REV FR JOACHIN Vs. STATE OF KERALA

JUDGEMENT

(1.) IT seems that 91 schools sought to be opened as recognised schools have been jinked from the beginning. Though the schools were meant to be opened during the academic year 1986-87, they still remain in incubation stage inspite of lapse of four years. The Government which initiated the process for according recognition to those schools later resiled from it, but due to court intervention the Government could not close the matter once and for all. However, Government, in order to circumvent an earlier judgment of this Court by which the Government was asked to proceed with the resolve to open 91 schools, have amended the law by arming itself with the power of review. In exercise of that power, Government reviewed the earlier decision and cancelled it. This batch of Original Petitions is in challenge of the said decision of the Government.

(2.) IT was on 4-2-1987 that the Government accorded sanction to open or upgrade 91 unaided schools in different localities in Kerala State. This was done under R. 2a (5) (in Chapter V) of the Kerala Education Rules (for short 'k. E. R'), after obtaining applications from individuals and/or agencies for opening new schools. When a new government came to power, they decided to cancel the earlier decision. Accordingly, orders were issued in G. O. (MS) 107/87g/edn. dated 19-5-87. Some of the interested persons challenged the said decision in this Court Though a learned single Judge upheld the decision, a Division Bench of this Court quashed it The judgment of the Division Bench was reported in Madhavan Pillai v. State of Kerala (1987 (1) KLT 681 ). The Government went in appeal to the Supreme Court, but the Supreme Court did not interfere (vide State of Kerala v. Madhavan Pillai -1989 (1) KLT 141 ). The Division Bench of this Court directed the Government to proceed with the applications. The Supreme Court while dismissing the State appeal held that the applicants are entitled to have their applications considered under R. 9 in Chap. V of the K. E. R. and to pass appropriate orders under R. 11 in accordance with law. After the Supreme Court decision, the Government amended the K. E. R. in order to confer powers on the Government to review the orders passed under R. 2a in Chapter V of the K. E. R. For that purpose, Government inserted R. 2b in Chapter V of the K. E. R. On the strength of R. 2b (1) of the K. E. R. Government issued notice to the applicants concerned informing Government's intention to review the earlier order dated 4-2-87. After receiving individual representations, Government passed Ext. P5 order cancelling the earlier order dated 4-2-87. Ext. P5 is the order which is challenged in these Original Petitions.

(3.) WHEN power is conferred on executive authorities a decision in exercise of such power should be made only by applying the known principles and rules. "if a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law" (vide Jaisinghani v. Union of India- AIR 1967 S. C. 1427 ). In Maneka Gandhi v. Union of India (AIR 1978 S. C 597) the Supreme Court recognised the said settled legal position that "when a statute vests unguided and unrestricted power in an authority to effect the rights of a person, without laying down any policy or principle which is to guide the authority in exercise of the power, it would be affected by the vice of discrimination since it would leave it open to the authority to discriminate between persons and/or things similarly situated". However, the Supreme Court upheld the validity of S. 10 (3) (c) of the Passport Act since it contained the rider that power thereunder can be exercised "in the interests of the general public". The contention that the said words are too vague and indefinite as to arm the passport authority with unguided and unfettered power to impound a passport was repelled by the Supreme Court. Bhagwati, J. (as he then was) who delivered the judgment of the majority has observed thus: " WHEN power is vested in a high authority like the Central Government, abuse of power cannot be lightly assumed. And in any event, if there is abuse of power, the arms of the court are long enough to reach it and to strike it down. The power conferred on the Passport Authority to impound a passport under S. 10 (3) (c) cannot, therefore, be regarded as discriminatory and it does not fall foul of Art. 14. But every exercise of such power has to be tested in order to determine whether it is arbitrary or within the guidelines provided in S. 10 (3) (c)".