Partap Kr. Ray, J. - (1.) Heard learned advocates for the respective parties.
(2.) In this writ application the petitioners have challenged the decision as reached by the President, West Bengal Board of Secondary Education on 18th April, 2000 refusing to grant recognition to upgrade the school to a ten-class high school by approving the Classes IX and X. The decision impugned in this writ application was reached by the President, West Bengal Board of Secondary Education, hereinafter referred to as the said President for brevity, in terms of the order dated 30th March, 1998 passed by Kalyan Jyoti Sengupta, J. in Writ Petition No. 23866 (W) of 1998. In the impugned decision the said President has set up the following grounds for rejection which is quoted in extenso from the impugned decision : "It appears from the D.L.I.T. report dated 5.10.99 that the school did not apply for permission for opening classes-IX and X although Sri Shee submitted that they are running such classes at different points of time for which they were not given any permission. The reserve fund of the school is insufficient. The school appointed 7 teachers without prior permission/sanction from the authority. There are at least two high schools with five Kms. and the school has shown only one feeder school is situated at a distance of five kms. The school suffers from inadequate infrastructure facilities. The Government is of the view that the school is not viable for granting recognition for classes-IX and X." By the order dated 30th March, 1999, Kalyan Jyoti Sengupta, J. passed the following order while disposing of the earlier writ application which is quoted in extenso hereinbelow: "After hearing the learned advocate appearing for the parties I dispose of the writ application by passing the following order : Pursuant to the application made by the school authority for recognition/ upgradation of the school from class- VIII to Class-X, the D.L. concerned shall send the school level inspection team with a fortnight from the date of communication of this order. The said team shall complete its inspection and submit its report to the Director of School Education within eight weeks for the date of completion of the inspection. The Director shall after doing the needful in accordance with law shall forward the same to the Secretary, Education Department within six weeks from date and who shall in turn after doing the needful in accordance with law shall send the same to the West Bengal Board of Secondary Education within six weeks. The President of the Board in exercise of his power under section 28(2) of the West Bengal Board of Secondary Education Act, 1963 shall decide the question of recognition/upgradation of the school upon hearing the petitioner and/or his Authorised agent in accordance with law. This exercise shall be completed within eight weeks from the date of receipt of all the papers and documents for the Secretary concerned. Notice shall also be given to the writ petitioner before disposing of the matter." On a bare reading of the order passed by Kalyan Jyoti Sengupta, J. which reached its finality due to non-assistment of the same by any parties, that the D.L.I.T. was required to make necessary inspection pursuant to the application made by the school authority. Hence the question of seeking permission for opening Classes-IX and X by the school authority which has been taken as a ground by the said President to reject the upgradation issue, is completely an irrelevant ground as the inspection by the D.L.I.T. was directed to be made on he present state of affairs as existing at the moment when the writ application was disposed of and in that view of the matter, there was no question of filing of any application or seeking permission as has been taken as a ground by the said President. The question of appointment of 7 teachers without prior permission or sanction by the authority concerned is also an irrelevant ground. For unapproved classes-IX and X there is no necessity for seeking permission to any authority while appointing any teaching or non-teaching staff. Regarding distance of other schools as are situated within five kilometer distance as mentioned, the said President has not considered the topographical position of the area in question and more particularly the accessibility of the students in those schools following the village path and crossing canals and rivers and high-ways as are existing. The distance of five kilometers without any further rider of any vector is completely a vague terms. Even a distance of one kilometer in between two schools may be inaccessible by the students concerned, due to existence of any highway in between these two schools and/or a forest and/or a river and/or a canal which surely would be an impossible job for the students concerned to travel. Hence in determining the locality the entire features of the area in question is relevant factor, not the kilometer distance, and the same not at all has been considered. In the village area, the another additional factor is the connecting roads and the conveyance thereto. There is no convenyance in the village area and the students are required to travel the entire distance on foot. In the rainy-season such walking becomes really a tough job for the children even to cross a little distance of one or two kilometers. Hence those factors were not looked into and such the five kilometers distance is a vague term which has no basis to reject the application for upgradation. Another ground of inadequate infrastructural facilities is also a vague term, as such infrastructural facilities have not been mentioned by pointing whether it is building or any other facilities. The reason of referring the issue that the Government also held that there was no viability for granting such recognition is not also supported by the Government decision as it appearing from the Government decision as annexed in the affidavit-in-opposition.
(3.) From the impugned order it further appears that the said President has stated another reason namely, the Government's opinion about viability of the school. From the report as sent by the Secretary, Education Department, Government of West Bengal, there is no mentioning as to why the school was lacking infrastructural facilities as necessary for a high school save and except the views that the school suffers from lack of infrastructure. The reason for extreme financial stringency, the Government decided to upgrade a limited number of schools is also an irrelevant consideration. If there is a need of any school in the area in question, the Government cannot bypass the recognition by taking resort to financial stringency. Education is the fundamental right which is now a settled legal proposition by several judgments of the Apex Court including the judgment in the Unni Krishnan's case reported in 1993(1) SCC 645. Constitutional rights, duties and obligations cannot be downgraded by any executive fiat and financial stringency cannot be a ground to deny the constitutional rights to a citizen. In several judgments, the Apex Court has considered this aspect, namely the constitutional right qua the financial stringency of the Government and it is held that the Government cannot take such stand. Reliance may be placed upon the judgment of the Apex Court passed in the case of Kshetry and others v. State of Bihar & others 1981(1) SCC 627 and Paschim Banga Khet Majdoor Sangha's case reported in 1996(4) SCC 37.;