Natarajan, J. - (1.) These appeals by special leave arise out of a common judgment rendered by the High Court of Kerala in a batch of writ appeals filed by the respondents herein against the dismissal of their petitions under Article 226 of the Constitution of India for the issue of writs of certiorari, mandamus, prohibition etc. by a learned single Judge. Though the appeals were allowed and the order of learned single Judge was reversed, the Division Bench has granted only limited reliefs to the respondents in that it has quashed the impugned order of the Government under Ex.P-7 dated 19-5-87 and issued a mandamus to the State Government to consider the applications of the respondents on thier merits on the basis of the earlier order passed in their favour under Ex.P-4 dated 4-2-87. The State of Kerala, feeling aggrieved with the judgment of the Division Bench, has preferred these appeals.
(2.) Pursuant to the State Government publishing in the Gazette a final list of areas where new unaided recognised high schools/upper primary schools/lower primary schools are to be opened or existing unaided lower primary schools/ upper primary schools are to be upgraded in the year 1986-87, the respondent educational agencies submitted applications for grant of sanction to open new unaided recognised schools or for upgrading the schools already run by them. On 4-2-87, the State Government issued an order under Ex. P-4 granting sanction to the respondents to open new unaided schools or to upgrade their existing schools subject to the conditions set out therein. However, by an order under Ex. P-5 dated 20-2-87, the Government directed the earlier order under Ex. P-4 to be kept in abeyance. The respondents challenged the order of the Government by means of petitions under Article 226 of the Constitution. During the pendency of the writ petitions. the general elections were held in Kerala State and a new ministry came to assume office. The Government under the new ministry passed an order dated 19-5-87 under Ex. P-7 cancelling in toto the order under Ex. P-4 granting sanction to the respondents to open new schools or to upgrade the existing schools. This led to the respondents amending the writ petitions suitably so as to direct their challenge to the validity of the cancellation order passed under Ex. P-7. The respondents failed before the single Judge but on appeal the Division Bench has granted them limited reliefs as set out above.
(3.) Before adverting to factual matters, it is necessary to refer to some of the relevant provisions of the Kerala Education Act (for short 'The Act') and the Kerala Education Rules (for short 'The Rules'). After the Kerala Education Bill, 1957, had been passed by the Kerala Legislative Assembly and was reserved by the Governor for the consideration of the President, the President made a reference to the Supreme Court under Article 148(1) of the Constitution for obtaining the opinion of the Court upon certain questions relating to the constitutional validity of some of the provisions of the Bill and the Supreme Court gave its opinion as reported In re:Kerala Education Bill, 1957, (1959) SCR 995. The preamble to the Act states that the Act is being enacted "to provide for the better organisation and development of educational institutions in the State providing a varied and comprehensive educational service throughout the State". Section 2 is the definition section and for our purpose it is enough if we look at the definitions of 'educational agency', 'private school' and 'recognised school' because we are concerned in these appeals only with private recognised schools and not with Government or departmental schools or aided schools. Sections 2(2), 2(7) and 2(8) read as under:- "2(2). "Educational agency" means any person or body of persons permitted to establish and maintain any private school under this Act; 2(7). 'Private school' means an aided or recognised school; 2(8). " Recognised school," means a private school recognised by the Government under this Act". Section 3 (1) empowers the Government to regulate primary and other stages of education and courses of instruction in Government and private schools. It is apposite to mention here that recognised schools do not receive any financial aid from the Government though they are bound to impart instruction only according to the prescribed curriculam of studies and they can have recognised standards or divisions of classes only in accordance with the Act and the Rules. Section 3(3) sets out that the Government may provide educational facilities by. (a) establishing and maintaining schools or (b) permitting any person or body of persons to establish and maintain aided schools or (c) recognising any school established and maintained by any person or body of persons. Section 3(4) confers deemed recognition to all the schools which were in existence when the Act came into force. Section 3(5) stipulates that after the commencement of the Act, the establishment of a new school or the opening of a higher class in any private school shall be subject to the provisions of the Act and the Rules made thereunder and that if any school or higher class is established or opened otherwise than in accordance with the provisions of the Act and the Rules, they will not be entitled to be recognised by the Government. Section 9 provides that the Government shall pay the salary of all teachers in aided schools direct or through the Headmaster of the school. Section 13 lays down that if there is any retrenchment of teachers in any aided school on account of orders of Government, then the retrenched teachers can be absorbed in any Government school or aided school. Section 36 confers power on Government to make Rules, either prospectively or retrospectively for the purpose of carrying into effect the provisions of the Act. Section 37 provides that all Rules made under the Act shall be laid before the Legislative Assembly for its approval.;