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Judgment
The question that arises in this Writ Petition is whether the proceedings of the 1st respondent herein in L.Dis. No. 767/D2-2/93 dated 6-9-1993 granting per mission to open Class VIII in Telugu medium during 1993-94 without aid in respect of the 3rd respondent-school at Koppolu is valid and whether the petitioner herein can ques tion the same.
The petitioner is a society registered under the Societies Registration Act with Registration No. 504/92. It applied on 27-2-1993 to the RegionalJoint Director of School Education, Guntur for permission to start a High School under the name of Sri Vidya-ranya High School at Koppolu village in Ongoledistrict and the 1st respondent i.e., the Director of School Education, Andhra Pra-desh, granted permission in his proceedings L.Dis. No. 600/D2-2/93 dated 14-5-1993 to open Classes Vlth to VIIIth (TM) during the year 1993-94 without aid in respect of Sri Vidyaranya High School, Koppolu. It is the case of the petitioner that coming to know of its intention to establish a High School at Koppolu, one Radha Krishna Educational Society (''RKESbciety for short) was brought into existence on 15-4-1993 and that in its name an application was made for starting a High School by name Radha Krishna Memorial High School, by upgrading the existing 2nd respondent-school at Koppolu which is being run by some of the persons who formed RKE Society and their relatives. According to the petitioner, the said application was considered by the 1st respondent and by his proceedings in Re. No. 767/D2-2/93 dated 10-6-1993 he informed the Regional Joint Director at Guntur that the said application was rejected. Coming to know that political pressure was being brought upon the 1st respondent by 2nd and 3rd respondents and that there was every likelihood of the 1st respondent yielding and reopening the matter and granting permission to RKE Society for upgrading the 2nd respondent-school into High School, the petitioner approached this Court by way of the present Writ Petition on 1-9-1993 seeking a Writ of Mandamus directing the 1st respondent not to, accord permission for Radha Krishna Memorial High School/Upgrada-tion of Aided Upper Primary School (PR) at Koppolu etc.
The Writ Petition was admitted on 2-9-1993 and in W.P.M.P. No. 16267 of 1993 this Court ordered that status quo shall be maintained for''a period of one month with regard to grant of permission to the proposed High School of the 3rd respondent. On 5-10-1993 that interim status quo order was extended up to the end of November, 1993. It was not further extended. After the impugned order dated 6-9-1993 was issued by the 1st respondent, the petitioner sought amendment of the prayer in the Writ Petition in W.P. No. 17456 of 1993 and the same was ordered on 21-9-1993. The petitioner now seeks for a declaration that the impugned proceedings dated 6-9-1993 as illegal, arbitrary and in violation of Section 20(3)(a)(i) of the Andhra Pradesh Education Act, 1982 (''the Act'' for short) and Rule 3 of the Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Schools) Rules, 1988 (''1988 Rules''for short) etc.
The main ground of attack of the petitione is that there is no need for establishing a second High School at Koppolu as it is a small village with only 3 hamlets and that the educational needs of the local school going childen would be adequately met by the petitioner''s High School. It is contended on behalf of the petitioner that the 1st respondent''s initial order dated 10-6-1993 refusing permission for upgradation of the 2nd respondent school was well justified and correct. It is also submitted that the petitioner represented in the last week of May, 1993 that there was no necessity for starting another High School in the locality within a distance of about 265 yards from its High School and that "having regard to the aforesaid facts, the Director of School Education declined to grant permission to the respondent-society for starting High School". Interestingly oh behalf of the petitioner, it is also contended that the National Policy of Education is for increasing literacy among the population and "accordingly the policy shall be to encourage establishment of more and more schools particularly in rural areas taking into account the educational needs of the localities" and that "while doing so improvement in academic standards and excellence of education shall not be compromised". The petitioner also relies on Rule 20 of the Andhra Pradesh (Integrated) Education Rules, 1966 which directs that new schools may be opened in places which have no school within a radius of one mile and also on Rule 21(b) of the said Rules which prohibits the starting of new schools by private managements in a locality which is adequately served by the existing schools.
As regards the contention of the petitioner based on the provisions of the Andhra Pradesh (Integrated) Education Rules, 1966, the respondents point out that the said Rules are not in force now. The learned counsel for the petitioner does not dispute this position and therefore this contention has no legs to stand.
As regards the allegation that the 1st respondent was pressurised to grant permission and issue the impugned order dated 6-9-1993 in spite of his earlier order dated 10-6-1993, there is no material whatsoever to substantiate this contention and from the facts of the case, it is not possible to infer any such even remotely. On the other hand, from what is stated in paragraph 7 of the affidavit of the Secretary and correspondent of the petitioner-society in support of the present Writ Petition, it is possible that the initial order of the 1st respondent dated 10-6-1993 informing the Regional Joint Director of Education at Guntur that the application of RKE Society was rejected was because of the efforts on behalf of the petitioner-society this is what is stated in the affidavit:--
"However, on coining to know that the proposals in respect of the Respondent Society were under process I have submitted representation in the last week of May stating that the petitioner was permitted to start a '' High School hence there would be no necessity for starting another School in the locality within a distance of 794 feet i.e. 264 2/3 yards having regard to the aforesaid facts the Director of School Education declined to grant permission to the respondent Society for starting High School."
It is significant that the petitioner filed a copy of the said proceedings of the 1st respondent in Rc. No. 767/D2-2/93 dated 10-6-1993 which was addressed to the Regional Joint Director of School Education at Guntur with copy of the D.E.O. Prakasam district as Annexure-3 to the Writ Petition.
It is not in dispute that the 2nd respondent-school has been in existence at Koppolu for several decades. It is the case of respondents-2 and 3 that the 2nd respondent-school was originally established as an elementary school in 1948 by the father of P. Sankara Narayana Rao, Secretary of the 2nd respondent school and that in the year 1979-80 that elementary school was upgraded as Upper Primary School by opening VIth class; and that in 1980-81, VIIth class was also opened and that since then it has been running as Upper Primary School. The 2nd respondent school was accorded permanent recognition with effect from 1-6-1984 by the District Educational Officer, Ongole through his proceedings No. 67/C-84 dated 31-8-1984. It is their case that on 26-2-1993 an application was filed by P. Sankara Narayana Rao before the Regional Joint Director of School Education at Guntur requesiing him to accord permission to upgrade the 2nd respondent school into High School for the benefit of the school going children as there was no high school within a radius of 8 KMs. and that the said upgradation would be advantageous for the students of six villages namely, Koppolu, Guttikondavari palem, Indira colony, Aluru, Gadepalem and Alluru. The said application was returned for compliance with certain objections one of them being that "there was no committee constituted to run the High School". It is stated that, in view of this objection, Radha Krishna Memorial Educational Society was formed and that it ''Was registered under the Societies Registration Act under Registration No. 230 on 15-4-1993 and that another application was made on 29-4-1993 complying with all the objections in the name of that society paying a registration fee of Rs. 300/- by Challan on 26-4-1993 and depositing a sum of Rs. 25.000/- on 23-1993 towards corpus fund and providing Rs. 50,000/- on 24-4-1993 towards security, and that a building plan and a no objection certificate dated 24-4-1993 from District Development Officer of the Zilia Praja Parishad, Ongole were also filed along with that application. It is the case of respondents 2 and 3 that after the said application complying with all the formalities was made, the Deputy Educational Officer, Ongole visited Koppolu village and after inspection of the school premises, submitted his report on 29-5-1993 to the District Educational Officer, Ongole recommending the upgradation sought by respondents 2 and 3; the District Educational Officer, Ongole also submitted his favourable report in his proceedings No. 6068/B3/93 dated 3-6-1993 to the Regional Joint Director, School Education of Guntur; and he in turn on 5-6-1993 recommended to the 1st respondent to accord permission to upgrade the 2nd respondent school into Radha Krishna Memorial High School by opening Class VIII. These facts are supported by the records produced by the learned Government Pleader. Respondents 2 and 3 contend that the order of the 1st respondent dated 6-9-1993 granting permission is in accordance with recommendations of all these lower authorities. It is their further case that they did not recieve any order of the 1st respondent dated 10-6-1993 refusing to grant permission to them and that they in fact once again represented on 30-8-1993 for according permission to open Class VIII during the year 1993-94.
The learned Government Pleader produced the relevant records relating to the permissions granted to the petitioner for starting the High School and to the Radha Krishna Memorial Educational Society for upgrading the 2nd respondent-school. The record discloses that the petitioner in its application dated 26-2-1993 received on 27-2-1993 by the Regiona Joint Director of School Education, Guntur applied for the starting of only VIIIth class during the year 1993-94. The Deputy Educational Officer in his letter Rc.No. 801/93 dated 23-3-1993 recommended the proposal of the petitioner for opening High School during the year 1993-94 with Class VIIIth; and the District Educational Officer in his Lr.Rc. No. 3147/B3/93 dated 8-4-1993 addressed to the Regional Joint Director of School Education, Guntur recommended that the proposal for opening of the petitioner''s High School with Class Vlllth during the year 1993-94 may be considered; and accordingly the Regional Joint Director in his letter Rc.No.966/B2/93 dated 16-4-1993 also recommended to the 1st respondent. The 1st respondent in his Re. No. 600/ D2-3/93 dated 4-5-1993 objected as follows :--
"The attention of the Regl. Joint Director of School Education, Guntur is invited to the reference read above and he is informed that the pattern of Secondary School in the State as per the existing rules shall be from classes VI to X.
In the present case the Management proposes to have a Secondary School with Classes VIII to X only, which is not in accordance with the rules, in vogue.
He is therefore requested to advise the Management of the Institution concerned to rectify the said deficiency and resubmit the same to this office for further necessary consideration."
This letter was received by the Regional Joint Director of School Education on 10-5-1993. It is interesting to note with what speed things started moving after the letter of the 1st respondent dated 4-5-1993. It is obvious that those concerned with the petitioner society came to know about the said order on 4-5-1993 itself. They seem to have approached the District Educational Officer, Ongole within a day and gave a representation to him to the effect that they applied in February, 1993 for opening a High School with Classes 8th, 9th and 10th and that they came to know that as per the existing rules no permission could be granted for opening a High School with 8th, 9th and 10th classes only and that permission could be granted only for a High School with classes Vlth to Xth and that the Society members met and decided to start a High School with Classes 6th, 7th and 8th during the academic year 1993-94 and that they could start such a school at Koppolu without affecting other schools and that therefore permission should be granted for the same. They also enclosed resolution said to be of 17-4-1993. Referring to the said representation and the resolution, the District Educational Officer his Re. No. 3147/B3/93 dated 6-5-1993 addressed to the Regional Joint Director of School Education, Guntur stating as follows ;--
"I submit that in this office letter 1st cited this letter dated 8-4-1993 referred to earlier), the proposals were submitted for opening of High School with VIII class only during the year 1993-94 under the management of Vidyaranya High School, Koppolu. But the management in its resolution dated 17-4-93 has proposed to open VI and VII classes also during 1993-94 which are essential part of a High School.
In view of the resolution of the committee of Vidyaranya High School, Koppolu, and in view of the request of the Secretary and correspondent, I submit herewith the proposal for opening of VI and VII classes during the year 1993-94 along with VIII class as already recqmmended the earlier proposal.
Hence I request that the necessary permission kindly be accorded for opening of VI to VIII classes during the year 1993-94."
It has to be noticed that no report was called for from the Deputy Educational Officer, Ongole. On this, referring to the Director''s proceedings dated 4-5-1993 received on 10-5-1993, the Regional Joint Director of School Education, Guntur in his letter Lr.Rc. No. 968/B2/93 dated 10-5-1993 requested the 1st respondent to consider the proposal "in view of the recommendations of the Deputy Educational Officer and District Educational Officer and in viw of the educational need,... ". ... for opening of a High School with classes VI to VIII by name Vidyaranya High School, Kopolu from 1993-94... ...".
Thereafter, the 1st respondent granted permission to the petitioner on 14-5-1993.
From the above narration of facts culled out from the relevant records produced by the learned Government Pleader, it is seen that there was no proper application from the petitioner for starting a High School with Classes VI to VIII. The application made on 27-2-1993 by the petitioner was only for starting a High School with Class VIIIth. Admittedly, as per the existing Rules in force that could not have been permitted. The 1st respondent therefore returned the same by his letter dated 4-5-1993. Thereafter, only a representation was received from the petitioner for granting permission for starting a High School with Classes Vlth to VIIIth on the basis of its alleged resolution dated 17-4-1993 proposing to open Vlth and VIIth classes also during 1993-94. From this it follows that even on the basis of the said alleged resolution dated 17-4-1993, there was no authority for the petitioner society to start a High School with classes Vlth and Vllth when it made its application on 27-2-1993. Under the circumstances, its representation, obviously made on 6-5-1993 post-haste after coming to know about the return of its application by the 1st respondent, could not have been treated as an application in accordance with the 1988 Rules i.e., Rules 5 and 6 read with Form I of the 1988 Rules. Assuming that such a representation could be treated as an application in accordance with the 1988 Rules, it could have been considered only as an application made at most on 6-5-1993 and it ought to have been processed in a proper manner from the Deputy Educational officer onwards. What is more relevant for the present case is that it could not have gained precedence over the application made by Radha Krishna Memorial Educational Society on 29-4-1993 especially when the application made, according to respondents 2 and 3, on 26-2-1993 for upgrading the 2nd respondent school was returned in view of Section 20-A of the Act (introduced by the Amendment Act of 1987) which provides that "no individual shall establish a private institution." At any rate, as on the date when the application dated 29-4-1993 for upgradation of 2nd respondent school was made, there was no existing High School and there was no subsisting permission granted for the establishment of a High School and there was not even a proper application for opening a High School by the petitioner.
It has also to be noticed that whereas the application and representation of the petitioner was pushed through with extraordinary and unedifying alacrity, the application dated 26-4-1993 for upgradation of the 2nd respondent, an existing aided upper primary school, was being proceeded with snail-speed. This in fact is contrary to sub-rules (3) and (4) of Rule 6 of the 1988 Rules which require, inter alia, that the recognition authority shall process all the applications and the documents received by them from the educational agencies and shall cause inspection of the premises of the proposed institution and therefter "shall scrutinise all the applications together with the inspection report and shall forward a copy of the application together with the inspection report to the concerned Permission Authority". In the present case, by the time the 1st respondent objected by his letter dated 4-5-1993 to the application made by the petitioner for starting a High School only with Class VIIIth, the application dated 29-4-1993 of the Radha Krishna Memorial Education Society for upgrating the 2nd respondent school was already submitted and was under process. Therefore, the representation made by the petitioner that it should be permitted to start a High School with Classes VI, VII and VIII could not have been pushed through without a fresh inspection report and without processing the other application for upgrading the existing 2nd respondent school.
I am therefore satisfied that it would have been most iniquitous if the application for upgradation of the 2nd respondent school was refused on the ground that the petitioner''s invalid application made on 27-2-1993 for starting a High School with Class VIII only even without a resolution or a decision taken on its part for opening Classes Vlth and VIIth was allowed contrary to the Rules after it was returned and a representation was received on 6-5-1993. Therefore, under the circumstances it cannot be in the mouth of the petitioner to question grant of permission by the 1st respondent in his proceedings dated 6-9-1993 for upgradation of the 2nd respondent school by permitting it to start Class Vlllth, on the ground that the educational facilities to the people in the locality do not require a second school, when especially the authorities were satisfied that there was such a need. It is not for this Court to enquire into whether the concerned authorities were right in making such an assessment. At any rate, the material placed before the Court does not warrant any interference. I will have to observe also that if any preference had to be given, it should be given to the upgradation of ati existing aided upper primary school which was accorded permanent recognition nearly a decade back. In the counter affidavit filed on behalf of the 1st respondent also it is stated as follows:--
"The District Educational Officer, Praka-sam and the Regional Joint Director of School Education, Gutur has justified the need for according necessary permission to open Class VIII during 1993-94 in the existing U. P. School. It is pertinent to mention here that the respondent has more claims for demanding to open class VIII, since the respondent is already running U. P. School with Classes I to VII having permanent recognition and Grant-in-Aid, when compared to the petitioner who has started a new High.School during 1993-94 with Classes VI to VIII and no recognition has yet been considered The allegations made contra are not correct and denied."
The learned counsel for the petitioner contends that it is not open to respondents 2 and 3 to question the grant of permission to the petitioner for establishing a High School, in (he present Writ Petition which is preferred by the petitioner. I do not see why irregularities and vitiating circumstances in the grant of the said permission to the petitioner should not be taken note of when the petitiorier questions the grant of permission for the upgrading of the 2nd respondent school (which has been in existence for several decades) into a High School on the ground that the petitioner was earlier granted permission for establishing a new HighSchool in the same village and that there is no room for a second High School. In this connection, it has to be noticed that the 2nd and 3rd respondents have not approached this Court for cancelling the permission granted to the petitioner.
On the facts and circumstances of The present case therefore, I do not find any merit in this Writ Petition questioning the grant of permission for upgrading the 2nd respondent school as violating Section 20(3)(a)(i) of the Act and Rule 3 of the J9,88 Rules. Section 20(3)(a)(i) only requires "that an educational agency applying for permission for upgrading its existing school should satisfy the authority concerned before permission is granted "that there is need for providing educational facilities to the people in the locality". Rule 3 of the 1988 Rules clarifies further by providing that "the guidelines for the establishment of schools shall be such that they are in line with the National Policy of Education and increase literacy among the population" and that "the policy shall be to encourage establishment of more and more schools particularly in rural areas taking into account the educational needs of the localities and that "while doing so improvement in academic standards and excellence of education shall not be compromised ". In that context sub-rules (1), (2) and (3) of the said Rule 3 provide as follows:--
"(1) Educational needs of the localities;
(2) Population of the school-going children in the locality; whether the existing schools in the locality are catering the educational needs of the population in the locality;
(3) Unhealthy competition among the schools in the locality vis-a-vis viability of the schools is a consequence of establishment of new schools or upgradation of existing schools, Upgradaiton of schools shall not be considered as a routine affair and shall be resorted to only when there is educational need;"
In Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., the Supreme Court has held that imparting education cannot be treated as a trade or business and that education cannot be allowed to be converted into commerce. B.P. Jeevan Reddy, J., one of the learned Judges constituting the five Judges Bench of the Supreme Court in that case, observed as follows:--
"Trade or business normally connotes an activity carried on with a profit motive. Education has never been commerce in this country. Making it one is opposed to the ethos, tradition and sensibilities of this nation......... Imparting of education has never been treated as a trade or business in this country since time immemorial. It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or business.........
Establishing educational institutions can by no stretch of imagination be treated as ''practising any profession''. Teaching may be a profession but establishing an institution, employing teaching and non-teaching staff, procuring the necessary infrastructure for running a school or college is not ''practising profession''."
The majority in that case also have taken the view that though right to education is not stated expressly as a fundamental right, it is implicit in and flows from the right to life and personal liberty guaranteed under Article 21 and that that right has to be construed in the light of the directive principles in Part IV of the Constitution and that right ot free education up to the age of 14 years is a fundamental right reading Arts. 21 and 45 togehter. In view of this position, on the facts and circumstances of the present case, when the authorities concerned thought fit to grant permission for upgrading the 2nd respondent school into a High Court, it is not open to the petitioner to question the same. In the counter affidavit filed on behalf of the 1st respondent also it is stated that the petitioner has no right to say whether there is need or not to open a High School or upgrade the existing school into High School and it is the duty of the field officers to go into the issue and submit their reports about the need duly examining the various aspects and that the policy of the Government as welfare State is to eradicate illiteracy and accord permission It, educational agencies either to open new school or upgrade the existing schools as per the needs and demands of the people living in villages and that the petitioner has no vested or substantial right to question the legality of the orders passed by the respondent upgrading the 2nd respondent school.
14, Another contention advanced by the learned counsel for the petitioner is that in view of the fact that the 1st respondent rejected the application of the Radha Krishna Memorial Educational Society in his proceedings dated 10-6 1993, he had no power to review the same and and grant permission under the impunged proceedings dated 6-9-1993 when there was no change in the circumstances. On behalf of respondents 2 and 3, it is stated that the proceedings of the 1st respondent dated 10-6-1993 were not communicated to them. The records also do not disclose that the said proceedings were communicated. In the circumstances, the said proceedings have no efficacy. Rule 6(5)(b) of the 1988 Rules requires that "if permission is rejected, the grounds for such rejection shall be liutiirnied and the decision of the Appellate Authority shall be final and no further appeals or further correspondence shall be entertained". Rule 4 states that the Permitting Authority for establishing Secondary Schools is Director of School Education and that the Appellate Authority is Government. When appeal is provided against the order rejecting permission, it is obvious that such order should be communicated to the educational agency concerned. Without proper communication, there can be no such order. In the circumstances, the proceedings of the 1 st respondent dated 10-6-1993 have no efficacy. In the counter affidavit filed on behalf of the 1st respondent, it is stated as follows:--
"Subsequently the matter was re-examined in detail and permission was accorded to open Class VIII during 1993-94 duly cancelling the orders issued in Director''s procs. Re. N0.767/D2-2/93, dated 6-9-1993 as the Management of Radhakrishna Memorial U.P. School is already functioning with classes I to VII and maintaining good academic strength as stated above."
Therefore I do not see any substance in this contention raised by the petitioner.
In the result, the Writ Petition is dismissed with costs. Advocate''s fee.Rs. 500/-
Petition dismissed.