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Judgment
V.K. Gupta, J.
1.This petition by 5 schools in Jammu town and in Ranbir Singh Pura deals with and pertains to the claims of the petitioners for receiving grantinaid
for running their schools from the respondents. Prior to the filing of this petition, the five petitioners had filed separate petitions for similar relief in
this court. While disposing of these earlier petitions, the court on 26th Feb. 1991, passed the following operative order :
The main grievance of the petitioner is that his case for grantinaid has not been finalised and is hanging fire with respondent No. 2. He also
asserted that persons similarly situated have been granted the said aid and as such the petitioner has been put to discrimination, while arguing the
case, the learned counsel for the petitioner has to Rules 9 and 13 of the Jammu and Kashmir Private Educational Institutions Grantinaid Rules,
1975. This petition is disposed of at this stage with a direction that respondents 2 and 3 will consider the case of the petitioner for sanction of
grantinaid in accordance with the provisions of the rules other subject, in case the petitioner is eligible. The said respondents will finalise the
petitioners' case within this financial year positively. It also disposes of C.M.P. Nos. 258 and 259 of 1991.
In consequence of the aforesaid directions issued by the court on 26th Feb, 1991, the impugned order No. Edn/W/P466172 dated 29 March
1991 was passed by the respondents, whereby the grantinaid to the petitioners was not released. The operative part of the order dated 29 March
1991 runs as under :
In compliance with the directions given by Hon'ble High Court in the abovementioned writ petitions on Feb. 26th, 1991 which reads as under.
The said respondents will finalise the petitioners' case within this financial year positively.
In cases of all the petitioners mentioned above were thoroughly considered and examined by the Department and it has transpired from the records
that all the seven institutions have been accorded recognition from time to time for academic purposes only. At no stage any of these institutions
have been granted permission or recognition for grantinaid purposes. There are separate rules governing the grant of recognition for academic
purposes which are provided for in the Private Educational Institutions Act, 1967 and the grant is governed under Graininaid Rules 1975. The
permission for academic purposes does not automatically render the institution eligible for securing the grantinaid. There are specified rules
regulating the sanction of the grantinaid for which an application has to be made by the institution. Besides, it has to furnish the audited statements
of income and expenditure to justify their claim for grantinaid. None of your having fulfilled the above required conditions and are, therefore, not
eligible for grantinaid at this state.
You are, therefore, informed that your institution having not been recognised for grantinaid purposes as such the question of releasing grant during
the current financial year does not arise.
The petitioners are aggrieved of the aforesaid impugned order and inter alia seek the quashing of the same as also a mandamus directing the
respondents to release the grantinaid in favour of the petitioner.
The Jammu and Kashmir Private Educational Institutions Grantinaid Rules, 1975 (1975 Rules for short) prescribe and provide for the machinery
and mechanism and related procedures for according grantinaid to Private Educational Institutions. ""Institution"" has been defined to mean a private
educational institution which has been permitted to function under the Private Educational Institutions (Regulation and Control) Act, 1967. As per
Rule 5 of the 1975 Rules, no private educational institution shall be permitted to function so long as it is not recognised by the competent authority.
Rule 9 is most relevant for the purpose of present petition. Clause (a) of Rule 9 which pertains to the subject matter of this petition as amended by
Govt. order No. 121/78 dated 16 Jan. 1978 reads thus :
An institution may apply to the competent authority for payment of grantinaid under these rules on the prescribed proforma after the close of the
financial year to which the grant relates. Applications for ad hoc grant inaid may also be made during the year in accordance with the provisions
contained in rule 13.
Rule 10 lays down certain terms and conditions for being eligible for receipt of grantinaid and Rule 12 provides that the institutions shall be open to
inspections by the inspecting authorities. Rule 13 lays down that application for grantinaid received from an Institution shall be forwarded by the
Receiving Officer to the Inspecting Authority and the Inspecting Authority after its inspection will give its detailed recommendation about the
release of grant.
The points involved in this petition are indeed very straight and simple. Mr. H.R. Sharma, learned counsel appearing for the petitioners failed to
refer to any part of 1975 Rules or any other law, rules or regulations or even the applicable govt. orders whereby an institution like that of the
petitioners has a guaranteed right to receive grantinaid. If such a law does in fact exist, there would have been no difficulty in enforcing this right of
the petitioners and issuing directions to the respondents to provide grantinaid in favour of the petitioners. The difficulty, however, has arisen
because of total absence of such a guaranteed right to a private educational institution. The only provision relating to the grantinaid as already
noticed is in Rule 9(a) of 1975 Rules which merely gives the right to a private educational institution to apply for grantinaid. The right to apply at
best given rise in turn to further right of consideration which correspondingly causes an obligation upon the competent authority to examine process
and consider the case of the persons so applying. At this stage, therefore, if a person is discriminated against, meaning thereby that he is being
denied the benefit of grantinaid even though another persons similarly situated has been given this benefit. Article 14 immediately gets attracted and
the court does not have any hesitation in coming down heavily and in striking down such an unconditional act as being violative of Article 14 of the
Constitution. In the present case, the petitioners have not established with reference to either the pleadings or any material on record, that any one
else similarly situated as the petitioners were, was favoured by the release of grantinaid and that the petitioners were denied this benefit, thus
discriminated against. In fact, on the other hand, the clear case of the respondents has been spelt out in their counter affidavit that because of the
mounting liabilities for the payment of grantinaid to the institutions already receiving it in the past, it had not been possible for the govt. broad base
this activity to cover fresh cases. There are as many as 600/ private educational institutions which are in the process of being considered for
recognition for academic purposes. In case the govt. decides to include fresh cases for grantinaid, sufficient funds for this purpose are required and
because the funds are not available, it is not only difficult but also impossible to cater to the demands of these institutions.
There is no doubt that in the counteraffidavit, instances of some institutions have been quoted which had been granted grantinaid in the past by way
of exception. In the total absence of any averments by the petitioners, that these institutions were similarly situated as the petitioners or that they
had applied for grantinaid after the petitioners had claimed consideration, this Court cannot adjudicate upon the legality or otherwise of these
institutions receiving grantinaid. This is more so when they are not parties in the present petition.
For the foregoing reasons, therefore, this petition is dismissed, it is however, observed and directed that, if and when the respondent state does
accord and release grantinaid in future to any private educational institutions in a fresh case, it shall be under an obligation to consider the cases of
the petitioners as well along with other such eligible institutions and release and provide grantinaid in accordance with the applicable law, rules and
regulations. No order as to costs. It also disposes of CMP No. 5016/91.