N KUNHICHEKKU HAJI Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal arises from the judgment of the division bench of the High court of Kerala in WA No. 299 of 1977 dated 6/2/1979. The admitted facts are that the appellant was running a primary school at Kanmanam by name A. M. L. P. School. As per the procedure prescribed in Rule 2 of Ch. V of the Kerala Education Rules, objections have been called on the need to establish new schools or up gradation of existing schools. The notification was issued on 4/7/1975 inviting applications for establishing new schools or up gradation of m the existing schools. Pursuant thereto, the appellant made an application for up gradation of his primary school into upper primary school. The government had sanctioned on 18/10/1975 but in the Schedule the name of the appellant for up gradation of his school did not find place. The government in GOMs. No. 116 of 1976, dated 21/6/1976 issued orders in which the appellant's name as Item 5 finds place for up gradation of his school as upper primary school. The respondent had challenged the order of the government giving sanction for up gradation by filing the OP under Article 226 contending inter alia that since the applications have already been dismissed by issuing the notification on 18/10/1975, the government have no jurisdiction or power to grant sanction under the impugned GO. That found favour with the learned Single Judge and accordingly it was quashed. On appeal, it was confirmed. Thus this appeal by special leave.

(2.) It would be seen that the judgment of the High court was suspended by this court. In consequence the appellant has been continuing to run the upgraded school ever since the sanction was given by the government on 21/6/1976. The question is whether the sanction for up gradation of the school was properly given by the government. It would be seen from the recital of the GO that certain applications have been deferred for detailed consideration: at a later stage the Director of Public Instructions had considered such application in detail and had recommended to sanction the schools in those places taking into consideration the educational need existing in that locality. In consequence the sanction for the up gradation of the appellant's school was granted. In the counter-affidavit filed in the High court, it was specifically stated that the distance between the respondent school and that of the appellant is about 2 1/2 kms. The GO further shows that:

(3.) In that order. government have granted permission in the public interest upgrading the school to avoid dropping out of school-going children. It is known that Kerala has the highest literacy percentage. Even then Malappuram District was found to be a backward district in education and the government felt that the district needs encouragement for educational incentives. As a consequence, the educational need was found to be genuine. It is also to be noted that in the counter-affidavit filed in this court and the High court, it was stated that due to 2 1/2 kms distance young children are dropping out since there is no direct route except crossing the fields which the children found it difficult to travel from the village to the school run by the respondent. Therefore, when the government had found that there exists need for up gradation of the existing school into upper primary school, we think that the government must be allowed to exercise its statutory power unless it is mala fide or colourable exercise of power and is justified 'on extraneous facts in granting up gradation.