The imposition of financial guarantee as contemplated by R.7 is a regulation within the competence of the rule making power conferred on the state by S.36 of the Act.

T.C. Raghavan, J.

1. The petitioner is the manager of two High Schools, for which he is not taking any aid from the Government. He prays for the issuance of a writ of certiorari to quash S.7 of the Kerala Education Act and also R.7 of Chap.5 of the Kerala Education Rules framed under the Act, or, in the alternative, the issuance of a writ of mandamus restraining the respondents, the State of Kerala and District Educational Officer, from imposing the said R.7. He also prays that S.7 and R.7 are declared ultra vires of the Constitution of India.

2. Though the prayer in the writ petition is directed against S.7 of the Education Act as well, no argument has been adduced on this question: the entire argument of the counsel of the petitioner has been directed against R.7. Therefore, I proceed to consider the validity of R.7 alone.

3. Three contentions have been raised by the counsel of the petitioner. The first is that R.7 offends Art.26 and 30(1) of the Constitution; the second contention is that it offends Art.14 of the Constitution; and the third contention is that the rule is beyond the rule making power of the Government under S.36 of the Act.

4. R.7, the impugned rule, provides for financial guarantee being furnished by an Educational Agency of a school other than an aided school at the time of recognition of the school. It states that the Educational Agency should deposit Rs, 3,000/- in Postal or Treasury Savings Bank and pledge the pass book to the concerned Educational Officer if the Agency manages one Secondary School; and if the Agency manages more than one Secondary School, it must deposit Rs. 5,000/- in Postal or Treasury Savings Bank and pledge the pass book to the Director of Public Instruction. We are not concerned with the other provisions fixing different amounts as guarantee in the case of different types of schools. There is also provision for depositing the guarantee amount in instalments. However, we may note Sub-r.(5) of the rule. The sub-rule provides that the fee income received by the school shall not be utilised for depositing any part of the financial guarantee, and that in the event of a school being closed down, the financial guarantee will be released only to the extent to which it is not made up of the fee income or grant in aid which may have been utilised previously for depositing any part of the financial guarantee.

5. The contention of the counsel is that this rule compelling the deposit of financial guarantee is a restriction on the petitioner's right to establish and administer educational institutions as contemplated by Art.30(1) and Art.26 of the Constitution. The counsel points out that there are other provisions in the Rules imposing other conditions as well on the management before a school is allowed to be opened; the management has to satisfy the authorities that it owns the site where the institution is located, that the management has the financial backing or wherewithal to manage the institution, that the institution has a proper habitat and the furniture necessary, etc. In view of these provisions, the counsel contends, the additional burden of imposing financial guarantee under R.7 is interference with the petitioner's right guaranteed under Art.26 and 30(1) of the Constitution in other words, this is really a restriction on his right guaranteed by the aforesaid Articles.

6. The counsel has drawn my attention to a few decisions claiming that they have bearing on this question. The decisions are: In re The Kerala Education Bill, 1957 AIR 1958 SC 956), Rev. Sidhrajbhai Sabbai v. State of Gujarat (AIR 1963 SC 540), S. Azeez Basha v. Union of India (AIR 1968 SC 662) and two decisions of this Court in Rt. Rev. Aldo Maria Patroni v. E. C. Kesavan (AIR 1964 KLT 891) and F. Rev. Mother Provincial. Congregation of Mother of Carmal v. State of Kerala (O. P. No. 1450 of 1969).

7. Before considering the arguments of the counsel, it has to be stated that the question for consideration in this wr