2007 (7) TMI 657

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....e respondents in the High Court mainly on the ground that they had been discriminated against inasmuch as the privilege given to two similarly situated schools had been denied to them. The argument did not find favour with the learned Single Judge, who came to the conclusion that since the schools could be upgraded only as per the procedure laid in Chapter V of the Kerala Education Rules, 1959 (for short 'the Rules') no positive direction could be issued to the State to upgrade the schools by ignoring the statutory provisions, particularly when there was no challenge to the validity of the Rules. Learned Single Judge held that merely because two schools had been upgraded without following the Rules, no legal right had accrued in favour of the writ petitioners' schools to have them upgraded without following the mandatory rules. The plea of financial constraints urged by the State was also found to be a valid ground for rejection of the representations. Aggrieved, the matter was carried in appeals to the Division Bench. Accepting the plea of discrimination, the Division Bench directed the State authorities to give same treatment to the respondents herein as was given to ....

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....mination, which found favour with the Division Bench, is clearly untenable and, therefore, the impugned direction cannot be sustained. 8. Chapter V of the Rules embodies rules for the regulation of opening and recognition of schools in the State of Kerala. Rule 2 lays down the procedure for determining the areas where new schools are to be opened or the existing schools are to be upgraded. The Rule, insofar as it is relevant for our purpose, reads as under: "2. (1) The Director may, from time to time, prepare two lists, one in respect of aided schools, and other in respect of recognised schools indicating the localities where new Schools of any or all grades are to be opened and existing Lower Primary Schools or Upper Primary Schools or both are to be upgraded. In preparing such lists he shall take into consideration the following: (a) the existing schools in and around the locality in which new schools are to be opened or existing schools are to be upgraded; (b) the strength of the several standards and the accommodation available in each of the existing schools in that locality; (c) the distance from each of the existing schools to the area where new schools ....

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.... to be upgraded the Director shall, by a notification in the Gazette call for applications for opening of new schools of any or all grades and for raising of the grade of existing Lower Primary Schools or Upper Primary Schools or both in the areas specified. (2) Applications for opening of new schools or for raising of grade of existing schools shall be submitted only in response to the notification published by the Director. Applications received otherwise shall not be considered. The applications shall be submitted to the District Educational Officer of the area concerned in form No.1 with 4 copies of the application and enclosures within one month from the last date of publication of the notification under sub-rule (1). (3). On receipt of the applications for permission to open new schools or for upgrading of existing schools, the District Educational Officer shall make such enquiries as he may deem fit as to the correctness of the statements made in the applications and other relevant matters regarding such applications and forward the applications with his report thereon to the Director within one month from the last date for submitting applications under sub-rule (2). (....

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....on, arbitrariness and favouritism, which is totally opposed to the rule of law and our constitutional values. It goes without saying that even an executive order is required to be made strictly in consonance with the Rules. Therefore, when an executive order is called in question, while exercising the power of judicial review the Court is required to see whether the government has departed from such Rules and if so, the action, of the government is liable to be struck down. 11. This Court in Shrilekha Vidyarthi (Kumari) Vs. State of U.P. held that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 and basic to the rule of law, the system which governs us, arbitrariness being the negation of the rule of law. Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary in whatever sphere must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all powers must be for public good instead of being an abuse of power. 12. Having examined th....