  and Secondary Schools shall be as follows subject to any change on the recommendations of the Advisory Board.

    I.  XXXX II.  XXXX

    Provided  that permission to open additional  divisions shall  be  granted  by the Directorate  of  Education  after satisfying  himself about the physical facilities  available with  the school and mere enrolment of students by a  school shall  not  automatically make the school eligible  for  the additional  divisions  and  if the  additional  division  is opened  by  the School Management, without prior  permission the  additional  liability  shall  not   be  borne  by   the Department.

    (4) XXXX"

The above provisions say that for starting a new class in a school  or  to open an additional division of a  class,  the school  authorities  shall make available  certain  physical facilities  whereas  starting of a new school is subject  to satisfactory  completion of several criteria.  The  Director of  Education  must be satisfied himself that the number  of schools  existing in the locality or in the neighboring area where the new school is proposed to be opened, is sufficient to  meet  the  needs  of that  locality.   The  Director  of Education  is also to consider whether the opening of a  new school  would be against the public interest or not.  It  is specifically  stated that while permitting new schools,  the Director  of  Education  shall  adopt   the  norms  that  no secondary  school  of that category within the radius  of  5 Kms.   shall  be there and unless the Director Education  is satisfied  that the existing school is overcrowded and there is  no  scope  for further expansion and there  is  no  easy access  to the existing schools due to natural barriers like forest  area,  rivers  with running water, or  the  proposed school  is  entirely  for  the  benefit  of  backward  class community, scheduled caste or Tribal pupils.

    The contention of the counsel for the appellant is that the appellant society wanted only to have a new class in the existing  school, therefore, the norms laid down under  Rule 31  are  not applicable and Rule 32 alone should  have  been looked  into by the Director, Education.  This contention is not  tenable for various reasons.  Admittedly, the appellant started  the school as a middle school and the Vth  standard was started in the year 1994-95.  VI th standard was started in 1995-96 and the permission to open the VIIth standard was given  during  the year 1996-97.  The present request is  to start VIIIth standard in that school which would convert the school  to  a secondary school.  Even though the request  of the  appellant is to have a new class in the existing school but  the real demand of the appellant is to have a secondary school  as  the existing school is only upto VIIth  standard and  if  the school is to become a secondary  school,  norms laid down under Rule 31 are to be necessarily followed.  The contention  of  the learned Counsel for the  appellant  that

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starting  of  a  new class does not amount to a  new  school cannot  be  accepted for the reason that  rigorous  criteria prescribed  under Rule 31 are to be followed for starting  a new school.  For opening a new class in the existing school, the appellant society need only satisfy the authorities that there  are  certain physical facilities available  with  the school and that there are sufficient students for starting a class.   Whereas under Rule 31, the authorities have to take into  consideration  various  other  aspects  and  find  out whether the opening of a new school is necessary to meet the educational needs of that area.

    It  was  contended on behalf of the appellant  that  in view  of the definition of the secondary stage mentioned  in Rule 2(1)( i ), the appellant school shall be deemed to be a secondary  school  and,  therefore, starting of  the  VIIIth standard  in the school does not amount to the starting of a new  school.  Under Rule 2(1)(f), middle stage of the school is  specifically mentioned as the stage of school  education from  class  Vth  to  VIIth (both  inclusive).   As  regards ’Secondary Stage’, an inclusive definition is given so as to take  in  standards Vth to VIIth also, within the  secondary stage  and that would only indicate that even if a school is having  a  middle stage consisting of classes IVth to  VIIth still  it  would be deemed as secondary stage if  there  are classes  from Vth to Xth.  As regards the appellant’s school is  concerned, there are classes only from Vth to VIIth.  It does  not  fall within any other category and it has  to  be held  as  a  middle  school.   If it  is  converted  into  a secondary  school by addition to standard VIIIth, we are  of the  view  that the guidelines under Rule 31 of the  ’Rules’ are  to  be  followed as it amounts starting of  new  school having "Secondary stage".

    The  counsel for the appellant drew our attention to  a decision  of  the  Division  Bench  of  the  High  Court  of Judicature,  Bombay  at  Goa  in Vidya  Prasarak  Samaj  Vs. Director  of Education (Writ Petition No.  26/94 decided  on 25.7.94)  where it was held that Rule 31 has no  application while  starting  of new class in higher stage.  That  was  a case  where the starting of standard VIIIth, IXth and Xth in neighboring  school  was  challenged and the  challenge  was negatived on the ground that distance rule under Rule 31 has no  application and it was held that opening of classes  for higher standards cannot be said to be opening of new school. We  do  not  think  that the Division  Bench  has  correctly interpreted  the Rule.  If such interpretation is adopted it would  only defeat Rule 31 and primary school can  gradually ripen   into   Higher  secondary   school  stage  by   stage contravening  the  mandate  contained in Rule  31.   By  the proposed  new  class,  the school is upgraded  and  then  it amounts  to  starting  of  a new school and is  not  a  mere addition of one more class to the existing school.

    However,  in  the instant case, the  first  respondent, i.e.,  Director, Education has not adverted to various other relevant  circumstances  while passing the  impugned  order. The  counsel  for the appellant had  specifically  contended that  the  appellant  school  catered to the  needs  of  the students from the lower middle class families and out of the three  neighboring schools within a radius of 5 Kms., one is a  Naval school which exclusively caters to the children  of navy personnel and the second school is a convent school and it is not normally possible to get admission to the students

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from  the  ordinary families.  As regards the  third  school also,  it  is  stated that there are  sufficient  number  of students  in  the standard VIIIth of that school  and  there would not be any unhealthy competition in case the appellant is  allowed to open standard VIIIth in their school.   These aspects are not seen to have been considered by the Director of  Education  while passing the impugned order.  It is  not known   whether  these  relevant   factors  are  taken  into consideration  while  passing the order.  Therefore, on  the facts and circumstances of this case, we are inclined to set aside  the impugned order and direct the first respondent to consider the matter afresh.

    The   appellant   is  directed   to   submitted   fresh application  before  the first respondent.  The  application shall  be submitted within three weeks from the date of this Order.   The  first respondent shall pass the revised  order having  due  regard  to the relevant circumstances  and,  if necessary,  shall give notice to the representatives of  the neighboring  schools  which are likely to  be  prejudicially affected by the order, if any, to be passed by the Director, Education.   Further,  the Director has to consider  whether the  students who complete standard VIIth in this school can get  admission in the other schools and whether there  would be  adequate  vacancies in the standard VIIIth in the  other schools,  after  accommodating  their   own  promotees  from standard  VIIth.   The  order shall be  passed  sufficiently before the commencement of the new academic year.

    The appeal is disposed of.  Parties to bear the costs.