Dr. B.H. Doreswamy vs The Secretary Department of Primary and Secondary Education Government of Karnataka and Others

B.S. Patil, J.—In this writ petition, petitioner is calling in question the endorsement dated 26.11.2012 issued by the Block Education Officer, Holenarasipura, vide Annexure-W, thereby informing the petitioner that the application submitted by them for establishing Primary School in Kannada Medium from 1st to 5th Standard for the academic year 2013-14 at Hariharapura Village, Halekote Hobli, in Holenarasipura Taluk, has been rejected. A perusal of the impugned endorsement discloses that the application is rejected on the ground that there is already in existence a Government Primary School within a radius of 50 meters from the place where the proposed School is intended to be constructed.

The main contention of the counsel for the petitioner is that the impugned endorsement is opposed to the principles of natural justice as the petitioner has not been heard before issuing the impugned endorsement. In this regard, he placed reliance on the judgment of the Apex Court in the case of Mariamma Roy Vs. Indian Bank and Others, contending that in such circumstances, although an alternative remedy of preferring an appeal is provided under the Karnataka Education Act, 1983 (for short, ''the Act''), petitioner need not be driven to the appellate remedy because of the violation of the principles of natural justice.

Upon hearing the learned counsel for the petitioner and the learned Additional Government Advocate, I find that whether the proposed school sought to be established is within the radius of 50 meters from the existing Government Primary School is a matter that cannot be unilaterally decided by the respondent - authorities. Nothing is referred in the impugned endorsement regarding the requirement of law/prescribing the actual distance that has to be maintained between the existing school and the one that is proposed to be established. Therefore, the contention of the learned counsel for the petitioner that if only an opportunity had been given to the petitioner, the petitioner would have satisfied the authorities that the request made for establishing a school by the petitioner conformed to the requirements of law.

It is also to be noticed that Chapter-VI of the Act provides u/s 36, the provisions for recognition to be accorded to an educational institution registered under the Act on fulfillment of certain conditions. In Section 36(7) of the Act, provision is made for holding inspection and conducting enquiry as may be deemed necessary by the Competent Authority before passing an order granting recognition or refusing to accord recognition. Proviso to Sub-clause (7) of Section 36 provides that recognition shall not be so refused, unless the applicant is given an opportunity of being heard. In this background and in the face of the provisions contained u/s 36 of the Act, it cannot be said that the petitioner was not entitled for being heard before the application was rejected. Therefore, I am of the considered view that the petitioner ought to have been heard before issuing the impugned endorsement as the principles of natural justice have been violated. It is not necessary for the petitioner to avail an alternative remedy of preferring an appeal.

The Apex Court in the aforementioned judgment in Mariamma Roy''s case has clearly held that even if an alternative remedy is available to an aggrieved party against a particular order, if it is open for such party to file a writ petition and such writ petition could be entertained, when once it is found that while passing the order there has been violation of the principles of natural justice. Dismissal of the writ petition, in such circumstances, on the ground that there was an alternative remedy, has been disapproved by the Apex Court in the case referred to supra. Following the judgment rendered in Mariamma Roy''s case referred to supra, this writ petition is allowed as I find that there is no opportunity of hearing given to the petitioner before passing the impugned endorsement. The impugned endorsement is set aside. The matter is remitted to the Deputy Director of Public Instructions - respondent No. 4 herein to consider the matter by providing an opportunity of being heard to the petitioner. Petitioner shall appear before the Deputy Director - respondent No. 4 on 12.04.2013 at 3 p.m. The Deputy Director shall thereafter pass appropriate orders in accordance with law within a further period of three weeks.