# STATE OF MAHAKASHTRA & ANR v. LOK SHIKSHAN SANSATHA & ORS

- **Citation:** [1971] Supp. 1 S.C.R. 879
- **Court:** Supreme Court of India
- **Decided:** 1971
- **Case number:** Civil Appeals Nos. 160, 161 c and 878 of 1968
- **Bench:** S. M. Surn, G. K. Mitter, C. A. Vaidialingam, P. Jaganmohan Reddy, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-mahakashtra-anr-v-lok-shikshan-sansatha-ors-5455
- **Pages:** 21

## Headnote

Education-Grant-in-aid System, r. 3(1) and (2)-lf vague or ambigu-
.ous-Executive instructions. Constitution of India, 1950, Arts. 14, 226 and
.. 358-Jurisdiction of High Court in relation to policy of giving grants to
educational institutions.
Grant-in-aid Code if violative of Art. 14. Period of Emergency-Artitle 358 if protects Executive instructions from attack under Art. 19.
The grant-in-aid system was introduced in 1859 and its main object
was to permit voluntary effort and reliance on local resources in the field
of· education apart from such contributions as may be available from the
funds of the State. After the re-organisation of the State of Bombay a
unified code of grant-in-aid to non-government secondary schools throughout the State was introduced by the State from the yeas 1963-64. Under
r. 2(1) an application for permission to start a secondary sch~ has to
be made in the prescribed form and such application has Y> reach the
presl!dbed authorities by the end of October in the year preceding the year
in which the school was proposed to be started. Under r.
2) the manage~
ment which was permitted to open a school has so ap y for recognit!on
of the school and under r. 3, a school seeking rec nition shall satisfy
the Department that the school was actually nee
in the locality that it
did not involve any unhealthy competition with any existing institution and
that the management was competent, reliable and was in the hands of a
properly constituted authority or committee.
Under r. 3(3) one of the
conditions which bas to be satisfied is regarding the financial stability of
the proposed school. Other conditions which had to be satisfied by a pro·
posed school are enumerated in the remaining 13, clallses of the rule. Rule
86(2) provides that schools which are not registered under the Societies
Registration Act, would not be eligible for grant.
On October 'ti, 1965, the State issued a press-note calling attention of
all the managements intending to start new secondary schools to the relevant
provisions of the Code. It was also stated that applications received for
starting new schools would be scrutinised and considered by the District
Committee comprising of the Chairman of the Education Committee, Zila
Parishad, Parishad Education Officer and a member of the S:condary
A
B
c
D
E
F
Schodl Certificate Examination Board, Poona, or Vidarbha Board of
G
Secondary
Education,
Nagpur, that
is, by
persons
who
were
familiar
with
the
conditions
prevailing
in
the
particular
areas, and the requirements in the area for a new· or additional
school, and that permission to start a new school would be communicated
to the applicants concerned by the Deputy Director of Education of the
region by the end of February. The applicants were also informed that
the appeals to the Government against the orders of the Depu}:y Director
of Education could be filed up to end of March, 1966. On the same date,
B
Government sent communications- for taking steps for constituting the
District Committees. The State also sent a circulas on the same date
to the various educational authorities stating that the Disrict Committees
•
8~0
B
c
D
E
F
•
G
H
SUPREME COURT REPORTS
[19il] SUPP. s.c.R.
should bear in mind, whea considering the applic~tions, the various.matters·
enumerated in items 1 to 14 which relatc:d to the requirement of a school
or an additional school in a particular are:a, its financial stability, the nature
and competency of the management and several allied matters. It was·
obligatory on the District Committee to record its reasons in writing for
recommending or not recommending a particular application, which would
be considered by the Deputy Director of Education of the concerned region before granting or refusing permission
to start a new school.
The applications of the three applk:ants-societies were scrutinised b~
the concerned District Committees along with the applications and objec·
tions of rival applicants. In the case of the first appli

## Text

_Characters 0–39,852 of 61,653. This is a partial read: ask again with offset=39852 for what follows._

879
STATE OF MAHAKASHTRA & ANR.
v.
LOK SHIKSHAN SANSATHA & ORS.
July 26. 1971
[S. M. Surn, C. J., G. K. MITTER, C. A. VAIDIALINGAM,
P. JAGANMOHAN REDDY AND I. D. DUA, JJ.]
Education-Grant-in-aid System, r. 3(1) and (2)-lf vague or ambigu-
.ous-Executive instructions. Constitution of India, 1950, Arts. 14, 226 and
.. 358-Jurisdiction of High Court in relation to policy of giving grants to
educational institutions.
Grant-in-aid Code if violative of Art. 14. Period of Emergency-Artitle 358 if protects Executive instructions from attack under Art. 19.
The grant-in-aid system was introduced in 1859 and its main object
was to permit voluntary effort and reliance on local resources in the field
of· education apart from such contributions as may be available from the
funds of the State. After the re-organisation of the State of Bombay a
unified code of grant-in-aid to non-government secondary schools throughout the State was introduced by the State from the yeas 1963-64. Under
r. 2(1) an application for permission to start a secondary sch~ has to
be made in the prescribed form and such application has Y> reach the
presl!dbed authorities by the end of October in the year preceding the year
in which the school was proposed to be started. Under r.
2) the manage~
ment which was permitted to open a school has so ap y for recognit!on
of the school and under r. 3, a school seeking rec nition shall satisfy
the Department that the school was actually nee
in the locality that it
did not involve any unhealthy competition with any existing institution and
that the management was competent, reliable and was in the hands of a
properly constituted authority or committee.
Under r. 3(3) one of the
conditions which bas to be satisfied is regarding the financial stability of
the proposed school. Other conditions which had to be satisfied by a pro·
posed school are enumerated in the remaining 13, clallses of the rule. Rule
86(2) provides that schools which are not registered under the Societies
Registration Act, would not be eligible for grant.
On October 'ti, 1965, the State issued a press-note calling attention of
all the managements intending to start new secondary schools to the relevant
provisions of the Code. It was also stated that applications received for
starting new schools would be scrutinised and considered by the District
Committee comprising of the Chairman of the Education Committee, Zila
Parishad, Parishad Education Officer and a member of the S:condary
A
B
c
D
E
F
Schodl Certificate Examination Board, Poona, or Vidarbha Board of
G
Secondary
Education,
Nagpur, that
is, by
persons
who
were
familiar
with
the
conditions
prevailing
in
the
particular
areas, and the requirements in the area for a new· or additional
school, and that permission to start a new school would be communicated
to the applicants concerned by the Deputy Director of Education of the
region by the end of February. The applicants were also informed that
the appeals to the Government against the orders of the Depu}:y Director
of Education could be filed up to end of March, 1966. On the same date,
B
Government sent communications- for taking steps for constituting the
District Committees. The State also sent a circulas on the same date
to the various educational authorities stating that the Disrict Committees
•
8~0
B
c
D
E
F
•
G
H
SUPREME COURT REPORTS
[19il] SUPP. s.c.R.
should bear in mind, whea considering the applic~tions, the various.matters·
enumerated in items 1 to 14 which relatc:d to the requirement of a school
or an additional school in a particular are:a, its financial stability, the nature
and competency of the management and several allied matters. It was·
obligatory on the District Committee to record its reasons in writing for
recommending or not recommending a particular application, which would
be considered by the Deputy Director of Education of the concerned region before granting or refusing permission
to start a new school.
The applications of the three applk:ants-societies were scrutinised b~
the concerned District Committees along with the applications and objec·
tions of rival applicants. In the case of the first applicant-society the District Committee recommended the rival applicant on the grounds that
the applicant society had no funds but that the rival applicant was of
good financial position and experience. 'fhe Deputy Director of Education
accepted the recommendation and rejected the first applicants• application
stating that the need of the place had been fulfilled by permitting the rival
society to open a school at the place.
In the case of the second applicant the Deputy Director of Education
rejected the application on two grounds, namely: (a) that the application
was made after the prescribed date, and (b) that the society was not registered. The appeals of these applicants to the State Government were rejected and they filed writ petitions in the 1-ligh Court for striking down r. 3
of the Grant-in-aid Code.
In the case of the third applicant, in spite of objections by a rival
who was already conducting a school in that area the District Committee
recommended the grant of permission to the applicant on the grounds that
the applicant society was a good, experienced and popular society and it
was also financiaHy sounC.; and that the: population of the areas demanded
as an absolμte necessity an additional S<:bool from standard VIII onwards.
The society which was already runnin1: a school filed a writ petition to
quash the permission granted to the third appl~cant.
The High Court struck down els. 1 and 2 of r. 3 of the Code as violative of Arts.
14 and 19 of the Constitution and directed the educational
authorities to grant permission to the first two applicants to start schools
as desired by them. It dismissed the 'vrit petition filed for quashing the
permission granted to the third applic:ant.
The High Court also made
certain observations regarding the policy that should be adopted by the
educational authorities in the matter of permitting the starting of a new
school or an additional school in a particular area.
In appeals to this Court,
HELD : (I) The High Court had misunderstood the nature of its
jurisdiction when dealing with the claims of the first two applicants. It
was not for the High Court to lay dowo the policy that should be adopted
by the educational authorities in the matter of granting permission for
starting schools.
The question of poHcy is essentially for the State and
such policy will depend upon an overall assessment of the requirements of
the residents of a particular locality and other categories of persons far
whom it is essential to provide for education. If the overall assessment is
arrived at after pro~r classification on a reasonable basis, it is not for
courts to interfere with the policy leadi11l! up to such assessment. [887E-H]
(2) aauses (I) and (2) of r. 3 are not vague or ambiguous in any
respect. Tuey should not be considered in isolation. If Ibey are interpreted
having due regard to the various othe:c matters contained in other clauses
of the rule and the detailed instructions contained.
·
l(AHARASHTRA v. LOKSHIP:SHAN SANSTHA (Vaidialingam. J.)
881
of the rule and -the detailed instructions contained in the cjrcular letter.
the District Committee had ample guidance for deciding the need of a
particular locality to have a school or an additional school, as also the
further questions regarding the competency and reliability of the management. [895D-E; F-H]
(3) The provisions of the Code are executive instructions and are in
the nature of administrative instructions without any constitutional f.Jrce.
The State Government was competent to issue those executive instructions
for the guidance of the educational authorities dealing with the applications
for grant of permission to start schools, and they are perfectly valid. The
applications in the present case were considered during the period when
the Proclamation of Emergency was in operation.
Article 19 could not
therefore be invoked by the first two applicants and the view of the High
Cowrt that Art. 358 did not save t,he two clauses of r. 3 was erroneouse.
[888A-B; 892C-E]
(4) (a) The High Court erred in striking down the two clauses on the
ground that unless a school was started in accordance with the rules con~
tained in the Code they would not be recognised by the Secondary School
Boards and students studying in such schoois would not be able to appear
for the 'examinations held by the Board and the University, and therefore,
were violative of Art. 14. The provisions regarding grant of permission
and recognition of schools under the Code are merely intended for the
purpose of receiving grant from the Government, and are not concerned
with the effect of starting e. school without complying with the require~
merits of the provisions of the Code or in the face of refusal of permission
by the educational authorities.
So far as the distribution of grant to
the schools recognised under the Code was concerned it was not the case
of any of the applicants that such grants were being made arbitrarily or
any discrimination was sliown in that regard.
It was also not the case
of the applicants that the District Committees had acted arbitrarily, nor
was it their case that the Depuy Director of Education had not based his
decision on the recommendations of the District Committees. There was
thus no violation of Art. 14. [892G-H; 893B-C, D-1]
(b) The mere fact that there was no right provided for the applicant
being heard before the application was rejected could not be a ground for
holding that there was violation of the principles of natural justice. The
particulars which had to be mentioned in the prescribed application, form
B
c
D
E
are very elaborate and complete. The provisions in the Code read along
F
with the instructions given by the State in its circular letter referred to
various relevant material factors that had to be taken into account for
the purpose of deciding whether the application was to be granted or not.
When all the relevant circumstances, claims and objections of the applicants
and their rivals had been taken into account by the District Committees
and the educational authorities there was no violation of any principle of
natural jvstice. It was not the case of the applicants that the reasons given
for rejection of their applications were not covered by the provisions con·
G
tained in the Code. [893H ; 894D-EJ
(S) The High Court erred in issuing a mandamus to the State without
considering the •arious reasons given by the Deputy Director of Educa ..
tion for rejecting the aJiplication of tho first two applicants.
(a) Tho· reason given by tho Deputy Director ot Education with respect to the first al!Plicant for rejecting i!S application was. that tho need
of the place had been fulfilled by permitting another society to open the
H
school at the place, on the recommendations of the District Committee.
It wu open to the authorities to refuse permission if tho school is not in
a finanoially sound position.
[896B-D, GJ
56-1 S.C.India/71
882
SUPREME COURT Rll!ORTS
(J97J)"6UPP. S.C.R.
A
(b) In the case of the second applicant the reasons given were that
B
the. application was sent after the prescribed date and th1t the society was
not registered. Therefore the rejection was on valid grounds. [897D-E]
(6) In the case of the third applica.nt, from the mere fact that by
giving it permission to open another school some of the students of the
rival society's school may seek admissicin in the new school, could not
be a ground for stating that the rival silciety's legal rights had been ina...
fringed.
In granting permission to another society no extraneous or irre~
levant matters had been taken into accoJJnt by the District Committee or
the educational authorities.· ·The reasdns given by the District Committee
for granting permission were valid rea~.ons and the High Court rightly
rejected the petition of the rival society. [8980-HJ
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 160, 161
c
and 878 of 1968.
Appeals from the judgment and order dated December 2,
1966 of the Bombay High Court, Nagpur Bench in Special Civil
Applications Nos. 420 and 421 of 1966 and 694 of 1965.
Niren De, Attorney General, B. D. Sharma and S. P. Nayar,
D
for the appellants (in C.As. Nos. 160 and 161 of 1968).
E
F
G
H
W. S. Barlingay and A. G. Ramaparkhi, for the appellant (in
C.A. No. 878 of 1968) and respondents Nos. 1 and 2 (in C.A.
No. 160 of 1968).
A. G. Ratnaparkhi, for respondents Nos. 1 and 2 (in C. A.
No. 161 of 1968).
M. R. K. Pillai, for respondent No. 2 (in C. A. No. 160 of
1968).
Niren De, Attorney General, B. D. Sharma and S. P. Nayar,
for respondent Nos. 1 and 2 (in C.A. No. 878 of 1968).
Bishan Narain, S. K. Bisaria and T. L. Garg, for respondent
No. 3 (in C.A. No. 1878 of 1968).
The Judgment of the Court was delivered by
Vaidialingam, J.-AJl these three appeals, on certificate, are
directed against the common judgement and order elated December 2, 1966 of the Bombay High Court in Special Civil Applications Nos. 694 of 1965 and 420 and 421 of .1966. Civil Appeals
Nos. 160 and 161 of 1968 are fifod by the State of Maharashtra
and the Deputy Director of Education, Nagpur against that part
of the· order 'of the High Court allowing Special Civil Applications Nos. 420 and 421 of 1966 after holding that ds. (I) and (2)
of s. 3 of the Grant-in-aid Code (hereinafter to be referred as the
Code) are invalid and directing the State of Maharashtra to grant
..
MAHARASHTRA v. LOKSll!KSllAN SANSATllA (Vaidialingam, J.)
the petitioners in the said Special Civil Applications permission
to start schools in the areas concerned as desired by them. Civil
Appeal No. 878 of 1968 is by the applicant in Special Civil Application No. 694 of 1965 against the order of the High Court dismis-
.sing his writ petition and declining to interfere with the order of
the State and educational authorities granting permission to the
third respondent in the appeal to open, a new school at SakharJcherda with VIII and IX classes.
We will first deal with Civil Appeals Nos. 160 and 161 of
1968 and refer to the facts leading up to those appeals.
Civil
Appeal No. 160 of 1968, as mentioned above, arises out of the
order in Special Civil Application No. 420 of 1966. The applicant in the said appiication Loka Shikshan Sanstha Anjansinghi
made an application dated October 30, 1965 to the Deputy Director of Education, Nagpur for permission to open a school during
the year 1966-67 at Anjansinghi in Amravati district. The application was sent in the prescribed form. Therein it was stated that
the Management was not registered and that it will get itself registered by about the middle of January, 1966. Under the heading
"Arrangements made for necessary furniture and apparatus" in
col. 13, the applicant stated that they proposed to spend about
Rs. 2,000 in respect of furniture, science, apparatus, teaching aids,
teaehers library and pupil's library. The break up of the figures
under these heads was also given. In col. IS under the heading
"Funds at the disposal of the management in addition to those
in col. 13 above", the applicant stated Rs. 5,000 only. The applicant further stated under col. 17 that it required only a token
grant in the first year of recognition and a regular grant at the
prescribed rate from the second year.
The Ashok
Education
Society, Ashoknagar, the third respondent in the writ petition,
had also applied to the educational authorities to start a school
during the same year at Anjansinghi. The writ petitioner filed an
objection dated ·March 8, 1966 before the Deputy Director of
Education, Nagpur objecting to the grant of permission asked
for by the Ashok Education Society, Ashoknagar on the ground
that the said Society is an outside agency. In the said petition
the applicant requested for favourable consideration of his application, already submitted, to the authorities. The District Commitee which scrutinized the applications of both the parties re-
·commended that the application of the wr\t petitioner should be
Tejected as it had no funds. Another Society with good financial
position and experience was recommended by the Committee.
The District Com,mittee recommended that Ashok .Education
Soeiety should he granted permission as it was a good, experienced
aad popular society and it wafalso financially sound. The Deputy
Director of Education·liy his order .dated April 12,1966 rejected
the application of the wtit petitioner on the ground that the need
883 (
A
B
c
D
E
F
G
R
884
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[1971] SUPP. s.c.R
of the place has been fulfilled by permitting another society to
open a school at the place. The petitioner was further Informed
that in case any school is started when permission has been
refused, serious view will be taken by the educational authorities.
The writ petitioner filed an appeal on April 21, 1966 to
the State Government wherein he prayed for withdrawing permission granted to the Ashok Education Society, the third respondent
and also requested that permission may be granted to the applicant society tq open a school. This appeal was rejected by the
Government by its order dated IO!l6th May, 1966.
The applicant society filed writ petition and prayed for striking down r. 3
of the Grant-in-aid Code framed by the State of Maharashtra as
unconstitutional and violative of fundamental rights guaranteed
under Art. 19(1)(c) of the Constitution and to quash the orders of
the Deputy Director of Education and the State Government refusing permission to the petitioner Soc:.ety to start a schod! at Anjansinghi. The applicant further prayed for a direction being issued
to the educational authorities to grant permission to start the
school as requested by it.
As common contentions had been raised by the State of
Maharashtra in this writ petition and also in Special Civil Application No. 421 of 1966 before the High Court, we will refer to those
contentions after adverting to the facts in Special Civil Application No. 421 of 1966.
Civil Appeal No. 161 of 1968 arises out of Special Civil Application No. 421 of 1966. The applicant therein Sri Nana Guru Shlkshan Sanstha, Shirkhed sought permission of the Deputy Director
of Education to start a school at Shirkhed from June 1966. The
request was made by a letter dated October 29 ,1965 and the
application was not made in the prescribed form. The Parishad
Education Officer, Zila Parishad, Amravati by his communication
dated November 15, 1965 forwarded the prescribed application
form to the applicant with a request to have the particulars mentioned therein properly filled in and to submit the same immediately. The application in the prescribed form was sent by the applicant on November 3, 1965. In Cc.!umn No. 4 under the heading
"whether the management is regb:tered" the answer given wa•
"no". Under the same column to the further query "if not, whether it is intended to get it registered!. If so when" the answer given
was "within a month". In column 13, th.e expenditure proposed
to be incurred regarding furniture: etc. the applicant stated that
about Rs. 800 was intended to be i;pent. The break up in respect
of the various items was also given. Under column 15 regarding
funds at the disposal of the manage~ent, it was stated t~at a su~
of Rs. 5,000 was available. The thtrd respondent therem Swann
Vivekanand Shikashan Sanstha, Lehgaon had also made aru
MAHARASHTRA v. LOKSHIKSllAN SANSAllIA (Vaidialingam,J.)
. 88 5
application. for. opening a school at
Shirkh~. The applicant
fi!ed. an objection on January 5, 1966 to the grant of any penniss1on to the thrrd respondent. The Deputy Director of Education
by. his o_r~er dated April 11, 1966 rejected the application of th.e
wnt petitioner on two grounds namely, "(!) the application is
after th7 .Prescribed dat~ and (2) the Society is not registered.';
The pettt10ner was also mformed that if a school is started when
permission has been refused, serious view will be taken by the
educational authorities.
The appeal filed by the writ petitioner
to the State Government was rejected by the latter by its order
dated May 10/16th, 1966. The applicant filed . Special Civil
Application No. 421 of 1966 praying for striking down r. 3 of
the Grant-in,aid Code as
unconstitutional and violative of
Art. 19(l)(c) of the Constitution.
The orders refusing permission to the Society to start a school were also sought to be quash.
ed. A further prayer was made for directions being issued to the
authorities to grant permission to the Society to start a second
school at Shirkhed as desired by it.
1
The State Government contested both the Special Civil Appli·
cations. It was pcYinted out that the rules contained in the Grant-'
in-aid Code were all executive instructions given by the State to
th.e educational authorities for proper guidance in the matter of
considering applications for starting schools which required grants
to be made by the Government. None of the rules contained
therein violated any fundamental rights of the applicants. Even
if Art. 19 can be invoked, the restrictions regarding the starting
of schools were all reasonable restrictions in the interest of gene·
ral public. No restriction has been placed on the applicants form·
ing associations or unions as contemplated under Art. 19(! )(c)
and that in any event the restrictions were saved by Cl. (ivJ of
Art. 19. The reasons given by th.e Deputy Director .:if Education
for rejecting the applications of the two petitioners were valid as
the District Committee constituted for the purpose had considered
all the relevant matters before rejecting their applications and
granting pennission to the respective third respondents therein.
The High Court by its common judgment has taken the view
that els. (!) and (2) of r. 3 of the Grant-in-aid Code are invalid as
A
B
c
D
E
F
they are too vague to afford any standard both as to the need of a
G
·school in the locality and also as to the unhealthy competition
with an existing school. The said clauses are equally vague as
there is no standard to find out the competency and reliability of
the management incharge of the school. There is further no pro·
vision in these sub-clauses for hearing a party before the autho·
rities concerned take a decisicin in the matter of grant or refusal
H
of pemiission to start a school. The High Court is further of t!?e
view that by such executive instructions the State is able to prevent the two writ petitioners from carrying on their legitimate
886
SUPREMB COURT REPORTS
[1971] SUPP. s.c.R.
A
B
c
D
E
F
G
H
activities of running schools. The said clauses also do not satisfy
the test of being reasonable restrictions in public interest. On tbis
reasoning the High Court has held that the two clauses, namely,
(!) and (2) of rule 3 are violative of the rights guaranteed to the
writ petitioners under Art. 19(1) of t!te_.,Constitution. Though it
was argued on behalf of the writ petitioners thlit clauses (I) and
(2) of r. 3 of the Code contravene the provisions of Art. 19(l)(c),
(g) and (f), there is i!O clear indication in the judgment of tbe
High Court as to which clause of Art. 19(1) is violated. It is the
further view of the High Court tha1 as the State has no power to
issue instructions as those contained in els. (!) and (2) of r. 3,
Articic c58 will not save tbose provisions notwithstanding the
facl i~at there was a Prociamation of Emergency during the rele·
VJnt period.
Though no attack based on Art. 14 was made in
either of the writ petitions, it is seen that during the course of
arguments. this article was relied on and it was contended that
the said two clauses of r. 3 are arbitrary as they enable the State
to dncriminate between one institution and another.
The High
Court in considering this contention has held that in the matter
of distribt:tion of grant, the State must comply with the fundamental requirements of constitutional law embodied in Art. 14.
According to the High Court the effect of els. (1) and (2) of r. 3
is that apart from the fact that th'! sue& schools are not eligible
foc receivi<1g the grants, the students studying in such schools
c'' n~ot appear for examinations held by the Secondary School
Boards as the latter will not reco~;nise such institutions. As the
'tw!ents of such schools cannot take their university education,
c:.;. (!) and (2) of r. 3, according to the High Court, offend Art. 14
and hence they are invalid. After holding that els. (!) and (2) of
r. 3 of the Code are violative of Arts. 14 and 19, the High Court
struck down those provisions and directed the educational authorities to grant permission to the tw~· writ petitioners to start schools
as desired by them.
The learned Attorney-General,. appearing on behalf of the
State in Civil Appeals Nos. 160 and 161of1968 raised.the following contentions: (I) The High Court has committed a ve»y serious
mistake in invoking Art. 19 in view of the mandatory provisions
of Art. 358 of the Constitution, Cl) even assuming that Art. 19
can be invoked, the provisions contained in els. (1) and (2) of r.3
are reosonable restrictions in the interest of general public and as
such those clauses are valid; (3) t'lie view of the High. Court that
the said clauses offend Art. 14 is erroneous; (4) that the clauses
struck down by the High Court are mere executive instructions
given by the State for the guidance of the educational authorities
when considering the applications received for permission to open
schools in particular areas. Such executive instructions cannot be
struck down on the ground tbat they are vague.
Alternatively.
MAHARASHTRA v. L()K SHIKSHAN SANSATHA (Vaidia/ingam,J.)
under this head it was contended that the two clauses are not vague
in any respect; and (5) the High Court has committed a serious
mistake in striking down the orders of the educational authorities
without considering the reasons given by such authorities for rejecting the applications of the two writ petitioners.
Dr. Barlingay, learned counsel for the contesting respond~nts has supported the view taken by the High Court for striking
down els. (I) and (2) of r.3 of the Code. The counsel relied on
the reasons given by the High Court for striking down the two
clauses as violative of Arts. 14 and 19. The counsel further
urged that though the two clauses of r.3 in question may on the
face of it appear to be innocuous, nevertheless the application of
those principles by the educational authorities may lead to possible discrimination between the institutions concerned. According
to him no standards have been laid down to assess the need of a
school in a particular area. Further, there is no criteria laid down
to enable the educational authorities to decide the circumstances
under which the starting of a new school may r~sult in an unhealthy competition with an existing school. The pbsition is the same
also in regard to judging the competency and reliability of · a
particular management who proposes to start a school. The more
serious ground of levelled against these clauses (I) and (2) of r . .3
by Dr. Barlingay was that there was no right give~ to an applicant for being heard before his application is rejected by the
educational authorities.
Before we deal with the above contentions advanced before
us on behalf of both sides, it is necessary to state that the High
Court in the judgment under attack has made certain observatio-,s regarding what according to it should be the policy adopteJ
by the educational authorities in the matter of permitting the
starting of a new school or of an additional school in a particular
locality or area. It is enough to state that the High Court has
thoroughly misunderstood the nature of the jurisdiction that was
exercised by it when dealing with the claims of the two writ petitioners that their applications had been wrongly rejected by the
educational authorities. So long as there is no violation of any
fund3mental rights and if the principles of natural justice are not
offended, it was not for the High Court to lay down the policy
that should be adopted by the educational authorities in tl:e
matter of granting permission for starting schools. The question
of policy is essentially for the State and such policy will depend
upon an ~rall assessment and summary of the requirements of
residents of a particular locality and other. categories of persons
for whom it is essential to provide facilities for education. If the
overall assessment is arrived at after a proper classification on a
reasonable basis, it is not for the courts to interfere with the policy
. eading up to such assessment.
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It should also be made clear that as accepted by the State
in its counter-affidavit filed before the High Court the provisions
of the Code are executive instructions and are in the nature of
administrative instructions without any constitutional force.
It
is on this basis that we have to consider the correctness of the
decision of the High Court when it struck down els. (!) and (2)
of r. 3 of the Code.
It is necessary to advert to the drcumstances under which the
Code came to be framed as also to certain instructions given by
the State to the educational author:ities when considering the applications for the grant of permission to open schools.
The Grant-in-aid system appears to have been first introduced
in 1859 and its main object was to promote voluntary effort and
reliance on local resources in the field of education apart from
such contributions as may be available from the funds of the
State. After the States re-organisation took place, in order to
bring about uniformity in the matter, the State of Bombay appointed in 1958 an Integration Committee for Secondary Education to examine the different Education Codes and administrative
practices in. force at the secondary stage in the various regions
which were added to the State of Bombay under· the states organisation and to make proposals for a unified system of Secondary
Education as well as the assistance to be given to non-government
Seconda~· Schools. The Committee submitted its report in 1959.
In December, 1960 the Government of Maharashtra appointed a
Committee comprised of officials and non-officfals to suggest a
unijied code for consideration of the Government. A revised
Draft Code was submitted by the Committee to the Government
in or about August, 1961.
The Secondary Schools Code, with
which we are now concerned was framed by the Government as
a common code for the recognition of and grant-in-aid to nongovernment secondary schools throughout the State.
The said
Code came into force with effect from the year 1963-64. Chapter
II related to recognition and grant-in-aid. Rule 1 dealing with
recognition provided that secondary schools may be recognised
by the Department provided they conform to the rules contained
in the Code. Rule 2 dealt with the matters relating to the applications for starting and recognition of schools.
Under r. 2.1 an
application for permission to start a secondary school has to be
made in the form given in appendix 1 (!) of the Code to the authorities referred to therein and such. applications have to reach those
authorities by the end of October, in the year preceding the year
in which the school is proposed to be started. The said clause
further provided that n'o school should be started unless the written previous permission of the D(!partment had been obtained
and that the schools started Without such permission shall not
.
i
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1fAHARA$HTRA v. L011 SHIKSHAN SANSAmA (Vaidialingam,J.)
ordinarily be considered for recognition. Under r. 2.2, the management which is permitted to open a school has to apply for recognition of the schodl in the form given in appendix 1 (2) of the
Code within one month of the opening of the school.
Rule. 3 which consists of 16 clauses deals with the conditions
of recognition. The said rule provides that a school seeking re-'
cognition has to satisfy the Department as regards the conditions
enumerated in els. 1 to 16 therein. Oauses (I) and (2) of r. 3
which are attacked as invalid are as follows :
"Rule 3 : Conditions of Recognition:
A school seeking recognition shall satisfy the De·
partment as regards the following conditions :-
(!) The school is actually needed in the locality
and it does not involve any unhealthy competition with any existing Institution of the same
category in the neighbourhood ..
(2) The Management is competent and reliable and
is in the hands of a properly constituted authority or managing Committee.
"
We may at this stage point out that one of the . conditions
which has to he satisfied under r. 3 is regarding the financial
stability of the proposed school as stated in cl. (3) of r. 3 therein.
This aspect may have a bearing in considering the correctness of
the High Court's deeision in Civil Appeal No. 160 of 1968.
Rule 86 deals with "Kinds of Grants". Rule 86.1
enumerates the various types of grants which a recognised school is
eligible to get from the Government.
Rule 86.2 provides as follows :
"Proprietary schools (i.e.
schools not registered
under either the Societies' Registration
Act XXI of
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1860 or the Bombay Public Trust Act, 1950 or any other
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Act that may be specified by Government and communal schools will not be eligible for any kind of grant
from public· funds."
At this stage we may mention that the provisions contained
in r. 2.1 that an application for starting a Secondary School has
to be in the form given in appendix 1(1) of the Code and that
the application should reach the educational authorities within
the period referred to therein and the further provision under
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r: 86.2 that the schools which are not registered under the Socieues Registration Act, will not be 1:ligible for grant, will have a
considerable bearing when considering Civil Appeal No. 161 of
1968.
On <;Jctober 6~ 1965 the State of Maharasl1tra issued a press.
note, copies of wh>ch were sent to all the educational authorities.
The Director of Publicity was also directed to give wide publicity
to the press note by publishing the same in all the Dailies in the
cities and districts.
By that press note the attention of all the
managements intending. to start new Secondary Schools was drawn
to the provisions contained in r. 2 of the Code regarding the
applications being made in the prescribed form to the concerned
office and to the applications being made sufficiently early so as
to reach the authorities concerned. at the latest by the end of
October, in the year preceding the year in which the school is
proposed to he started. It was further stated in the press note
1hat the applications received for starting new schools will be
considered by the District Committee comprising of the Chairman
of the Education Committee, Zila Parishad, Parishad Education
Officer and a member of the Secondary School Certificate Exami·
nation Board, Poona or Vidarbha Board of Secondary Education,
Nagpur and that permission to start new schools will be communicated to the applicants con.cerrn~ by the Deputy Director of
Education of the region by the end of February, 1966. The proposed applicants were also informed that appeals to the Govern·
ment against the orders of the Deputy Director of Education can
be filed upto the end of MaTch, 1966. This press note empha·
sised: (a) that the applications be made in. the prescribed form
and (b! that the applications should be received by the educa·
tional authorities at the latest by the end of October. No doubt
some of these aspects are already, contained in r. 2 of the Code.
Another imp~rtant point to l:Je taten note of in this. press note is
that though. the applications are made to the concerned educa·
tional authorities, those applications are scrutinised by the District
Committees concerned, and who,;e members
must be famili"r
with the conditions prevailing in particular localities or areas.
On the same date the Government sent a communication to
the Chairman, Secondary School Certificate Examination Board,
Poona and the Chairman Vidarhha Board of Secondary Education, Nagpur on the subject of appointment of District Committees
to consider .the applications received for opening new secondary
schools.
The composition of the District Committees was also
mentioned therein. The respective Chairmen were requested by
the State to move the Board to nominate one member for each
of the District Committees in the' areas with which the Board was
concerned.
The Chairman was also requested to communicate
the names of such members to the Parishad Education Officer of
J
f
MAHARASHTRA v. LOKSHIKSllAN SAN!IATHA (Vaidialingam, J.)
S!JJ
the distritt concerned, the Deputy Director of Education of the
A
region and the Director of Education, Poona under intimation to
the Government.
The State also sent a circular dated October 5, 1965 to the
various educational authorities drawing their attention to r. 2 of
the Code. They were also informed that the Government bad
directed that the applications for opening new secondary schools
should be considered by the District Committee comprise"d of (he
various persons mentioned therein. It was further stated that the
District Committee should bear in mind when considering the
applications, the various matters enumerated as item Nos. 1 to
14. Those various matters to be taken into account relate to the
requirement of a school or an additional school in a particular
area, its financial stability, the nature and competency of the
management and several allied matters. It was obligatory on the
District Committee to record its reasons in writing for recommending or not recommending a particular application. In paragraph
4 of the circular it was stated tl;at permission to start a new
school may be granted by the Deputy Director. of Education of
the concerned region after taking into consideration the recommendations of the District Committee and with the prior approval
of the Government. The educational authorities wer.e also directed to dispose of the applications within the period mentioned in
the circular.
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From the relevant provisions of the Code read with the press
E"
note and the circular referred to above, it is clear that though
the applications are made to the educational authorities, they are
not diiposed of by those authorities or their own individua1 discretion. On the other hand, it -is clear that the applkatTun~ are
dealt with by the District Committees, whose members are familia:· with the conditions prevailing in particular areas or l:Jcalities
F
and who also are in the know of things regarding the requirement
of a new or an additiOnal school in the particular areas. It is
really on the basis of the recommendations made by such Committees that the educational authorities take a decision one way
or the other.
After having cleared the grounds, as stated above, we will
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now deal with the contentions of the learned Attorney-General.
The learned Attorney-General is well-foUJlded in his contention
that the High Court wa1 not justified in invoking Art. 19 in the
circumstances of this case. We ha"'.e already given the relevant
dates when the applications were filed by the writ ,petiti'oners before the educational authorities as well as the •dates when they
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were rejected. The judgment of the High Court is dated ~ecember 2. 1966. There is no controversy that the Proclamation of
Emergency was issued on October 26, 1962 and it was revoked
892
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(1971) SUPP. S.C.R•
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only on January IO. 1968
The relevant part of Art. 358 is as
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follows :
"358.