JUDGMENT : D. K. Singh, J. Heard Sri. A.L. Navaneeth Krishnan learned counsel appearing for the petitioner, Sri.Premchand R.Nair, learned Senior Government Pleader appearing for respondents 1 to 4, and Sri.E.Adithyan, learned counsel appearing for the 5 th respondent. 2. The 1 st petitioner is an educational agency, and the petitioner is running a school imparting education up to 12 th standard in B.S.S. Gurukulam Higher Secondary School, Alathur, Palakkad (the 2 nd petitioner). The 5 th respondent is running Holy Family Convent U.P School. Initially the school was up to the 7 th standard. However, the Government vide Ext.P3 order dated 15.03.2022, has upgraded the said school up to the 10 th standard. 3. The learned counsel for the petitioners submits that for the opening of a new school in a particular area, their recognition and upgradation, Chapter V, particularly Rule 2 and 2A of the KER,1959, provides a comprehensive procedure. In the present case, without following the said procedure, the upgradation has been granted in violation of Rules 2 and 2A of Chapter V of the KER,1959. 4. Sri.Premchand R.Nair, the learned Senior Government Pleader submits that the decision to upgrade the existing school has been taken as a policy decision. However, he does not deny the fact that the procedure as prescribed under Rule 2 and 2A of Chapter V of KER, 1959, was not followed while granting upgradation to the 5 th respondent school for running the classes up to 10 th standard. 5. The learned counsel appearing for the 5 th respondent also does not dispute the fact that the procedure contemplated under Rules 2 and 2A of Chapter V, of KER,1959, while granting upgradation to the 5 th respondent school up to 10 th standard, was not followed. The Chapter V of the Kerala Educational Rule,1959, prescribes procedures/steps for opening and recognition of schools in the State of Kerala. Rule 2 lays down the procedure for determining the areas where new schools are to be opened and existing schools are to be upgraded. Rule 2, insofar as it is relevant for the present writ petition, is extracted hereunder: “2. Rule 2 lays down the procedure for determining the areas where new schools are to be opened and existing schools are to be upgraded. Rule 2, insofar as it is relevant for the present writ petition, is extracted hereunder: “2. Procedure for determining the areas where new schools are to be opened for existing schools upgraded - (1) [The Director may, from time to time, prepare two lists, one is respect of aided schools and the other in respect of recognized schools, indicating the localities were new schools or any or all grades are to be opened and existing Lower Primary School 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 in 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 objection 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 chalan for Rs. 10/- remitted into the Treasury. Objections filed without the necessary Chalan receipt shall be summarily rejected. Such objection 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 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 report 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 Officers. (4) The Government after scrutinizing 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 motu or on application by any person objecting to the list published by the Director CHAPTER V 27 under sub-rule (4) made before the expiry of thirty days from the date of such publication review their order finalizing 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 finalizing 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 representation against such modifications.] (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. (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.]” 6. Rule 2A of the said Rules provides for inviting applications for opening of new schools and upgradation of the existing schools. Rule 2A which is relevant extracted hereunder: 2A. Applications for opening of new schools and upgrading of existing schools - (1) After the publication of the final list of the areas where [new school of any or all grades] are to be opened or [existing Lower Primary Schools or Upper Primary schools or both] are to be upgraded the Director shall, by a notification in the Gazette [x x x] call for applications for the opening of [New schools of any or all grades] and for raising of the grade of [existing Lower Primary Schools or Upper Primary Schools or both] in the areas specified. (2) Applications for opening of new schools or for raising schools shall be submitted only in response to the notification published by the Director. Applications received otherwise shall not be considered. The applications shall be submitted to the District Educational Officer of the area concerned in form No. 1 with 4 copies of the application and enclosures [within one month from the date of publication of the notification under sub- rule (1).]. (3) On receipt of the applications for permission to open new schools or for upgrading of existing schools, the District Educational Officer shall make such enquiries as he may deem fit as to the correctness of the statements made in the application and other relevant matters regarding such applications and forward the applications with his report thereon to the Director [within one month from the last date for submitting applications under sub-rule (2).] (4) The Director on receipt of the applications with the report of the District Educational Officer shall forward the applications with his report to Government. [within one month from the last date for forwarding the report by the District Educational Officer.] (5) The Government shall consider the applications in the light of the report of the District Educational Officer and the Director and other relevant matters which the Government think necessary to be considered in this connection and shall take a final decision and publish their decision in the Gazette with the list containing necessary particulars. [within one month from the last date for forwarding the report by the Director.] (6) Applications for permission to open a new standard in an existing school during any school year not involving the raising of the grade of the school shall be submitted to the District Educational Officer in charge of the area in form 1 in triplicate. [(7) x x x x] [(8) The Government may, by notification in the Gazette, extend any period specified in sub-rules (3), (4) and (5) for reasons to be stated in the notification.] 7. The Supreme Court in its decision in the case of “ State of Kerala and Others vs. K.Prasad and Another ” [2007(3) KHC 154] has held that Rules 2 and 2A of Chapter V of KER, 1959, laid down a comprehensive procedure for opening a new school in a particular area; their recognition and upgradation. The decision in respect of the new school, their recognition and upgradation has to be strictly in consonance with the aforesaid Rules. 8. Paragraphs 10,11, and 12 of the said judgment extracted hereunder: “10.The two Rules, quoted above, lay down a comprehensive procedure for opening of new schools in particular areas: their recognition and upgradation. It is manifest that a decision in this behalf has to be primarily by the government on an application made for that purpose under R.2A. The Rules also lay down the guidelines which are to be taken into consideration for preparing the list in terms of sub-rule (1) of R.2. On the lists being finalized, after their publication and consideration of objections, if any, the same have to be sent to the government for its approval, with or without modification. Nevertheless the decision by the government whether opening of new school is to be sanctioned or whether an existing school is to be allowed to be upgraded has to be taken on consideration of the matters enumerated in clauses (a) to (e) of R.2(1) of the Rules. Similarly, an application for either opening of new school or for upgradation of an existing aided school can be submitted only after the Director publishes a final list of areas where new schools are to be opened or existing schools are to be upgraded under sub-rule (4) of R.2. Any application received otherwise cannot be considered. Similarly, an application for either opening of new school or for upgradation of an existing aided school can be submitted only after the Director publishes a final list of areas where new schools are to be opened or existing schools are to be upgraded under sub-rule (4) of R.2. Any application received otherwise cannot be considered. In view of such comprehensive procedure laid down in the statute, an application for upgradation has necessarily to be made and considered strictly in a manner in consonance with the Rules. It needs little emphasis that Rules are meant to be and have to be complied with and enforced scrupulously. Waiver or even relaxation of any Rule, unless such power exists under the Rules, is bound to provide scope for discrimination, arbitrariness and favouritism, which is totally opposed to the rule of law and our constitutional values. It goes without saying that even an executive order is required to be made strictly in consonance with the Rules. Therefore, when an executive order is called in question, while exercising the power of judicial review, the Court is required to see whether the government has departed from such Rules and if so, the action, of the government is liable to be struck down. 11. This Court in Shrilekha Vidyarthi (Kumari) v. State of U.P., 1991 KHC 875 : 1991 (1) SCC 212 : 1991 SCC (L and S) 742: AIR 1991 SC 537 held that every State action, in order to survive, must not be susceptible to the vice of arbitrariness, which is the crux of Art.14 and basic to the rule of law, the system which govers us, arbitrariness being the negation of the rule of law. Non arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary in whatever sphere must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all powers must be for public good instead of being an abuse of power. 12. Having examined the instant matter on the touchstone of the aforementioned settled principles, we find it difficult to hold that the decision of the appellant not to sanction upgradation of respondent schools because of paucity of funds was either arbitrary or unreasonable or manifestly erroneous to warrant interference by the Court. 12. Having examined the instant matter on the touchstone of the aforementioned settled principles, we find it difficult to hold that the decision of the appellant not to sanction upgradation of respondent schools because of paucity of funds was either arbitrary or unreasonable or manifestly erroneous to warrant interference by the Court. There is no denying the fact that opening of new schools or upgradation of aided schools does involve considerable financial commitment for the State. Moreover, insofar as the present cases are concerned, indubitably, applications for upgrading the existing schools had not been invited by the Director as stipulated in sub-rule (2) of R.2A and, therefore, the representations made by the respondents for upgrading their schools could not be considered by the government unless it was shown that the Director or the State Government were not finalizing the list in terms of R.2A for some extraneous considerations, which was not the case of the respondents. Thus, in the absence of gazette notification, calling for applications for raising of the grade of an existing school, the question of consideration of respondents applications / representations did not arise. In fact, sub-rule (2) of R.2A puts a complete embargo on consideration of an application which is submitted otherwise than in response to notification under sub-rule (1) of R.2A. We are constrained to observe that the Division Bench of the High Court has failed to keep all these aspects in mind while issuing the impugned directions.” 9. When the facts are not in dispute that the procedure has prescribed in Rules 2 and 2A in Chapter V of the KER,1959, was not followed and adhered to while granting upgradation to the 5 th respondent school for running class up to 10 th standard, the said decision cannot be said to be in accordance with the Rules. Therefore, the present writ petition is allowed, and the matter is remanded back to the Government to take a fresh decision in accordance with the procedure prescribed in Rules 2 and 2A of Chapter V of KER, 1959. 10. As the 5 th respondent school has admitted the students, and as of today, there are 150 students were in classes from 8 th to 10 th , their studies would not be disturbed till the Government takes a fresh decision as directed above. 10. As the 5 th respondent school has admitted the students, and as of today, there are 150 students were in classes from 8 th to 10 th , their studies would not be disturbed till the Government takes a fresh decision as directed above. The Government must take a fresh decision in accordance with the law, within a period of two months. With the aforesaid observation and direction, the present writ petition stands allowed.