Holding

The Government lawfully exercised its statutory power to upgrade the school, the procedural steps under the Kerala Education Rules were duly complied with, and the appeal is not barred by limitation, so the High Court order is set aside.

Summary

The appellant, N.K. Haji, ran a primary school and applied for its upgradation to an upper primary school under the Kerala Education Rules. Although the initial 1975 notification did not list his school, the Government later issued a revised order sanctioning the upgradation, which was challenged on the ground that the earlier rejection barred any subsequent approval. The High Court quashed the order, but the Division Bench upheld it, leading to this appeal before the Supreme Court. The Court examined whether the Government had jurisdiction, whether the procedural requirements of Rules 2 and 2‑A were complied with, and whether the appeal was barred by the limitation on filing legal representatives. It held that the Director of Public Instructions had duly considered the application, the statutory steps were observed, and there was a genuine educational need justifying the upgradation. Consequently, the Court rejected the contention that the appeal was abated and allowed the appeal, setting aside the High Court judgment and dismissing the writ petition.

Issues considered

Did the Government have jurisdiction to sanction the upgradation after the earlier notification had rejected the application?
Were the procedural requirements under Kerala Education Rules, Sections 2 and 2(A), complied with?
Is the appeal barred because the legal representatives of the appellant were not brought on record within the limitation period?
Should the larger public interest in education override procedural technicalities?

Legislation cited

Constitution of Indias. Article 226
Kerala Education Ruless. 2, s. 2(A)

Subjects

educationschool upgradationstatutory powerprocedural compliancefundamental right to educationlimitation periodpublic interest

Judgment

A N. KUNHICflEKKU HAJI(d) BY LRS
v.
STATE OF KERALA AND ORS. .-(
MARCH 22, 1995

B [K. RAMASWAMY AND S. SAGHIR AHMAD, JJ.]

Education:

Kerala Education Rules :

C Rules 2 and 2-A-Establishment and Upgradation of new
Schools-Application for upgrcdation-Notification-Applicant's name not
in the list-Subsequent orders upgrading the school from primary to upper
Primary-Challenged on the ground that once rejected not to be considered
agairt-fleld: Not vitiated-Procedure adhered to-Need for encoura_ging
. D educational incentives-No violation of statutory steps.

Practice & Procedure:

Limitation-Not bringing on record the legal representatives within
limitation-Larger interest to be taken into account-Procedural cob-webs
E · and technicalities not to subsume substance.
The appellant was running a primary school. Government invited
applications for establishing new schools or upgradation of existing
schools. Appellant made an application for upgradation of his primary
school into upper primary school. Government sanctioned the same, but
F in the schedule the name of the appellant for upgradation of his school
did not find a place. Subsequently Government issued orders in which
appellant's name found a place. This order was challenged on the ground
in a Writ Petition on the ground that since the applications have already
y_....
..
I

been dismissed by its earlier notification, the Government had no jurisdic-
G tion or pmrer to grant sanction subsequently. The impugned order was
quashed by a Single Judge and on appeal it was confirmed by the Division
Bench. Hence this appeal.

Allowing the appeal, this Court

H HELD:l. From the recital of the G.O. it is seen that certain applica·
954
I
J
·...1
N.K. HATI v. STATE 955

tions have been deferred for detailed consideration; at. a later stage the A
Director of Public Instructions had considered such application in detail
and had recommended the sanction of schools in those places taking into
consideration the educational need existing in that locality. In consequence
the sanction of the upgradation of appellant's school was granted.
(956-H, 959-A]
B
2.1 Government have granted permission in the public interest
upgrading the school to avoid drop out of school going children. It is
known that Kerala has the highest literacy percentage. Even then Malap-
puram District was found to be a backward district in education and the
Government felt that the District needs encouragement for educational
incentives. As a consequence, the educational need was found to be c
genuine. Therefore, when the Government had found it necessary that
there exists need for upgradation of the existing school into upper primary
school, the Government must be allowed to exercise its statutory power
' unless it is malafide or colourable exercise of power and is justified on
extraneous facts in granting upgradation. (957-F-H, 958-A] D
2.2 The High Court did not record any finding that the impugned G.O.
is vitiated by any malafide exercise of the power. After the Director of Public
Instructions examined the matter and made recommendation, the Govern·
ment had issued the revised G.O. Since the procedural steps required under
Sections 2 and 2(A) of the Rules have been adhered to, there is no violation E
of the statutory steps required in this behalf. [958-H, 959-A]

3. The fact that the Government is coming forward to transpose itself
as an appellant would clearly indicate that there is an acute educational
need for upgrading primary school in the locality as upper primary school.
Moreover, children have fundamental right to education. Therefore, larger F
interest of young children should be taken into consideration in meeting
the procedural cob-web and the technicalities should not subsume sub-
stance. Considered in that perspective, it cannot be said that the appeal
stands abated on account of the fact that the legal representatives of the
appellant have not been brought on record within limitation. (958-D-E] G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2044 of
1979.
-~
From the Judgment and Order dated 6.2.1979 of the Kerala High
Court in W.A. No. 299 of 1977. H
I

' . ' · 9~~· \.. ·. SUPREMECOURTREPORTS. _. [~99SJ2S.C.R.
·· ''.A'''.'.' 'T.L. Viswanatha Iyer and E.M.S. Anam with him for the-Appellant.
- \< < < '" < <

MA. Firoz for the State.

N.Sudhakaran for the Respondent ...

B G. :Viswanatha Iyer, 'r.v. Surendran, Dileep-Pillai 'and P; Kesava
Pillai with him for the Inte~enor. ·

· The following Order of the Court was delivered :
\:-.

This ~ppeal aris~s fr~m the jud~ent of the Division Bench of the
·- C High Court of Kerala in WA. No. 299m dated 6.2.79. The admitted facts
.· / are that the appellant was running a primary school at Kanmanam by name <

. A.M.L.P. School As per the procedure prescn'bed in Rule2 of Chapter
V of the Kerala Education Rules, objections have been called on the need
. - -o

to establish new schools or upgradation of existing schools. The notification
_D was issued on July 4, 1975 inviting applications for establishing new schools
, or upgradation of the existing schools. Pursuant thereto; the appellant
made an application for upgradation of. his primary school into upper
primary school The Government had sanctioned on lRl0.1975 but in the
· Schedule the name of the aPPellant for upgradation of his school did not
E find place. The Government in G.O.Ms. No. 116/76, dated 21.6.1976 issued
orders in which the appellant's name as item 5 finds place for upgradation
of his school as upper primary school The respondent had challenged the
order of the Government gimg
sanction for upgradation by filing the O.P.
wder Art.226 contending inter aiia that since the applications have already
been dismissed by issuing ihe notification ~n ·is.10.1975, the Government
F have no jurisdiction or power to grant sanction under the iinpugned G.O.
That was found favour with the learned Single· Judge and accordingly it
was quashed. On appeal, it was conrm,;ed. Thus this appeal by special j>.
--lcavc.~.-----,\ .· -' ,,-., '.

It ~ould be seen that the j,udgment of the High Court was suspended .
G by this collrt. In coniequence the appellant has been Continuing to rwi the
upgraded school ever since the sanction was pven by the Government OD
<

21.6.1976. The question is whether· tbC sanction for upgradation of the
·- ·school was properly given by the Government. It would be seen from the
· recital of the G.O. that certain applications have been deferred for detailed
. H consideration; at a later stage the Director of Public Instructions had
', .·

•
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N.K. HAJJ v. STATE 957

considered such application in detail and had recommended to sanction A
the schools in those places taking into consideration of the educational
need existing in that locality. In consequence the sanction of the upgrada-
tion of appellant's school was granted. In the counter affidavit filed in the
High Court, it was specifically stated that the distance between the respon-
dent school and that of the appellant is about 2-1/2 kms. The G.O. further B
shows that:

"The Government felt that the area Kananham is in need of a U .P.
school. As no particular school was notified for opening of the new
school or upgrading of existing school the question of hearing
petition regarding his objections against the upgrading of C
A.M.L.P.S. Kanmanam did not arise. However, the· Assistant
Education Officer, Tanur made a spot enquiry when the objections
from the Manager, A.M.U.P.S. Kanhirakole was received.

The Manager's statement that the very survival ofthis U.P. School D
primarily depends upon the feeder schools cannot be believed.
At present the pupils coming form Kanzanam area to Kanhirakole
have to cross a flooded field which is very inconvenient for
the little children of tender age. Due to this inconvenience many
of the pupils who have complete L.P. School studies in the feeder E
schools discontinue their studies. The fact that there will be fall
in the number of strength in Kanhirakole school cannot be a
reason to ignore the inconvenience of the children of Kanmuanam
area."

In that Order, Government have granted permission in the public F
interest upgrading the school to avoid drop out of school going children.
It is known that Kerala has the highest literacy percentage. Even then
Malappuram District was found to be a backward diatrict in education and
the Government felt that the District needs encouragement for educatioMI
incentives. As a consequence, the educational need was found to be G
genuine. It is also to be noted that in the counter affidavit ftJed in this Court
and the High Court, it was stated that due to 2-1/2 ·kms. distance young
children are dropping out since there is no direct route except crossing the
fields which the children found it difficelt to travel fro'1t the village to the
school tun by the respondent. Therefore, when the Government had folind H
958 SUPREME COURT REPORTS (1995) 2 S.C.R.
. .
A it necessary that there exists need for upgradation of the existing school
into upper primary school, we think that the Government must be allowed .-(
to exercise its statutory power unless it is malafide or colourable exercise
of power and is justified on extraneous facts in granting upgradation.

B Shri Vishwanatha Iyer, learned senior counsel has contended that the
appellant died in 1983 and an application was made in 1994 to bring the
legal representatives on record, and there is no proper explanation for the
inordinate delay. Therefore, there is not pending appeal in the eye of law
since the appeal stands abated. Technically the contention is correct. But
the question is whether the respondent has any personal interest in the
·C matter. Since there exists public need for catering the educational interest
of the young children, the technicalities should not stand in the way for
consideration of the matter in issue. Moreover, the Government itself has
come forward to transpose itself as an appellant. No doubt they did not
file any appeal against the order of the Single Judge before the Division
D Bench, nor filed any appeal in this Court. The fact that the Government is
coming forward to transpose itself as an appellant would clearly indicate
that there 1s an acute educational need for upgrading primary school in the
locality as upper primary school. Moreover, children have fundamental
right to education. Therefore, larger interest of young children should be
E t~en into consideration in meeting the. procedural cob-web and the tech-
nicatities should not subsume substance. Considered in that perspective,
we reject the contention of the respondent that the appeal stands abated
on account of the fact that the legal representatives of the appellant have
not been brought on record within limitation. The appeal is aceord~y
F allowed and they are transposed as legal representatives.

It may be mentioned that G.O. dated October 18, 1975 recites that
incomplete or defective applications stood rejected as noted by the High
.Court. The recitals in the impugned G.O. clearly mentions that some
applications including that of the appellant were kept back for further
G examination. The Government also found that there was need for estab-
lishing new school.S or upgrading the existing school.S. The educational need
thereby sought to be served by granting upgradation of the appellant's
school. The High Court also did not record any finding that the impugned
G.O. is vitiated by any malafide exercise of the power. After the Director
H of Public Instructions examined the matter and made recommendation, t)le
I

N.K. HAJiv. STATE 959
Government had issued the revised G.O. Since the procedural step:; re- A
quired under Sections 2 and 2(A) of the Rules have been adhered to, we
do not find any violation of the statutory steps required in this behalf.
Therefore, the appeal is allowed. The orders of the High Court are set
aside. Consequently the Writ Petition stands dismissed. In the circumstan-
ces, the parties are directed to bear their own costs throughout.
B
All the applications shall be treated to have been disposed of in the
light of this judgment.

G.N. Appeal allowed.