VICAR, ST. MARYS CHURCH v. NARAYANAN — 1986 DIGILAW 55 (KER)

Judgment :- 1. These two appeals arise from the judgment in OP. No. 4027 of 1984 The learned judge quashed Ext. P7 in so far as it included Punnayar of Kanjikuzhi Panchayat in the final list approved by the Government and published by the Director of Public Instruction as per R.2 of Chapter V of the Kerala Education Rules, 1959 and Ext. P8 dated 30-7-1983 which is the Government order reviewing its earlier order and directing the inclusion of Punnayar in the final list. The learned judge held that Ext. P8 and the consequential order Ext. P7 were vitiated for the reason that the Government exceeded its power to review under sub-rule (5) of R.2. 2. A preliminary list of places for sanctioning High Schools had been prepared under R.2 and objections called for. Objections were heard, and the Director of Public Instruction, on consideration of the objections and the reports of the concerned District Educational Officers, recommended a final list to the Government. It was that list which the Government approved and subsequently reviewed by the impugned order (Ext. P8) as a result of which a High School was sanctioned in Punnayar. 3. The main complaint of the petitioner/1st respondent is that Ext.P8 is an invalid order as the Government exceeded its power to review under R.2(5), as a result of which the divisions strength of the petitioner's school is seriously jeopardised. The learned judge accepted the contentions regarding the invalidity of the Government order. 4. We shall now read R.2: "2 Procedure for determining the areas where new schools are to be opened or existing schools upgraded. (I) The Director may, from time to time, prepare two lists, one in respect of aided schools and the other in respect of recognised schools, indicating the localities were 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. (I) The Director may, from time to time, prepare two lists, one in respect of aided schools and the other in respect of recognised schools, indicating the localities were 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 are proposed to be opened or to the area where existing schools are to be upgraded; (d) the educational needs of the locality with reference to the habitation and backwardness of the area; and (e) other matters which he considers relevant and necessary is this connection. Explanation:-For the removal of doubts it is hereby clarified that it shall not be necessary to prepare the two lists simultaneously and that it shall be open to the Director to prepare only one of the lists. (2) A list prepared by the Director under sub-rule (1) shall be published in the Gazette inviting objections or representations against such list. Objections, if any. can be filed against the list published within one month from the date of publication of the list. Such objections shall be filed before the Assistant Educational Officers or the District Educational Officers as the case may be. Every objection filed shall be accompanied by a chalan for Rs. 10/- remitted into the Treasury. Objections filed without the necessary chalan receipt shall be summarily rejected. (3) The Assistant Educational Officer and the District Educational Officer may thereafter conduct enquiries, hear the parties, visit the areas and send their reports, with their views on the objections raised, to the Director within two months from the last date of receipt of the objections. The Director, if found necessary, may also hear the parties and finalise the list and send his recommendations with the final list to Government within two months from the last date of the receipt of the report from the Educational Officer. (4) The Govt. The Director, if found necessary, may also hear the parties and finalise the list and send his recommendations with the final list to Government within two months from the last date of the receipt of the report from the Educational Officer. (4) The Govt. after scrutinising all the records may approve the list with or without modification and forward the same to the Director within one month from the last date for the receipt of the recommendations of the Director. The list as approved by the Government shall be published by the Director in the Gazette, (5) No appeal or revision shall lie against the final list published by the Director Provided that the Government may either suo mote or on application by any person objecting to the list published by the Director under sub-rule (4) made before the expiry of thirty days from the date of such publication review their order finalising such list and make such modifications in that list as they deem fit by way of additions or omissions if they are satisfied that any relevant ground has not been taken into consideration or any irrelevant ground has been taken into consideration or any relevant fact has not been taken into account while finalising the said list. Provided further that no modification shall be made under the preceding proviso without giving any person likely to be affected thereby an opportunity to make representations against such modification. (5A) The proviso added to sub-rule (5) by the Kerala Education Amendment. Rules, 1981 published in the Kerala Gazette extraordinary No. 667 dated the 19th August, 1981 shall be deemed to have been added to that sub-rule with effect on and from the 1st day of June, 1981. (6) The Govt. may, by notification in the Gazette extend any period specified in sub-rules (3) and (4) for reasons to be stated in the notification." It is the responsibility of the Director of Public Instruction to prepare two preliminary lists, one in respect of aided schools and the other in respect of recognised schools. We are concerned only with aided schools. The list must indicate the localities where the schools are to be opened or upgraded. Sub-rule (1) specifies under clauses (a) to (e) the matters which the Director must, in preparing the preliminary list, necessarily take into account. We are concerned only with aided schools. The list must indicate the localities where the schools are to be opened or upgraded. Sub-rule (1) specifies under clauses (a) to (e) the matters which the Director must, in preparing the preliminary list, necessarily take into account. These matters concern the existing schools in and around the locality, the strength of the existing standards and the present accommodation available, the distance between the existing schools and the proposed area for starting a new school, the educational needs of the locality with reference to the population and backwardness, and other relevant matters. The Director has to satisfy himself as regards these matters in the basis of evidence. Presumably the relevant facts are gathered by the Director through his officers by means of reports prepared with reference to local conditions and demands. The preliminary list prepared is the present case was therefore a list presumably prepared with reference to the relevant evidence collected by the Director. In the exercise of that function the director presumably had objectively considered the relevant facts and reached a conclusion as regards the educational needs and other factors of the relevant localities. It was in such preliminary list that Punnayar was found a place for the sanction of a new school. On the publication of that list in the Gazette, objections were called for in terms of sub-rule (2). The petitioner filed his objections in regard to Punnayar. He stated that there was already a High School under his management at Nankicity which was very close to the proposed site and there was also a Government High School not far from that site. He stated that the new High School would adversely affect the divisions strength of the existing High Schools. 5. Subsequent to the receipt of the objections, reports of the concerned District Educational Officers were called for by the Director of Public Instruction. Since the petitioner had filed his objections, the concerned District Educational Officer submitted his remarks about Punnayar. This is what he stated: "If a School is sanctioned in the proposed area it will affect the already sanctioned SNHS. Nanki-City to a great extent and Govt H. S. Kanjikuzhi to some extent. Punnayar is Ward No. 3 of Kanjikuzhi Panchayat and SNHS Nanki-City in Ward No. 7. Feeder Schools SNUPS Nanki-City in Ward No. 7 and St. May's UPS. Kanjikuzhi in Ward No. 6. Nanki-City to a great extent and Govt H. S. Kanjikuzhi to some extent. Punnayar is Ward No. 3 of Kanjikuzhi Panchayat and SNHS Nanki-City in Ward No. 7. Feeder Schools SNUPS Nanki-City in Ward No. 7 and St. May's UPS. Kanjikuzhi in Ward No. 6. If a third school is sanctioned in Kanjikuzhi Panchayat the three schools will have to struggle for existence and will engender a competition. If the competition is healthy it will be good for the locality. SNHS. Nanki-City will be 11/2 K. M. away from the proposed area and Govt. HS. Kanjikuzhi 3 K. M. away." On receipt of the report of the District Educational Officer, the Director made his recommendations to the Government by submitting a final list from which he bad excluded Punnayar. His recommendation did not contain any remarks as to why that school had been excluded It is not clear whether the Director came to the conclusion that an additional High School would necessarily result in unhealthy competition, and if so what material prompted him to reach that conclusion and alter the preliminary list by deletion of Punnayar. Whether the objections filed by the petitioner were supported by the additional material collected by the Director, one would not understand from the final list. In fact there is no reference in the final list to Punnayar except one line saying "Punnayar not recommended". Subsequent to the receipt of the recommendations of the Director, and purportedly on a scrutiny of the relevant records, the Government returned the list to the Director with its approval. This was in terms of sub-rule (4). The Government order does not show why it accepted the Director's recommendation excluding Punnayar, although it had been included in the preliminary list. The order of the Government is totally silent on this aspect. 6. On publication of the final list as approved by the Government, the present appellant in WA No. 80 of 1985 and the 6th respondent in the Original Petition filed before the Government petitions to review its order approving the final list. The Government thereupon directed the review petitioners to forward to it through proper channel statements containing the material relied on by them for review of the Government order, particularly with reference to the principle stated in Purushothaman v. State of Kerala, 1983 KLT. 527. The Government thereupon directed the review petitioners to forward to it through proper channel statements containing the material relied on by them for review of the Government order, particularly with reference to the principle stated in Purushothaman v. State of Kerala, 1983 KLT. 527. In their statements the review petitioners referred to the local needs for an additional High School. They pointed out that about 1,000 pupils studied in the VIIth standard of eight Upper Primary Schools in Kanjikuzhi Panchayat and the neighbouring areas. Those pupils who passed out of the Upper Primary Schools would have to be accommodated in the High Schools. The existing High Schools (5 divisions in the petitioner's school at Nankicity and 3 divisions in the Government High School) would find it extremely difficult to accommodate all these pupils. The consequential overcrowding would result in fall in educational standard and other problems. On account of the peculiar topography of the place and the available transport facilities, the pupils are now compelled to travel about 20 K.Ms. to go to the school at Vazhathoppu. They stated that in view of the upgradation of the two Lower Primary Schools, the number of pupils joining the VIIth standard is bound to increase. In the circumstances they submitted that an additional school was absolutely necessary to meet the local requirements. They further pointed out that the objection of the petitioner regarding the possibility of the divisions being affected was totally irrelevant and it ought not to have been taken into account by the Government. These petitions were duly forwarded by the District Educational Officer to the Director of Public Instruction by his reports dated 8-4-1983 and 14-4-1983. The District Educational Officer pointed out that about 500 pupils were studying in standard VII of the various Upper Primary Schools in Kanjikuzhi Panchayat and there were only two High Schools in that area to accommodate them when they passed out of the Upper Primary Schools. He pointed out that Kanjikuzhi Panchayat was a fast developing area and with better facilities for transport, pupils now travelling as far as Vazhathoppu, which is about 20 K.Ms. away, to continue their studies, would not travel to that distant place, but would seek admission in the High Schools in Kanjikuzhi Panchayat itself. Accordingly, the District Educational Officer recommended: "The scope for a third High School is not out of place. 7. away, to continue their studies, would not travel to that distant place, but would seek admission in the High Schools in Kanjikuzhi Panchayat itself. Accordingly, the District Educational Officer recommended: "The scope for a third High School is not out of place. 7. Subsequent to the receipt of the reports of the District Educational Officer dated 8-4-1983 and 14-4-1983, the Director called for a fresh report by his letter dated 29-5-1983. Accordingly, the District Educational Officer sent a report dated 31-5-1983. This is what be stated: "Referring the above I may report as follows: The two neighbouring schools to Punnayar are SNHS. Nankicity and Govt. HS. Kanjikuzhi. In SNHS. Nankicity the strength of Standard VIII is 236 and in Govt. HS. Kanjikuzhi the strength in Std. VIII is 104 and that of Std. IX is 104. 2. The Distance from Punnayar to SNHS. Nankicity is 11/2 KM. 3. The Distance between Punnayar and GHS. Kanjikuzhi is 3 KM. 4. SNHS. Nankicity is having 6 divisions in Std. VIII and GHS Kanjikuzhi 3 divisions. If a new school is opened there will be a fall of two divisions in SNHS. Nankicity and one division in Govt. HS. Kanjikuzhi." This report shows that the distance between Punnayar and the petitioner's school is about 11/2 KMs. and that between Punnayar and the Government High School is about 3 KMs. It also shows the divisions strength in the two schools, and the possibility of fall in divisions if a new school were to be opened. The report also shows how crowded are the existing divisions in the VIIIth Std. of the two High Schools. 8. The Government received the report of the Director together with the reports of the District Educational Officer and other material such as the statements of the review petitioners, of the local MLA., local leaders of various political parties, resolution of the Panchayat and the Merchants Association. Along with such material the Director volunteered his own suggestions, although such suggestions for the purpose of review are not postulated under the Rules. The Director stated that a new school might affect the divisions strength of the existing schools and suggested that a third school should not be opened within the locality. 9. The Government, on consideration of the relevant material, passed Ext. P8 dated 30-7-1983 reading as follows: "Government of Kerala Abstract ............................ The Director stated that a new school might affect the divisions strength of the existing schools and suggested that a third school should not be opened within the locality. 9. The Government, on consideration of the relevant material, passed Ext. P8 dated 30-7-1983 reading as follows: "Government of Kerala Abstract ............................ ORDER The review petition read as 2nd and 3rd paper above is for the inclusion of the elace'Punnayar' in the final list of areas for opening new High Schools or upgrading the existing UP. Schools. The petitioner was heard by Minister (Edn.) on 28-6-1983. Dr. John Vallamattom, Corporate Educational Agency, Diocese of Kothamangalam, stressed the necessity to have a High School at Punnayar. He stated that the place, Punnayar is in Kanjikuzhi Panchayat. There are only two High Schools in the Panchayat, which are quite insufficient to meet the educational needs of the area. According to him. due to lack of accommodation facilities in the High School at Nankicity many students are denied admission and hence there is urgent need of opening a High School at Punnayar. Since the objection petitioner could not be given intimation in time about the hearing posted for 20-6-1983 he was given an opportunity to be heard on 27-7-1983. Shri. P. N. Kumaran, Director, SNDP. Yogam, Punnayar, who appeared on behalf of the Manager, SNHS. Nankicity. the objection petitioner, was heard on 27-7-1983. He stated that opening of a High School at Punnayar will adversely affect the SN High School Nankicity. According to him there will be division fall in the SN. High School, if a new High School is sanctioned at Punnayar, especially since the distance between the proposed site, and the S.N. High School, Nankicity is below two furlongs. He stated that the existing two High Schools in the same viz, the S.N. High School, Nankicity and Govt. HS. Kanjikuzhi are quite sufficient to meet the educational needs of the locality. The District Educational Officer in bis report dated 8-4-1983 has reported that Punnayar, in Kanjikuzhi Panchayat is a fast developing area in Idukki and that there are only two High Schools in the Panchayat. According to him with the increase in transport facilities there will be considerable increase of students strength in the present schools in the Panchayat. So be has stated that there is scope for a third High School in the area. According to him with the increase in transport facilities there will be considerable increase of students strength in the present schools in the Panchayat. So be has stated that there is scope for a third High School in the area. Considering the backwardness of the area, fast increasing population and the limited facilities of transport now available, it is necessary to open a new High School at Punnayar to meet the educational needs of the locality. The review petition is therefore allowed. The place 'Punnayar' will be included in the final list of areas for opening new High Schools. Ext. P8 shows that the Government applied its mind to the various aspects of the matter, and with particular reference to the objections raised by the petitioner, the facts stated by the review petitioners, the reports of the District Educational Officer, the suggestions of the Director, and the questions required to be considered under sub-rule (1). The parties were heard. Their views concerning the needs for a school in the locality, the nature of the topography, the inaccessibility of the area, the existing and potential transport facilities, the expected increase in the number of pupils seeking admission, the increase in population, the developments taking place and anticipated in the area, and other relevant matters were duly considered by the Government. In our view Ext. P8 shows that the Government asked itself the right questions and answered them with due regard to the material on record. On the basis of Ext. P8 Punnayar was added to the list of places for opening new Schools (see Ext. P7). 10. Counsel for the respondents Shri. Panicker points out that the Government exceeded its bounds under sub-rule (5) of R.2. We do not agree. Sub-rule (5) allows the Government to review its earlier order either suo motu or on application, provided the Government is satisfied that its earlier order had not taken into account relevant grounds or had taken into account irrelevant grounds or relevant facts had not been taken into account. These grounds, as the facts reveal, did exist and a review of its earlier order was called for. 11. In the first place the Government originally gave its approval to the recommendation of the Director without satisfying itself that the Director bad taken into account the matters which he was required to take into account. These grounds, as the facts reveal, did exist and a review of its earlier order was called for. 11. In the first place the Government originally gave its approval to the recommendation of the Director without satisfying itself that the Director bad taken into account the matters which he was required to take into account. The Director's recommendation, as we pointed out, was a one line recommendation enclosing a final list from which certain areas such as Punnayar had been excluded, although they had been included in the preliminary list. The Government ought to have, in our view, satisfied itself that the Director had taken into account the matters which he was required under R.2 to take into account. The Government gave its approval of the final list by its original order without stating the reason why it approved of the omission of certain areas like Punnayar which had been included in the preliminary list. Like the recommendation of the Director, the Government's approval was also by a non-speaking order. 12. When we say a non-speaking order, we do not say that the Government ought to have passed a lengthy, detailed order in the nature of a judicial order. The approval of a list of places in terms of R.2 is essentially an administrative act. Nevertheless it is an act performed on due consideration of the relevant matters specified under the Rule and after bearing the objections submitted by persons entitled to object. An approval by the Government of the recommendation of the Director is the final disposal of the objections. The approval implies that the matters required to be considered under the Rule have been duly considered and that the requirements postulated are fully satisfied. There is, therefore, a quasi-judicial aspect to an otherwise administrative order in so far as the order is expected to be the result of an objective consideration of the relevant matters. The order must contain the reasons for the conclusion. In fact this is how the Director understood his function, as is clear from his recommendation where, in regard to various places, he had given bis reasons for rejecting or accepting the objections and recommending inclusion or exclusion. Except where no objection was received, the Director had given his reasons in many cases for the final recommendation. In fact this is how the Director understood his function, as is clear from his recommendation where, in regard to various places, he had given bis reasons for rejecting or accepting the objections and recommending inclusion or exclusion. Except where no objection was received, the Director had given his reasons in many cases for the final recommendation. But when he came to Punnayar surprisingly he did not state his reasons for the exclusion of the area. For these reasons we are of the view that the Director's recommendation was not in compliance with his statutory function as postulated under R.2. For the same reason we are equally satisfied that the earlier order of the Government approving the final list, in so far as Punnayar was concerned, was also an invalid order. 13. Secondly, the Government when reviewing the earlier order after bearing the parties was, as seen from Ext. P8, satisfied that the matters mentioned in clauses (a) to (e) of sub-rule (1) of R.2 bad not been taken into account when it gave its approval to the list recommended by the Director. The various reports of the concerned District Educational Officer had not been taken into account. For these reasons the Government was fully justified in reviewing its earlier order. 14. The Government was also justified in rejecting the Director's suggestion that the opening of a new High School at Punnayar would affect the divisions strength of the existing schools. As seen from the reports of the District Educational Officer dated 8-4-1983 and 14-4-83. the VIIIth standard division in the existing schools were terribly overcrowded. There were 236 students in six divisions of Std. VII of the petitioner's school at Nankicity and 104 students in the 3 divisions of the Government High School. This strength was far too high to maintain proper academic standard. The appellant's counsel rightly points out that the subsequent events belie the Director's apprehension regarding fall in divisions, for, despite the additional High School then functioning at Punnayar on the strength of Exts. P7 and P8, there are three divisions in the Government High School, six divisions in the petitioner's school and 3 divisions in the appellant's school. Counsel points out that there is still scope for more divisions. 15. P7 and P8, there are three divisions in the Government High School, six divisions in the petitioner's school and 3 divisions in the appellant's school. Counsel points out that there is still scope for more divisions. 15. We do not of course judge the validity of the impugned order by subsequent events, but we refer to the subsequent events only to say that the Government had correctly estimated the then and future needs of the locality. 16. In proceedings under Art.226 of the Constitution, it is not the function of the court to consider the correctness or otherwise of a Government decision unless the decision is vitiated by reason of excess of jurisdiction or violation of law or abuse of power (see the principle stated by this Court in Kerala Public Service Commission v. Pylo, 1986 KLT. 47). 17. There is power vested in the Government to review its order under sub-rule (5) whenever it is satisfied that relevant matters had not been taken into account or irrelevant matters bad been taken into account. We are satisfied from the records made available to us and for the reasons stated above that the Government rightly exercised its power. We see no defect in the impugned orders calling for judicial review. In the circumstances, we set aside the judgment under appeal. The appeals are allowed in the above terms. We make no order as to costs. Allowed.