B.K. SHARMA, J.— Both the writ petitions involve more or less the same set of facts and cause of action claiming similar relief and thus they were heard analogously and are disposed of by this common judgment and order. 2. In both the writ petitions the basic prayer of the petitioners is that me existing Middle English Schools and Madrassas being represented by the petitioner, have been discriminated in not taking any action towards their provincialisation. In W.P. (C) No. 7325/05, the petitioner has additionally challenged the Annexure-9 communication dated 20.08.04 issued under the signature of Joint Director, Elementary Education, Assam addressed to all the District Elementary Education Officers throughout the State. The communication reads as follows : "GOVT. OF ASSAM OFFICE OF THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM: KAHILIPARA : GUWAHATI-19 No. EPMD. 17/2004/4 Dtd. Kahilipara the 20th Aug./04 To, The District Ele. Edn. Officer (All) Sub : Selection of Education Institution for financial Assistance. Sir, With reference to the subject and Govt. letter quoted above, I am directed to state that Govt. has decided to provide financial assistance to Middle Schools yet to be provincialised with effect from 1st Sept., 2004. The beneficiary institutions should be selected on the basis of need, performance and seniority. Though need and performance should get serious attention, the seniority in establishing the educational institutions should not be ignored. In case of BTAD areas the educational institutions should contain the name of the constituency and the district to which the institutions area situated. You are therefore, requested to furnish the list of Middle school on the basis of above mentioned three criterion as per performance enclosed herewith through special messenger within 25th August/2004 positively to this office. Yours faithfully. Jt. Director Elementary Education, Assam Kahilipara, Guwahati-19" 3. While ruling out the possibility of provincialisation of the schools in near future due to ban imposed by the Govt. of India as an austerity measure, the respondents have taken the steps for providing financial assistance to such institutions. This Court while entertaining the writ petition in W.P. (C) No. 7325/04 by order dated 21.12.04 made the following observations : "Considering the matter in its entirety, this Court is of the view that this Writ petition cannot be effectively disposed of until the Government formulates the requisite guidelines for the purpose of grant of financial assistance to the educational institutions concerned. In the interest of justice, it is provided that the matter be listed on 24th January, 2005 for hearing and in the meanwhile, the State respondents shall formulate the requisite guidelines and policies for grant of financial assistance. It is further directed that the respondents shall not finalise the .list of educational institutions for the purpose of consideration of grant of financial assistance to them without taking leave from this Court." 4. In view of the above order, the State respondents have not finalized the list of educational institutions for granting financial assistance. They have filed Misc. Case No. 2379/05 seeking leave of this Court to finalise the list of Educational institutions for grant of financial assistance. By the said application, they have prayed for modification of the aforesaid order dated 21.12.04. 5. Heard Mr. A.B. Choudhury, learned Sr. counsel assisted by Ms. M. Gogoi, learned counsel for the petitioners. Also heard Mr. M.K. Choudhury, learned Sr. Counsel assisted by Mr. M. Dutta, learned counsel for the respondents, At the very outset of the hearing, Mr. M.K. Choudhury, Sr. learned counsel for the respondents submitted that the application vide Misc. Case No. 2379/05 be treated as counter affidavit on behalf of the State respondents. 6. Mr. A. B. Choudhury, learned counsel for the petitioners stressing the need for uniform policy for granting financial assistance to the institutions, submitted that the action envisaged in the impugned communication dated 20.08.04 would lead to arbitrary exercise of power since the yardstick and parameters have not been laid down as to what would constitute "need and performance" which have been laid down to be the criteria for providing financial assistance to the beneficiary institutions. Referring to the provision of Assam Education Department Rules and Orders; Assam Elementary Education (Provicialisation) Act, 1974 and the Assam Elementary Education (Provincialisation) Rules 1977, he submitted that once the schools are recognized by the Government on fulfilment of the pre-conditions and requisite eligibility criteria, there is no need to lay down further criteria for financial aid bringing further classification within a class. According to Mr. According to Mr. Choudhury, when there are altogether 1688 M.E. Schools awaiting provincialisation and financial assistance, if only 630 schools are allowed to be picked up for financial assistance and that too on the basis of the so-called permissible deviation and exception from the adopted criterion of 'seniority of the school' same will lead to wild discrimination, chaos and confusion. He suggested that the amount of financial assistance should be distributed to all the schools in equal shares. 7. Countering the above arguments, Mr. Choudhury, learned Standing counsel Education Department placing reliance on the guidelines approved by the State Cabinet (Annexure-2) finalized on 09.06.05, submitted that the guidelines formulated by the competent authority are exhaustive and virtually met the grievance of the petitioners. He also questioned the maintainability of the writ petition, in absence of any formal challenge to the policy decision and guidelines adopted by the Cabinet. As regards the suggestion for distribution of the amount of financial assistance in equal shares to all the 1688 schools, he submitted that such a methodology is wholly impracticable and the small shares/amounts which eventually the schools might get will be of no assistance leading to wastage of the same. According to him, it is always advisable to work out the scheme in phased manner for the greater and further interest of the institutions. He also clarified that about 4042 schools in all levels will be benefited by financial assistance and the issue cannot just confine to 630 schools represented by the petitioners. 8. As in the impugned communication in the Annexure-2 guidelines, while emphasizing the need for selecting the educational institutions for such financial grant primarily on the basis of the seniority by way of date of establishment/recognition/ concurrence which ever is applicable, also gives emphasis to make a deviation from such criterion what ever found necessary in case of extreme need of caution by disadvantageous location of the institutions like border area, char area and tea and ex-tea garden areas, areas dominated by the weaker Section of the society like ST/SC/ MOBC and minorities, specific need for girls education in particular areas performance and enrolment of the educational institutions etc. 9. The above criterion for granting financial assistance to the educational institutions were adopted and formulated by a Cabinet Memorandum and circulated. 9. The above criterion for granting financial assistance to the educational institutions were adopted and formulated by a Cabinet Memorandum and circulated. The views of Planning and Development Department, Financial Department and Educational Department were also obtained and thereafter the Cabinet of the State approved the same in its meeting dated 21.06.05. As per the submissions made in the application (Misc. Case No. 2379/05), altogether 4042 institutions shall be covered under the scheme for grant of financial assistance. In paragraph-7 of the application the respondents have made the following statements: "7. That the grant of financial assistance to any institution is a matter of policy decision of the Government and the same had to be taken as provincialisation of institutions were not possible in view of the resource crunch as well as fiscal reforms. While formulating the criterion for grant of financial assistance, the Govt. had to consider various aspects. No doubt seniority of institutions was considered as one of the basic criterions, but for selecting the education institutions for grant of financial assistance the cabinet sub-committee and the Govt. also considered other aspects as need and performance of the institutions, relevant. The Govt. while formulating the policy for grant of financial assistance had to consider the importance of other aspects as need and performance of institutions apart from seniority keeping in view the need to uplift backward areas and weaker sanctions of the society as well as the girl children." 10. The respondents have also stated in their application that for the purpose of examining the application for grant of financial assistance, a State Level committee has been constituted and the financial grant will be made available w.e.f. 01.04.05. In the District level Deputy Commissioners will be monitoring the scheme so that the funds are properly utilized. In paragraph-10 of the application the respondents have stated that in view of the guidelines formulated, financial grants could be provided to the institutions on the basis of the basic criterion of seniority with relaxation of appropriate case on the basis of the need so as to provide necessary impetus to education for backward areas and amongst the weaker Section of the society. 11. 11. From the above, it will be seen that while it is the case of the petitioners that the admissible relaxation as envisaged in the office memorandum (Annexure-2) would lead to discrimination of arbitrary exercise of power to suit a particular purpose, it is the stand of the respondents that while basic criteria of selecting the educational Institutions for financial assistance will be the seniority, but need of pressing necessity of relaxation to such basic criteria would be invoked. According to them such deviation in the realm of relaxation is permissible and within the reasonable classification in the constitutional scheme. The relevant provision of the Cabinet Memorandum which provides for curving out an exception to the general criteria of seniority in selecting the Institutions for financial assistance reads as follows : 'The Sub-Committee deliberated in the criteria for selecting the institutions and decided that for selection of Educational Institutions for financial grant, the seniority by way of date of establishment, date of recognition and date of concurrence whichever is applicable will be taken as the basic criteria. However, the Govt. cannot ignore the extreme need of some of the educational intuitions in view of their disadvantaged locations. Hence it is decided that within the ambit of seniority, considering exceptional need, due to disadvantaged locations like Border areas, areas predominated by weaker Sections of the society like SC, ST, OBC and Minorities where, in the opinion of the Got. there is urgent need to set up educational institutions, relaxation of seniority criteria may also be considered for assistance. Relaxation also may be considered keeping in view the specific need for girls' education in some areas. Performance of the educational institutions and their enrolment shall also be taken into account in the selection of the educational institutions for financial assistance." 12. From the above, it will be seen that while seniority of the institutions on the basis of the date of establishment/recognition/concurrence is the basic criteria for rendering financial assistance, under certain conditions the departure from such criteria is sought to be achieved by the aforesaid Cabinet Memorandum which is also approved by the State Cabinet. Thus, the State policy is involving in seeking the deviation from the basic norms of seniority which cannot be said to be the mandate of the Constitution of India. Thus, the State policy is involving in seeking the deviation from the basic norms of seniority which cannot be said to be the mandate of the Constitution of India. Such relaxation conveyed in the Cabinet Memorandum being the realm of the policy decision of the State, in absence of any allegation of arbitrariness, unreasonableness and violation of any constitutional provisions, some cannot be likely interfered with, more particularly, when the same is in the realm of policy decision of the state. The question of policy, which involved in the matter is also one for the State Govt. keeping the past interest of the institution in view to decide. No final say in regard to such aspects comes under the purview of the Court. Further, the other institutions to be benefited by the scheme are not represented in this proceeding. 13. As regards the argument that once the schools have been recognized on fulfillment of the eligibility criteria, no further classification or exception can be made, same is on the same analogy of impressibility of further classification on 'need and performance' basis. The criteria adopted for recognition of a school cannot be the criteria for granting financial assistance. While the stage of recognition is a prior stage, the stage of providing financial aid is a later stage. Section 12 of the Assam Elementary Education (Provincialisation) Act, 1974 also speaks of laying down the terms and conditions of recognition and grants-in-aid, from time to time. There is no dispute at the bar that grants-in-aids are not provided to all the recognized schools and classifications are made for the same amongst the recognized schools. 14. In the case of A.S. Sangwan Vs. Union of India & Ors. reported in (1980) Supp. SCC 559, the Apex Court observed that the executive power of the Union of India, when it is not trammelled by any statue or any rule, is wide and pursuant to its power it can make executive policy. It was also held that the Union of India having framed a policy relieved itself of the charge of acting capriciously or arbitrarily or in response to any ulterior considerations so long as it pursued a consistent policy. 15. In the instant case, the State Govt. It was also held that the Union of India having framed a policy relieved itself of the charge of acting capriciously or arbitrarily or in response to any ulterior considerations so long as it pursued a consistent policy. 15. In the instant case, the State Govt. has taken a policy decision to render financial assistance to the institutions primarily on the basis of the seniority subject to extending relaxation in case of the above requirements which I am of the considered opinion cannot be said to be arbitrary, unreasonable or violative of equity clause in the Constitution. The relaxation provided in the guidelines falls in the realm of reasonable classification. However, in the name of such relaxation, the State Govt. cannot act arbitrarily motivated by extraneous consideration. The respondents will have to stick to the basic criteria of seniority and in the event of making any exception on need basis, the detail reasons will have to be recorded. In the event of ignoring an institution otherwise senior to an institution which is sought to be extended with the financial assistance, reasons will have be recorded. 16. As regards the performance of the education institution and their enrolment towards extending such relaxation, if the same is not adhered strictly, it may lead to arbitrary exercise of power. It may so happen that an institution in an interior place may have lesser enrolment than an institution located at a place with advantages. Likewise, due to various factors performance of an institution of a recent origin may be better than an institution of the earlier origin. However, in the name of such better performance and better enrolment, if an institution by far senior to such institution is ignored, same will lead to injustice to that institution. While it is true that an old institution which is continuing for the sake of existence without any performance can be ignored the factors antecedent and relevant in such existence and continuity will have to be taken into account inasmuch as for the mismanagement of such institution at the hands of a few, cannot deprive the people of the area from upliftment of the school by providing financial assistance. 17. Subject to the above classification and modification of the Annexure-2 guidelines, same is upheld. 17. Subject to the above classification and modification of the Annexure-2 guidelines, same is upheld. However, the respondents while preparing the list of the institutions to be provided with financial assistance shall do so consistently keeping in mind the observations made above. While seniority of the institutions will be the basic criteria in providing financial assistance, in case of making any deviation extending relaxation as envisaged in the guidelines, detailed reasons shall be recorded for doing so. Similarly, in case of preferring an institution in the name of better performance and enrolment, the observations made above shall be taken into consideration and detailed reasons shall be recorded for superseding the senior institution. It will be advisable to incorporate the above recommendations in the guidelines for appraisal of all. 18. The decisions on which the learned counsel for the parties placed reliance are all on different parameters and yardstick and the limits of the power of judicial review on policy decision about which discussions have already been made above. 19. While parting with the case records, I placed on record that the Govt. of Assam must come out with a clear cut policy decision regarding provincialisation of the schools. The stalemate created on ground of austerity measure cannot go on indefinitely. It is recommended that the State Govt. will seriously think over the matter and spell out a policy decision for early provincialisation of the schools in phased manner. 20. Both the writ petitions are answered in the above manner leaving the parties to bearing their own costs. The respondents shall now proceed with the task by preparing the list of the institutions for providing financial assistance consistently with the observations made above. Interim order dated 21.12.04 passed in W.P. (C) No. 7325/04 stands vacated subject to the above clarification and modification. 21. Writ petitions stand disposed of.