IMPORTANT POINT
It would be a monstrous absurdity if in a well-organized government no remedy is provided to a person who has a clear and undeniable right.

Headnote:Education- Kerela Education Rules,1959- Rule 2A of Chapter V- Writ Petition filed by appellant seeking that High Court may issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing respondents to sanction an aided Higher Secondary school to appellant as was done in case of other aided college managements- Alleging discrimination in general, Appellant contented in the Writ Petition that while other managements were being granted High Schools and Higher Secondary Schools simultaneously or immediately, one after the other, appellant was not sanctioned Higher Secondary School after the sanction of the High School- High Court while dismissing appellants’ Writ Petition held that earlier orders governing grant of Higher Secondary Schools was no longer valid and had been replaced by new order and that Appellant did not have any statutory right to get sanction of running Higher Secondary classes- High Court also held that Government did not owe a corresponding duty to appellant to sanction school as per the previous order and that Government could not be tied down to a policy permanently-It could change it from time to time-Appeal-The facts of case clearly showed that appellant was entitled to get the sanction of holding higher secondary classes- In fact the Government committed itself to give the appellant said facility- The Government’s said order could not be implemented in view of court proceedings- Before the procedural wrangle in the court could be cleared, came change of policy- So it could not be denied that appellant had a right or at least a legitimate expectation to get permission to hold Higher Secondary classes-Appellant was a minority institution and its fundamental right as a religious minority institution under Article 30 also had to be kept in view- It was therefore really a case of issuance of mandamus in the appellant’s favour- Hence impugned judgment passed by High Court held unsustainable-Appeal allowed. (Paras 51 to 55)
       Writ of Mandamus- It would be a monstrous absurdity if in a well-organized government no remedy is provided to a person who has a clear and undeniable right- Where a man has a jus ad rem (a right to a thing) it will be ‘absurd, ridiculous and shame to the law, if Courts have no remedy and the only remedy he can have is by mandamus.’ (Para 53)
       Facts of the Case :
       Writ Petition was filed by appellant herein in the instant case seeking that High Court may issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing respondents to sanction an aided Higher Secondary school to appellant as was done in case of other aided college managements. Alleging discrimination in general, Appellant contented in the Writ Petition that while other managements were being granted High Schools and Higher Secondary Schools simultaneously or immediately, one after the other, appellant was not sanctioned Higher Secondary School after the sanction of the High School. High Court while dismissing appellants’ Writ Petition held that earlier orders governing grant of Higher Secondary Schools was no longer valid and had been replaced by new order and that Appellant did not have any statutory right to get sanction of running Higher Secondary classes. High Court also held that Government did not owe a corresponding duty to appellant to sanction school as per the previous order and that Government could not be tied down to a policy permanently. It could change it from time to time.
       2.Present appeal has been filed against said order of High Court.
       Findings of the Court :
       The facts of case clearly showed that appellant was entitled to get the sanction of holding higher secondary classes. In fact the Government committed itself to give the appellant said facility. The Government’s said order could not be implemented in view of court proceedings. Before the procedural wrangle in the court could be cleared, came change of policy. So it could not be denied that appellant had a right or at least a legitimate expectation to get permission to hold Higher Secondary classes. Appellant was a minority institution and its fundamental right as a religious minority institution under Article 30 also had to be kept in view. It was therefore really a case of issuance of mandamus in the appellant’s favour. Hence impugned judgment passed by High Court was held unsustainable. Appeal was allowed.

JUDGMENT

Ganguly, J. —

1.Leave granted.

2.The appellant is the Secretary of Cannanore District Muslim Educational Association, Karimbam (hereinafter referred to as the ‘Appellant’), which is a Society registered under the Societies Registration Act (Central Act 21/1860). The Appellant had established Sir Syed College in 1967 and it was imparting degree courses along with some pre-degree courses in various streams constituting 11 batches of a total of 80 students in each batch.

3.The Respondents, took a policy decision to abolish the Pre-degree Courses conducted in the colleges and enacted the Pre-degree Courses (Abolition) Act, 1997.

4.Subsequently, the respondents decided that those colleges which were running classes up to High School may be allowed to add classes up to the 12th standard in place of pre-degree courses. Those colleges which did not have any classes till the High school level were to be allowed to run High Schools and were also to be allowed Higher Secondary courses. Notice inviting applications from the management of schools, both government as well as private, and from colleges were issued for the first time for the academic year 1997-1998 vide notification dated 2.04.97.

5.The policy decision of the Government in this regard was upheld by the High Court by judgment dated 29.8.2002 in W.A.No.2716/2000.

6.The mode of implementation of this policy was the subject matter of a series of litigations where the Respondents were accused of discrimination. The Appellant before us has a similar grievance.

7.Writ Petition(C) No. 11167 OF 2006 was filed by the appellant challenging the non-sanctioning of the Higher secondary courses to its school. The other connected Writ Petitions which were disposed of by the impugned judgment were filed by the management or the teachers of the neighbouring schools, challenging the grant of a High school to the Appellant.

8.The Appellant had been applying for Higher Secondary courses ever since 1996. However, its applications were not considered by the respondents in light of the policy that the Government was allowing only those applicants who already had existing High Schools. Since many of the managements did not have High Schools to start higher secondary courses, the Government issued a preliminary notification on 25.06.1998 for starting High Schools at a certain number of designated places as per Chapter V Rule(2) Sub-rule(2)of the Kerela Education Rules, 1959. The ward to which the Appellant belonged i.e. ward No. 15 of Taliparamba Municipality was also included in the earlier notification dated 13.06.2000 but it was excluded subsequently as the Government received some objections. An O.P. No. 29989/99 was filed by the Government wherein the High Court directed that the case of the Appellant be considered. Pursuant to this direction, the Appellants were given an assurance that they will be given the High School as and when the financial position of the Government improves.

9.Then by an order dated 31.05.2003, ten schools were given the sanction to open aided High Schools but the appellant was denied the same facility.

10.After repeated representations before the respondents, the appellant was sanctioned a High School and a Higher Secondary School in ward No. 15 of Taliparamba Municipality after a decision to that effect was taken in a meeting dated 08.10.03 of the Council of Ministers, as a special case.

11.But the said decision for sanction of Higher Secondary classes was not implemented in the light of the decision of the High Court in W.P.(C). No. 29124/03 wherein the High Court had directed the Respondents that newer Higher Secondary schools were not to be sanctioned by them without further orders from the Court.

12.Subsequently, in partial implementation of the order of 08.10.03, it started a High School from 9.8.2004 pursuant to the said order and the classes commenced during the academic year 2004-05 and the School became a complete High School during the academic year 2006-07.

13.In

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2010 Supreme(SC) 441

IMPORTANT POINT It would be a monstrous absurdity if in a well-organized government no remedy is provided to a person who has a clear and undeniable right.

Cases Referred (6)

IMPORTANT POINT
It would be a monstrous absurdity if in a well-organized government no remedy is provided to a person who has a clear and undeniable right.