1. These petitions raise questions of considerable general importance besides bringing into sharp focus the neglect and apathy which plague Private and Government Educational Institutions in the State of Karnataka. The core issue raised and argued at considerable length relates to the validity of the State's decision not to grant any aid to institutions established after the year 1987. That decision has from the year 1998 taken the form of a statutory rule framed under the Education Act of 1983. The rule is sought to be justified on the ground that the State's economic capacity is limited and that it can spare no more than what is annually set apart for distribution among private institutions. For the immediate past year the State had set apart no less than six hundred and sixty six crores towards Grant-in-Aid to Private Educational Institutions. That amount is by no means small even for a State of the size of Karnataka, with thousands of Pre-Primary, Upper Primary and Secondary Schools. What has rendered the amount insufficient is a total lack of an effective mechanism to ensure that aid flows only to those who deserve it. Reports that have been drawn up belatedly on the basis of inspections conducted during the pendency of these proceedings show that at least half of those who have over the years benefited from Governmentaid do not strictly speaking qualify for the same. Aid to such institutions is and would always remain a criminal waste of resources which the State claims and may indeed be limited. It is if I may say so largely because of tbe State's failure to stop the abuse of the largesse that institutions which may otherwise be deserving, today stand excluded from that benefit. And it is this failure that has put a question mark on the continuance of the State policy to recognise the contribution and aid the effort which Private institutions have made and may in future make in the nation building process.
2. State support to Private Educational Institutions in Karnataka has been for the past over three decades regulated by executive instructions issued from time to time. The instructions described as Grant-in-Aid Codes for Primary Schools, Secondary Schools and Collegiate Education, exist even for other Institutions like Primary and Secondary Teachers Training Institutes and Colleges. The instructions make it clear that aid cannot be claimed as a matter of right and reserve in favour of the State Government the power to withdraw or reduce the grant at its discretion or to alter, modify or review the relevant rules at any time.
3. The legal enforceability of the instructions has been the subject-matter of judicial pronouncements both at the Apex and High Court level. In State of Assam and Another v Ajit Kumar Sarma and Others, and Kumari Regina v St. Aloysius Higher Elementary School and Another, the Supreme Court declared that the executive instructions issued to regulate the Grant-in-Aid to Private Institutions were not enforceable in law, no matter the instructions were described as rules. Following the said decision a Division Bench of this Court in the case of G.R. Ramaswamy Iyengar v Director of Public Instruction, Mysore and Another, held the instructions contained in the State Codes to be unenforceable, as the same were non-statutory in nature. Shortly thereafter came State of Maharashtra and Others v Lok Shikshan Sanstha and Others, where their Lordships were examining the legal effect of the provisions contained in the Grant-in-Aid Code prevalent in the State of Maharashtra. The Court declared that executive instructions compiled as a Code did not have any constitutional force.
4. Karnataka Education Act, 1983 (in short, 'the Education Act'), came into force only on 1-6-1995 more than a decade after it was enacted. It aims at providing planned development of educational institutions, inculcation of healthy educational practices, maintenance and improvement in the standards of educational and better organisation, discipline and control of such institutions. Chapter IX of Education Act deals with Grant-in-Aid and empowers the State Government to set apart within the limits of its economic capacity a sum of money for beinggiven as Grant-in-Aid to prevail and local authority institutions recognised for that purpose in accordance with the rules made in that behalf. No rules were till recently framed in terms of Section 49 of the Act. The result was that by reason of Section 146(3) the Grant-in-Aid Codes earlier in force continued to remain effective as if the same had been made under the corresponding provisions of the Act. The Codes may have in the process acquired a statutory flavour but they continued to fall short of creating an enforceable right in favour of the institutions, to claim aid. That is because the amount to be set apart by the State remains dependant upon its economic capacity which in turn depends upon the subjective satisfaction of the Government.
5. By an order dated 8-2-1996 the Government declared that institutions tions established after 1-6-1987 shall remain grant less. This order was challenged in W.P. No. 15436 of 1997, inter alia, on the ground that the Government could not by an executive order nullify the provisions contained in Grant-in-Aid Code which were by reason of Section 146(3) of the Education Act, statutory in nature. It was during the pendency of the said writ petition that the State hurriedly framed under Section 49 of the Act, what are called Karnataka Educational Institutions (Granting Aid for Primary, Secondary and Pre-University Educational Institutions) Rules, 1998 (in short, 'the 1998 Rules'). They were amended barely two months later by a notification dated 7-11-1998. What is significant about the Rules is that they were framed to achieve a one point objective viz., to render all institutions established after 1-6-1987 permanently grant less. They do not prescribe the procedure for recognising institutions for grant of aid nor the norms to be followed in that regard even when Section 49 of the Act empowers the State to do so. Comprehensive rules providing for all these aspects are according to the respondents being framed and should be published shortly for inviting objections from the public.
6. Rule 3 of above Rules, starts with a non obstante clause and reads thus after its amendment.-
'Ineligibility of certain Private Education Institutions to get Grant-in-Aid.--Notwithstanding anything contained in Order No. ED 26 SEP 96, dated 8-2-1996 which is continued to be in force in accordance with Section 146, all private educational institutions (including all private educational institutions run by Scheduled Caste and Scheduled Tribe) established or such of those institutions permitted to be established prior to the First day of June, 1987, but started functioning from the academic year 1987-88 and onwards for imparting primary education, secondary education or Pre-University education shall be permanently ineligible for Grant-in-Aid'.
The petitioners have in these petitions, assailed the constitutional validity of the above on a variety of grounds. Some of the petitioners established before the cut-off date are aggrieved of the provisions of Rule 16(xiii) of the Grant-in-Aid Code for the Secondary Schools, insofar as the same envisages grant of aid from the date the competent authoritymakes an order and not the date from which the institution becomes eligible for the same.
7. Submissions made by learned Counsel for the parties have broadly speaking revolved round the following questions that fall for determination.
(1) Do Private Educational Institutions have a fundamental or any other legally enforceable right to claim Grant-in-Aid from the State.
(2) If the answer to Question No. 1 above be in the negative, can such institutions rely upon or enforce the fundamental right to receive free education guaranteed to children below the age of 14 years, in support of their claim for Grant-in-Aid.
(3) Is Rule 3 of the 1998 Rules, ultra vires of the Article 14 of the Constitution, inasmuch as, it classifies Private Educational Institutions by reference to the date on which the same were established?
(4) Is Rule 3 of the 1998 Rules, ultra vires of Karnataka Education Act, 1983. In particular does the rule deprive them of aid for good and regardless of the improvement in the economic capacity of the State.
(5) Are the impugned Rules unenforceable by reason of violation of Section 145(3) and (4) of the Education Act?
(6) What is the effect of violation of Rule 3 of the Rules, insofar as the SC and ST institutions established after the cut-off date are concerned. In particular can other similarly situate institutions demand a similar treatment by a mandamus from this Court?
(7) Is Rule 16(xiii) of the Grant-in-Aid Code for Secondary Schools a legally valid provision?
(8) Are the petitioners entitled to complain about the grant and/or continuance of aid to institutions that do not qualify for the same? If so has there been any failure on the part of State in applying the provisions of the Education Act or the Grant in Codes.
Reg. Question No. 1:
8. The petitioners have not either in the writ petitions or at the hearing claimed any fundamental right to receive financial aid from the State. The nearest they could take their claim was to the provisions of Articles 45 and 46 of the Constitution which declare free and compulsory education for all children below the age of 14 years and promotion of education and economic interests of weaker sections of the people in particular of SC STs as constitutional goals. It was contended that since free and compulsory education was one of the directive principles of State Policy, any agency which assisted the State in its endeavour could claim financial assistance in the form of Grant-in-Aid, as a matter of right.
9. Article 37 of the Constitution declares that although the directive principles of State Policy enshrined in Part IV, are fundamental in the governance of the country, yet, the provisions contained in that part shall not be enforceable by any Court. The distinction between a fundamentalright guaranteed by Part III and the directive principles contained in Part IV basically lies in the former being justiciable while the latter are only constitutional objective which the State must endeavour to achieve. All that need be said regarding directive principles is that they are an important and integral part of the Constitution meant to be effective subsidiaries to the fundamental rights guaranteed in Part III thereof. While they may not be enforceable through the process of the Court, they cannot be ignored when it comes to making of laws by the Legislature or interpretation of the fundamental rights guaranteed to the citizens. It may even be reasonable to say that the expression 'making of laws' appearing in Article 37 is not limited only to legislations by the Parliament and State Legislatures, but includes interpretation of the laws by the Courts who too must while interpreting the laws do so in the light of the directive principles. The Supreme Court in Uttar Pradesh State Electricity Board and Another v Hari Shanker Jain and Others , held that while Courts are not free to direct making of legislations they are bound to evolve, affirm and adopt principles of interpretation which will further and not hinder the goals set out in the directive principles of the State Policy. The Court observed.-
'The mandate of Article 37 of the Constitution is that while the Directive Principles of State Policy shall not be enforceable by any Court, the principles are 'nevertheless fundamental in the governances of the country', and 'it shall be the duty of the State to apply these principles in making laws'. Addressed to Courts, what the injunction means is that while Courts are not free to direct the making of legislation, Courts are bound to evolve, affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive Principles of State Policy. This command of the Constitution must be ever present in the minds of Judges when interpreting statutes which concern themselves directly or indirectly with matters set out in the Directive Principles of State Policy'.
Even so, it is difficult to see how the provisions of Articles 45 and 46 can by themselves and independent of any other provision in Part III be interpreted to create a vested enforceable right in the petitioner-Institutions to claim financial aid from the State. Interpreting the right to life guaranteed under Article 21 in the light of the Articles 45 and 46 of the Constitution so as to read the right to 'free education upto 14 years of age' as a part of right to life is different from exalting the constitutional objective of free education to the status of a fundamental right enforceable by the Institutions assisting the State in that endeavour. The fact that the petitioner-Institutions offer education even to those who enjoy a fundamental right to free education upto 14 years of age, is not by itself sufficient for them to claim a fundamental or even a constitutional right to demand financial assistance from the State. The grant or refusal of such assistance is a matter that falls in the realm of State Policy. Should any amount be set apart for distribution as aid to Private Institutionsand if so, how much and for how long are matters of policy that would depend upon a variety of factors such as the economic capacity of the State to grant, such assistance and the infrastructure which the State has provided for free and compulsory Education at Primary, Secondary and College levels. Courts need not enter into the thicket of executive policy and reframe such policies especially at the instance of a person who cannot establish the violation of any fundamental or even a statutory right.
10. In State of Orissa and Another v Aswini Kumar Dash and Others, the Supreme Court was dealing with a situation where teachers in aided non-Government Colleges and educational institutions were claiming revised scales of pay recommended by the U.G.C. The Government decision envisaged grant of higher pay scales only to such institutions as had received Government concurrence and University affiliation by 1-4-1989 and not thereafter. The decision was successfully challenged by the teachers in the High Court. In an appeal the Supreme Court set aside the order passed by the High Court and held that no educational institutions can claim Grant-in-Aid as a matter of right and contrary to the State Policy. The Court observed:--
'The only other contention relates to the arbitrariness of the cutoff date of 1-4-1989. In this connection, the appellants have pointed out that the resolutions deal with the quantum of Granting Aid which the State will provide, inter alia, to aided non-government colleges; and the basis on which such Grant-in-Aid will be provided. For this purpose the State will provide for revised scales of pay as per the University Grants Commission's recommendation. The State Government has framed a Scheme for such Grants-in-Aid looking to its own financial resources and the number of educational institutions to which it will be required to give suck grant. No educational institutions can claim Grant-in-Aid as a matter of right. This is a matter of policy which the State Government will decide looking to its financial capacity and other relevant circumstances'.
11. In the light of the above, Question No. 1, shall have to be answered in the negative. I may however hasten to add that while an institution may have no fundamental right to claim aid from the Government, its right to question discriminatory treatment in offensive to Article 14 cannot be disputed. If two Institutions similarly situate are treated differently without there being any rational differentia between the two, the aggrieved can claim a similar treatment on the strength of the equality clause contained in Article 14. To the same effect is the decision of this Court in Karnataka Liberal Education Society, Belgaum v State of Karnataka and Others, where I had held as under.-
'There is thus no unqualified or vested right with an Educational Institution to claim the Grant-in-Aid. Suffice it say that the aid from the Government may be claimed only on the terms embodied in the Code and refusal of the same even upon fulfilment of the terms of the Code to some while extending the said benefit to others situate similar may alone give a cause of action to the aggrieved to complain and seek redress under the protection of the equality clause enshrined in Article 14 of the Constitution. Subject to the compulsions of equality as guaranteed by Article 14, the grant or refusal of aid to a Private Educational Institution, is in the realm of the executive policy and hence beyond the purview of judicial review'.
Subject to the above, question No. 1, is answered in the negative.
Reg. Question No. 2:
12. In Miss Mohini Jain v State of Karnataka and Others, the Supreme Court declared the right of education to be flowing directly from the right to life guaranteed by Article 21 of the Constitution. That view was partially modified by their Lordships in Unni Krishnan, J.P. and Others v State of Andhra Pradesh and Others, where the Court declared that the right to life and personal liberty under Article 21 must be construed in the light of the directive principles contained in Part IV of the Constitution. So interpreted, Articles 41, 45 and 46 declared the Court, were meant to achieve the constitutional goal of making education universal where the people understand what is good for them and the Nation. Right to free education as an essential component of right to life was therefore recognised subject only to the condition that it was available to children below 14 years of age. For those beyond that age the obligation of the State to provide education was held to be subject to the limits of its economic capacity. A reference presently pending before an Eleven Judge Bench of the Supreme Court, has not doubted the correctness of the ratio in Unnikrishnan's case, supra, to the extent the same holds the right of free education of those below 14 years of age to be a fundamental right. To that extent there can be and was rightly no dispute between the parties.
13. The question however, is whether the right guaranteed to those below 14 years of age can be enforced by the petitioners through the medium of these writ petitions. The right sought to be enforced does not admittedly vest in the petitioners as institutions. It vests in those who are, according to them, entitled to claim such a right, but have not come forward to do so. The locus standi of the petitioners to maintain these petitions for the enforcement of a right not vested in them has thus come under challenge. Apart from the fact that the petitioners cannot, according to respondents, maintain these writ petitions, there is no violation of the right vested in the children to call for intervention by this Court. The State, according to the submissions made at the Bar hasdone creditable work in the field of providing universal education as envisaged by Article 45 of the Constitution. There is, according to the State no failure on its part in the discharge of that obligation to warrant interference. Reliance in support is placed upon the orders passed by the Supreme Court and that passed by the Division Bench of this Court in two Public Interest Petitions, in which the petitioners had alleged failure of the State machinery in providing free education to children below 14 years of age. Reliance is also placed upon certain Survey reports and the performance Budget for the year 1999-2000 of the (Education Department) Government of Karnataka, to show that the State had ensured that there was a school within 1 km in every village with a population of 200 and/or children population of 20 in the age group of 6 to 10 and an Upper Primary-School within a distance of 3 kms from every such village. I shall presently deal with that aspect but before I do so it is necessary to deal with question of maintainability of the writ petitions in the context of the locus standi of the petitioners.
14. Existence of a subsisting legal right in the petitioner is, the very foundation of the exercise of jurisdiction by the High Court under Article 226 of the Constitution. Such rights must subject to three exceptions be vested in the petitioner himself. Those exceptions are: (i) petitions in the nature of habeas corpus, (ii) quo warranto and (iii) petitions filed for the enforcement of a right of a class of persons who cannot by reason of their poverty, disability, social or economic disadvantages, themselves seek redressal by filing a petition. Such petitions which are not in the nature of adversarial litigations are maintainable to ensure that the poor and downtrodden get their due and are relieved from deception or exploitation at the hands of the powerful sections of the society.
15. Subject to the above, the person making a grievance before the Court can establish his locus standi to file and maintain the petition only if the right he seeks to enforce is vested in him. This legal position appears to be much too settled to require the support of any precedent beyond the decision of the Supreme Court in the case of Calcutta Gas Company (Proprietary) Limited v State of West Bengal, where the Court has declared the law thus.-
'Article 226 in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. The existence of the right is the foundation of the exercise of jurisdiction of the High Court under Article 226. The legal right that can be enforced under Article 226, like Article 32, must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs likehabeas corpus or quo warranto this rule may have to be relaxed or modified'.
16. The present writ petitions have not been filed in 'Public Interest'. Even if they were it is doubtful whether tbe petitioners could have maintained such petitions having regard to the fact that the interest of the petitioners in the relief sought by them is so closely entwined with the enforcement of the right of the students that any petition filed for enforcement of that right by the institutions would be viewed with suspicion. Any such petitions could well be seen as an attempt to secure relief for the petitioners themselves rather than the students-in whose name and for whose purported benefit the same may ostensibly have been filed. My answer to question No. 2 is therefore in the negative.
17. Let me now examine no matter briefly the claim made by the State that it has fully discharged its constitutional obligation of providing free education to those below 14 years of age. It was feebly argued by Counsel for the petitioners that the existence of Private Institutions and admission of children below 14 years to the same was enough to establish that the State had failed to fully discharge its obligation. I do not think so. The fact that Private Institutions exist to which children below 14 years are admitted is not in itself enough to declare that the State has failed in the discharge of its obligation. Such institutions also have a role to play in the words of Supreme Court in Unni Krishnan's case, supra, where there Lordships have observed thus.-
'This does not however mean that this obligation can be performed only through the State schools. It can also be done by permitting, recognising and aiding voluntary non-governmental organisations, who are prepared to impart free education to children. This does not also mean that unaided private schools cannot continue. They can, indeed, they too have a role to play. They meet the demand of that segment of population who may not wish to have their children educated in State-run schools. They have necessarily to charge fees from the students'.
The above is sufficient to answer the argument that the Court need not go any further to declare a State failure in the discharge of the obligations under Articles 45 and 46 read with Article 21 of the Constitution.
18. In Satyapal Anand v Union of India, relied upon by the respondents the Court was called upon to examine whether the States and Union Territories had taken adequate steps towards implementation of the order made by their Lordships in Unni Krishnan's case, supra, insofar as the same related to the right of children below 14 years of age to receive education at State expense. The States, including the State of Karnataka appear to have filed status reports on a consideration whereof the Court disposed of the writ petition with the following observations.-
'What has been achieved uptil now, is commendable. What remains to be done is individual resting with each State or Union Territory. We therefore would not like to monitor any further the progress of these proceedings and rather close them leaving open to any public spirited person to move the concerned High Court if there be any need on the part of the State towards implementation of the dictate of Vnni Krishnan's case, supra. Writ petition is disposed of accordingly'.
19. A similar writ petition, in the meantime, was filed in this Court alleging failure of the State in providing free and compulsory education to children in Bangalore District. By an order dated 1-3-1999, the said petition was also disposed of taking note of the steps that had been taken and were being taken by the Government in the matter of providing free primary education to those below the age of 14 years.
20. According to the affidavit filed by Secretary to Government, Education Department, 96.58% population in the State have been provided with a primary school within a radius of 1 km from every revenue village having a population of 300. The Affidavit states that 100% population in the State has a school within a radius of 2 kms. It was argued on the basis of the above and the published material placed on record that the constitutional objective of providing free universal education had been fully achieved by providing adequate number of primary, upper primary and secondary institutions within a reasonable distance from every habitation to enable those entitled to avail of the facility of free education to do so.
21. A reading of the 6th All India Education Survey Report, published by the Government of Karnataka, in July 1998, shows that there has been considerable growth in the number of institutions offering education at Primary, Upper Primary and Secondary levels. As against 16,508 Primary, 3,773 Upper Primary and 150 Secondary Schools in the year 1957, there were, according to the said report, 21,956 Primary, 18,283 Upper Primary and 4,980 Secondary Institutions in the State in the year 1993. As per another State Government publication, under the title 'Education for All', as against 32,217 Elementary Schools in 1988-69, with a sanctioned teachers strength of 91,244 there were in the year 1998 as many as 47,954 such schools with a teaching staff strength of 2,03,353. The report also refers to the number of posts created, class rooms provided and basic teaching equipment furnished to the Primary Schools, under the Centrally sponsored operation 'Black Board'. In terms of expenditure as against 6.29 crore in 1959-60, the expenditure in the year 1993-94 was to the tune of Rs. 651 crores. Much has therefore been done, but what remains to be done is no less. The Performance Budget of the Education Department for the year 1999-2000, itself recognises the fact that the Government have not been able to fulfil the needs and requirements of the Department. The introduction carries the following acknowledgement of that failure.-
'In spite of the Government's best efforts, we recognise that it has not been possible to fulfil all the needs'.
22. That appears to be the position even according to the 6th All India Education Survey Report, referred to earlier. A closer scrutiny of the said report brings to light certain startling facts, which belie the claim made by the State and must therefore be enumerated. These are.-
(i) 2,449 habitations with a population of 3,22,793 do not even today have a Primary School within 2 kms;
(ii) 244 Primary Schools out of which 199 are in rural areas do not have any room for instructional purpose; whereas 6,144 Primary Schools have only one such room. A majority of these institutions are located in rural areas;
(iii) 248 Primary Schools are being run in thatched huts, 2,047 in Katcha Mud huts and 37 in tents. Out of these 77.19% are in rural areas;
(iv) 458 Primary Schools in the State out of which 418 are in rural areas are without a teacher, whereas 6,074 schools are manned by only one teacher;
(v) Only 22.23% Schools in rural areas, have drinking water facilities, whereas urinals for girls and boys is available only in 2.54% of such schools;
(vi) There is a shortage of 36,564 black boards in Primary Schools, out of which 35,762 are required in rural areas;
(vii) In the case of mats furniture for students 11,137 Primary Schools in rural areas have inadequate furniture/mats;
(viii) In Upper Primary Institutions, 16,155 black boards are reported short in rural areas as against 647 in Urban Areas;
(ix) 10,569 Upper Primary Institutions have inadequate furniture/mats all of which are located in rural areas besides 3,124 in the Urban Areas;
(x) The position with Secondary Schools is no better. Although there is no shortage of black boards reported in such institutions, 813 Secondary Institutions in rural areas and 373 in urban areas are reported to have inadequate furniture/mats for the use of students. The Higher Secondary Institutions also are not free from these deficiencies.
23. It would therefore appear that the obligation of the State to provide free education which implies an obligation to provide adequate facilities for such education has not been fully discharged. There are even after 50 years of independence, hundreds of schools which do not have proper accommodation. Similarly, there are hundreds of them that have no teachers, black boards, furniture, mats, etc. Toilet facilities for children is something rare. If that be the scenario, it is difficult to see how the State can claim to have done all that needs to be done for those who have a fundamental right to free education. The situation continues to be somewhat similar to what had shocked Justice Chinnappa Reddy,who headed the 3rd Backward Classes Commission. He had observed thus.-
'To my shock, I discovered that in the State of Karnataka there are 13,024 single teacher schools as against the total of 20,830 Primary, Secondary and High Schools, in the entire State. The State of Karnataka leads all other States and has the highest percentage of such schools. The number of pupils attending these 13,024 single-teacher primary schools in Karnataka is 8,34,885. The naked fact therefore is that 8,34,885 pupils now in the primary schools of the Karnataka State are receiving next to no education since it is humanly impossible for a single teacher to manage four different classes, teaching different subjects simultaneously. What makes it even-worse is that a large number of these schools are also single-roomed. Out of the total of 23,023 primary schools in the State of Karnataka, 16,383 are single-roomed while 3,796 are two-roomed. One can imagine the raucous cacophony on one side and the bewildered helplessness of the teacher on the other. Out of the 23,023 primary schools, only 5,380 have adequate playgrounds. Out of 14,969 upper primary schools in the Karnataka State only 4,956 have adequate playgrounds. Out of 3,572 secondary schools, only 1,677 have adequate playgrounds. Out of the 3,572 secondary schools, 1,199 have no Laboratory facilities at all. There are also some primary schools without black boards even. All these figures are official figures taken from the educational statistics published by the National Council for Education Research and Training. In this sorry state of affairs, how is it possible to expect children of the Socially and Educational Backward Classes who perforce attend Government schools and no other to perform well or to show any interest at all in education'.
24. There is no room for complacence. The obligation to provide educational facilities is continuing in nature requiring sustained effort to keep pace with the ever growing number of students qualifying for free education. It also calls for a never ending process of upgrading the facilities provided in Schools already set up. All this would doubtless call for considerably higher budgetary outlays to meet the challenge, which was in terms of Article 46 of the Constitution to be achieved within a period of 10 years from commencement of Constitution. But if constitutional objectives are not meant to be ornamental or hollow declarations. If they represent our profound commitment to making universal education a reality the State must rise to meet the challenge and redeem the pledge which the founding fathers had taken. We can hardly ignore the fact that almost all the institutions deprived of the basic facilities and infrastructure are located in rural areas. Those exposed to economic and social backwardness denials and deprivations are thus subjected to the scourge of educational backwardness also, not so much out of lack of resources as official apathy towards the problem. Appropriate directions therefore need to be issued to ensure that the denial of an opportunity which has been held to be a part of right to life does not continue in perpetuity. I would not have been averse to recognising a Private EducationalInstitution established in an area where there is no Government Institution as a State Institution and issued appropriate directions only if the petitioners had made out a case on those lines. None of the petitioners has however proved that the Institution established by it, is the only Institution in the absence of a Government School which has kept alive the flickering hope of the children for free education so as to make it imperative for the State to assist that endeavour till at least such time it establishes its own institutions in the discharge of its constitutional obligation. I have no hesitation in saying that should a case be made out for intervention of the Court on that basis; this Court' would be too happy to perform its constitutional duty of protecting the rights of those who may be suffering deprivations because of the neglect of the State or its functionaries, even if it were to do so suo motu. Question No. 2 is answered accordingly.
Reg. Question No. 3:
25. Equality before the Law and equal protection of the laws guaranteed under Article 14 of the Constitution simply means absence of any arbitrary discrimination by the laws or their administration. The provision does not forbid classification if it is reasonable and rests on differences pertinent to the subject qua which the same is made. Decisions of the Supreme Court, from State of West Bengal v Anwar, down to the more recent pronouncements have consistently declared that in order to pass the test of a valid classification two conditions must be satisfied namely.-
(i) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others kept out; and
(ii) that the differentia must have a rational nexus with the object sought to be achieved by legislation.
The decisions also recognise that the rule of equality does not mean mathematical equality and that practical inequalities are not beyond the comprehension of the protection guaranteed by Article 14.
26. The challenge to the provisions of Rule 3 in these cases proceeds on the ground that there is no real distinction between Institutions established before the cut-off date stipulated by the Rule and others established later. The argument in substance was that the fixation of a cut-off date was itself arbitrary and irrational in the matter of grant or denial of the benefit like financial aid from the State Government. That argument does not have the novelty which a point raised for the first time usually has. It is indeed not for the first time that the persons aggrieved of the fixation of a cut-off date have questioned its rationale on the touch-stone of Article 14 of the Constitution. In Union of India v P.N. Menon and Others, a similar argument was advanced by those who fell on the wrong side of a cut-off date fixed by the Government forpurposes of grant of retirement benefits to them. The Court held that whenever Government framed a Scheme for persons who have superannuated from service, it is not always possible to extend its benefit to one and all irrespective of the dates of their superannuation. Any such scheme if implemented with a cut-off date which can be held to be reasonable and rational need not be declared invalid. A cut-off date in fact becomes imperative because the benefit under the revised scheme has to be allowed within the financial resources available with the Government. The Court observed:
'Whenever the Government or an authority, which can be held to be a State within the meaning of Article 12 of the Constitution, frames a scheme for persons who have superannuated from service, due to many constraints, it is not always one and all, irrespective of the dates of superannuation. As such any revised scheme in respect of post-retirement benefits, if implemented with a cut-off date, which can be held to be reasonable and rational in the light of Article 14 of the Constitution, need not be held to be invalid. It shall not amount to 'picking out a date from the hat', as was said by this Court in the case of D.R. Nim v Union of India, in connection with fixation of seniority. Whenever a revision takes place, a cut-off date becomes imperative because the benefit has to be allowed within the financial resources available with the Government'.
27. In Union of India v M.V. Valliappan, the validity of a cut-off date fixed for recognition of partial partition under the Income-tax Act, was questioned on the ground of arbitrariness. It was contended that the amendment which came into effect from 1st of April, 1980, brought about two distinct classes of assessees namely.--(1) Where the partial partition had taken place prior to the cut-off date and the other where such partition takes place after the said date. Withdrawal of benefit in the latter class of partitions, merely because of the prescription of a date would be offensive to Article 14 of the Constitution. Repelling the contention the Court observed.-
'It is settled law that differentiation is not always discriminatory, If there is a rational nexus on the basis of which differentiation has been made with the object sought to be achieved by particular provision, then such differentiation is not discriminatory and does not violate the principles of Article 14 of the Constitution. This principle is too well-settled now to be reiterated by reference to cases. Further, whether the same result or better result could have been achieved and better basis of differentiation could have been evolved is within the domain of Legislature and must be left to its wisdom'.
xxx xxx xxx.'Secondly, cut-off date of 31st December, 1978 cannot be said to be arbitrary. The Amending Bill was introduced in June 1980 and is given effect to from the assessment year 1980-81. It is settled law that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances; while fixing a line, a point is necessary and there is no mathematical or logical way of fixing it; precisely, the decision of the Legislature or its delegate must be accepted unless it is very wide off the reasonable mark'.
28. In University Grants Commission v Sadhana Chaudhary and Others, the validity of a cut-off date prescribed for purposes of exemption from appearance in a test as a condition of eligibility for appointment as a lecturer was called in question on the ground that the same was arbitrary. Repelling the contention their Lordships held thus.-
'It is settled law that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When fixing a line or a point is necessary and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless it is very wide off the reasonable mark. In the present case, the date, 31-12-1993, as fixed by notification dated 21-6-1995, in the matter of grant of exemption from the eligibility test for appointment on the post of lecturers has a reasonable basis keeping in view the time taken in submitting the Ph.D. thesis or obtaining M.Phil. degree by candidates who had undertaken the study for Ph.D. or M. Phil. degree prior to the issuance of the 1991 Regulations and cannot be held to be capricious or whimsical or wide off the reasonable mark. The High Court has proceeded on the basis that the cut-off date for the purpose of granting exemption from eligibility test should have nexus with the date of the advertisement inviting applications for appointment on the post of lecturers. The High Court was in error in taking this view'.
29. The classification made in the instant case when examined in the light of the principles laid down in the decisions referred to above, brings into focus the following important features.-
(i) The classification made under the impugned Rules has become necessary on account of financial implications which the absence of any such classification may involve for the State. In situations where financial constraints necessitate a classification the usual method adopted is to prescribe a cut-off date. Since the grant of aid to private educational Institutions depends entirely upon the economic capacity of the State, the classification based on a cut-off date prescribed for the purpose cannot be said to beper se offensive to Article 14 of the Constitution. A cut-off date whether prescribed by the legislature or its delegate being incapable of a mathematical or logical fixation, the date prescribed by the rule making authority, can be interfered with only if it is shown to be totally off the mark. This the petitioners have failed to establish in these cases.
(ii) The cut-off date prescribed is relatable to the introduction of economy measures by the State in or around the year 1987. The decision to prescribe a grant less period initially for five years, later extended to seven years was followed by the impugned Rules, whereby Institutions established after the cut-off date were made grant less. The background in which the date was fixed cannot therefore be dubbed as arbitrary or whimsical to warrant interference;
(iii) Removal of the embargo placed upon Institutions falling on the wrong side of the cut-off date would necessarily imply that the resources which the State has spared for distribution among the Institutions shall have to be shared by all the Institutions regardless whether they are set up before or after the prescribed date. This would in turn mean that aid admissible to such Institutions would progressively decrease with the increase in the number of such institutions. Instead of distributing aid to every Institutions that has been established, the State has decided to confine the same to only those set up before the cut-off date. It has keeping in view its limited resources opted to sustain the existing institutions leaving the rest to survive on the strength of their own resources. There is no logical absurdity in that view. There is on the contrary considerable good sense in what the State has done. Instead of distributing the available amount in small measures among all the existing institutions, making the aid inconsequential and forcing those doing good work also to become unviable, the State has chosen to limit the aid to only those established before the cut-off. By doing so, it has ensured that the existing institutions do not become sick or forced to close down. The other option of distributing the amount could not have achieved that object nor would the meagre aid to other institutions pull them out of their economic problems.
30. The argument that there is no nexus between the classification and the object sought to be achieved by the Education Act, also needs to be noticed only to be rejected. The object of the Act as seen earlier is to provide for a planned development of Educational Institutions, their maintenance and improvement. It is true that the Act envisages grant of financial aid to Private Educational Institutions, in furtherance of the objects underlying the same but any such aid is in no uncertain terms made subject to the economic capacity of the State. If the State's economic capacity permitted other private educational Institutions could claim a similar treatment in the matter of Grant-in-Aid. That however is not so. Even when the State had as per the affidavit filed on its behalfset apart for 666 crores for distribution as aid during the previous financial year, yet the funds required to aid every institution may be much more in the absence of a proper classification. The compelling need to make a classification therefore arises by reason of the limited resources at the command of the State. Any rule which assists in the distribution of such resources by categorising institutions that would qualify for aid either fully or partially would therefore have a clear nexus with the object underlying the Act. Question No. 3 is accordingly answered in the negative.
Reg. Question No. 4:
31. The argument that the impugned Rules are ultra vires of the Act, inasmuch as the same instead of enabling the grant of aid under Section 49, denies that benefit to private educational Institutions must in the light of what I have observed while dealing with question No. 3, above, be rejected. What cannot be ignored is the fact that neither Section 49, nor any other provision in the Act, creates a legally enforceable right in the private Educational Institutions to demand aid from the Government. On the contrary, the provision itself recognises the limitation on any such claim by making it subject to the economic capacity of State. That apart, Section 49 envisages grant of aid to such local authority and private institutions as may be recognised for the purpose 'in accordance with the rules made in that behalf. This implies that the rules may prescribe not only the method of distribution of aid but also differentiate institutions which would qualify for such aid from those which would not. There is therefore nothing in the impugned rule that can be termed repugnant to Section 3(2)(e), Section 5 or Section 49 of the Act.
32. Equally untenable is the argument that the rule is bad because it deprives institutions as are providing education to children below 14 years of age. These Institutions could not according to the petitioners be deprived of the benefit of aid since those admitted to the same have a fundamental right to free education. I have while dealing with question No. 1, already held that private Educational Institutions whether imparting education to children below 14 years of age or above, do not have any fundamental or legally enforceable right of their own to claim Grant-in-Aid from the State. I have also while dealing with question No. 2, held that the fundamental right vested in children below 14 years of age, cannot be invoked by the Private Educational Institutions, although the Court may in its discretion and depending upon whether a Government Institution has or has not been established in the area where the Private Institution is working, issue appropriate directions to protect the interests of those admitted to the same. There is no gainsaid that fundamental right cannot be prejudiced let alone abrogated by an ordinary legislation much less by a rule enacted by the Government as a delegate of the legislature. It is however, hypothetical at this stage to determine the nature of the directions that can be granted to the aggrieved children should a petition be filed by them alleging violation of their right under Article 21 or seeking a direction to the Government to adopt a private educational institutions where such students may bestudying as a Government school till the Government discharges its obligation of providing a school of its own. All that need be said is that the vires of the Rule cannot be assailed by the Institutions by reference to the fundamental right guaranteed to the children who may have taken admission in them.
33. It was next argued that Rule 3 made all Institutions established after the cut-off date permanently grant less regardless of the economic capacity of the State. According to the petitioners any provision which would prevent the State from granting aid if it was otherwise in a position to do so would be ultra vires of Section 49, hence enforceable. The argument is attractive on the face of it, but, does not stand closer scrutiny. Rule 3 of the impugned Rules is framed to cater to a situation where the economic capacity of the State does not permit it to grant aid to institutions established after the cut-off date. Should the State's economic position undergo a change for the better, nothing prevents the rule making authority to shift the cut-off date similarly so as to extend the benefit of aid to more number of institutions or to completely do away with the classification which the rule has brought about. A piece of subordinate legislation especially one involving financial implications for the State mirrors the policy of the Government in power which may be altered if the Government so desires. There is in that view nothing permanent about the expression 'permanently' appearing in Rule 3 which must be understood to convey that the Institutions shall remain grant less till in the opinion of the Government adequate funds can be made available for distribution. So understood there is no conflict between Section 49 and Rule 3 of the impugned Rules. Question No. 4 is accordingly answered against the petitioners.
Reg. Question No. 5:
34. Section 145(3) of the Karnataka Education Act, permits the making of the Rules with retrospective effect. In any such case, the reasons for doing so have to be specified in the statement to be laid before both the houses of State Legislature. Sub-section (4) of Section 145 on the other hand requires every notification issued and every rule made under the Act, to be laid before each House of the State Legislature for a period of 14 days. It further provides that if both the Houses agree in making any modification in the notification or in the rule, or in their annulment, the notification or rule shall from the date on which the modification or annulment is notified, have effect only in such modified form or shall stand annulled as the case may be subject however that any such modification or annulment shall be without prejudice to the validity of anything being previously done under that notification or rule. The argument advanced on behalf of the petitioners was that since a statement indicating the reasons for making the impugned rule retrospective was not laid before the Houses of the Legislature nor was the rule placed before the Legislature in terms of sub-section (4) the same would remain inoperative till such time that requirement was complied with. The question in essence is whether the provisions of Section 145(3) and (4) of the Act are mandatory in nature. An answer to that is provided bythe decisions of the Supreme Court in Jan Mohammad Noor Mohamad Bagban v State of Gujarat and Others, and M/s. Atlas Cycle Industries Limited and Others v State of Haryana. In Jan Mohammad's case, supra, the Court was examining the failure of a similar requirement under the Bombay Agricultural Produce Markets Act, 1939. The Court found that Section 26(5) of the Act, under which the rules were made did not prescribe that the same will acquire validity only from the date on which they are placed before the Houses of the legislature and that the failure to place the rules before the Houses of Legislature did not affect the validity of the rules. The laying requirement was in that context held to be directory. To the same effect is the view taken by their Lordships in Atlas Cycle's case, supra, where relying upon 'Craies on Statute Law', the Court held that the 'laying' requirement prescribed by the Act, was not mandatory so as to invalidate the statutory order made by the Government.
35. The laying requirement in Section 145(3) and (4) is not meant to invite any affirmative action from the Legislature. It on the contrary envisages either an annulment or modification of the rule or notification by the two Houses of the Legislature whereafter the rule or notification would be effective only in its modified form or would stand annulled as the case may be. What is significant is that sub-section (4) itself recognises as valid any action provisionally taken under any such notification or rule. This implies that the provision does not make laying before the legislature a condition precedent for the rule to become effective. The fact that the Legislature has not stipulated the consequences of the failure to lay prescribed by sub-sections (3) and (4) of Section 145 is also a strong circumstance suggesting that it never intended the said requirement to be mandatory. It follows that the laying requirement whether the same be regarding the statement of reasons for making the rule retrospective as required under Section 3 or the laying of the Rules, in terms of sub-section (4) is a directory requirement, failure whereof does not invalidate either the rules or any action taken thereunder. Mr. Kulkarni, Counsel appearing for some of the petitioners argued that the retrospective effect given to the rule was impermissible having regard to the fact that by doing so the rule making authority was taking away the vested right of the petitioners under the Grant-in-Aid Codes in force. He placed reliance upon an unreported Division Bench decision of this Court in S. Chandrasekhar and Others v Union of India and Others , in support of that submission. There is no merit in that submission. In the case cited by the learned Counsel the authority making the rule did not have the power to do so retrospectively. That is not so in the present case where Section 145 itself authorises the Government to give retrospective effect to the rules that it may make.
36. It was next argued that the rule violated the doctrine of promissory estoppel and was therefore legally bad. Reliance was placed uponM/s. Motilal Padampat Sugar Mills Company Limited v State of Uttar Pradesh and Others, in support of that submission. The argument must fail for more than one reasons. Firstly, because the petitioners have not laid any foundation in the pleadings for canvassing that ground of challenge. In the absence of proper averments, it is not open to the petitioners to invoke the doctrine of promissory or equitable estoppel as the same is sometimes called. Secondly, because there really was no promise in the Grant-in-Codes that the institutions shall be given aid either immediately after they are established or after lapse of any prescribed period. The Codes on the contrary declare that aid cannot be claimed as a matter of right and may be withdrawn at any stage. Thirdly, because it is doubtful whether the doctrine has application against legislative measures like rules framed under a validly enacted piece of legislation. Question No. 5, is accordingly answered in the negative.
Reg. Question No. 6:
37. In compliance with the directions issued by this Court by order dated 16th of July, 1999, Secretary to Government, Education Department, has filed an affidavit stating that the Government have by an order dated 22nd of October, 1994, admitted 60 Institutions managed by SC/ST communities to the benefits of Grant-in-Aid. Two other Institutions namely (1) Muneshwara Primary School, at Bhalki and (2) Bapuji Higher Primary School, Pavagada, Tumkur, were also similarly admitted to Grant-in-Aid by Government Orders dated 30th of December, 1996 and 7th of June, 1997 respectively. The latter two of these orders were according to the affidavit issued pursuant to the directions from this Court in writ petitions filed by the Institutions claiming Grant-in-Aid. Although according to the petitioners there were some other institutions also which have been similarly admitted to the benefit of financial aid from the State yet that allegation has been upon verification found to be incorrect. An affidavit filed by the respondents on 6th of December, 1999 has given the particulars of all such institutions from which it is evident that they were established before the cut-off date. We will therefore proceed on the premise that only 62 institutions covered by the three Government Orders mentioned above are drawing financial aid, even though the same were established after the cut-off date stipulated in the impugned Rules.
38. The contention urged on behalf of the petitioners was that grant of aid to some while denial thereof to others although similarly situate falls foul of Article 14 of the Constitution. This Court could according to the petitioners take affirmative action and direct the release of aid to similarly situate Institutions belonging to SC/ST categories and even others on the analogy of the orders referred to above. Reliance was placed in support upon two decisions of the Supreme Court in Eskayef Limited v Collector of Central Excise and Vishundas Hundumal andOthers v State of Madhya Pradesh and Others.
39. Rule 3 of the impugned Rules which came into force in September 1998, is as noticed earlier retrospective in operation in that it makes all such institutions as are established after the cut-off date ineligible for Grant-in-Aid, With the framing of the said rule any benefit which the Government may have granted to such institutions in terms of orders made after the cut-off date and before the promulgation of the rules would become inadmissible from the date the rules came into force. In the ordinary course therefore, the flow of aid to such institutions could and ought to have been discontinued to ensure that the provision made by the rules is applied uniformly to all those similarly circumstanced. The Government have not however for whatever reasons withdrawn the benefit no matter the same offends its policy and the statutory provision alike. The question then is whether the continued flow of aid to such institutions even in the teeth of Rule 3 of the Rules can be made a basis for directing a similar treatment to the petitioners or such of them as fall in the category to which the beneficial institutions belong. Mr. Vishwanath, argued that the continuance of the benefit in violation of the rules was an illegality which could not be made a basis for claiming a similar treatment by the petitioners. There was no equality according to the learned Counsel in the matter of violation of the law especially when the petitioners did not have in the light of the Rule a valid enforceable right to demand Grant-in-Aid.
40. Can Article 14 be pressed into service to claim benefits that have been illegally granted to others is no longer res Integra. Decisions of the Supreme Court in Gursharan Singh and Others v New Delhi Municipal Committee and Others, Secretary, Jaipur Development Authority, Jaipur v Daulat Mal Jain, answer the proposition in the negative. In Gursharan Singh's case, supra, the Court declared that an illegality or irregularity committed in favour of an individual cannot be made a basis for commission of a similar illegality or irregularity. Those who find the benefit to have been undeservedly granted can question the same but they cannot claim orders in their favour which are not sanctioned by law, on the principles of equality before law. The Court observed.-
'The guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, the others cannot invoke the jurisdiction of the High Court or of the Supreme Court, that the same irregularity or illegality be committed by the State or an authority which can be held to be a State within the meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same but theycannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continuance and perpetuate an illegal procedure an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him. While it has been extended to others and in this process there has been a discrimination'.
41. To the same effect is the decision of their Lordships in the Jaipur Development Authority's case, supra, where relying upon Chandigarh Administration and Another v Jagjit Singh and Another and Coromandel Fertilizers Limited v Union of India and Others , the Court declared that an illegality cannot be compounded by permitting the commission of another. Reference may also be made to a decision of the Supreme Court in M/s. Faridabad CT Scan Centre v D.G. Health Services and Others, where the Court has held thus.-
'We fail to see how Article 14 can be attracted in cases where wrong orders are issued in favour of others. Wrong orders cannot be perpetuated with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other persons and, therefore, there will be discrimination against others if correct orders are passed against them. In fact, in the case of Union of India (Railway Board) and Others v J.V. Subhaiah, the same learned Judge in his judgment has observed in para 21 that the principle of equality enshrined under Article 14 does not apply when the order relied upon is unsustainable in law and is illegal. Such an order cannot form the basis for holding that other employees are discriminated against under Article 14. The benefit of the exemption notification, in the present case, cannot, therefore, be extended to the petitioner on the ground that such benefit has been wrongly extended to others. With respect, the decision in Mediwell Hospital and Health Care Private Limited v Union of India, does not lay down the correct law on this point'.
In the light of the above pronouncements of the Supreme Court it is difficult to hold that the illegality in the continued grant of benefit to the institutions mentioned earlier notwithstanding this Court would be justified in directing a repetition or perpetuation thereof by extending the benefit to the petitioners and others like them. I may however with respect point out that a distinction may have to be made between caseswhere an illegality grants a one time benefit to a person and those where the State or public Authority deliberately commits a recurring breach of a validly enacted provision of law. In the case of the former repetition of the illegality or irregularity would undeniably result in perpetuation of an illegality through the medium of a direction from the Court which is abhorrent to the rule of law. Such one time benefits resulting from administrative aberrations which are at times inspired by extraneous considerations may become irredeemable on account of change of circumstances or other complications making restitution a difficult task. In such cases, the illegality or irregularity may continue without there being much that can be done either by the State or by the Court to undo the same. The position would however be entirely different where the breach committed is not a mere accidental or stray case of abuse of power or authority but a case of persistent, deliberate and defiant conduct on the part of the authority charged with the duty of implementing the law. In any such situation, the rule which the Government persistently violates may wear-down and be rendered nugatory. Continued grant of aid to Institutions referred to earlier in total violation of the provisions of Rule 3 of the impugned Rules, presents a scenario of the latter kind. A breach of the rule takes place every month when the Government releases or authorises the release of aid in favour of Institutions not entitled to receive the same. That is precisely what has happened ever since September 1998 when the rules were brought into force. In such a situation it may be difficult to countenance the argument that the illegality being repeatedly committed by the Government notwithstanding, other institutions similarly situate have no right to make a grievance. It almost amounts to suggesting that the Government can at its choice violate the rule framed by it and yet successfully argue that another institution similarly situated would have no right to demand a similar treatment. It also means that the Government would have the right to choose the beneficiary of its illegalities and yet those excluded from such benefit shall ask no questions. Decisions of the Supreme Court in Vishundas Hundumal's case, supra, and Eskayef Limited's case, supra, tend to support that line of reasoning. In the former, their Lordships had noticed the unwillingness on the part of the State Authorities to rectify the order on the basis whereof the petitioners were claiming a similar relief. The Court had in that view taken what it described as 'constructive action' and placed the petitioner in the same position as those who had enjoyed the benefit of the State's inaction in the matter. When relied upon in latter case, the Supreme Court held that the respondents were not in that case unwilling to recover the dues which other manufacturers should have paid like the petitioners but which were not on account of the orders passed at various levels recovered from them.
Mr. Vishwanath was asked whether the State was prepared to initiate appropriate proceedings aimed at stopping at least prospectively the grant of aid to the institutions referred to earlier. He was despite opportunities given to him unable to make any statement. It is therefore difficult for this Court to place these cases in one or the other category.If the State was prepared to take corrective action to ensure a uniform application of Rule 3 to all the institutions established after the cut-off date, the very foundation of the argument advanced on behalf of the petitioners would stand knocked out. The State has not made its stand clear on this aspect. The result is that we have an anomalous situation where the authority charged with implementing the law itself is committing a deliberate breach thereof to benefit a few out of a large number of other institutions who are in no way different. It may be difficult for the State to justify for long the position taken by anomalies may arise and exist for sometime, but the system cannot suffer them forever. I must also add that the view taken by me would not prevent the petitioners from challenging the grant or continuance of the benefit if so advised nor shall the Court's refusal to interfere be treated as legitimizing the flow of grant to such institutions as do not otherwise qualify for the same in the light of the impugned Rules. The Government would indeed do well to take appropriate corrective action to make the implementation of the policy uniform, non-discriminatory and above suspicion.
Reg. Question No. 7:
This question arises in relation to Writ Petition Nos. 16810, 16811, 17117 to 17119 of 1991 and 9367 of 1992 filed by Mr. Ashok Haranahalli, in which the institutions have been admitted to grant but not with effect from the date they became eligible for the same. Their grievance is essentially against the discriminatory application of Rule 16(xiii) of the Grant-in-Aid Code for the Secondary Schools which reads as under.-
The Grant-in-Aid will invariably have effect from the month following that in which final orders of competent authority admitting the institutions to the Grant-in-Aid Scheme are communicated or from the date of effect mentioned in the order whichever is later'.
It was contended by Mr. Haranahalli, that the competent authority, can and often does discriminate between institutions similarly situate in the matter of passing orders regarding the sanction of Grant-in-Aid to them. According to the learned Counsel, there may be cases in which the competent authority may pass orders immediately so that the benefit of aid starts flowing to the concerned institutions with immediate effect. In the case of another Institution similarly situate, the authority may deliberately delay or avoid passing of an order thereby depriving the former of its right to receive aid without any justifiable cause. Since Rule 16(xiii), supra, envisages flow of aid from the date of communication of the order or a later date mentioned in the same, the benefit of aid can be denied for no good reason and merely because of the inaction of the competent authority. In as much as the rule permits such a discriminatory treatment, argued the learned Counsel, the same is ultra vires of Article 14 of the Constitution.
The rule does not by itself classify the institutions or empower the competent authority to withhold orders at its discretion or for no good cause. It prescribes the date of commencement of the aid uniformly for all institutions and is therefore not per se discriminatory. The grievance in substance appears to be against the actual implementation of therule. It focusses on the possibility of discrimination between similarly situate institution and the opportunity which the competent authority may have to misuse it by its inaction deliberate or otherwise. It is however, fairly well-settled that a mere possibility of the authority in whom the power is vested misusing such power, is not enough for the provision which confers such power being declared ultra vires. That is especially when the power is vested in high ranking authorities like the Government. The aggrieved Institutions can in the event of any such deliberate delay seek redress either at the administrative level or by recourse to proceedings under the Education Act.
Coming then to the question whether there has been any deliberate delay or omission on the part of the competent authority in the cases referred to above and whether this Court need to intervene and issue directions, it is noteworthy that the respondents have not so far examined or satisfactorily dealt with the claim of the petitioners for grant of aid from an earlier date. It is therefore unnecessary for this Court to examine that aspect in these proceedings. The petitioners would be entitled to make a proper representation in this regard which the competent authority shall consider in the light of orders which the petitioners may point out in support of their claim.
Reg. Question No. 8:
It was argued on behalf of the petitioners that if denial of aid was on account of limited economic capacity of the State, then the least that the State must do is to ensure that whatever is set apart for distribution is distributed in accordance with the norms prescribed for the same in the Grant-in-Aid and the rules framed under the Education Act. That is because institutions that have come into existence after the cut-off date can look forward to getting aid only in two situations viz., (i) the economic capacity of the State improves and (ii) the amount already earmarked remains surplus after satisfying the needs of those established before the cut-off date. There is considerable merit in that submission. Since grant of aid has been held to be a matter of policy dependent on the economic capacity of the State it is only in one of the two situations mentioned above that the petitioners can possibly hope to benefit from the scheme underlying the Grant-in-Aid. They can therefore question the legitimacy of any such grant to those who do not according to the prescribed norms qualify for that benefit.
Coming then to the second part of the question it is necessary to first identify the requirements of the Grant-in-Aid Codes which the institutions must satisfy before they can lay a claim for that benefit. Grant-in-Aid Code for Aided Primary Schools regulates not only grant of aid to Primary Schools but their recognition also. Rule 10 of the said Code inter alia provides that no school shall be started without the previous permission of the Department. It requires information regarding accommodation, furniture, equipment and the staff to be furnished in the application seeking permission. It also declares that schools established without permission shall not be recognised. Rule 11 of the said Code requires the School building to be ready before the School is started andthat the rooms should be of the approved size. Rule 13 makes adequacy of accommodation an essential condition for recognition whereas Rule 26 prescribes certain additional conditions for the grant of aid including the strength of the students, which must not go below 40.
Similar provisions are made in the Code for Secondary Schools. Rule 9 of the said Code requires the Department to be satisfied about the premises and its location, the accommodation and the equipment besides the financial resources of the management. The rule prescribes the sizes of the classrooms, the Laboratory, and the furniture etc. Rules 11 to 13 deal with recognition of such institutions and prescribe the conditions under which the institutions can be permanently recognised. Chapter IV of the Code deals with Grant-in-Aid and the conditions subject to which the same can be granted, recognition of the Institution being one such condition. The Scheme underlying the Code regulating the collegiate education is near similar. Suffice it to say that no educational institution offering education at any level could be established without the permission of the competent authority nor could any such institution be recognised unless it satisfied the conditions precedent prescribed for the purpose. Grant-in-Aid could follow only if the institution satisfied the requirements for recognition which in turn required the institution to have the necessary infrastructure.
There are according to the respondents as many as 2,522 Aided Primary Schools and 2,632 Aided High Schools in the State all of which would in the ordinary course be presumed to have gone through the rigors of inspections by the concerned recognising authorities at the time of their recognition or and at the time of their admission to Grant-in-Aid. If that were so all such aided institutions should as at present have the infrastructure required of them. That is particularly so when considerable period has expired since the institutions were first admitted to aid. During this period the deficiencies if any, could and ought to have been removed either at their own or at the instance of the authorities who are supposed to maintain a vigil over their working. If the version of the State is to be accepted the Deputy Directors and Directors of Public Instruction through whom proposals for sanction of grant are received infrastructure in the schools not only before submitting the proposals but before actually releasing the grant in their favour. In the additional affidavit filed on behalf of the State on 23rd of November, 1999 it is further stated as under.-
'It is also the responsibility of the concerned Deputy Directors to see that private educational institutions meet all the requirements of the Grant-in-Code and also conduct periodical inspections to ensure that these conditions are fulfilled'.
The above does not receive any support from either the record or the conduct of the officers concerned. Although according to the State periodic inspection of the aided institutions is one of the duties of the concerned officers yet that practice does not appear to have existed nor is there anything to show that any inspections were at any stage conducted by the Officers at any level. The control of the department overthe affairs of the institutions was limited to getting audit reports from them and their verification without any care being taken to see the actual conditions prevailing in the schools. This state of affairs appears to have continued till the issue of a circular dated 1-6-1999 by which the Deputy Directors were asked to conduct inspections of all private educational institutions in their jurisdiction and submit their reports to the Government. This was followed by another order dated 16-11-1999 by which directions for stoppage of the grant in favour of institutions which did not comply with the requirement of the Grant-in-Aid Code were issued. It was argued by Mr. Vishwanath that inspections have pursuant to the above directions been conducted and reports are awaited from the officers concerned for the Government to take appropriate action wherever the same is called for. He further stated that the Government had constituted a Vigilance Squad by order dated 16-8-J999 headed by the Joint Director of Public Instructions with a view to making surprise check of the Institutions and to investigate the irregularities in the same.
With a view to verifying the correctness of the claim made on their behalf, the respondents were directed to place on record the result of the inspections conducted by the Deputy Directors in the Districts of Bangalore North, [North] and Rural. A statement filed in compliance with that direction makes certain startling revelations which may be summarised thus.-
(1) Out of a total of 925/- Aided Primary and High Schools inspected as many as 269 schools were found to be deficient in terms of infrastructure in the three districts mentioned above.
(2) Action has been, according to the respondents, taken only against 198 schools although the nature of action has not been made clear.
(3) Out of 237 Primary Schools in Bangalore North and South Districts as many as 124 do not have adequate accommodation, 107 do not have laboratories, 99 do not have libraries while as many as 136 do not have either playgrounds or facilities for sports.
(4) Out of a total of 28 Schools in Bangalore North District where the accommodation was reported to be inadequate as many as 18 were running in sheds with either Junk sheet or Asbestos sheet roofs. The size of rooms varied from 6 x 5 to 12 x 12 feet. Almost 90% of the schools inspected were in rented buildings most of which were residential. In some of the schools there were no independent rooms for holding classes. In such schools the management had either given wooden partitions or else used a cloth curtain for conducting classes.
(5) The schools are located in congested commercial areas or in slums.
The above is just a sample of what is the prevailing state of affairs in schools which have for the past number of years been drawing aid from the State Government. And yet this Court is expected to believe that the officers concerned were required to recommend the grant of aid only ifthe school satisfied the requirements of the Codes. This Court is also expected to believe that the officers concerned were required to periodically inspect the institutions to verify whether they were complying with the requirement of the Codes. I have not been able to pursuade myself to do so. I am of the opinion that there have been large scale irregularities in the matter of admitting the schools at all levels to the benefit of grant. Grant of aid appears to have been recommended and sanctioned by the concerned without having regard to the requirement of the Codes and in gross violation thereof. The result is that for years institutions which never really qualified for the benefit have drawn the same to the prejudice of the deserving and even the students for whose benefit the entire expense was ironically meant. What is interesting to note is that the Vigilance Squad established in the year 1995 to surprise check the institutions conducted inspections of only 38 institutions over a period of nearly five years which works out to less than even 1% per year. Suffice it to say that the State has totally failed to ensure that Grant-in-Aid is not abused by the unscrupulous and the undeserving. If the facts that have come to light are seen in the light of the obligations that were enjoined upon those dealing with the disbursement and sanction of aid one is left to wonder at the magnitude of abuse of public money that has taken place over the past years. Constitution of a Vigilance Squad which remained a mute spectator to what was going on or the belated issue of instructions to the officers to inspect the institutions to find the deficiencies in the same are in my opinion totally insufficient to deal with let alone cure the malady that has eaten into the vitals of the system. Something drastic and immediate therefore needs to be done to prevent what may very soon explode as the scam of the millennium.
Karnataka Education Act, 1983 is a fairly elaborate piece of legislation. It empowers the State to frame rules in furtherance of the objects of the Act. Rule 4 of the Karnataka Education Institution (Classification, Regulation and Prescription of Curriculla etc.) Rules provides that no educational institutions shall function in a building which does not satisfy the requirements prescribed therein. Rule 5 of the said Rules prescribes the minimum accommodation per student, furniture etc. Rule 16 prescribes the requirement of drinking water, toilets and other facilities. In terms of Rule 7 of the Rules every institution which was in existence as on the date of commencement of the rules is under an obligation to provide the facilities specified in Rules 4, 5 and 6 within a period of three years. Since every educational institution whether established before or after the enforcement of the Act, is required to get itself registered, the Classification and Registration Rules, 1997 provide that institutions must comply with the requirement of Rules 4, 5, 6 and 9 of the earlier mentioned rules which prescribe the norms for accommodation and other facilities.
Section 53 of the Education Act, empowers the Government to withhold, reduce or withdraw grant in case the institution fails to fulfil all or any one of the conditions stipulated for the same. Adequate accommodation, laboratories, libraries, playgrounds, staff toilets, and drinking water facilities are all essential conditions for the grant of aid to private institutions.
Although existing institutions, which do not fulfil the minimum requirements prescribed under the rules referred to earlier, are bound to get identified and isolated in due course, yet since the process of registration is in itself somewhat disorganised and tardy it is neither necessary nor prudent for the State to wait till each institution especially those receiving aid gets identified and eventually excluded from the list of beneficiaries. The need to check the flow or undeserved benefit in the form of aid and consequential wasteful burden on the exchequer need not be emphasised. Institutions that do not satisfy the bare minimum prescribed by the rules viz., adequate accommodation, laboratory and library, toilet and drinking water facilities for the children and space for sports activities and playgrounds need to be identified straightaway and the flow of aid to them stopped. The resources thus saved can be more gainfully utilised by shifting the cut-off date to include more institutions deserving out of whom can then benefit from the scheme.
To sum up.-
(1) Private Education Institutions do not have any fundamental or other legally enforceable right to claim Grant-in-Aid from the State. All that such institutions can demand is an equal treatment vis-a-vis those that fall in their category in case of a classification like the one introduced by Rule 3 of the impugned Rules.
(2) Such institutions cannot enforce or rely upon the fundamental right guaranteed to children below 14 years of age to receive free education. The Court may however in appropriate cases issue directions, to protect the interest of children below the age of 14 years if a failure to provide free education at State expense is established. No such failure by reference to any given area or institution having been established by the petitioners in these cases, there is no occasion for this Court to issue any such directions.
(3) The impugned Rules do not offend Article 14 of the Constitution inasmuch as they classify Private Educational Institutions by reference to the date on which the same were established for purposes of grant of aid to them.
(4) Rule 3 of the impugned Rules is not ultra vires of the Karnataka Education Act. The expression permanently grant less appearing in Rule 3 shall not prevent the State from extending the benefit of grant to institutionstions established after the cut-off date as and when its economic capacity so permits.
(5) The non-laying of the rules before the Legislature or the reasons for their retrospective operation as required under Section 145(3) and (4) of the Education Act, does not affect the validity of the rules or their efficacy.
(6) The continuance of aid to Scheduled Caste and Scheduled Tribe institutionstions established after the cut-off date and those to whom aid was granted pursuant to the directions of this Court cannot be made a basis for a mandamus from this Court in favour of the petitioners. The petitioners would however be at liberty to question the said grant and its continuance in appropriate proceedings. The State shall also be at liberty and would indeed do well to remove the anomaly that exists atpresent and thereby ensure uniformity in the implementation of the scheme underlying the rules.
(7) Rule 16(xiii) of the Grant-in-Aid for Secondary Schools is legally valid. Individual cases of any unfair treatment can be pointed out to the authorities for redress.
(8) The State has not fully discharged its obligation to provide free education to children below the age of 14 years. Its failure to ensure that the amount set apart for distribution as Grant-in-aid among private educational institutionstions also stands established requiring introspection and immediate corrective steps.
In the result, these writ petitions are disposed of with the following directions.-
(1) The respondent-State shall on the basis of inspections conducted pursuant to its circular dated 1-6-1999 identify aided private educational institutionstions, which do not possess the minimum infrastructural facilities prescribed for such institutionstions in terms of the Grant-in-Aid Codes and the Rules framed under Education Act and initiate proceeding under Section 53 of the Act for withdrawal of aid to such institutionstions. It may consider appointing a special task force in this regard to expedite inspections, verifications, tabulation of the data and evaluation of the facilities and deficiencies reported in such institutionstions. The needful shall be done expeditiously and as far as possible within a period of six months from today.
(2) The Government shall simultaneously take steps to identify such of the Government Primary Schools, Upper Primary and Secondary Schools in the State as are without a teacher and ensure within 3 months to post teachers in such schools.
(3) It shall within six months from the date of this order identify such Government Schools as do not possess the bare minimum facilities like accommodation for purposes of imparting instructions to the students, laboratories and libraries, drinking water, toilets, black boards and mats, and take necessary steps for removal of such deficiencies. In doing so, the Government shall deal with schools being run in tents, and thatched huts on a priority basis.
(4) Petitioners in W.P. Nos. 16810, 16811, 17117 to 17119 of 1991 and 9367 of 1992 shall have the liberty to make appropriate representations to the competent authority seeking aid from an earlier date. In case any such representations are filed within two months from today, the competent authority shall examine the same by reference to the instances which the petitioners may cite and issue appropriate orders in accordance with law within six months from the date the representations are received. The competent authority shall be at liberty to inspect the institutionstions of the said petitioners to verify whether the same satisfy the requirements of infrastructure and other facilities prescribed for the same and initiate appropriate action for withdrawal of the aid being granted to them in case they are found to be deficient.
The parties are left to bear their own costs.