STATE OF KERALA AND ORS. versus K. PRASAD AND ANR.

Citation: [2007] 8 S.C.R. 115 · Decided: 09-07-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

-· 
ST ATE OF KERALA AND ORS. 
v. 
K. PRASAD AND ANR. 
JULY 9, 2007 
[DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.] 
Kera/a Education Rules, 1959-rr. 2 and 2 A-Upgradation ofschools-
From primary to secondary level-Applied for-Rejection by State-Allegation 
A 
of discrimination as on earlier occasions upgradation granted by relaxing C 
the Rules-Held: Upgradation cannot be granted by State Authorities by 
violating the Rules-Waiver or relaxation of Rules unless provided under the 
Rule itself, would give scope to discrimination, arbitrariness andfavouratism-
When executive order is called in question, the court in exercise of its power 
of judicial review is required to see whether Government has departed from 
such rules-Article 14 though embodies guarantee against arbitrariness, but D 
it does not assume uniformity in erroneous actions-Guarantee of equality 
being a positive concept, cannot be enforced in a negative manner-Hence, 
a/legation of discrimination is untenable-Constitution of India, 1950-
Article 14-Judicial Review. 
Two aided primary schools made representations to the State praying E 
for their upgradation from primary to secondary level. The request was 
declined on the ground of lack of funds. The order was challenged in Writ 
Petition on the ground that they had been discriminated against, as previously 
two schools were upgraded by relaxing the Rules. Single Judge of High Court 
dismissed the petition holding that the schools could not be upgraded by F 
violating Kerala Education Rules, 1959. In writ appeal Division Bench of High 
Court accepted the plea of discrimination and directed the State Authorities 
to give them upgradation as was previously given to the two schools. Hence· 
the present appeal. 
Allowing the appeal, the Court 
HELD: 1.1. Rules 2 and 2 A ofKerala Education Rules, 1959, lay down 
a comprehensive procedure for opening of new schools in particular areas; 
their recognition and upgradation. It is manifest that a decjgian in this behalf 
115 
G 
H 
116 
SUPREME COURT REPORTS 
[2007) 8 S.C.R. 
A bas to be primarily by the Government on an application made for that purpose 
under Rule 2A. The Rules also lay down the guidelines which are to be taken 
into consideration for preparing the list in terms of sub rule (1) of Rule 2. In 
view of a comprehensive procedure laid down in the statute, an application for 
upgradation has necessarily to be made and considered strictly in a manner 
in consonance with the Rules. Rules are meant to be and have to be complied 
B with and enforced scrupulously. Waiver or even relaxation of any Rule, unless 
such power exists under the Rules, is bound to provide scope for discrimination, 
arbitrariness and favouritism, which is totally opposed to the rule of law and 
constitutional values. Even an executive order is required to be made strictly 
in consonance with the Rules. Therefore, when an executive order is called 
C in question, witile exercising the power of judicial review the Court is required 
to see whether the Government has departed from such Rules and if so, the 
action, of the Government is liable to be struck down. (Para 10) 
1.2. Every State action, in order to survive, must not be susceptible to 
the vice of arbitrariness which is the crux of Article 14 of the C<mstitution of 
D India and basic to the rule of law, arbitrariness being the negation of the rule 
of law. Non-arbitrariness, being a necessary concomitant of the rule of law, it 
;is imperative that all actions of every public functionary in whatever sphere 
must be guided by reason and not humour, whim, caprice or personal 
predilections of the persons entrusted with the task on behalf of the State 
and exercise of all powers must be for public good instead of being an abuse 
E of power. (Para ll) (123-C-E) 
F 
Shrilekha Vidyarthi (Kumari) v. State of U.P., (1991) I SCC 212, relied 
on. 
1.3. The decision ofthe appellant not to sanctioQ upgradation of 
respondent schools because of paucity of funds was neither arbitrary nor 
unreasonable or manifestly erroneous to warrant interference by the Court. 
There is no denying the fact that opening of new schools or upgradation of 
aided schools does involve considerable financial commitment for the State. 
Moreover, insofar as the present cases are concerned, applications for 
G upgrading the existing schools had not been invited by the Director as 
stipulated in sub rule (2) of Rule 2A and, therefore, the representations made 
by the re

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