State Of Karnataka v. Noble Saint Education Society

Shivashankar Bhat, J.:— The above Writ Appeal and several other Writ Appeals were filed as common Appeals by the State of Karnataka and others, against the common order of the learned Single Judge. This Judgment is pronounced with reference to the arguments addressed in all the Writ Appeals; we propose to make separate orders category wise, having regard to the submission made by the learned Government Advocate that such individual orders are necessary, to give effect to the Decision of this Court in individual cases.

2. A few Contempt of Court Cases were also posted along with these Writ Appeals, which would be considered and disposed of separately though arguments were addressed in all the matters together.

3. In all the Writ Petitions petitioners were aggrieved by the action of the respondents (State and its officials of the Education Department) in not according permission to start and run educational institutions such as primary schools. Some of the petitioners sought permission to start the schools imparting education in English language; a few sought permission to have medium of instruction in languages other than English. One of the petitioners sought permission to start English medium High School. It has to be noted that in most of the cases the respondents did not file any Statement of Objections and arguments were addressed on behalf of the respondents by the learned Government Pleader before the learned Single Judge without the aid of any particular stand expressed by the respondents in writing.

4. The learned Single Judge has divided the Writ Petitions into three types on the basis of the reliefs claimed. The first type of cases were those who came to this Court for the first time seeking a Writ of Mandamus to the respondents to grant permission to the petitioners to start English medium or Urdu medium schools, asserting that the petitioners are minorities. They have invoked Articles 29, 30 and 350-A of the Constitution of India.

5. The second type is of those who are non-minorities; they seek permission to start educational institutions having the medium of instruction in English.

6. In the third type, further two categories are found: a) The petitioners who had approached this Court earlier and obtained directios of this Court directing the respondents to consider their cases for permission, but the respondents rejected the applications for permission arbitrarily, and b) of those to whom Government had accorded permission to impart education through the medium of English language from Standards I to VII; they sought upgrading of the Schools into High Schools continuing the medium of instruction in English.

7. No doubt a substantial number of petitioners seek permission to start English medium primary schools. According to the non-minority petitioners they are entitled to impart education in the language of their choice by virtue of Articles 14, 19 and 21 of the Constitution. The minorities claim such a right not only by invoking those Articles but also Articles 29 and 30 of the Constitution. The State Government has formulated certain principles to govern the grant of permission to start educational institutions. These principles are referred by the nomenclature of “Grant-in-Aid Code”; for the sake of convenience we refer the same as “the Code”. According to the petitioners they have satisfied the requirements found in the Code and the Government and other respondents are bound to accord the permission sought by them.

8. The learned Single Judge allowed the Writ Petitions and in conclusion made the following Order:

“(i) The respondents are directed to consider the petitioners' applications wherever they have sought for permission for the first time to start English medium schools or Urdu medium schools, so also permission to upgrade schools from Primary to High School with English or Urdu as medium of instruction in accordance with law within three months from the date of receipt of this order.

(ii) In the case of those institutions which claim that they belong to either religious or linguistic minorities, a direction is given to the respondents to accord permission and also grant recognition, reserving liberty to the respondents to withdraw the recognition in case if it is found later that such institutions are not upto the standard and the norms prescribed by the Department, either by way of Grant-in-Aid Code or by way of other guidelines or statutory requirements, within three months from the date of receipt of this order.

(iii) In the case of those institutions whose applications came to be rejected by the respondents without assigning reasons, it is made clear that such orders are quashed. However, liberty is reserved to the respondents to give a notice to such institutions including furnishing to them a copy of the report which the respondents would like to rely upon, hear the petitioners or the institutions and take appropriate decision on their applications either for recognition or for withdrawing of derecognition, as the case may be, within three months from the date of receipt of this order.

9. Before the learned Single Judge, the learned Government Pleader seems to have urged that it was the policy of the State Government not to permit English Medium Schools and on that ground sought to non-suit the petitioners. However, Mr. S.R Naik, the learned Government Advocate, submitted with his usual fairness that there was nothing on record to justify that the Government had formulated any such policy and he was not able to find any justification for the extreme stand taken by the learned Government Pleader while arguing the Writ Petitions.

10. The learned Government Advocate raised the following contentions:

1) Petitioners are not entitled to the permission sought for as a matter of right and it is left to the discretion of the authorities or the State Government to accord the permission. Therefore rejection of the applications for the permission cannot be interfered with in the exercise of the Writ jurisdiction.

2) Provisions of the Grant-in-Aid Code are not challenged in none of the petitions, and therefore, the reasons to grant the permission based on the provisions of the Grant-in-Aid Code are fully justified.

3) At any rate, refusals are based on appreciation of relevant facts and hence conclusive.

4) In cases where the refusal orders are bad, for any reason, this Court should not straight-away issue Writs to accord permission; if the orders are bad, this Court should have directed the authorities or the Government to reconsider the individual cases, afresh, on merits.

5) Learned Single Judge has not made any specific order in individual cases; common order of the learned Single Judge categories the cases into three categories and it has been left to the Government to apply the Decision to the concerned category after deciding as to which category, the particular case belongs to. According to the learned Government Advocate, appropriate directions should have been issued in individual cases to enable their compliance.

6) The order of the learned Single Judge permitting starting of schools (under the second category) and then withdraw the same in case, the institution fails to discharge its functions properly, is not proper. Starting of the institutions ought to be, only with the prior permission of the Government.

As the contentions, in many aspects, overlap each other, we prefer to consider them together. It is also necessary to note that the views expressed in this Judgment pertain to the education in Primary, Middle and High Schools; and in no way would touch the higher educations.

11. Right to establish an educational institution to impart education, undoubtedly, is a Fundamental Right traceable to Articles 19(1)(a), 19(1)(g) and 21 of the Constitution; at any rate, such a right inheres in the Rights guaranteed under Articles 19(1)(g) and 21. From the days of ancient time, imparting education has been considered a lawful vocation.

12. Right to be educated is now firmly accepted as a right to life referred to in Article 21; the enjoyment of this right would be illusory, if there is no such right to establish educational institutions, wherein, one could impart education so that the right to get education can be fully enjoyed. Right to be educated and right to impart education are the two sides of the same coin; one is secured by the existence of the other and in fact, both these Rights are the necessary and inseparable ingredient of the right to life.

13. Article 29(1) guarantees to every section of the citizens having a distinct language, script or culture of its own, a right to conserve the same; this right will be illusory if the right to establish appropriate institutions to preserve the right preferred to in Article 29(1), is also, not read into the same.

14. Article 30(1) guarantees, in specific terms, a right in the minorities “to establish and administer educational institutions of their choice”. Language of Article 30(1) is in absolute terms and the right is not subjected to any restrictions that could be imposed in the ‘Public interest’; restriction, permitted, is a restriction, in the interest of the minorities only.

15. Article 30(1) was enacted to protect the minorities from being overwhelmed by the majority; purpose of Article 30(1) is not to create privileged sections in the society by conferring the right to establish educational institutions in the minorities only. Such a right in others is already found in Article 19 and Article 21, as referred to above. However, the rights falling under Articles 19 and 21 are subject to the exercise of State's legislative powers in the interest of public; only to this extent, rights of the majority differ from the rights of the minorities under Article 30(1). [Vide: Bapuji Educational Association v. State . ILR 1985 KAR 80].

16. Petitioners contend that the right to start an educational institution being a Fundamental Right, cannot be defeated by applying the provisions of the Code; at any rate, the provisions of the Code are not enacted law but executive instructions and hence cannot be enforced against the exercise of the Fundamental Right. Petitioners rely on the principle stated in Bishamber Dayal Chandra Mohan etc. etc. v. State of U.P . 1982 1 SCC 39. The Supreme Court held:

“The quintessence of our Constitution is the rule of law. The State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In State of Madhya Pradesh v. Thakur Bharat Sing, (1967) (2) SCR 454 : (AIR 1967 SC 1170), the Court repelled the contention that by virtue of Article 162, the State or its officers may, in the exercise of executive authority, without any legislation in support thereof, infringe the rights of citizens merely because the legislature of the State has power to legislate in regard to the subject on which the executive order is issued. It was observed (at p. 1174 of AIR):”

‘Every Act done by the government or its officers must, if it is to operate to the prejudice of any person is supported by some legislative authority’.

The same principle was reiterated by the Court in Satwant Singh Sawhney v. Dr. Ramaratnam, Asst. Passport Officer, New Delhi, (1967) (3) SCR 525 at p. 542 : (AIR 1967 SC 1836 at p. 1845” and Smt. Indira Nehru Gandhi v. Raj Narain (1976) (2) SCR 347 at p. 524 : (AIR 1975 SC 2299) at p. 2324.”

In the said case, power of the State Government was traced to the Essential Commodities Act, 1955 and the impugned action was upheld. Requirement of a law to impose any restriction on the exercise of a Fundamental Right, is an exception to the State's executive power under Article 162 of the Constitution. Under Article 162, the executive power of the State is co-extensive with the State legislative competence to enact a law and wherever, a subject is not covered by an enacted law, same can be operated upon by the State, in the exercise of its executive power. However, the executive power cannot be extended to impose restrictions on the exercise of Fundamental Rights.

17. The learned Government Advocate contended that the provisions of the Code have been upheld already, by this Court, tracing them to Article 162 of the Constitution, in General Secretary, Linguistic Minorities Protection Committee v. State of Karnataka . ILR 1985 KAR 1595.. The Bench, while dissenting from the view expressed by Bopanna, J., in Sahyadri Education Trust Case4, held at page 1609:

“This view with great respect, is inconsistent with the ratio of the decision of the Supreme Court in Rai Saheb Ram Jawaya v. State of Punjab (AIR 1955 SC 540) and also in State of M.P v. Kum. Nivedita Jain ((1981) 4 SCC 296 : AIR 1981 SC 2045). In both these decisions, the Supreme Court has held that the executive power of the State under Article 162 of the Constitution being co-extensive with that of the legislative power, in the absence of legislation, that is, when the particular field is not occupied by legislation, executive can act. These decisions were not brought to the notice of the learned Judge in Sahyadri Education Trust case. When these decisions were brought to the notice of the same learned Judge in the case of M. Muniyappa v. State Of Karnataka* (ILR 1989 KAR 615), in which an amendment to the Grant-in-aid Code for Teachers' Certificate Higher Course was made by way of altering the qualification for admission to the course by an executive order, was challenged on the ground that the executive had no competence to make such regulation and could have been made only by legislation, it was negatived relying on the aforesaid two decisions of the Supreme Court. The relevant portion of the judgment of the Supreme Court in Nivedita Jain's case on which the learned Judge relied and negatived the said contention in Muniyappa's case reads:

‘Under Article 162 of the Constitution the executive power of a State, therefore, extends to the matter with regard to which the legislative of a State has power to make laws. As there is no legislation covering the field of selection of candidates for admission to medical colleges, the State government would undoubtedly, be competent to pass executive orders in this regard.’

‘In my view, the ratio of this case is applicable proprio vigore to the facts of these cases. The minimum qualification of SSLC prescribed earlier by the State Government was not pursuant to any legislative provision. That was made under the Grant-in-aid Code, a non-statutory provision. So it is open to the Government to substitute that regulation by a new regulation prescribing a higher qualification in the interest of raising the educational standards pursuant to the national policy of education evolved by the Ministry of Human Resources’.

Therefore, with respect, we clarify that the observation in Sahyadri Education Trust that the State could regulate primary education only by Legislation, being contrary to the law declared by the Supreme Court and applied in Muniyappa's case, does not state the law correctly and therefore it is competent for the State Government to give effect to the Full Bench decision and the orders made in these petitions as also the Cabinet policy of permitting primary schools upto the fourth standard only in mother-tongue uniformly, by issuing appropriate orders, for, it is also clear that an executive order can be amended by any subsequent executive order. We also clarify that Rule 12(1) was part of the Grant-in-Aid Code promulgated in 1969 and it incorporated a general policy of imparting primary education in mother-tongue which is in conformity with expert opinion and resolutions extracted in the order of the Full Bench and it was not introduced pursuant to the Cabinet Policy evolved in 1987, as stated in para 11 of the judgment in Sahyadri Education Trust case, relevant portion of which is extracted earlier.”

18. We are of the opinion that it is unnecessary for us to go into this aspect in greater detail and consider whether the Decision of the Bench reported in ILR 1989 KAR 1595, is in consonance with the ratio of the decision of the Supreme Court in Bishamber Dayal's case. We are of the view that the relevant provisions of the Code are not restrictions at all, but are regulatory in character and therefore, State Government is competent to make such provisions and enforce them in the exercise of its executive power.

19. While considering the right of the minorities under Article 30(1), whereunder, the right is absolute in character, Supreme Court pointed out that the State is competent to regulate the exercise of such a right by the minorities. What governs Article 30(1) also would govern the Fundamental Rights under Articles 19(1)(g) and 21, also. Supreme Court made a distinction between a ‘restriction’ and a ‘regulation’. Regulation secures the proper functioning of the institutions, in matters educational. In other words, while restrictions impede the exercise of the right, ‘regulations’ polishes the right so that, there would be a proper and smooth exercise of the right in the interest of the very persons exercising the Fundamental Right.

20. In REV. Sidhrajbhai Sabbai v. State of Gujarat . AIR 1963 SC 540 @ 545., the Supreme Court held:

“…Unlike Article 19, the fundamental freedom under Clause(1) of Article 30, is absolute in terms: it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Article 19 may be subjected to. All minorities, linguistic or religious has by Article 30(1) an absolute right to establish and administer educational institutions of their choice; and any law or executive direction which seeks to infringe the substance of that right under Article 30(1) would to that extent be void. This, however, is not to say that it is not open to the State to impose regulations upon the exercise of this right. The fundamental freedom is to establish and to administer educational institutions; it is a right to establish and administer what are in truth educational institutions - institutions which cater to the educational needs of the citizen, or sections thereof. Regulation made in the true interest of efficiency of instruction discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed: they secure the proper functioning of the institutions, in matters educational.”

None has a Fundamental Right to seek affiliation or recognition. The Fundamental Right to establish and administer an educational institution, does not include a right of affiliation to any University or recognition by the State, though, such affiliation or recognition cannot be arbitrarily refused, because, without recognition of an institution by the State, the very exercise of the right to establish and administer an educational institution will become unutilitarian or infructuous.

21. In The Ahmedabad St. Xaviers College Society v. State of Gujarat . 1974 1 SCC 717, the Supreme Court was concerned with the question whether educational institutions established and administered by minorities for imparting general secular education have a Fundamental Right to be affiliated to a statutory University on terms of management different from those applicable to other affiliated colleges. We are of the view that in the case of lower educational institutions, purpose of affiliation is achieved by the permission given by the State Government to start it and the recognition given to such institutions by the State. At page 1395, it was held:

“The consistent view of this Court has been that there is no fundamental right of a minoritiy institution to affiliation. An explanation has been put upon that statement of law. It is that affiliation must be a real and meaningful exercise for minority institutions in the matter of imparting general secular education. Any law which provides for affiliation on terms which will involve abridgement of the right of linguistic and religious minorities to administer and establish educational institutions of their choice will offend Article 30(1). The educational institutions set up by minorities will be robbed of their utility if boys and girls cannot be trained in such institutions for University degrees. Minorities will virtually lose their right to equip their children for ordinary careers if affiliation be on terms which would make them surrender and lose their rights to establish and administer educational institutions of their choice under Article 30. The primary purpose of affiliation is that the students reading in the minority institutions will have qualifications in the shape of degrees necessary for a useful career in life. The establishment of a minority institution is not only ineffective but also unreal unless such institution is affiliated to a University for the purpose of conferment of degrees on students.

Affiliation to a University really consists of two parts. One part relates to syllabi, curricula, course of instruction, the qualifications of teachers, library, laboratories, conditions regarding health and hygiene of students. This part relates to establishment of educational institutions. The second part consists of terms and conditions regarding management of institutions. It relates to administration of educational institutions.

With regard to affiliation a minority institution must follow the statutory measures regulating educational standards and efficiency, the prescribed courses of study, courses of instruction and the principles regarding the qualification of teachers, educational qualifications for entry of students into educational institutions etcetera.”

After referring to an earlier Decision in State Of Kerala, Etc. v. Very Rev. Mother Provincial, Etc, etc.,7 the learned Judges proceeded to observe:

“When a minority institution applies for affiliation, it agrees to follow the uniform courses of study. Affiliation is regulating the educational character and content of the minority institutions. These regulations are not only reasonable in the interest of general secular education but also conduce to the improvement in the stature and strength of the minority institutions. All institutions of general secular education whether established by the minorities or the non-minorities must impart to the students education not only for their intellectual attainment but also for pursuit of careers. Affiliation of minority institutions is intended to ensure the growth and excellence of their children and other students in the academic field. Affiliation mainly pertains to the academic and educational character of the institution. Therefore, measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities for libraries and laboratories are all comprised in matters germane to affiliation of minority institutions. These regulatory measures for affiliation are for uniformity, efficiency and excellence in educational courses and do not violate any fundamental right of the minority institutions under Article 30.”

At page 1415, Justice Khanna observed:

“The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence.”

As to the scope of Article 30(1), which confers an absolute right, his Lordship said, at page 1421:

“The right conferred by the clause is in absolute terms and is not subject to restrictions, as in the case of rights conferred by Article 19 of the Constitution. The right of the minorities to administer educational institutions does not, however, prevent the making of reasonable regulations in respect of those institutions. The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education. The right to administer educational institutions can plainly not include the right to maladminster. Regulations can be made to prevent the housing of an educational institution in unhealthy surroundings as also to prevent the setting up or continuation of an educational institution without qualified teachers. The State can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed: they secure the proper functioning of the institution, in matters educational (see observations of Shah, J., in Rev. Sidharajibhai Sabhai (1963) 3 SCR 837 at p. 850 : (AIR 1953 SC 540) (supra). Further, as observed by Hidayatullah, C.J, in the case of very Rev. Mother Provincial (supra) the standards concern the body politic and are dictated by considerations of the advancement of the country and its people.”

Again at page 1423:

“It would be wrong to assume that an unrestricted right as in Article 30 postulates absence of reguiations. Regulations can be prescribed in spite of the unrestricted nature of the right. The unrestricted nature of the right connotes freedom in the exercise of the right. Even the words ‘freedom’ and ‘free’ have certain limitations. In James v. Commonwealth, 1936 AC 578 the Privy Council dealt with the meaning of the words ‘absolutely free’ in Section 92 of the Constitution of Australia. It was said: ‘Free’ in itself is vauge and indeterminate. It must take its colour from the context.”

Mathew, J., held at p. 1442:

“Recognition or affiliation is granted on the basis of the excellence of an educational institution, namely, that it has reached the educational standard set up by the university. Recognition or affiliation is sought for the purpose of enabling the students in an educational institution to sit for an examination to be conducted by the university and to obtain a degree conferred by the university. For that purpose, the students should have to be coached in such a manner so as to attain the standard of education prescribed by the university. Recognition or affiliation creates an interest in the university to ensure that the educational institution is maintained for the purpose intended and any regulation which will subserve or advance that purpose will be reasonable and no educational institution established and administered by a religious or linguistic minority can claim recognition or affiliation without submitting to those regulations. That is the price of recognition or affiliation: but this does not mean that it should submit to a regulation stipulating for surrender of a right or freedom guaranteed by the Constitution, which is unrelated to the purpose of recognition or affiliation.”

22. Therefore, regulatory measures aimed at securing excellence in education and maintenance of standard are not considered as restrictions on the Fundamental Right to establish and administer the educational institutions. If so, requirement of a legislative enactment to enforce such measures, does not arise; State could formulate the principles governing these matters in the exercise of its executive power.

23. The provisions of the Code are to be read as these regulatory measures; in case any of its provision goes beyond this limitation and purports to affect the exercise of the Fundamental Right, an attempt should be made to read down the provisions if possible, to make it regulatory. However, in case, such a provision cannot be read as to convey only the regulatory purpose, then, Court may have to strike it down or ignore the same as unenforceable.

24. In these cases, we are concerned with the Code to the extent of its terms governing the permission to be granted for starting a school or its recognition, by the Government. Further, in none of these cases, petitioners expect or seek any aid from the Government.

25. Rule 9 of the Code lays down general conditions for starting an educational institution. Clause (i), certainly cannot be considered as offending any of the Fundamental Rights. In fact, even minority institutions have been, held as under an obligation to keep open the institution to all communities. (Vide St. Stephen's College Case8).

26. Clause (ii) of Rule 9 is not clear: it states that starting of a new institution shall not create an “unhealthy competition” with existing institutions of the same category in the neighbourhood; what is “unhealthy competition”, is not stated. The fact that there is already one institution imparting good education, should not be a ground to refuse permission to another institution to come up. Purpose of Rule 9(ii) cannot be to create a monopoly in the existing institution. If the newly started institution is not able to provide for, imparting good education, it is bound to be closed for want of patronage. There is no reason to deny the operation of the principle governing the “market economy” to such a situation. It is a well-known fact that State requires more educational institutions and the State is not able to provide for, more schools. Private venture in this field of education should be welcomed rather than discouraged. We are of the view that Rule 9(ii) should be read down so that, the normal rule ought to be to permit the starting of a new school, even though, there is already a school of the same category in the neighbourhood; concept of “Unhealthy competition” referred in Rule 9(ii) should be limited to operate under exceptional circumstances.

27. There can be no doubt that other provisions of Rule 9 are salutary and are in the best interest of the very institutions to be established. Similarly Rule 11 which lays down certain conditions for recognition, is not shown to us as unwarranted or beyond the scope of being a regulatory measure. In The State of Maharashtra v. Lok Shikshana Sanstha . 1971 2 SCC 410, it was held by the Supreme Court, that Grant-in-aid Code (Maharashtra) has no constitutional force and the Rules contained therein were executive instructions. It was further held that the order of the authorities refusing permission to start educational institution cannot be struck down without considering the reasons given by the authorities. It was a case where the respondent which sought permission to start an educational institution had no sufficient funds; another society with sufficient experience and funds was granted the permission.

However, at page 592, the Supreme Court observed:

“…So long as there is no violation of any fundamental rights and if the principles of natural justice are not offended, it was not for the High Court to lay down the policy that should be adopted by the educational authorities in the matter of granting permission for starting schools. The question of policy is essentially for the State and such policy will depend upon an overall assessment and summary of the requirements of residents of a particular locality and other categories of persons for whom it is essential to provide facilities for education. If the overall assessment is arrived at after a proper classification on a reasonable basis, it is not for the Courts to interfere with the policy leading up to such assessment.”

At page 597, the Supreme Court held that it was unnecessary to consider the question whether the instructions contained in the Code require to be struck down, on the ground of vagueness; finding was that, the relevant rule was clear without any ambiguity. The Writ Petition filed by the respondent was to quash the permission granted to another institution; this was held to be not maintainable, because no legal right of the petitioner had been infringed by the grant of permission to another society.

28. Learned Government Advocate relied on the above Decision to contend that the learned Single Judge erred in quashing the orders refusing permission to several Writ Petitioners and that this Court cannot examine the correctness of the reasons given by the authorities or the State Government.

29. We are the view, this is an extreme contention. In the above Decision, Supreme Court has not barred this Court's jurisdiction to examine the validity of the exercise of Governmental power refusing permissions. In fact, observations of the Supreme Court quoted above show, that in case there is violation of any Fundamental Right or if principles of natural justice are violated, High Court may interfere with the order of refusal. We have to bear in mind that permission to start an educational institution is not a privilege conferred by the Government; it is a right inherent in the people of this Country; the said right is in no way inferior to the right of a person to engage in any other kind of lawful vocation requiring licence from the authorities under any statute enacted in the public interest. The observations of the Supreme Court in The Indian Mica and Micanite Industries Ltd. v. The State of Bihar . 1971 2 SCC 236, is very appropriate here:

“…Generally speaking by granting a licence the State does not confer any privilege or benefit on any one. All that it does is to regulate a trade, business or profession in public interest. There may be cases where a Government which is the owner of a particular property may grant permit or licence to someone to exploit that property for his benefit. Such a right may be given for consideration. It is only in those cases that a licence or a permit is a conferment of a benefit or a privilege and not in the case of grant of a licence for carrying on any ordinary trade, business or profession.”

30. The State Government has been asserting that permission to start an educational institution and its recognition are governed by the terms of the Code; if so, the Government cannot resile from the said terms found in the Code. Government cannot claim an unfathomed right to accord or reject permission; the exercise of executive power should be based on a sound disclosed policy, terms of which are capable of being understood by those who intend to start new institutions.

31. As to the medium of instruction, the learned Govt. Advocate relied on the Decision in General Secretary, Linguistic Minorities Protection Committee v. State of Karnataka. It was held that a regulation which requires, upto 4th Standard, instruction in mother tongue is a reasonable regulation in the interest of excellence in education and that Rule 12(i) and (ii) ensures the development of the language of the linguistic minorities by providing that the primary education shall be in the mother tongue.

32. Rule 12(i) states that “In all primary schools, the medium of instruction shall ordinarily be the Regional Language or mother tongue of the child”. The language of Rule 12(i) is not peremptory. It is in the nature of a guidance and experts that ‘ordinarily’ medium of instruction shall be in the Regional Language or mother tongue. Rule 12(ii) reads thus:

“12(ii): With a view to creating facilities for the linguistic minorities provision shall be made for teaching their mother-tongue subject to the prescribed conditions.

English medium schools or English medium sections in the existing Primary Schools may be opened with the permission of the Director for the benefit of the following categories of students:

(i) Students whose mother tongue is English;

(ii) Students whose parents belong to All India Services Central Services, etc. and are liable to be transferred from State to State (on production of certificates from the concerned department);

(iii) Students belonging to a migratory group-Migratory group means those who have no permanent abodes and who migrate from State to State frequently for business or other reasons e.g Labour employed in construction work;

(iv) Students whose parents are employees of Banks, Firms and other business concerns, which have branches in more than one State and the employees of which are liable to be transferred from State to State (on production of certificate from the concerned authorities);

(v) Student whose mother tongue is a minority language for which there is no provision in the schools of the locality;

(vi) Such schools should be started only after obtaining the permission of the Director; and

(vii) An English medium school or class may be permitted to be started subject to the condition that the minimum strength of each Standard is 10 or 30 for standards I to IV taken together. For standards V to VII the minimum strength shall be 10 per standard.”

33. The observations of the Bench in the above Decision, has to be read with the earlier Decision of the Full Bench in General Secretary, Linguistic Minorities Protection Committee v. State of Karnataka . ILR 1989 KAR 457 @ 522; wherein the majority view, held thus:

“It is also universally recognised that it is the parental right to have primary education of their children in the school and language of their choice. This aspect has been highlighted by Mathew, J. in St. Xavier's College v. State of Gujarat ((1974) 1 SCC 717 : AIR 1974 SC 1389). The relevant portion of the judgment at paragraphs 141 and 142 reads:

‘The fundamental postulate of personal liberty excludes any power of the State to standardize and socialize its children by forcing them to attend public schools only. A child is not a mere creature of the State. Those who nurture him and direct his destiny have the right coupled with the high duty to recognize and prepare him for additional obligations. See Pierce v. Society of Sisters of Holy Names, (1924) 268 US 510, 535’.

‘The parental right in education is the very pivotal point of a democratic system. It is the touchstone of difference between democratic education and monolithic system of cultural totalitarianism.’

The State therefore should leave the option to have the primary education in mother-tongue to the parents and their children. The State cannot curtail that right and liberty.”

34. We may also add that the right of the institutions under Article 30(1) is in absolute terms and they have a right to establish and administer educational institutions of their choice.

35. Provisions of Rule 12(ii) of the Code, therefore, are to be read, in the light of these settled principles - (a) Parental right to have primary education of their children in the school and language of their choice, and (b) in the case of minorities, said right is further reinforced by the language of Article 30(1) of the Constitution.

36. Next question pertains to the nature of the order to be passed by this Court, when it is found that, permission sought by the petitioner in a given case, was not granted on irrelevant grounds.

Learned Government Advocate contended that, this Court should remit back the matter to the State Government to consider such a case afresh.

37. Normally, this Court requires the Government to reconsider the case afresh, in case, the earlier order is set aside, because, primarily, it is for the Government to apply its mind and decide the question. But, this is not an absolute principle. If an authority or the Government fails to make an order by considering the relevant factors, and if the said authority or the Government repeats this failure after this Court remitted back the case, normally a third opportunity is not given to the said authority or the Government.

In State Of Karnataka v. G. Lakshman* . ILR 1987 KAR 2223., a Bench of this Court held, at page 2247:

“The learned single Judge referred to the decision of the Supreme Court in Gujarat Steel Tubes Ltd., etc. etc. v. Gujarat Steel Tubes Mazdoor Sabha ((1980) 2 SCC 593 : AIR 1980 SC 1896 and 1931 - paras 79 & 146) for the proposition that the High Court may make a final order in Writ Petitions without remanding the matter to the authorities, in appropriate cases. In para-79 the Supreme Court observed that:

‘So broad are the expressive expressions designedly used in Article 226 that any order which should have been made by the lower authority could be made by the High Court. The very width of the power and the disinclination to meddle except where gross injustice or fatal illegality and the like are present, inhibit the exercise but do not abolish the power’.

Again at para-146 (at page 1931) it is said:

‘What the tribunal may in its discretion do, the High Court too, under Article 226, can, if facts compel do.’

This proposition is reiterated in another decision, in Comptroller & Auditor General of India, Gain Prakash, New Delhi v. K.S Jagannathan ((1986) 2 SCC 679 : AIR 1987 SC 537 paras 18, 19 & 20):

‘There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a Rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant consideration or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring, such discretion or the policy for implementing which such a discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in proper and lawful manner of the discretion conferred upon the government or a public authority and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court itself may pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.’”

In The Managing Board of the Milli Taliml Mission, Bihar, Ranchi v. The State of Bihar . 1984 4 SCC 500, the Supreme Court directed the affiliation to be granted, after striking down the order impugned therein. (vide para 26 of the Report). Liberty was given to the authorities to withdraw the affiliation, if subsequently, it is found that requisite conditions are not fulfilled.

38. Our conclusions are:—

(1) Right to establish and administer an educational institution is a Fundamental Right available to all. Right to impart education is also a guaranteed Fundamental Right.

(2) However, none has a right to have the institution recognised by the State, without satisfying the requirements that may be validly imposed by the State, in the interest of the very institution to function as proper educational institution.

(3) State shall not deny recognition arbitrarily.

(4) Provisions of Grant-in-aid Code are regulatory in character, made in the true interests of efficiency of institution, discipline, excellence in education sanitation, etc., and are not restrictions imposed on any of the Fundamental Rights. These provisions of the Code (with which we are concerned in these cases) are aimed to prevent the institution from falling below the standards of excellence expected of educational institutions and to compel them to follow the general pattern.

(5) Individual cases before us are to be considered to see whether, permission to start educational institutions was arbitrarily refused and if so, whether, such a case should be sent back to the Government for fresh consideration.

(6) It is unnecessary that in every case this Court should remit back the case for fresh consideration, even after striking down the refusal order. It is open to this Court depending upon the circumstances to direct the Government to accord permission sought for by the petitioner, if the material on record is sufficient to issue such a direction.

(7) Having regard to the history of the case and the reasons given for the refusal to grant permission, and the facts prima facie proved by the petitioner, permission could be accorded, this Court may direct the Government to grant the permission, with liberty to withdraw the same in case, the institution is not run properly as an educational institution satisfying the requirements regarding the excellence in the standard of education and other relevant considerations. It should be borne in mind that establishment of new educational Institutions, specially the Primary Schools and High Schools are prima facie, in the public interest, and conducive to the public welfare. One cannot forget that the State has failed to discharge its Constitutional obligation by establishing proper educational institutions, envisaged by Article 45 of the Constitution and coming up of new institutions established by Institutions like the present petitioners, atleast partially contribute in the matter of eradication of illiteracy. Exploitation of this Right to establish and run educational institutions by private bodies to commercialise the system and sell out sub-standard products of education, is matter for the State to curb and prevent; in that regard the provisions of the Code require to be respected by the Court, as not impeding the exercise of the Fundamental Right of anyone.

39. In Writ Petition No. 10141/89 the petitioner had approached this Court on an earlier occasion by filing W.P 17143/88. The Writ Petition was allowed and this Court directed the respondents to accord permission to the petitioner to start an English medium primary school subject to the petitioner complying with the requirements of the Code. The Government was directed to comply with the Writ within two weeks. The order was made on 28.11.1988 Since the Government failed to make any order the petitioner filed a Contempt of Court Case against the respondents. During its pendency the Government issued an endorsement to the petitioner dated 30.5.89 This endorsement states that the petitioner has been running unauthorised English medium school from 1986-1987 having Standards I and II with 40 students each; the mother tongue of the majority of students is Urdu and that there are sufficient number of English Medium Primary schools to cater to the needs of students covered under Rule 12 of the Code. These facts were obtained from the report of the Commissioner for Public Instructions. Consequently the permission sought for was rejected by giving four reasons as follows:

“(i) There are no English speaking linguistic Minorities in the area under consideration;

(ii) The linguistic Minorities in the area have facilities for education in their mother tongue;

(iii) Mother tongue of majority of students admitted is Urdu;

(iv) There is sufficient English medium schools for the needs of students covered under Rule 12 of the Grant-in-Aid Code and sanction of another English Medium Primary School not justified.

Therefore the request of the petitioner Noble Saint Education Society for grant of permission to open an English Medium Primary school at K.G Halli, Bangalore, is hereby rejected by Government.”

40. The petitioner contended that the Government had no option except the granting of the permission in view of the Writ issued by this Court earlier on 28.11.88 It was further contended that the reasons given by the Government are no reasons at all because the relevant facts leading to the reasons are not forthcoming.

The petitioner also asserts that it has fulfilled all the requirements of the Code.

41. The petitioner has asserted that it belongs to a religious and linguistic minority in para 1 of the Writ Petition. Though a Statement of Objection is filed in this Writ Petition there is no specific denial of this assertion. The Statement of Objections states that the policy of the Government, in so far as elementary education is concerned, is that the medium of instruction in primary schools shall ordinarily be in the regional language or mother tongue of the child and that linguistic minorities are allowed to open primary schools to cater to the respective linguistic groups. As far as English medium is concerned they are not permitted to claim as a matter of right. The Statement of Objection also states that the third respondent-DDPI had made some favourable recommendation in favour of the petitioner. The entire theme of the Statement of Objection is that the petitioner has no Fundamental Right to seek permission to run an English medium school.

42. We have already held the choice of medium of instruction is primary for the parents to decide, and we have referred to the majority view in the Decision of the Full Bench already referred above. Further the petitioner belongs to a religious and linguistic minority and if so, under Article 30 petitioner has a Fundamental Right to establish and administer a educational institution of its choice. The endorsement of the Government nowhere gives the factual figures pertaining to the population, the number of institutions in the area and why there is sufficient number of English medium schools. The petitioner seeks permission to start an English medium primary school at K.G Halli in Bangalore. In a City like Bangalore, it is not possible to limit any particular locality as that of the particular institution. In other words it cannot be held that a particular institution would be catering to the residents of a particular locality. It is well known fact that Bangalore is a cosmopolitan and multi-lingual city. The population has been expanding day by day. It has become the centre of industrial and commercial activities. Having regard to the multiplicity of the languages spoken to and the need to have a link language it cannot be said that the desire of the parents to impart education to their children in a well known international language like English can be by-passed, forgetting the realities of life. Any how it is not necessary for us to dwell upon this aspect further because we are concerned with the provisions of the Code and the Rule 11 of the Code contemplates the grant of permission to the English medium primary schools. There is no absolute bar against the permission to be granted under the Code, for an English medium primary school. We have also earlier pointed out that the term “provisions of the Code” are to be read in such a way as to read them as regulatory in character and not as restrictions on the Fundamental Rights.

43. In these circumstances, we are constrained to hold that the reasons given for rejecting the permission are no reasons at all. The rejection is the conclusion which should be preceded by reasons and the reasons should flow out of the basic materials. The impugned endorsement nowhere gives the basic facts or materials. Mere assertion that there are several schools and that linguistic minorities have other facilities cannot be accepted as a satisfactory mode of dealing with an application seeking to start an educational institution.

44. In these circumstances the impugned order/endorsement of the Government dated 30.5.1989 made in ED. 163. PGC. 89 rejecting the petitioner's request for permission is quashed. We direct the State Government to accord permission to the petitioner as sought for on or before 31.3.1993 However, we clarify that in case it is found subsequently that, the petitioner is not running the institution as an educational institution properly, it is open to the State Government to withdraw the permission in terms of the Code.

Writ Appeal is accordingly dismissed.