N P PURUSHOTHAMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Chapter V of the Kerala Education Rules, 1959 embodies rules for the regulation of opening and recognition of schools. New schools are to be opened and existing schools are to be upgraded only pursuant to orders on application made for that purpose under Rule 2A of Chap. V. That rule will arise for application only after the Director of public Instruction 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 of Chap. V. The procedure for determining the areas where new schools are to be opened or existing schools upgraded is that laid down by Rule 2 of the rules. The Director is to prepare a report indicating the localities where new schools are to be so opened or the existing schools upgraded taking into account various matters such as the educational needs of the locality with reference to the habitation and backwardness of the area, the distance between the existing schools, the strength of the several standards and other matters relevant and necessary in that connection. The preliminary list is published calling for objections and after receipt of such objections the Government determines the areas where new schools are to be opened or existing schools upgraded. Sub-rule (5) of Rule 2 as it stood prior to its amendment effective from 19th Aug., 1981 provided that no appeal or revision shall lie against the final list published by the Director under Sub-rule (4) of Rule 2 and that meant that the list became final when once it was published. There was no provision enabling Government to reopen such list suo motu or on application by any person. By the amendment of 19th Aug., 1981 two provisos were added which provisos read:

(2.) While the provision that there shall be no appeal or revision against the Govern-, merit Order continues to operate even after the amendment the provisos only provide for a right of review in the Government and that too to a limited right confined to cases where one or other of the three circumstances mentioned in the first proviso exists.

(3.) in the three cases before us we are concerned with the exercise of, the power of review by the Government after the amendment came into force in O.P.No.3998/82 the complaint by the petitioner who is the Manager of the A. B. Vilasom High School at Aryakkara within the Muhamma Panchyat concerns the sanction given to the 4th respon-pondent for opening a new High School at Muhamma. That happened to be sanctioned under the following circumstances in the preliminary list published by the Director of Public instruction of the areas of new schools for the year 1981-82 Aryakkara and Muhamma, both within the Muhamma Pan-chayat were shown. This preliminary list dated 1-6-1981 was objected to on the ground (hat Muhamma and Aryakkara are practically one and the same place. After considering such objections the Director of Public instruction, the 2nd respondent, on the basis of orders by the Government published a final list along with the notification dated 31st July, 1981 showing only Aryakkara as the place where a new school was to be opened/existing school upgraded. Pursuant to this when applications were invited the petitioner made his application whereupon a High School was sanctioned to the Aryakkara Bhagavathy Vilasom Shethra Yogam. The school is said to have started functioning from 1-6-1982 pursuant to that sanction. But it appears that in the meanwhile the 4th respondent had filed a petition for review of the notification dated 31-8-1981 inasmuch as Muhamma which was also a place included in the preliminary notification had been omitted in the final notification. This review petition was considered by the Government along with several other review applications in respect of several other places. We say so because we find a common order being passed by the Government, Ext. P5 dated 18-2-1982 being the copy of that order. This common order purported to deal with all the review applications at one stroke and as a consequence it listed a number of areas shown in Appendices I to III of that order as additions to the areas in the list published earlier by the Director of Public instruction. The Appendices show that various areas in the several districts of Kerala were notified as additions to the original list. It was not as if for such addition there was a consideration of the particular facts of each case. The body of the Government Order Ext. P5 is extracted below as it is quite relevant for the purpose of this case: "in exercise of the powers conferred on him under Sub-rule (4) of Rule 2 of Chap. V. K. E. R. the Director of Public instruction in his notification read as third paper above, published, as Gazette Extraordinary No. 610 dated 31-7-1981, the final list of areas where new High Schools are to be opened or existing U. P. Schools are to be upgraded, new U. P. Schools are to be opened or existing L. P. Schools are to be upgraded and new L. P. Schools are to be opened in the year 1981-82. Government received applications for review of the final list under the proviso to Sub-rule (5) of Rule 2 of Chap. V. K. E. R. added as per the G. O. read as fourth paper above and published as Gazette Extraordinary No. 667 dated 19-8-1981.