JUDGMENT 1. Petitioner is the Manager of Sri Vidyadhiraja Charitable Society, which runs Sri Vidyadhiraja Memorial Model High School at Vendar, Kottarakkara. The school is housed in a three storied fourfold building, with 47 classrooms. School is having other buildings attached, containing 12 classrooms. There are 80 teaching staff and 7 non teaching staff. Out of 80 teachers 29 of them are appointed during the academic year 1984-85 and thereafter. Students' strength of the school for the academic year 1994-95 was 2270. In the year 1984, within 2 kms. away from the petitioner's school, new High School was sanctioned by the Government at a place called Poovathoor. Consequently, there occurred a reduction of about 10 class divisions in the petitioner's school. Challenging the above decision of the Government, petitioner filed OP No. 4489 of 1984 before this Court and this Court by its judgment dated 13th December 1988 allowed the Writ Petition. Judgment is reported in Jandki Amma v. Government of Kerala 1989 (1) KLT 192 . 2. Director of Public Instruction issued a notification under R.2 of Chap.5 of the Kerala Education Rules, hereinafter called the 'Rules' where unaided recognised High Schools are to be opened or U.P. Schools are to be upgraded in various Districts in the State during the year 1994-95. The area 'Kalayapuram' was included as Sl. No. 3 in the Kollam District in the Gazette notification published on 24th June 1994. A list prepared by the Director under sub-rule (1) of R.2 was published in the Gazette inviting objections or representations against the list. Petitioner Manager filed objections dated 19th July 1994 evidenced by Ext. P2. Secretary of the Staff Council of the said school filed a representation evidenced by Ext. P3. District Secretary of the Private School Teachers' Association, Kollam District, also filed objections to the notification. Objection dated 14th July 1994 was also submitted by the Principal, Vidyalaya, Movady, Manager, High School, Poovathoor also filed objections dated 11th July 1994 and Manager, D.V.H.S. also filed objections dated 18th July 1994. 3. Main objection raised was that there was no educational need in the area notified for an unaided High School. It is pointed out there are already seven High Schools in and around Kulakkada Panchayat. There exists English medium parallel classes in the petitioner's school and also Government High School, Kulakkada. 3. Main objection raised was that there was no educational need in the area notified for an unaided High School. It is pointed out there are already seven High Schools in and around Kulakkada Panchayat. There exists English medium parallel classes in the petitioner's school and also Government High School, Kulakkada. It was pointed out distance from each of the existing High Schools to the area 'Kalayapuram' is less than 3 kms. Petitioner's school is situated only 21/2 kms. away from the place 'Kalayapuram'. Government High School, Kulakkada, is only 2 kms. away from the place 'Kalayapuram'. Government High School, Perumkulam is 11/2 kms. away from Kalayapuram. So also the High School at Poovathoor. 4. However, Manager submits, in spite of various objections raised by petitioner and others, second respondent did not give an opportunity of being heard to the petitioner. It is alleged no enquiry was conducted by any of the officers of the Education Department with notice to the petitioner. 5. Later a final list dated 13th September 1994 was published in the Gazette dated 14th September 1994 showing the areas where new High Schools are to be opened or existing U.P. Schools are to be upgraded in various Districts. In the said list, the place 'Kalayapuram' was included as Sl. No. 3 in Kollam District. 6. Aggrieved by the same petitioner has approached this Court challenging Exts. P1 and P5 notifications issued by the second respondent in exercise of the powers conferred under sub-rule (4) of R.2 of Chap.5 of the Rules for opening new High Schools or upgrading existing U.P. Schools for the year 1994-95. This Court passed an interim order in C.M.P. No. 24986 of 1994 on 12th October 1994 granting stay as prayed for as regards the High School to be started at Kalayapuram in Kollam District included in Ext. P5. However, Government issued a notification No. G. O. (P). 408/95/Edn. dated 16th August 1995 of General Education (F) Department, which was published in the Gazette dated 19th August 1995, according sanction to open certain unaided recognised High Schools. One of such High School is described at Sl. No. 7 in the Kollam District as Mar Ivanios Bethany High School, Kalayapuram. Annexure I is the said notification. It is seen that the said notification was issued overlooking the interim order passed by this Court. One of such High School is described at Sl. No. 7 in the Kollam District as Mar Ivanios Bethany High School, Kalayapuram. Annexure I is the said notification. It is seen that the said notification was issued overlooking the interim order passed by this Court. Consequently Government issued an order dated 4th September 1995 deleting Kalayapuram from the said notification, since Original Petition is pending in this Court. Notification dated 19th August 1995 was modified accordingly. 7. Procedure for determining the areas where new schools are to be opened or existing schools are to be upgraded is dealt with in R.2 of Chap.5 of the Rules. As per R.2, the Director of Public Instruction 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 where 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 existing schools in and around the locality in which new schools are to be opened or existing schools are to be upgraded, the strength of several standards and the accommodation available in each of the existing schools in that locality, 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 upgraded, the educational needs of the locality with reference to the habitation and backwardness of the area; and, other matters which he considers relevant and necessary in this connection. The list prepared by the Director shall be published in the Gazette inviting objections or representations against the said list. Objections, if any, can be filed against the list, published within one month from the date of publication of the list. Every objection filed shall be accompanied by chalan for Rs. 10 remitted into the treasury. The Assistant Educational Officer and 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. Every objection filed shall be accompanied by chalan for Rs. 10 remitted into the treasury. The Assistant Educational Officer and 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 receipt of the report from the Educational Officers. Government, after scrutinising all the records, may approve the list with or without notification and forward the same to the Director within one month from the last date of receipt of the recommendations of the Director. The list as approved by the Government shall be published by the Director in the Gazette. 8. In the instant case, petitioner and various others filed objections evidenced by Exts. P2, P3, P4, etc. Necessary chalan as per R.2 was also remitted by petitioner and others. It is seen that an enquiry was conducted by the Director of Public Instruction through the District Educational Officer, Kottarakkara, whose survey report, along with report regarding objections against opening of unaided High School at Kalayapuram, is produced as Ext. R2(a), filed by the second respondent. Survey Report of District Educational Officer states that Kalayapuram is not an educationally backward area. It is not a place dominated by Backward and S.C. and S.T. Report also says that a new unaided recognised High School at Kalayapuram would affect the smooth running of following aided and Government Schools in Kottarakkara Educational District: 1. High. School, Poovathoor, which is 11/2 kms. away from the proposed High School, Kalayapuram. 2. S.V.M.H.S, Vendar 3 kms. 3. Govt. P.V.H.S, Porumkulam 2 kms. 4. D.V.H.S., Mylom 3 kms. 5. Govt. H.S., Kulakkada 2 kms. 6. S.V.H.S., Thamarakudy 3 kms. It was pointed out that there are six High Schools, both aided and Government, in and around the proposed High School. It was further reported that the Schools are having Malayalam Medium except S.V.M.H.S. and Government H.S., Kulakkada, which are having both English and Malayalam Medium divisions. The Officer has stated that there is need for an English Medium School. 9. It was further reported that the Schools are having Malayalam Medium except S.V.M.H.S. and Government H.S., Kulakkada, which are having both English and Malayalam Medium divisions. The Officer has stated that there is need for an English Medium School. 9. Petitioner Manager maintains the stand that there is no educational need for opening a new High School at Kalayapuram. It is their case if a new High School is opened that will affect the already existing schools. It is their case, existing schools are catering to the needs of Malayalam as well as English mediums. It is also their case that educational need has to be tested with reference to habitation and backwardness of the area. It is also the case of petitioner that the place was included in the list due to influence exerted by respondents 4 and 5 on the Government due to extraneous reasons. 10. Additional fifth respondent and second respondent maintain their stand that place 'Kalayapuram' was included in the notification after conducting a detailed enquiry as per Rules. It is their case that there is educational need for English Medium High School at Kalayapuram. They contended that they have complied with all statutory requirements for including the place 'Kalayapuram' in the notification. Counsel also relied on various decisions of this Court and the decision of the Supreme Court in N. Kuhichekk Haji v. State of Kerala 1995 Supp. (2) SCC 382. In that case the question was with regard to upgradation of a L. P. School as U. P. School in Malappuram District. Malappuram District was found to be a backward area in education and therefore Government felt that the District should be given educational incentives. Consequently, educational need was found to be genuine. It was also found that young children have to cross the fields to go to another school situated 21/2 kms. away from the proposed school, and due to this inconvenience students were dropping out. Government therefore felt that there existed a need for upgradation of existing L. P. School. Therefore Government felt that larger interests of young children should be taken into consideration. away from the proposed school, and due to this inconvenience students were dropping out. Government therefore felt that there existed a need for upgradation of existing L. P. School. Therefore Government felt that larger interests of young children should be taken into consideration. Counsel also relied on the decision of a Division Bench of this Court in Punnose v. Nair Service Society 1984 KLT 736 and contended that even if the students strength of the neighbouring schools are affected, that is not a ground for interference with the decision taken by the Government in upgradation of the existing school. Counsel also relied on the decision of a learned Single Judge of this Court in OP No. 15128 of 1994 and 14867/94 and contended when there is no facility for English Medium School, and if there is need for English Medium School, Government is certainly entitled to provide it. 11. I heard counsel for the petitioner, and counsel for respondents at length. As per R.2 of Chap.5 of the Rules, some of the factors to be taken note of while preparing the list are statutorily prescribed. They are the existing schools in and around the locality in which new schools are to be opened or existing schools are to be upgraded, the strength of the several standards and the accommodation available in each of the existing schools in that locality, 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, the educational needs of the locality with reference to the habitation and backwardness of the area; and other matters which the Director of Public Instruction considers relevant and necessary in this connection. After preparing the list, the existing schools have a legal right to file objections. Those objections have to be considered by the authorities in the light of above mentioned factors in R.2(1)(a) to (e) of Chap.5. R.2(3) also direct the Educational Officers to conduct enquiries, hear the parties and visit the areas and send their views on the objections raised to the Director. Director is also empowered to hear parties and finalise the list and send his recommendation with the final list to the Government. 12. It is not discernible from Ext. R.2(3) also direct the Educational Officers to conduct enquiries, hear the parties and visit the areas and send their views on the objections raised to the Director. Director is also empowered to hear parties and finalise the list and send his recommendation with the final list to the Government. 12. It is not discernible from Ext. R2(a) enquiry report or the report regarding objections, as to whether the District Educational Officer, Kottarakkara or the second respondent, has applied their mind. I have called for the files and perused the report. In fact the report itself shows that the place 'Kalayapuram' is not educationally backward area. As per R.2(1)(d), authorities have to consider educational needs of the locality with reference to habitation and backwardness of the area. Admittedly, Kulakkada Panchayat is not an educationally backward area, nor is it the area dominated by Backward and S.C. It is also evident from the report that proposed school would affect the nearby schools resulting in its becoming uneconomic. Pro forma of enquiry report categorically says that there are five schools situated within a radius of proposed school. It is also stated it will affect the Malayalam Medium High Schools as well. 13. Petitioner has categorically stated in the Writ Petition that no notice was given to the petitioner with regard to conduct of enquiry or visit of the area. Petitioner was unaware as to whether District Educational Officer has in fact visited the area. Even Ext. R2(a) and its annexures do not bear any date. It is stated in Ext. R2(b) that District Educational Officer visited the area on 10th August 1994. Counter affidavit is silent as to whether he has given notice to the objectors before conducting enquiry. Apart from one sentence that during these enquiries I am convinced that there is need for an English Medium School, there is absolutely no material either in Ext. R2(b) or in the counter affidavit to show that there is need for English Medium School. 14. As held by a Division Bench of this Court in Purushothaman v. State of Kerala 1983 KLT 527 , Government should be aware that the inclusion of new areas is not a measure of patronage, but an administrative measure intended to make the educational advancement of the State effective. 14. As held by a Division Bench of this Court in Purushothaman v. State of Kerala 1983 KLT 527 , Government should be aware that the inclusion of new areas is not a measure of patronage, but an administrative measure intended to make the educational advancement of the State effective. R.2 of Chap.5 of the Rules is not exhaustive, as naturally any such rule could not be exhaustive of the circumstances warranting the sanction of a new school, but the predominant factor which must influence the Government in its decision must be the answer to the question, how far educational needs of the locality demand inclusion of fresh areas for opening new schools. Objective assessment of public need uninfluenced by other considerations, a sense of reasonable restraint in selecting new areas and awareness of the need to eliminate elements which may abuse the very system of State support to aided schools would to a large extent help in relieving the Government of avoidable financial commitment while at the same time toning up the system of aid. 15. It is evident that even though petitioner and others filed detailed objections, none of the objections raised by them was properly adverted to either by the Director or by the Government or even by the District Educational Officer, who conducted an enquiry. Even if there is a statement that petitioner has filed objections, as I have already stated, no notice was given by the District Educational Officer before conducting inspection. There is no reference to any of the objections raised by petitioner in the report, apart from mere statement that he has examined the objections and visited the area, and that he was convinced that there was educational need for English Medium School. There is no material whatsoever in the report to show that there is educational need for opening English Medium School, especially when there is a categorical finding by the District Educational Officer that if a new school is opened at Kalayapuram it will affect the smooth running of the six existing schools, and also a finding that the place is not an educationally backward area. It is also pertinent to note that in the pro forma for opening of a new school in the last column, the District Educational Officer has initially stated 'not recommended'. Later it was scored off and stated 'recommended for English Medium'. 16. It is also pertinent to note that in the pro forma for opening of a new school in the last column, the District Educational Officer has initially stated 'not recommended'. Later it was scored off and stated 'recommended for English Medium'. 16. A contention was raised by counsel for the fifth respondent the question as to whether there is necessity for English Medium School in that area is a matter primarily to be considered by the educational authorities, and this Court cannot substitute its judgment for the judgment of the authorities concerned. It is true that this Court under Art.226 of the Constitution of India would not substitute its judgment for that of the authorities. However, in this case, there is absolutely no material to show any application of mind by the District Educational Officer, who conducted the enquiry. In fact he is of opinion that opening of new school would affect the smooth running of the existing six schools. It is also pertinent to note that R.2(1)(d) also provides that educational need of the locality should be assessed with reference to habitation and backwardness of the area. In the instant case, District Educational Officer has found that the area is not a backward area. He has also found that parallel English Medium divisions in petitioner's school and Government High School, Kulakkada, would be affected. There is no material to show that those schools are not catering to the educational need of the locality. Contention of counsel for the petitioner that order was issued by the Director and Government due to extraneous considerations cannot be sustained. There is no sufficient allegation, or proof, to reach such a conclusion. Under the above mentioned circumstances, I am of the view that Exts. P1 and P5 cannot be sustained. I therefore quash Exts. P1 and P5 and allow the Original Petition. However, it is open to the authorities to conduct fresh enquiry with proper notice to the person like the petitioner and take steps in accordance with law.