M MADHAVAN PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was conducting a school, known as the Madhava Vilasam Middle School at Thundathil in Trivandrum Taluk. In the year 1953 it was upgraded into a High School. It is claimed by the petitioner that there are accommodations for 40 divisions in the school. By their order dated 20th April 1964 the Government sanctioned the opening of new schools and the upgrading of existing ones for the year 1964-65. That order was published in the Kerala Gazette dated 28th April 1964. By that order, the 3rd respondent was given permission to open a High School and an Upper Primary School in Chempazhanthi area. The petitioner's case is that the order sanctioning the opening of the schools in favour of the 3rd respondent was made in disregard of the rules framed under the Kerala Education Act. The petitioner questions the order on several grounds. It was stated by him that there was no recommendation for the opening of the new schools in the area by any of the subordinate educational authorities that no application was filed by the 3rd respondent for sanctioning the opening of the schools within the prescribed period, that the 3rd respondent did not own or possess the site on which the schools were to be located and that there was no educational need for opening the new schools in the locality.

(2.) It was submitted on behalf of the Government that the petitioner has no legal grievance in this matter and therefore the petition is not maintainable. The learned Government Pleader said that, even assuming that the Government have violated the provisions of R.9 in Chap.5 of the Kerala Education Rules in granting the sanctions that would not give the petitioner standing to agitate the question in this proceeding unless his legal right to manage his school is affected. In other words, the argument was that by sanctioning the opening of the new schools, no right of the petitioner has been violated as the petitioner cannot claim immunity from competition as a legal right. It was argued that the loss if any to the petitioner is something which the law does not take cognizance of. I must say that I am not very much impressed by the argument for the reason that the establishment and conduct of aided schools are governed by the Kerala Education Act and the rules framed thereunder. Conditions regulating the establishment and maintenance of the schools have been laid down in the Act and the Rules. A person who conducts a school can normally expect that the Government will sanction the opening of a new school in the locality only subject to the conditions laid down in Chap.5 of the Kerala Education Rules, and if a new school is permitted to be opened in violation of the rules in that Chapter the person already running a school in the area has a standing to question the order sanctioning the new school. It was submitted by the Government Pleader that the petitioner derives no profits from running his school and therefore there is no question of any economic loss to the petitioner arising from competition by reason of the opening of the new schools. But economic loss is not the only kind of detriment which law will take cognizance of in order to give a standing to a person to apply for certiorari. In Maurice v. London County Council (1964 (2) QB 362, 378) Lord Denning observed:

(3.) The other preliminary objection raised by the learned Government Pleader was that the order is not a quasi judicial one, and is therefore not susceptible of being corrected in certiorari. An agency bound to apply pre existing rules, having the force of statute to a situation and arrive at a decision, cannot be said to function in a purely administrative capacity. The norms of a person acting in an administrative capacity are his notions of policy and expediency. The fact that the Government in deciding the question whether to sanction the opening of a new school, or not have to follow the mandatory rules laid in the Kerala Education Rules shows that the Government are not functioning in a purely administrative capacity when they decide the question one way or the other. Even assuming that the order is administrative in character, considering the imperative nature of R.9 of Chap.5, I am of opinion that the Government had no power to grant permission to open a new school or to upgrade an existing one without ascertaining and satisfying themselves on adequate materials as to the educational need of the locality. As I am holding that the Government have not ascertained whether the educational needs of the locality required the sanctioning of the new schools, I think the Government acted in violation of the statutory rules governing the matter. If that be so, even if the order is administrative in character, I think, I am entitled to interfere with the order as one passed without authority and make the appropriate direction. I therefore overrule this contention of the learned Government Pleader.