Karnataka High Court
The North Coorg Higher Education ... vs State Of Karnataka And Another on 15 February, 1996
Equivalent citations: AIR1996KANT301, 1996(7)KARLJ75, AIR 1996 KARNATAKA 301
ORDER
1. This petition under Art. 226 of the Constitution of India has been filed with the prayer for issue of writ of mandamus or similar writ, order, or direction to the respondents directing the respondents to accord permanent recognition to the petitioner's Institution as well as to afford financial assistance and grant-in-aid as provided in the Grant-in-aid Code for Primary Schools.
2. The facts of the case in brief are, that according to the petitioner, the petitioner-Institution was started in the year 1981-82, after having obtained the necessary permission. According to petitioner's case, the petitioner's Institution imparted education from 1st Standard to VII Standard in Kannada medium. In para-3 of the petition, it has been stated that in column-13 of the prescribed form, the petitioner had mentioned that petitioner will continue to run the school at its own until the grant is sanctioned by the Government and this statement was made in Column-13 keeping in view the provisions of Rule 22(iv) of the Grant-in-aid Code for primary schools, which provided that no school shall be eligible to grant-in-aid until and unless it has completed 3 years. The petitioner's case is that petitioner was granted, approval for the year 1982-83, imposing a condition that there will be no financial commitment on the part of the Government at any time in future, as per Annexure-B, The petitioner's case is that putting this condition that there will be no financial commitment on the part of the Government at any time in future, was discriminatory and was counter to the provisions of Grant-in-aid Code and such a condition could not be imposed which run counter to the provisions of the Grant-in-aid Code. The petitioner's case is that in the application it has been stated that it would not claim aid from the Government for a period of 3 years and no doubt an undertaking was given to that effect. The petitioner's further case is that the petitioner applied for renewal of the approval every year and the second respondent instead of granting the permanent recognition, granted approval every year. The petitioner's further case is that for the years 1991-92, 1992-93 and 1993-94, the application filed by the petitioner for recognition were kept pending and by order dated 24-8-93, approval was accorded for running of the school for the years 1991-92, 1992-93, and 1993-94 and the condition was imposed that Department will not grant any financial assistance and would not grant any grant-in-aid. The petitioner's contention in the writ petition is that irrespective of the fact that the petitioner-Institution fulfilled all the conditions imposed right from 1982-83 and it was granted recognition every year, though 10 years had passed, the petitioner had not been granted permanent recognition, nor has been granted grant-in-aid, though the period of more than 5 years had passed. The petitioner's case is that petitioner has been entitled to recognition on permanent basis and has also been entitled to make a claim for grant-in-aid, or at least has been eligible for consideration for grant-in-aid being given to him. The petitioner's grievance is that petitioner has been denied permanent recognition and grant-in-aid, without any rhyme or reason and in contravention of the provisions of grant-in-aid Code.
3. On behalf of the opposite parties the counter statement supported by counter-affidavit has been filed. In the counter-affidavit it has been tried to assert that once the petitioner had given an undertaking that it will not claim grant-in-aid and in the column-13 he has mentioned that it will not claim grant-in-aid, recognition was granted, the petitioner has been stopped from claiming the grant-in-aid, and the authority did impose that condition that he will not be entitled to claim grants-in-aid. With respect to renew all of recognition and delay in renewal, it has been asserted that Department was not responsible for the delay and it was asserted that petitioner's institution was liable for delay in granting of permanent recognition.
4. I have heard learned Counsel for the petitioner Sri P. S. Manjunath and the learned Government Counsel Smt. L. Y. Premavathi.
5. Sri Manjunath, learned Counsel for the petitioner submitted that no such declaration has been given that no grant-in-aid shall ever be claimed by the petitioner. Whatever undertaking was given, that it will not be claimed for 3 years as it was as per Rule 22 of the grant-in-aid Code then existing. So for a moment as per Rule 22 that provided for 5 years at the most, he submitted that there was no such undertaking given that petitioner will never claim any grant-in-aid. The authorities were wrong in taking the view and asserting that the petitioner has been estopped from claiming grant-in-aid. Learned Counsel submitted that grant-in-aid is granted by the State authorities to the educational institutions for betterment of education subject to and in accordance with the provisions of Grant-in-aid Code. He submitted that grant-in-aid no doubt is subject to the discretionary power of the State to grant it, but discretion has to be exercised rationally and in a judicious manner, particularly in a Country where democracy and rule of law prevails. No arbitrary action is permissible in view of the provisions of Article 14 of the Constitution. He submitted that as 3 years or 5 years' period has expired, the petitioner no doubt became eligible to make claim for grant-in-aid and for being considered in that regard; by the State authorities. Sri Manjunath submitted that the doctrine of estoppel will not come into aid. My attention had been invited to the provisions contained in the grant-in-aid Code for primary schools by Sri Manjunath and while referring to Rule 18 of the Grant-in-aid Code with reference to the matter of recognition, Sri Manjunath contended that if the conditions for grant of permanent recognition have been fulfilled, it was obligatory on the part of the State to have granted recognition on the permanent basis or if it had refused that recognition on permanent basis, it should have given its reason and communicated to the petitioner. But this has not been done. Every year temporary recognition bad been granted for 1 year, though petitioner in the application for grant of recognition claimed permanent recognition. The permanent recognition was not granted without any rhyme or reason, nor was any reason disclosed for not granting it. There being no refusal, the learned Counsel submitted the matter for grant of permanent recognition may be said to be pending, but delay is being caused and no orders are being passed one way or the other.
6. On behalf of the opposite parties, the learned Government Counsel submitted that the petitioner's Institution was stopped from claiming grant-in-aid, because of its undertaking that it will not claim grant-in-aid. Learned Government Counsel further submitted that there is no doubt that there is no specific order of refusal of permanent recognition, but petitioner had been granted recognition every year for one year and the petitioner did continue his Institution thereunder and he had suffered no loss. The learned Government Counsel submitted that the Government has full discretion in the matter of giving grants and Rule 3 of the Code very specifically provides in respect of the same.
7. I have applied my mind to the contentions made by the learned Counsel for the parties. As regard the recognition, Chapter-Ill of the Grant-in-aid Code, contains the provisions and in particular Rule 13 of the Code indicate the general conditions for recognition.
8. Rule 13 of the Grant-in-aid Code for primary schools reads as under :--
"13. General Conditions of Recognition.-- Educational Institutions may be admitted for purposes of recognition by the Department provided they satisfy the Department with regard to-
(i) Need for private school in the locality;
(ii) Adequacy of accommodation provided;
(iii) Adequacy of equipment and furniture;
(iv) Agreement to follow departmental rules as regard syllabus and text books;
(v) Number of teachers and their qualifications;
(vi) Financial Resources of the Institution;
(vii) Conforming to all the rules set forth in this Code;
(viii) Presenting pupils for the examinations conducted by the Department,"
9. A perusal of Rule 13 of the Code does not show that there is any such condition provided therein that applicant in an application for recognition of Institution shall give undertaking that he shall not claim grant-in-aid in antiquity and if he does not furnish any such undertaking his Institution shall be ineligible for recognition.
10. Rule 18 of the Grant-in-aid Code for Primary Schools, reads as under:--
"18 (i) Recognition, when granted, shall apply only for such courses and such Standards and for such number of sections and for such periods for which it is granted.
(ii) The Department at its discretion grant temporary recognition for a period not exceeding one year even when certain conditions are not fulfilled. Such temporary recognition may be renewed only if they satisfy all the conditions of recognition and aid on efficient lines, otherwise the recognition shall be withdrawn. If an institution which is accorded temporary recognition continues to fulfil the conditions of recognition continuously for a period of five years, it may be recognised on a permanent basis.
(iii) No recognised school shall open a Standard or Standards higher than those for which recognition or permission has been granted. Application for opening a higher Standard or Standards shall be submitted to the concerned District Officer at least 5 months before the beginning of the school year in which the higher Standard is proposed to be opened.
(iv) No new Division (Section) of a Standard already recognised shall be opened unless the school makes adequate provision for additional accommodation staff and equipment and has taken previous permission of the concerned Inspecting Officer.
(v) In no case shall permission be accorded to open a new section unless the number of pupils for whose benefit the new section is intended exceeds 40, which is the normal strength of a class, by at least fifty per cent."
11. Rule 18(ii) of the Code provides that the Department may at its discretion grant temporary recognition for a period not exceeding one year even when certain conditions are not fulfilled. Such temporary recognition may be renewed only if they satisfy all the conditions of recognition and aid on efficient lines, otherwise the recognition shall be withdrawn. If an institution which is accorded temporary recognition continues to fulfil the conditions or recognition continuously for a period of five years, it may be recognised on a permanent basis. A reading of Rule 18, Clause (ii) per se reveals that the Department has been given a discretionary power to grant temporary recognition, but not for a period exceeding 1 year, in cases where it finds that certain conditions are not yet fulfilled that is at the time of the recognition is first prayed or sought, then in those cases recognition may be granted temporarily for one year, but with the expectation that the institution is to comply/ fulfil with the requirements in future, that is within that period of one year. It is further revealed from Rule 18(ii) that the temporary recognition is not to be cancelled in cases where the institution, after expiry of one year from the date of grant of original recognition and aid and the institution satisfied that all the conditions of recognition on efficient lines. If the institution fails to comply and satisfy those conditions even after the expiry of one year then mandate of Rule is that recognition shall be withdrawn. This is clear from the use of expression "otherwise the recognition shall be withdrawn". One thing more follows from the reading of Rule 18(2) of the Code that in case the institution which has been accorded temporary recognition and the recognition had been renewed from time to time and that the institution for a continuous period 5 years is found to have completely fulfilled the conditions of recognition, the recognition on permanent basis may be granted. It is one of the well-settled principles of law that when power is given to do certain things, imposing certain duty and certain conditions are prescribed in regard thereto and thereunder, certain right flows then, power given coupled with the conditions imposed a duty on the authority, as well and that leads me to hold that in cases where an institution which is accorded temporary recognition and that institution continues to fulfil the conditions of recognition continuously for a period of 5 years, it is the duty of the authority not to linger the permanent recognition thereof, but to grant it permanent recognition. This power or function is not discretionary, but then it becomes mandatory, only in cases where this condition is fulfilled in the matter of grant of permanent recognition. Therefore, in my opinion if the petitioner's institution which had been granted recogntion in the year 1982-83 and its recognition has been renewed year after year, if it, for a continuous period of 5 years had been found to have fulfilled the necessary conditions of recognition and aid on efficient lines, then in that case(sic) : would be entitled to grant of recognition on permanent basis. But this is for authorities to consider and to pass suitable orders in that regard, I hope that the authorities will keep this principle in view when considering the application if any is pending or filed for permanent recognition. As regards the grant-in-aid, the institution no doubt is recognised one. In case where the permanent recognition is refused, the authorities have to pass a reasoned order for refusal to grant the recognition and the reasons have to be communicated to the petitioner or to the person who applies for recognition of the institution as per requirements of Rule 20 of the Grant-in-aid Code for primary schools. Such an order of refusal under Rules is appealable to the Director of Public Instructions as per Rule.20, sub-rule (ii) of the Code. That as regards Grant-in-aid is concerned, the position under Rule 22 of the Code is very clear. Rule 22, sub-rule (iii)(a) and sub-rule (iv) of Rule 22 of the Code clearly provide that no school will be eligible for grant-in-aid during first five years of starting. Clause (iv) provides that no school be eligible for grants until and unless it has completed five years. The only exception in this regard is provided in proviso to clause (iv) of Rule 22 of the Code, that in case of institution or schools which have not less than fifty per cent of the total strength of students belonging to Scheduled Castes, Scheduled Tribes or the backward classes or with respect to the institutions in the managing of which at least three-fourths of the members are those who belong to Scheduled Castes or Scheduled Tribes. In respect of those institutions it is provided that Government may even sanction the grant to such a School in the very first year of the starting of that School, otherwise in respect of all other schools the position is that no school shall be eligible for grant until and unless it has completed 5 years. Eligibility means that an institution has qualified for being considered for matter of claim of grant-in-aid. It does not mean that it gets a right claim as entitled at every time that because it has become eligible it should be awarded grant-in-aid. Grant-in-aid may be granted by the Government keeping in view the various circumstances, provisions of grant-in-aid, Code and its exchequer. But the grants could not be refused on the ground that the institution had given undertaking that it will never claim any grant at the lime when it started the institution, Because such an undertaking may be said to be an undertaking against the rules on one hand and on the other hand it may be the result of mental cohesion to the effect that person applying for recognition may be thinking that if he does not give such an undertaking, his institution will never get recognition and therefore such an undertaking cannot be said to be an act of free mind.
12. Thus considered the writ petition is allowed. Let a direction be issued to the respondents to consider the petitioner's case for permanent recognition in the light of Rule 18(ii) of the Grant-in-aid Code for primary schools, as well as to consider the case of the petitioner or consider the petitioner's application for grant-in-aid, whether petitioner satisfies the necessary requirements of rule and whether the petitioner's institution can be granted grant-in-aid. Opposite parties will take decision within a reasonable time and in no case more than 3 months' period from the date of communication of this order.
13. Writ petition is allowed. Costs of the petition are made easy.
14. Learned Government Counsel Smt. Premavathi is permitted to file memo of appearance.
15. Petition allowed.