P.S. Kailasam, J.
1. These two Writ Petitions are filed by the managements of two private elementary schools questioning the validity of G.O. Ms. No. 751, Education, dated 17th May, 1965, on the ground that it is illegal, ultra vires and in violation of the principles of natural justice and Articles 14 and 19 of the Constitution of India.
2. The questions raised in both the Writ Petitions are the same, and may be disposed of by a common judgment. The facts in Writ Petition No. 4477 of 1965 will be stated.
3. The petitioner school, A. Ramanujulu Chetty Elementary School, Muthialpe Madras, was started in 1882 by the father-in-law of the present Manager and Correspondent of the school with a strength of 4 pupils as a pial school. In 1884 the strength increased to 125 pupils and it was recognised as a Primary School by the Government of Madras in that year. The Madras Elementary Education Act, 1920, VIII of 1920, was passed and the recognition of the school in question was continued under Section 45 of the Act. When Act VIII of 1920 came into force a scheme for compulsory and free education in the city of Madras was introduced. But as the Corporation was unable to pay the school the compensation for such loss of income caused by remission of fees to elementary schools under private management as envisaged by Section 47 of the Act, Section 47 of the Act was amended by Act II of 1932 introducing Section 47,(2), providing that fees may be levied for pupils in elementary schools under private management. By virtue of this provision the school resumed levying fees from its pupils. In 1958 the Government of Madras in pursuance of the scheme to introduce free education passed G.O. Ms. No. 2124, Education, dated 29th November, 1958. It provided that no elementary school under public management shall levy fees with effect from the academic year 1959-60, that two types of private elementary schools shall be recognised (a) fee levying schools and (b) non-fee levying schools, that fee levying schools shall not be eligible for any grant-in-aid but they will be accorded academic recognition provided they conformed to the prescribed syllabus and that non-fee levying schools shall be eligible for recognition and the usual grant- in-aid according to the rules and orders in force. By G.O. Ms. No. 739, Education, dated 11th April, 1959, the Government decided that non-fee levying schools will be paid grants, which will comprise the full teaching grant, and include maintaining grants subject to a maximum of 20 per cent of the teaching grant. Fee levying schools were not entitled to any grant-in-aid. According to this scheme, the petitioner-school continued to be a fee levying school and ceased to receive aid from the Government from the academic year 1959-60. On 17th May, 1965, the Government passed the impugned G.O. No. 751, Education, dated 17th May, 1965, directing that with effect from the school year 1965-66 no fees of any sort shall be levied from pupils attending any standard of a recognised primary or upper primary school under the management of any agency. Rule 29-A of the Rules for the grant of recognition and aid to Elementary Schools framed in 1939 was amended prohibiting the levy of any fee by a recognised primary or upper primary school under the management of any agency. The petitioner submitted a memorandum on 7th June, 1965, stating that he had decided to continue the school as a non-aided fee levying school, as the maintenance grant offered by the Government, which was 10 per cent. of the teaching grant, which could approximately be about Rs. 2,000 per year, would be hardly sufficient to meet the commitment of the school, which was about Rs. 8,500 a year. The petitioner also complained about inadequacy of the notice. On 15th October, 1965, the District Educational Officer, Madras North, informed the petitioner that he should fall in line with the policy laid down in G.O. No. 751, Education, dated 17th May, 1965, and that he must convert the school into an aided non-fee levying school within one week from the date of receipt of the communication and that otherwise recognition would be withdrawn. As there was imminent threat of the withdrawal of recognition the petitioner preferred this writ petition.
4. The validity of the impugned Government Order is questioned mainly on the following grounds (1) that the petitioner-school has a statutory right to levy fees under Section 47(2) of the Act and that this right cannot be taken away by any rule framed by the Government under its rule making power or by executive orders, (2) that the denial of the petitioner's right to collect fees, without paying adequate -compensation sufficient to meet the actual expenses of the school, would amount to violation of fundamental rights of the petitioner, and (3) that the impugned Government Order was discriminatory in character in that it allowed other schools similarly situated to levy fees.
5. In order to appreciate the contentions on behalf of the petitioner it is necessary to refer to the development of the elementary education in the State. In the year 1920 it was felt that better provision should be made for elementary education in the Presidency of Fort St. George, with the result the Madras Elementary Education Act, 1920 was enacted. By virtue of this enactment the District Education Councils were constituted. Their mode of transacting business, their duties funds and provision as to funds, budget and audit were provided for under Chapter II of the Act. Chapter III made provisions for elementary education funds, their constitution and control, for levy of education tax and Government contribution and for budget and audit of the accounts. Chapter IV related to elementary schools, their recognition and provision for grants-in-aid. Section 41(1) provided that the manager of any school under private or public management desiring that such school shall be recognized as an elementary school shall submit an application in the prescribed form through the Inspector of Schools to the District Educational Council. Subsection (2) of Section 41 provided that the District Educational Council may grant such application either with or without conditions, or refuse or defer the grant of recognition and may in like manner cancel or suspend any order granting recognition. Under Sub-section (3) an appeal was provided against the order passed by District Educational Council to the Director of Public Instruction. Sub-section (4) provided that all orders of recognition in respect of elementary schools made by the Director of Public Instruction or by an Inspector of Schools before the Act came into force shall be held to have been made under Section 41, and by this provision the petitioner-school continued as a recognised elementary school. Section 42 provided for admission of private elementary schools to aid and for cancellation or suspension of any order granting admission to aid. Sub-section (3) of Section 42 provided for an appeal to the Director of Public Instruction against the order of the District Educational Council granting or refusing aid. Chapter V provided for the introduction of compulsory elementary education. Elementary education was to be introduced on a resolution passed in the prescribed manner by a local authority and on its acceptance by the Governor-in-Council under Section 46 of the Act. When a resolution of the local authority was accepted by the Governor-in-Council the levy of fees by any elementary school in any area affected by the notification was prohibited under Section 47. Elementary School was defined under Section 3(vi) of the Act as a School or department of a school recognized as an elementary school under Section 41. The petitioner-school was a recognised elementary school, and under Section 47 it was prohibited from levying any fees. But according to the proviso the local authority was to pay compensation for the loss of income to the petitioner-school, because of the remission of the fees. As the local authority was unable to pay compensation as envisaged under Section 47 of the Act, Section 47 was amended by Act II of 1932. The amended section provided that no fees shall be levied at any elementary school under public or panchayat council management situated in any area affected by a notification under Section 46. Regarding other elementary schools situated in the notified area it was provided that fees may be levied. This provision enabled the petitioner-school to levy fees. One other section that has to be referred to in Act VIII of 1920 is Section 56. Section 56 provided that the Governor-in-Council may after previous publication make rules not inconsistent with the Act to carry out all or any of the purposes of the Act. Sub-section (2) provided that in particular and without prejudice to the generality of the provisions in the Act he may make rules regarding matters specified in Clauses (a) to (j). Clause (h) related to declaring the conditions subject to which schools may be admitted to recognition or aid. Under this clause statutory rules were framed prescribing the conditions to recognition or aid. It is common ground that these rules were statutory in character.
6. It was found that the District Educational Councils were not working satisfactorily. It was felt that the District Educational Councils were only discharging duties of granting of recognition to schools and sanctioning and disbursement of grants to schools under private management and that those duties could be performed by departmental officers as in the case of secondary and other schools. In 1939 it was decided to abolish the District Educational Councils and vest the power to grant recognition and aid to schools in departmental officers. In pursuance of this object the Madras Elementary Education Act, 1920 was amended, and Act II of 1939 was passed by omitting Chapter II, which related to the District Educational Councils, and Chapter IV of Act VIII of 1920 which related to recognition and grant of admission to aid to the elementary schools by the District Educational Council. The definition of 'elementary school' was amended as meaning a school or department of a school recognised as an elementary school by the Director of Public Instruction or by such authority as may be empowered by him in this behalf. The words and figures 'under Section 41' occurring in Section 3(vi) were substituted by the words 'by the Director of Public Instruction or by such authority as may be empowered by him in this behalf'. In Section 56 of the Act, Clauses (c), (d) and (e) which dealt with the rule making powers of the Government regulating the election of presidents of District Educational Councils, the appointment, pay, punishment and removal of the officers and servants employed by District Educational Councils and determining the conditions subject to which property may be acquired held and transferred by District Educational Councils, were omitted. Clause 9(i) which enabled the Government to make rules regulating the period during which and the manner in which compensation shall be paid under Section 47 was also omitted But Clause (h), which empowered the Government to frame rules declaring the conditions subject to which schools may be admitted to recognition or aid, was retained. Section 14 of the amending Act II of 1939 runs as follows:
All orders of recognition in respect of elementary schools and all orders elementary schools to aid, made or deemed to have been made by a District Educational Council before the commencement of his Act under Sections 41 and 42 of the said Act respectively, shall be deemed to have been made by the director of public Instruction or by such authority as may be empowered by him after this Act comes into force to grant recognition to elementary schools or to admit elementary schools to aid, as the case may be, and any such order shall be liable to cancellation or modification as if it had been made after the commencement of this Act.
The effect of Section 14 is that all orders of recognition and orders admitting elementary schools to aid, made or deemed to have been made under Sections 41 and 42 shall be deemed to have been made under the amended Act, II of 1939, and the orders granting recognition or admitting to aid were liable to cancellation or modification as if they had been made after the commencement of Act II of 1939. As a result of this section the petitioner school, which was recognised before Act II of 1939 came into force and was deemed to have been recognised under Section 41, was deemed to have been recognised after the commencement of Act II of 1939 and was liable to have the order of recognition cancelled or modified, as if it had been made after the commencement of Act II of 1939. After the repeal of Sections 41 and 42 of Act VIII of 1920 there is no specific provision in the Act relating to recognition or admission to grant-in-aid by the Director of Public Instruction or by such authority as may be empowered by him in any of the sections in the Act. But in the definition of 'elementary school' it is provided that the recognition will be granted by the Director of Public Instruction or by such authority as may be empowered by him in this behalf. It is also significant, that, while Section 56(2) was amended by omitting Clauses (c), (d), (e) and (i), the power to make rules conferred on the Government for the purpose of declaring the conditions subject to which the schools may be admitted to recognition or aid was retained. Reading Section 14 of Act II of 1939, which provides that recognition granted before the amendment Act shall be deemed to be recognition under the amending Act liable to cancellation and modification as if it had been made under the Act, along with the definition of the term 'elementary school', which recognised the power; of the Director of Public Instruction or such authority as may be empowered by him to grant recognition, and Section 56(2)(h), which empowers the Government to make rules, it is clear that the statute enables the Government to make rules declaring the conditions subject to which schools may be admitted to recognition or aid, and the Director of Public Instruction or such authority as may be empowered by him will have to act according to the rules. It is the statute that empowers the Director of Public Instruction to authorise some other authority to act on his behalf in this connection. The recognition of schools can be regulated by statutory rules.
7. After the amendment of the Madras Elementary Education Act by II of 1939 G O No 1251, Education, dated 1st June, 1939, was passed. In the order it was stated that the rules for recognition of elementary schools and for the grant of aid to elementary schools under private management would be issued separately as executive instructions. By G.O. No. 1903, Education and Public Health Department dated 21st August, 1939, the rules for the recognition of elementary schools and for the grant of aid to elementary schools under private management were revised and the revised rules were annexed to the order. The rules do not purport to have been framed under Section 56(2), (h) of the Act. The question whether these rules are statutory or non-statutory in character was considered by Veeraswami, J., in Writ Petition No. 354 of 1960. Taking into consideration the fact that the rules were not framed in the exercise of the statutory power but were framed only as executive instructions the learned Judge held that the rules were non-statutory in character. The same conclusion was arrived at by Raman Nayar, J., in Rev Fr. Joseph v. State of Kerala : AIR1958Ker290 , where he found that the notification was not issued under any statutory authority and that there was no publication as required under Section 56 of the Act. There cannot be any dispute that these rules do not purport to be statutory in character and admittedly there was no publication as required under Section 56 of the Act. I am in respectful agreement with the view expressed in the above decisions that the rules are non-statutory in character.
8. If rules had been framed under Section 56(2)(h) of Act II of 1539 they shall not be inconsistent with the provisions of the Act and should only be for declaring the conditions subject to which the schools may be admitted to recognition or aid. If the conditions imposed by the rules framed under Section 56(2)(h) were inconsistent with the provisions of the Act or totally extraneous for the purpose of recognition of the school or admission to aid, the validity of the rules can be challenged. The learned Advocate-General appearing for the State conceded that when no statutory rule inconsistent with the provisions of the Act could be framed, it is not permissible for the State to frame non-statutory or administrative rules which are inconsistent with the provisions of the Act. His submission was that after the amending Act, II of 1939, was passed the function of recognition and granting of the aid was taken out of the purview of the Act and was entrusted to the Director of Public Instruction as an administrative function, and the question of contravening any of the provisions of the Act will not arise. Strong reliance was placed, on the fact that after the repeal of Sections 41 and 42 of the Act, no provision was made in the Act for recognition, of or grant of aid to the elementary schools. If it was the statutory duty of the Director of Public Instruction to grant recognition or aid to the school, it was contended that provision would have been made in the Act, and in the absence of such specific provision no such duty can be inferred. While it is true that Sections 41 and 42 were not amended so as to substitute the Director of Public Instruction or any authority empowered by him for discharging the functions of the District Educational Council, which was abolished, the contention that the duty of recognition was taken out of the purview of the Act cannot be accepted. If no recognition was contemplated under the Act, the words 'elementary school' need not have been defined as a school recognised as an elementary school by the Director of Public Instruction or by such authority as may be empowered by him. The power of the Director of Public Instruction to grant recognition is clearly implied. It is significant that when Section 56(2) was amended by omitting Clauses (c), (d), (e) and (i) in Sub-section (2), Clause (h), which empowered the Government to make rules declaring the conditions subject to which schools may be admitted to recognition or aid, has been retained. If as contended by the learned Advocate General recognition and admission to aid of schools have been removed from the purview of the Act, it is pointless to have conferred on the Government rule making powers regarding recognition or grant of aid. The Director of Public Instruction and the District Educational Officer are defined as persons appointed by the State Government to perform the duties of Director of Public Instruction or District Educational Officer as the case may be, and from the definition of the words 'elementary school' and the rule, making powers conferred on the Government, it is clear that the function of the Director of Public Instruction in granting recognition or aid to school is kept within the purview of the Act. The contention that these functions are outside the scope of the Act and as such the Government is entitled to issue administrative instructions contrary to the provisions of the Act cannot be accepted.
9. After the amendment of Section 47 by the amending Act, II of 1939, elementary schools other than those that are under the management of the public or the Panchayat Union Council situate in the area notified under Section 46 are entitled to levy fees. This power to levy fee cannot be taken away by statutory rules, much less by non-statutory rules or administrative rules. The provision in the impugned Government Order directing the petitioner school not to levy any fee whatsoever is clearly inconsistent with the right conferred on it under Section 47(2). The plea of the learned Advocate-General was that the effect of the impugned Government Order was not a prohibition of the levy of fees contrary to the provisions of Section 47(2), as in spite of the Government Order the school was at liberty to levy fee, though such action may result in its recognition being withdrawn. This plea has to be rejected, as the Government cannot do indirectly what it cannot do directly, as the effect of its act would be to contravene the provisions of the enactment. Equally futile is the contention that when once the Director of Public Instruction withdraws the recognition in his administrative capacity, the school is under the Act entitled to the right to levy fees under Section 47(2). It has been found that the function of recognition is not administrative in character and that it falls within the purview of the Act. Even though statutory rules have not been framed, in order to deprive the recognition, the administrative orders withdrawing recognition must be reasonable and the reason given for withdrawal of recognition must be based on relevant considerations.
10. As the plea of the Government that the order cannot be gone into by this Court is rejected, the question is whether the order made is reasonable and the reasons given for withdrawal pf recognition are based or relevant considerations. In this connection it may be noted that Act VIII of 1920, when it declared that no fee shall be charged at any elementary school in any area affected by a notification under Section 46, provided that the local authority of such area shall pay compensation for such period to elementary school under private management for the loss of income due to remission of fees. When the State found that the local authorities were not in a position to pay compensation as contemplated under Section 47, Section 47 was amended enabling the private institutions, to charge fees. In 1958 the Government decided to classify private management schools under two heads, (1) fee levying schools and (2) non-fee levying schools. While in the case of non-fee levying schools the Government continued, the grant, the right of other elementary schools to levy fees was not denied. Only the grant was withheld. While so the impugned Government Order imposed on absolute prohibition against the levy of any fee whatsoever. While imposing this prohibition the Government undertook to pay the teacher's salaries and 10 per cent of the teaching grant towards the maintenance. By G.O. No. 739 dated nth April, 1959, the non-fee levying schools were granted full teaching grant and the maintenance grant subject to 20 per cent of the teaching grant. It is stated by the petitioner that the expenses for maintaining the school, the details of which are given in Exhibit D are Rs. 710 per month, which works out to Rs. 8,520 per annum. These figures are not questioned by the respondent as incorrect or excessive. The maintenance grant as envisaged in the impugned Government Order works out to Rs. 2,000 which would leave a deficit of Rs. 6,520 a year so far as the petitioner-school is concerned. The condition prohibiting, the levy of fee on the grant envisaged cannot be said to be reasonable and the withdrawal of recognition for failure to conform to the direction not to levy fee cannot be regarded as based on relevant material. On this ground as well the impugned order cannot be sustained.
11. The learned Advocate-General sought to justify the impugned Government Order on the ground that under Article 45 of the Constitution, the State is under an obligation to endeavour to provide free and compulsory education for all children until they complete the age of 14 years. No doubt the directive principles enjoin the introduction of free and compulsory education by the States. But in implementing the directive principles the State cannot override the rights of parties otherwise than in accordance with law. It has been held that the chapter on fundamental rights is sacrosanct and not liable to be abridged by any legislative or executive act except to the extent provided by the appropriate article in Part III of the Constitution. The directive principles of the State policy will have to confirm and run subsidiary to the chapter on fundamental rights. This principle will equally apply to the statutory rights of the petitioner. When a right is conferred by any statute on the petitioner, it cannot be deprived by an executive order made for furtherance of the directive principle of the State Policy. The statutory right of the petitioner can only be taken away by appropriate legislation. Though the purpose of the impugned Government Order was in pursuance of the directive principles of the State Policy, the validity of the Government Order cannot be sustained, as the statutory right of the petitioner to levy fees conferred under Section 47(2) of the Act has been taken away by the executive order.
12. Learned Counsel for the petitioner contended that the fundamental rights of the petitioner under Articles 19(1)(f) and 19(1)(g) of the Constitution are infringed by the impugned order. The impugned order, as pointed out by the learned Advocate-General, though it prohibits the levy of fees, amounts in fact to threat of withdrawal of recognition on inadequate grounds. The petitioner cannot claim that any of his fundamental rights is affected by an erroneous order withdrawing its recognition. The Supreme Court in Sidhrajbhai v. State of Gujarat : 3SCR837 , has held that interference by State Government by an executive order with the right of management of an educational institution by directing the admission of certain percentage of students of a specified class in the institution, threatening withdrawal of recognition in case of non-compliance with the order, would not amount to deprivation of the right to property and fundamental freedom guaranteed under Article 19(1)(f) of the Constitution or the right to practice any profession or to carry on any occupation, trade or business guaranteed under Article 19(1)(g) of the Constitution. This plea of infringement of constitutional rights will have to be rejected.
13. Learned Counsel for the petitioner submitted that even if the rules are considered as administrative in character, they do not provide for cancellation of recognition in the event of the management levying fees contrary to the direction in Rule 29-A of the Rules. The Rules provide conditions for according recognition as well as for withdrawal of recognition. It was submitted that the breach of Rule 29-A would not entitle the authorities to withdraw the recognition. The rules as framed may lend support to this contention but it may not help the petitioner; as the order of the Government directing the petitioner not to levy fees and informing him that if fees were continued to be levied recognition would be withdrawn is held to be administrative, in nature, the petitioner will not be entitled to any relief from this Court.
14. It was next contended by the petitioner that the impugned order is violative of Article 14 of the Constitution in that Convent-type Schools and Nursery Schools charging exhorbitant fees in the City of Madras are exempt from the operation of the Government Order. On behalf of the State it was pleaded that the difference in the matter of levy of fees between the general schools (elementary and secondary) and Anglo-Indian Schools cannot be considered as discrimination against the former schools infringing Article 14 of the Constitution. It was averred that aid was given to both types of schools at the discretion of the Government and according to the executive orders of the Government it is open to the Government to prescribe conditions under which aid can be given to the schools, and those conditions need not be identical in all respects for both types of schools. In the view I have taken that the impugned Government Order will have to be struck down on the ground that it is inconsistent with the provisions of the Act, it is unnecessary to consider this question.
15. In the result the impugned Government Order is quashed and the petition is allowed with costs. Counsel's fee Rs. 250.
16. The facts in Writ Petition No. 2346 of 1965 are similar to the facts in W.P. No. 4477 of 1965 and the decision in the W.P. No. 4477 of 1965 is applicable to this petition as well.
17. This petition is also allowed with costs. Counsel's fee Rs. 250.