The Government of Madras by the Deputy Secretary to Government Education and Public Health Department and Others vs The District Educational Officer and Others

K. Veeraswami C.J.

The appeals by the State are from a common order of Kailasam, J., reported in Sri Hindu Bala Patasala. v. D.P.I. Madras (1967) 1 M.L.J.

He quashed as invalid G.O. Ms. No. 751, Education, dated May 17, 1965. By that order, Government directed that with effect from the

school year 1965-66 no fees of any sort should be levied from pupil attending any standard of a recognized primary or upper primary school under

the management of any agency. In accordance with that direction, the order of the Government substituted Rule 29-A in the rules for the grant of

recognition and aid to elementary schools published with the then Education Department Notification No. 243, dated August 21, 1939 and as

subsequently amended by a new rule, which read:

29-A. With effect from the school year 1965-1966 no fee of any sort is leviable from pupils attending any standard of a recognized primary or

upper primary school under the management of any agency

One of us had, in Writ Petition No. 354 of 1960 (S. Ranganatha Rao. Petitioner v. (i) The Divisional Inspector of Schools, Madurai Division,

Madurai; (ii) The District Educational Officer Madurai District Madurai. Respondents held these rules to be non-statutory. In fact, the Supreme

Court, in Kumari Regina v. St. Aloysiu Higher Elementary School AIR 1971 S.O.T 1920 while approving that view, went further to hold that even

if these rules so far as they relate to recognition, had purported to be framed in exercise of the power u/s 56 of the Madras Elementary Education

Act, inasmuch as the chapter in the Act relating to recognition had been omitted form its purview, the enabling rule making power will be useless to

support the rules as statutory, inasmuch as they would not be for carrying out the purposes and objects of the Act.

The school, the Respondent in writ Appeal No. 122 of 1967, was founded in 1882, and when the Madras Elementary Education Act was

passed in 1920, it was recognized as a primary school and later made in to an elementary school within the definition of the Act, and the

recognition was continued by Section 14 of Madras Act II of 1939. In view of the prohibition of levy of fee as enjoined by the amended Rule 29-

A, the school made a representation that 10 percent of the teaching grant to be allowed would be hardly sufficient to meet its commitment and that

therefore it was entitled to levy fees. But, on October is. 1965, the District Educational Officer, Madras North, informed the school that it should

fall in line with the policy laid down in the impugned Government Order and that it must be converted into a non-fee levying school within a week

from the date of the receipt of the communication and that otherwise recognition would be withdrawn. In view of this threat, the school sought a

rule from this Court for biding the State from enforcing the said Government Order. This was on the ground that the inhibition in the Government

Order against the levy of fee was inconsistent with Section 47(2) of the Madras Elementary Education Act. The facts in the other Writ Appeal are

similar and a similar relief was sought for on an identical contention. Kailasam J., accepted the contention and issued the rule.

We are of the view that the learned Judge was light in doing so. We are of that opinion for two reasons. One of them is what was accepted by

Kailasam J., Section 47(2) clearly stated that fees might be levied from any child attending an elementary school of the type now in question.

Under this provision, the Respondents could lawfully levy fees. Any inhibition, which is non-statutory, cannot, therefore, have legal validity so long

as Section 47(2) stands on the statute book. That was (sic) view of Kailasam J., which we accept. Quite apart from that, it may be seen that

recognition accorded to the Respondents originally under the provisions of the Act was continued statutorily by reason of Section 14 of Madras

Act II of 1939. That amounts to a statutory sanction, of the continued recognition. We fail to see how such a recognition could be withdrawn

merely by an administrative act. Such an action is, in our view, in excess of the powers of the District Educational Officer.

We, therefore, dismiss the appeals with costs in the first appeal.

For the above reasons, the writ petition is allowed but with no costs.