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The Grant-in-aid system appears to have been first introduced in 1859 and its main object was to promote voluntary effort and reliance on local resources in the field of education apart from such contributions as may be available from the funds of the State. After the States re- organisation took place, in order to bring about uniformity in the matter, the State of Bombay appointed in 1958 an Integration Committee for Secondary Education to examine the different Education Codes and administrative practices in force at the secondary stage in the various regions which were added to the State of Bombay under the states orga- nisation and to make proposals for a unified system of Secondary Education as well as the assistance to be given to non-government Secondary schools.' The Committee submitted its report in 1959. In December, 1960 the Government of Maharashtra appointed a Committee comprised of officials and non-officials to- suggest a unified code for consideration of the Government. A revised Draft Code was submitted by the Committee to the Government in or about August, 1961. The Secondary Schools Code, with which we are now concerned was framed by the Government as a common code for the recognition of and grant-in-aid to nongovernmental secondary schools throughout the State. The said Code came into force with effect from the year 1963-64. Chapter 11 related to recognition and grant-in-aid. Rule 1 dealing with, recognition provided that secondary schools may be recognised by the Department provided they conform to the rules contained in the Code. Rule 2 dealt with the matters relating to the applications for starting and recognition of schools. Under r. 2.1 an application for permission to start a secondary school has to be made in the form given in appendix 1 (1) of the Code to the authorities referred to therein and such; applications have to reach those authorities by the end of October, in the year preceding the year in which the school is proposed to be started. The said clause further provided that no school should be started unless the written previous permission of the Department had been obtained and that the schools started without such permission shall not ordinarily be considered for recognition. Under r. 2.2, the management which is permitted to open a school has to apply for re,cognition of the school in the form given in appendix 1(2) of the Code within one month of the opening of the school.

Rule 86.2 provides as follows "Proprietary schools (i.e. schools not registered under either the Societies' Registration Act XXI of 1860 or the Bombay Public Trust Act, 1950 or any other Act that may be specified by Government and communal schools will not be eligible for any kind of grant from public funds."

At this stage we may mention that the provisions contained in r. 2.1 that an application for starting a Secondary School has to be in the form given in appendix 1 (1) of the Code and that the application should reach the educational authorities within n the further provision under r.86.2 that the schools which are not registered under the Societies Registration Act, will not be eligible for grant, win have a considerable bearing when considering Civil Appeal 'No. 161 of' 1968, On October 6, 1965 the State of Maharashtra issued a press, note, copies of which were sent to all the educational authorities. The Director of Publicity was also directed to give wide publicity to the press note by publishing the same in all the Dailies in the cities and districts. By that press note the attention of all the managements intending,to start new Secondary Schools was drawn to the provisions contained in r. 2 of the Code regarding the applications being. made in the prescribed form to the concerned office and to the applications being made sufficiently early so as to reach the authorities concerned at the latest by the end of October. in the year preceding the year in which the school is proposed to be started. It was further stated in the press note that the applications received for starting new schools will be considered by the District Committee comprising of the Chairman of the Education Committee, Zila Parishad, Parishad Education Officer and a member of the Secondary School Certificate Examination Board, Poona or Vidarbha Board of Secondary Education, Nagpur and that permission to start new schools will be communicated to the applicants concerned by the Deputy Director of' Education of the region by the end of February, 1966. The proposed applicants were also informed that appeals to the Government against the orders of the Deputy Director of Education can be filed upto the end of March;, 1966. This press note emphasised: (a) that the applications be made in the prescribed form and (b) that the applications should be received by the educational authorities at the latest by the end of October. No doubt some of these aspects are already contained in r. 2 of the Code. Another important point to be taken note of in this press note is that though the applications are made to the concerned educational authorities, those applications are scrutinised by the District Committees concerned, and whose members must be familiar with the conditions prevailing in particular localities or areas.

Coming to Art. 14, it is accepted by the High Court that the writ petitioners did not make in their petitions any attack on cls. (1) and (2) of r. 3 based upon the said article. It was only during the course of arguments that Art. 14 appears to have been invoked. The High Court struck down the two sub-clauses on the ground that unless a school is started in accordance with the rules contained in the Code, they will not be recognised by the Secondary School Boards and the students studying in such schools cannot appear for the examinations held by the Board and the University. The approach made by the High Court in our view in this regard is erroneous. The provisions regarding grant of permission and recognition of schools under the Code are mainly intended for the purpose of receiving grant from the Government. We are not concerned in these proceedings regardIng the effect of starting a school without complying with the requirements of the provisions of the Code or in the face of refusal of permission by the educational authorities when such schools so started do not require or receive any grant from the State. That problem does not arise for consideration before us. Hence we do-not think it necessary to refer to the provisions of the Maharashtra Secondary Education Board Regulation, 1966, the effect of which may be that no student having education in a school for the starting of which no permission has been given or such permission has been refused, may not be able to appear for the examinations held by the Boards concerned. So far as the distribution of grant to the schools recognised under the Code is concerned, it is not the case of any of the petitioners that such grants are being made arbitrarily or any discrimination is shown in that regard. But Dr. Barlingay pressed before us the circumstances that though cls. (1) and (2) of r. 3 may appear to be innocuous, there is a potential danger of discrimination when the said clauses are applied without any guidance by the educational authorities. He also contended that there is no right given to the applicant to be heard by the educational authorities before his application is re- fused. On this ground the counsel urged that cls. (1) and (2) of r. 3 violate Art. 14.