The Manager, Muslim Vocational Higher Secondary School, Pudunagaram, Palakkad District v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 10TH DAY OF APRIL 2012/21ST CHAITHRA 1934** ## **WP(C).No. 4828 of 2011 (C)** **--------------------------------------** **PETITIONER:** ## **------------------** **THE MANAGER, MUSLIM VOCATIONAL HIGHER SECONDARY SCHOOL, PUTHUNAGARAM, PALAKKAD DISTRICT.** ## **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENT(S):** ## **--------------------------** **1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD-679513.** **3. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD-680584.** **4. THE ASSISTANT EDUCATIONAL OFFICER, KOLLENGODE, PALAKKAD-678506.** ## **5. THE MANAGER, ISLAMIC L.P.SCHOOL, PUDUNAGARAM, PALAKKAD-678503.** ## **@ ADDL. R6 IS IMPLEADED** **ADDL.R6. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695 001.** ## **@ ADDL. R6 IS IMPLEADED AS PER ORDER DT. 18/11/11 IN I.A. 18437/11.** ## **BY ADV. SRI.K.P.DANDAPANI (SR.) BY ADV. SRI.MILLU DANDAPANI BY ADV. SRI. BIJU MEENATTOOR, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** ## **WPC.NO. 4828/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE NEWS ITEM PUBLISHED IN THE CHANDRIKA DAILY DATED 11/10/2009.** - **EXT.P2: COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ON 21/10/2009.** - **EXT.P3: COPY OF THE CHALAN RECEIPT DATED 27/10/2009 FOR REMITTANCE OF RS.10/-** - **EXT.P4: COPY OF THE ACKNOWLEDGEMENT RECEIPT RECEIVED FROM RESPONDENTS 2 TO 4 FOR EXT. P2 OBJECTION.** - **EXT.P5: COPY OF THE ORDER DATED 4/12/2009 IN WPC.NO.34431 OF 2009 OF THIS HONOURABLE COURT.** - **EXT.P6: COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ON 23/02/2010.** - **EXT.P7: COPY OF THE NEWS ITEM APPEARED IN THE CHANDRIKA DAILY DATED 2/06/2010.** - **EXT.P8: COPY OF THE STATEMENT FILED IN WPC.18665/2010 BY THE 3RD RESPONDENT.** - **EXT.P9: COPY OF THE JUDGMENT DATED 21/7/2010 IN WPC 18665/2010.** - **EXT.P10: COPY OF THE ORDER DATED 2/12/2010 PASSED BY THE GOVERNMENT.** ## **RESPONDENT'S EXHIBITS:** **EXT.R5(A): COPY OF THE GOVERNMENT ORDER, G.O.(P) NO. 23/08/G.EDN. DATED 25/1/2008.** - **EXT.R5(B): COPY OF THE REPORT OF THE SECOND RESPONDENT DATED 17/6/2009.** - **EXT.R5(C): COPY OF THE GOVERNMENT NOTIFICATION NO. NSI/16069/09/DPI DATED 24/5/2010.** - **EXT.R5(D): COPY OF THE RELEVANT EXTRACT OF THE REPORT OF THE THIRD RESPONDENT DATED 27/7/2010.** - **EXT.R5(E): COPY OF THE RELEVANT EXTRACT OF THE REPORT OF THE THIRD RESPONDENT DATED 25/1/2011.** **CONT...** ## **WPC.NO. 4828/2011** |**EXT.R5(F):**|**COPY OF THE STUDENTS LIST PERTAINING TO ISLAMIC ENGLISH**| |---|---| ||**MEDIUM SCHOOL PUDUNAGARAM.**| |**EXT.R5(G):**|**COPY OF THE STAFF LIST PERTAINING TO ISLAMIC ENGLISH MEDIUM**| ||**SCHOOL PUDUNAGARAM.**| |**EXT.R5(H):**|**COPY OF ENQUIRY REPORT DATED 13/07/2007 OF THE DEO, PALAKKAD.**| ||**/TRUE COPY/**| ||**P.A. TO JUDGE**| **AS** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No.4828 of 2011-C** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of April, 2011.** ## **JUDGMENT** The petitioner who is the Manager of a higher secondary school is challenging Ext.P10 order passed by the Government, whereby the Government granted recognition to certain unaided schools including that of the fifth respondent which is in Palakkad district. 2. The crux of the contentions of the petitioner is the following: The petitioner's school is a Vocational Higher Secondary School having a total students strength of 2225 in the year 2008-2009 with 53 divisions. The school is situated in Ward Nos.5 and 6 of Pudunagaram Grama Panchayat. The fifth respondent is the Manager of a Lower Primary School known as Islamic L.P. School, situated in Ward No.5 of the said Panchayat. It is an unaided recognised school. The distance is stated to be about ¾ kms. away from the petitioner's school. According to the petitioner, there are about 12 schools in and around the locality, including U.P. Schools and High Schools to meet the educational need of the locality. The fifth respondent is conducting an English Medium school and the petitioner's school is having English Medium parallel divisions for WPC.4828/2011 - 2- standards 5 to 10. 3. It is stated that in 2003 there was an attempt to upgrade the fifth respondent's school and in the light of the objection raised by the petitioner, that was dropped. Ext.P1 is the news item dated 11.10.2009 giving details of the proposal for upgrading various schools and the petitioner raised an objection as per Ext.P2 dated 21.10.2009 before the third respondent, viz. the District Educational Officer and copies of the same were forwarded to other officers also. Later, the petitioner filed W.P.(C) No.34431/2009 before this Court which was disposed of by Ext.P5 judgment wherein, after recording the submission of the learned Government Pleader, a direction was issued by this Court to the third respondent to expedite the matter and forward the report to the Director of Public Instruction, after hearing the petitioner and the fifth respondent. It is stated that the petitioner was called for a hearing by the District Educational Officer and he placed his objections as contained in Ext.P6 on 23.2.2010. Ext.P7 is a further newspaper report dated 2.6.2010 which, according to the petitioner, states that a decision has been taken to upgrade the fifth respondent's school in Ward No.5 of Pudunagaram Panchayat. This was challenged by filing W.P. (C) No.18665/2010 which was disposed of by Ext.P8 judgment recording the submission of the District Educational Officer that he has recommended not to upgrade the fifth respondent's school. Permission was granted by this WPC.4828/2011 - 3- Court to approach again in case of a fresh cause of action. But, ignoring all these, the said school is seen included in Ext.P10, it is contended. 4. The fifth respondent has filed a counter affidavit and an additional counter affidavit and the petitioner filed a reply affidavit. The Director of Public Instruction is impleaded as additional sixth respondent and the learned Government Pleader made available the relevant files also. 5. Learned counsel for the petitioner, Shri Mohanakannan submitted that herein the District Educational Officer has not recommended the upgradation of fifth respondent's school in Ward No.5. It is submitted that the said fact is evident from Ext.P8 statement filed by the third respondent in W.P.(C) No.18665/2010. The reason for not recommending the same have been explained therein. It is mentioned that there are two other high schools, viz. CAHS, Peruvemba, situated within two kms. and GHMHS, Thathamangalam, situated within 3 kms. away from the Islamic school. It is finally noticed that if the Islamic School, Pudunagaram is recognised, there would be undue shortage of pupil in the nearby school and also it will affect the job security of the existing teachers. The educational need of the locality is already catered with the existing two aided high schools and one high school functioning within the radius of three kms. It is mentioned in WPC.4828/2011 - 4- the said statement that the order passed by the District Educational Officer has been forwarded to the Director of Public Instruction. Learned counsel therefore submitted that Ext.P10 is totally without application of mind and the finalisation of the list by the Director of Public Instruction totally goes against the report submitted by the District Educational Officer. It is therefore submitted that the identification of Pudunagaram Panchayat in Ext.P10 along with other Panchayats in different districts, smacks arbitrariness and the same is in violation of the provisions of Rules 2 and 3 of Chapter V of Kerala Education Rules (for short 'the Rules'). Therefore, the main contention raised by the learned counsel for the petitioner is that the non consideration of his objections along with the report of the District Educational Officer, vitiates the entire action culminating in the upgradation of fifth respondent's school. 6. Learned Senior Counsel for the fifth respondent, Smt. Sumathi Dandapani raised a preliminary objection regarding the maintainability of the writ petition and the contention has been expanded thus:- The scheme under Chapter V, Rules 2 and 2A are different. Under Rule 2 Chapter V, different stages have been provided in identifying the localities wherein new schools are sought to be established or upgraded. After the initial notification by the Director, under sub-rule (2) of Rule 2, objections and representations will have to be invited against the said list, which can be WPC.4828/2011 - 5- filed before the District Educational Officer or the Assistant Educational Officer, as the case may be. Sub-rule (3) directs the Assistant Educational Officer and the District Educational Officer to conduct enquiry, hear the parties, visit the areas and send their report with their views, to the Director. The Director, after finalysing the list, will have to forward it to the Government and sub-rule (4) enables the Government to approve the list which will be published by the Director. It is stated that under sub-rule (5), no appeal or revision will lie against the said list, but the Government is conferred with a power to review and the objector can apply to the Government before the expiry of thirty days from the date of such publication. Learned Senior Counsel further submitted that the final list published by the Government under sub-rule (4) of Rule 2 is produced as Ext.R5(c), which is not under challenge in the writ petition. 7. It is submitted that the petitioner did not challenge the final list published as per sub-rule (4) by filing any review. The upgradation is ordered by Ext.P10 under Rule 2A of Chapter V K.E.R. which is the next stage after publication of the final list and after completing various formalities under Rule 2A. By relying upon the decision of this Court in **Ali v. State of Kerala (1976 KLT SN 50, Case No.114)** , it is submitted that a person like the petitioner cannot WPC.4828/2011 - 6- raise an objection with regard to the final order under Rule 2A of Chapter V K.E.R. The same is answered by the learned counsel for the petitioner by submitting that any violation of the mandatory procedure will vitiate the entire action. Learned counsel explained that Rule 2 (1) obliges the Director of Public Instruction to take into consideration the matters provided under items (a) to (e) therein and the prominent one is the educational needs of the locality. Sub-rule (3) provides for a hearing by the Director which also is absent here. It is therefore submitted that the final list approved by the Government under sub-rule (4) cannot be supported in the eye of law, and consequently Ext.P10 cannot have any validity. 8. Both sides relied upon various decisions of this Court which have explained the statutory provisions. The fifth respondent is conducting an unaided school and the initial order passed by the Government was to grant recognition to unaided schools in various localities. 9. It was issued by the Government to overcome the educational backwardness of the Muslim community and initially the districts concerned were Malappuram, Kozhikode, Kasargod, Kannur and Wayanad. By Ext.R5(a) the Government ordered inclusion of Palakkad District also among the above scheme. Exts.P1 and P7 are actually newspaper reports containing the substance of the respective notifications issued under Rule 2 of Chapter V at different stages. Ext.P1 refers to the notification dated WPC.4828/2011 - 7- 6.10.2009. This is in tune with sub-rule (1) of Rule 2 of Chapter V K.E.R. which permits the Director to prepare two lists, one in respect of aided schools and the other in respect of recognised schools, indicating the localities where new schools of any or all grades are to be opened and existing Lower Primary School or Upper Primary Schools or both are to be upgraded. Sub-rule (2) of Rule 2 requires the Director of Public Instruction to publish the list thus prepared under sub-rule (1), in the Gazette inviting objections or representations against it. The period for submitting objection is within one month from the date of publication of the list. The objection/ representation has to be filed before the Assistant Educational Officer or the District Educational Officer as the case may be, along with a chalan for payment of Rs.10/-. If the objection is not accompanied by the chalan, it will be summarily rejected. Sub-rule (3) of Rule 2 enables the Assistant Educational Officer and the District Educational Officer to conduct enquiries, hear the parties, visit the areas and send their report with their views on the objections, to the Director. This will have to be done within two months from the last date of receipt of the objections. The Director, if found necessary, may also hear the parties and finalise the list and send his recommendations with the final list, to the Government. This will have to be done within two months from the last date of receipt of the report from the Educational Officers. Therefore, the first four stages are WPC.4828/2011 - 8- clear from sub-rules (1), (2) and (3). The last stage of the process will be clear from sub-rule (4) of Rule 2. Therein, the Government is given the power to scrutinise the records and approve the list. It can be with or without modification. The same will have to be thereafter forwarded to the Director. The time prescribed is within one month from the date of receipt of the recommendation from the Director. The said list approved by the Government will have to be published by the Director in the Gazette. Going by sub-rule (5) no appeal or revision will lie against the final list published by the Director. Having understood the scheme of the rules thus, it can be seen that Exts.P1 and P7 newspaper reports actually reflect the details of the notification published under sub-rules (2) and (4) of Rule 2 of Chapter V K.E.R. 10. The proviso therein is important, which is extracted below: “Provided that the Government may either suo motu or on application by any person objecting to the list published by the Director under sub-rule (4) made before the expiry of thirty days from the date of such publication review their order finalising such list and make such modifications in that list as they deem fit by way of additions or omissions, if they are satisfied that any relevant ground has not been taken into consideration or any irrelevant ground has been taken into consideration or any relevant fact has not been taken into account while finalising the said list.” The proviso gives a power of review on the Government suo-motu or on WPC.4828/2011 - 9- application of any person objecting to the list published by the Director. It should be made before the expiry of 30 days from the date of publication. Even while exercising the power of review, the Government can make modification as they deem fit, “by way of additions or omissions.” This can be done if it is satisfied that any relevant ground has not been taken into consideration or any irrelevant ground has been taken into consideration or any relevant fact has not been taken into account while finalysing the list. The second proviso provides for notice to the affected party, if any modification is being made. 11. Shri Mohanakannan, learned counsel for the petitioner submitted that the power of review conferred under the proviso cannot be understood as giving wide power to the Government and the non exercise of such a right by the petitioner will not disentitle the petitioner from challenging the final order passed by the Government. In fact, the proviso confers wide power on the Government and the circumstances under which the list can be modified, have also been specified therein. This is understandable in the light of sub-rule (5) which provides that “no appeal or revision shall lie against the final list published by the Director.” Therefore, in the absence of a provision for appeal or revision, very wide power is conferred by way of review itself. In fact, the approval of the list under sub-rule (4) is by the Government and it is in that context the power of review is given to the WPC.4828/2011 - 10- Government itself. It can be exercised suo motu or on application by any person objecting to the list published by the Director. Therefore, I do not subscribe to the argument of the learned counsel for the petitioner that the power conferred under the proviso to sub-rule (5) is a restricted one. 12. Next we will come to the procedure under Rule 2A of Chapter V K.E.R. Sub-rule (1) of Rule 2A provides for issuance of a notification in the Gazette to call for applications for the opening of new schools of any or all grades and for raising of the grade of existing Lower Primary Schools or Upper Primary Schools or both in the areas specified. Such a notification will be issued after the publication of the final list of areas, obviously under Rule 2(4). Sub-rule (2) of Rule 2A provides that “applications can be filed only in response to the notification published by the Director and it shall be submitted to the District Educational Officer of the area concerned within one month from the date of publication of the notification under sub-rule (1). Sub-rule (3) provides that on receipt of the applications for permission to open new schools, the District Educational Officer shall make such enquiries as he may deem fit as to the correctness of the statement made in the application and other relevant matters regarding such applications and forward the applications with his report thereon to the Director. The time limit provided is within one month from the last date for submitting the application. The Director will have to forward the application along with WPC.4828/2011 - 11- the report of the District Educational Officer, to the Government along with his report (sub-rule (4)). Sub-rule (5) provides that the “Government shall consider the applications in the light of the reports of the District Educational Officer and the Director and other relevant matters which the Government think necessary to be considered in this connection and shall take a final decision and publish their decision in the Gazette with the list containing necessary particulars, within one month from the last date for forwarding the report by the Director. 13. Thus, the scheme under Rule 2A is one dealing with the applications for opening of new schools or for upgradation, after the locality is identified and areas are specified. The scope of enquiry under sub-rule (3) therein is with regard to the credentials of the applicants and facilities available, etc. and cannot be with regard to the other factors like educational need in the locality, etc. covered by Rule 2(1) of Chapter V K.E.R. Therefore, the scope of Rule 2 and Rule 2A are different. The scheme above has to be understood thus in the light of the challenge made by the petitioner and the final order passed by the Government is after completion of the procedure prescribed under Rule 2A alone, which is Ext.P10. The notification under Rule 2(4) or the prior notifications are not under challenge in the present writ petition. A reading of Ext.P10 shows the details of notification published under different stages earlier to it. Ext.P10 WPC.4828/2011 - 12- could not have dealt with the objection of the persons like the petitioner at the first stage under Rule 2(2), obviously. 14. In the light of the objection raised by the learned Senior Counsel for the fifth respondent by relying upon the decision of this Court in **Ali's case** (1976 KLT SN Page 50, C. No.113), I shall consider the same. In the said judgment, the sustainability of a similar objection was the matter which arose for consideration. It appears that the objection raised was in relation to an application under Rule 2A of Chapter V K.E.R. The said objection was found unsustainable and the relevant portion of the said judgment reads as follows: “There is no provision in the Act or the Rules which would enable the petitioner to object to Ext.R2 application or any provision that would entitle him to be heard by any of the respondents as regards Ext.R2 application, be it an application under R.2A or not. (Though R.2 provides for raising objections as regards the determination of places where new schools are to be started R.2A in the chapter does not contemplate any such objections or any hearing). If at all, the inconvenience suffered by the petitioner is one which is in common with the rest of the public that is to say, the people of 'the area specified' under R.2. (Under R.2 no orders have been passed nor any decision taken in favour of any particular person or in respect of any particular school). It cannot be said that he suffered any special or substantial grievance of his own by Ext.R3 grant. “ 15. Herein, it is seen that Ext.R5(c) is the notification issued by the Director of Public Instruction, inviting applications to open the unaided schools. Thereafter, the matter proceeded to the next stages after Rule 2A notifications were issued, and Ext.P10 is the final order. In the counter WPC.4828/2011 - 13- affidavit filed by the fifth respondent, in para 6 it is stated that pursuant to Ext.R5(c) he made two applications seeking upgradation, on 16.6.2010. 16. In fact, the representations that can be made initially in the procedures under Rule 2A have no comparison with the objections that could be raised under Rules 2(1) to 2(3). The competing claims of different persons for establishing new schools or for upgrading the schools will be the matter for consideration by the authority in the enquiry under Rule 2A. Herein, the petitioner is an objector who was objecting to the notification including the locality itself under Rule 2. It cannot be enquired afresh under the enquiry provided under Rule 2A(3). The process finalised under Rule 2A is the identification of the person concerned and the school which requires upgradation, as far as the present case is concerned. 17. Evidently, therefore, the challenge against Ext.P10 cannot help the petitioner, in the sense that this Court will not be able to countenance the contentions with regard to the merits of the notification under Rule 2(4). Therefore, as the notifications leading o Ext.R5(c) are not under challenge, this Court cannot go into the contentious issues raised by the petitioner. The relief sought for in the writ petition is mainly to quash Ext.P10. A reading of Ext.P10 gives the details of previously published list/notification under Rule 2 of Chapter V. Reference (4) therein is the preliminary notification. Reference (5) therein is the notification under Rule 2(4) dated WPC.4828/2011 - 14- ## 24.5.2010. 18. In fact, learned Senior Counsel for the fifth respondent also relied upon the decision of a Division Bench of this Court in **Punnose v. Nair Service Society** (1984 KLT 736) to contend for the position that the objection that number of students in the neighbouring schools will be reduced, is not sustainable in an enquiry pursuant to the notification published under Rule 2. Therein, in para 5 the Division Bench, after considering various decisions of the Apex Court, held as follows: “Even though these observations of the Supreme Court related to the refusal of a licence applied for which was held to be only a privilege, the same principle should govern the grant of every other privilege also by the Government. In this particular case the writ petition before this Court is not even against the rejection of an application for the grant of privilege made by the petitioner, but against the grant of a privilege by the Government to the fourth respondent and under these circumstances the area of interference in writ proceedings by this Court is very much limited is clear from the principle that can be deduced from the passages cited above. In the decision of the Supreme Court in J.M. Desai v. Roshan Kumar reported in AIR 1976 SC.578 it was held that the objector to the grant of a cinema licence is not entitled to urge that his commercial interest will be affected by way of objection to the grant. It is stated at page 587:- “46. Thus, in substance, the appellant's stand is that the setting up of a rival cinema bouse in the town will adversely WPC.4828/2011 - 15- affect his monopolistic commercial interest, causing pecuniary harm and loss of business from competition. Such harm or loss is not wrongful in the eye of law, because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Juridically, harm of this description is called dammum sine injuria being here used in its true sense of an act contrary to law. The reason why the law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large.” For the aforesaid reasons the second ground of objection in Ext.P3 that the number of students in the High Schools run by the petitioner will be reduced is not a valid ground of objection against the grant of the privilege of upgradation of an existing U.P. school in favour of the fourth respondent.” Therefore, I find force in the submission of the learned Senior Counsel for the fifth respondent that the said aspect alone will not advance the case of the petitioner, on the merits also. 19. The statutory scheme under Rule 2 and 2A as discussed above, has been examined by various decisions of the Apex Court and this Court, viz. **N. Kunhichekku Haji (Dead) by Lrs. v. State of Kerala and others** {(1995) Supp. 2 SCC 382), **State of Kerala v. Prasad** (2007 (3) KLT 531 - SC), **Vidhyadhiraja M.M.H. School v. State of Kerala** (1997 (1) KLT SN Page 15, Case No.19) and **Al. Ihsan School and others v. State of Kerala and others** (ILR 2008 (4) Ker. 790.) In fact, the Supreme Court in **Prasad's case** (2007 (3) KLT 531), after examining various aspects, WPC.4828/2011 - 16- considered the difference in the procedures under Rule 2 and Rule 2A and laid down the principle thus: “10. The two Rules, quoted above, lay down a comprehensive procedure for opening of new schools in particular areas; their recognition and upgradation. It is manifest that a decision in this behalf has to be primarily by the Government on an application made for that purpose under R.2A. The Rules also lay down the guidelines which are to be taken into consideration for preparing the list in terms of sub r.(1) of R.2. On the lists being finalized, after their publication and consideration of objections, if any, the same have to be sent to the Government for its approval, with or without modification. Nevertheless the decision by the Government whether opening of new school is to be sanctioned or whether an existing school is to be allowed to be upgraded has to be taken on consideration of the matters enumerated in clauses (a) to (e) of R.2(1) of the Rules. Similarly, an application for either opening of new school or for upgradation of an existing aided school can be submitted only after the Director publishes a final list of areas where new schools are to be opened or existing schools are to be upgraded under sub r.(4) of R.2. Any application received otherwise cannot be considered. In view of such 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. It needs little emphasis that Rules are meant to be and have to be complied with and enforced scrupulously. Waiver or even relaxation of any Rule, unless such power exists under the Rules, WPC.4828/2011 - 17- is bound to provide scope for discrimination, arbitrariness and favouritism, which is totally opposed to the rule of law and our constitutional values. It goes without saying that even an executive order is required to be made strictly in consonance with the Rules. Therefore, when an executive order is called in question, while 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. 20. In **Al.Ihsan School's case** (ILR 2008 (4) Ker. 790), also in para 101 and 102 the said procedure was explained as hereunder: “101. It is in the aforesaid context that Chapter V. KER has to be appreciated as containing provisions which are ultimately aimed at improving and reaching out to satisfy the educational need of the entire State of Kerala. This is why the DPI is conferred the authority to prepare lists including the localities where new schools are to be opened or any school has to be upgraded. The public is given the liberty to place its views and objections to those lists by making representations to the DEO or AEO who are the statutory officers having immediate control and opportunity to assess every local situation. There reports on the objections and representations are to be considered by the DEO who should finalise his views regarding the list of localities, prepared by him in terms of Rule 2(1) of Chapter V. After formulating that, the DPI has to forward the records to the Government. It is then and only then that the Government scrutinises the entire records in terms of WPC.4828/2011 - 18- Rule 2(4) and decides on the list forwarded by the DPI. The Government, at the helm, looks at the entire records to consider whether the list forwarded by the DPI is to be approved as such or with modification. Unlike sub-rule (3), which contains a statutory provision, for hearing the parties, sub-rule (4) does not enjoin any hearing of parties by the Government. The question of objection to a “final list” comes only in terms of the first proviso occurring after Rule 2(5); that is, after the publication of the final list by the DPI which is an act of the DPI after the Government approves the list under sub-rule (4) of Rule 2. 102. After publication of the “final list”, so christened in sub-rule (5) of Rule 2 and subject to any review in terms of the provisos under that sub-rule, the DPI has to publish a fresh notification in terms of Rule 2A calling for applications for the opening of new schools or raising of the grade of the schools in the areas specified. The procedure for identifying the schools which are to be upgraded or identity of the person for grant of permission to open a school thus commences clearly only after the identification of the localities. Sub-rule (2) of Rule 2A provides that applications for opening of new schools or for upgrading, shall be submitted only in response to the notification published by the DPI and applications received otherwise shall not be considered.” 21. Therefore, evidently, the petitioner has not sought for any review under the proviso to Rule 2(5) of the final list. The notifications issued prior to Ext.R5(c) have become final. The petitioner having not chosen to challenge those proceedings before this Court herein, this Court cannot go WPC.4828/2011 - 19- into the merits of the matter. Even though learned counsel for the petitioner vehemently contended that even with regard to the challenge of the final notification issued as per Ext.P10, this Court can consider the various aspects with regard to the finalisation of the localities under Rule 2 also, I cannot agree. The various formalities will show that separate notifications are provided starting from the first notification under Rule 2(1) and the final notification under Rule 2(4). That final notification is published after approval of the Government and there is an effective remedy under the proviso to Rule 2(5). The grounds on which the Government can modify the list also are specifically provided under the proviso to Rule 2(5). Therefore, it cannot be said that the power is merely as a power of review as usually known. The Government is given ample and effective power to deal with any matter in terms of the proviso to Rule 2(5) of Chapter V. K.E.R. Therefore, the petitioner's remedy under the proviso to Rule 2(5) is clearly adequate and effective. This Court also will not be justified in going into the merits of the final notification under Rule 2(4) in a writ petition which only challenges the final notification under Rule 2A. The observations of this Court in Ext.P8 judgment would have helped the petitioner, if he had pursued his objections under Rules 2(1) and 2(3) without waiting for the initiation of various steps under Rule 2A. The copy of the said W.P.(C) No.18665/2010 shows that Ext.P7 newspaper report produced herein was WPC.4828/2011 - 20- produced therein also. The same is dated 2.6.2010. Ext.R5(c) is dated 24.5.2010, but it was not challenged. In that view of the mater, the writ petition fails and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge) kav.