ORDER
1. The Shashikanth Educational Society, a registered Society, was started by Sri. S. Tulasidas, a Scheduled Caste young Advocate and D. Muralikrishna Public School was established by the said society at Champapet, outskirts of the city, in Rangareddy District and the wife of Sri. S. Tulasidas, Smt. S. Devaki is the Secretary and Correspondent of the said school. It was started in the year 1982 for imparting education with English Medium to the children belonging to Scheduled Castes and Scheduled Tribes, for short 'Dalits', living in Champaper village. They are either rickshaw pullers or daily wage earners. The petitioner-Institution claims to be having 122 children and in the year 1983-84 by proceedings of the Regional Joint Director of School Education, Hyderabad, dated Mar. 19, recognition was granted for Classes I and II. In fact, the institution is running the school at present with Classes I to IV and L. KG and U. KG. The petitioner made a request for the recognition of the said school. Instead of recognising it, show cause notice dated Feb. 27, 1985 was issued to the petitioner-institution calling upon it why the temporary recognition granted should not be withdrawn. Assailing the legality and jurisdiction to issue the said show cause notice, the present Writ Petition had been filed seeking Writ of Mandamus to declare the show cause notice dated Feb. 27, 1985 as null and void and without jurisdiction and to direct the first respondent to grant recognition.
2. Counter-affidavit has been filed by the respondents stating that the petitioner has been collecting tuition fees at the rate of Rs. 20/- per student and it is not being accounted for; that a complaint was lodged and pursuant thereto the Police have seized all the records; that a joint inspection was sought to be made by the Deputy Director of Social Welfare and the District Educational Officer but they were prevented to make the inspection raising slogans to withdraw the o, issued by the Government and so it became impossible for them to make inspection; that the petitioner has not been maintaining any regular registers or accounts of the amounts drawn; and that a sum of Rs. 28,560-00 was released towards tuition fees for 119 students for the year 1983-84 for two terms. Since the petitioner has not complied with the conditions imposed in G. O. Ms. No. 181 dated May, 15, 1984 for according recognition, sanction of re-imbursement of tuition fee cannot be granted and recognition cannot be granted.
3. The respondents filed an application for vacating the stay and it came up on Dec. 28, 1985. At that time after going through the allegations made in the counter-affidavit, I appointed Sri. G. Bikshapathy, Advocate of this bar, as Commissioner to make personal inspection of the school, record statements of the parents, inspect the school records and then submit a report. Accordingly Sri G. Bikshapathy has filed his report on Jan 22. 1986. In the report, the learned Commissioner has stated that the school is situated in Harijanawada, that the mothers of the children were sent. He examined them at the school. At the time of his inspection, he found 167 students including 67 students in L. KG and U. KG in the school, that there are four teachers including a Headmistress, that one Aya was engaged to bring the children to the school, that there was 27, 28, 20 and 24 children respectively in Classes I to IV, that it is an English medium school and that all the parents of the children are either rickshaw pullers or daily wages coolies. The parents have stated that Sri. S. Tulasidas or Smt. Devaki is not collecting any tuition fees from them, that the institution is being run by collecting donations from philanthropists, that for want of funds salaries were not paid to the teachers and that progress cards of the students are also maintained by the school. He further stated in his report that he also inspected the records seized by CB. C. I. D. From all overall assessment of the situation he opined that the Institution is making its efforts to impart education to the students who are economically and socially backward, that the institution has no financial backing either from the Government or from other sources, that the institution is imparting free education to all the students. Unless salaries are paid to the teachers it is difficult to maintain the institution and that the delayed payment of the salaries for lack of funds would be a great hurdle for the smooth running of the institution. The evidence thus collected by the learned Commissioner inspires me to accept as the factual situation prevailing in the hamlet and the school. From these facts it is clear that the petitioner has established the institution with Classes I to IV together with L. KG and U. KG and that the total students are 167 with four teachers including the Headmistress and an Aya. The question is whether a mandamus can be issued directing the respondents to accord recognition and consequential reimbursement of the tuition fees and the salaries to the teachers. Section 20 of the A. P. Education Act (Act 1 of 1982) for short the 'Act', provides that no private institution shall, after the commencement of this Act, be established except in accordance with the provisions, of this Act or the Rules made thereunder. Under sub-sec (3) while granting permission under sub-sec (2), the authority concerned shall have due regard to the following matters namely :- (a) that there is 'need for providing educational facilities to the people in the locality'; (b) that there is adequate financial provision for continued and efficient maintenance of the institution as prescribed by the competent authority; (c) that the institution is proposed to be located in sanitary and healthy surroundings; (d) that the site for building, play ground and garden proposed to be provided and the building in which the institution is proposed to be housed, conform to the rules prescribed therefor; (e) that the teaching staff qualified according to rules made by the Government in this behalf is appointed. In pursuance, therefore, the Government have issued G. O. Ms. No. 181, dated May 15, 1984. In that G. O., it is stated that (1) the reputed school should be an educational institution having high standards of education, good reputation for discipline and other extra curricular and co-curricular activities; (2) that the school have at lease five years' standing with usual recognition by the District Educational Officer/ Director of School Education and it should have a managing committee; (3) that the school should have adequate facilities viz., play ground, laboratory, library, audio-visual equipment, furniture and equipment for the class rooms and laboratories with sufficient accommodation for school and other curricular, co-curricular and extra-curricular activities; (4) that the school should have adequate number of qualified teachings staff; (5) that the admission of Scheduled Castes, Scheduled Tribes and other Backward Classes students should be in accordance with the orders of Government and the orders issued by the Director of School Education and Director of Social Welfare from time to time; (6) that the institution should have record of goods results of not less that 90% pass every year in all classes other than VII and X classes and in the VII and X class Public Examinations the results should be at least 75% continuously during the last 5 years.; (7) that such institutions fulfilling the above requirements would be recognised by the Director of Social Welfare as a reputed school or convent in addition to the normal recognition of the school by the Director of School Education/District Educational Officer and this recognition would be renewed year after year, basing on the fulfilment of the conditions laid down; (8) that only those institutions which are enlisted by the Director of Social Welfare as reputed schools and convents would be eligible for reimbursement of tuition fee; (9) that the rate of reimbursement of tuition fee would be as prescribed by Government from time to time; (10) that the payment of reimbursement of tuition fee would be on the basis of attendance of the student concerned and 75% of the attendance would be compulsory for reimbursement of tuition fee would be sanctioned by District Collector; (12) that the reputed institutions should be inspected by the Deputy Director, Social Welfare or District Educational Officer or Gazetted Inspector of Schools and the sanction or reimbursement of tuition fee would be based on the reports of these officers regarding attendance and other conditions in the school concerned and (13) that the institutions which desire to apply for re-imbursement of tuition fee, should send a report regarding results and fulfillmnet of other conditions to the Director of Social Welfare immediately after the annual results are published well in advance, so that action can be taken for enlistment and such enlistment can be done based on the reports from the Deputy Director of Social Welfare or the District Educational Offer with the specific recommendation of the District Collector.
4. This is an institution established in Harijanawada by an educated Advocate and he is imparting free education to the students of Harijanawada without collecting any fees from them. Therefore, it is intended not as a profession or for his gain, but it is motivated with a view to make a Dalit children as useful citizens. The fact that 167 students are studying in the school itself shows that there is absolute need for imparting education in the locality. The question is, what is the meaning of the phrase, 'the need for providing educational facilities to the people in the locality', in S. 20 (3) (a) Admittedly the people in the locality are the Dalits, rickshaw pullers and daily wage earners. The school going children are 167 in number. Article 45 of the Constitution enjoins the State to provide compulsory free education. Article 46 mandates the State to promote with special care the educational and economic interests of the Dalits and to protect them from social injustice. Despite abolition of untouchability under Art. 17 and prohibiting its practice in any form to be an offence, and the Civil Rights Protection Act providing rigorous punishment, the practice thereof is being perpetrated remorsely unabated. The Dalits are in abject poverty with sub-human conditions. The preamble of the Constitution assures social and economic justice with right to equality of opportunity and of status with dignity of person. Article 14 provides right to equality and Art. 19 provides seven fundamental rights. Article 15(4) assures right to education. For the poor, the ignorant and inarticulate, they can never take advantage of them. To them life is one long unbroken journey in destitution. Notions of individual freedom and liberty and of dignity of person, the most cherished values of the free society would sound as empty words bandied about only in the drawing rooms of the rich and well-to-do. In the language of Mathew, J., in Kesavananda Bharati v. State of Kerala, : AIR1973SC1461 the fundamental rights themselves have no fixed content; most of them are merely empty vessels into which each generation must pour its content in the light of its experience. Article 29(2) assures that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State Funds on grounds only of religion, race, caste, language or any of them. Article 15(4) provides equality of admission in the educational institutions of the Dalits by directing the State to make special provision for the advancement of their social and educational backwardness.
5. Education is the very foundation of good citizenship and a principal instrument to awaken the child to cultural values in preparing the child for later professional training and the helping him to adjust to the environment. Thereby education nourishes intellectual advancement to develop dignity of person without which there is neither intellectual excellence nor pursuit of happiness. In Proposed Toddy Tappers' Co-operative Society, Nizamabad v. Commr., of Excise, W. P. No. 12101/85 dated 31-10-1985 I had an occasion to hold in the context of right to form a society by the Backward Class (Toddy-Tappers) that 'the fundamental rights in Part II are not an end in themselves but are the means to the end. The end is specified in Part IV. The promise held forth by the preamble's to usher in an egalitarian society through the discipline of fundamental rights. The attempt, therefore, of the courts in interpreting the provisions of the Constitution would be in a liberal way to expand the reach and ambit of the fundamental right so as to subserve the purpose for which the Constitution makers intended for ' The right to equality and of status in the fundamental right and is the faith and creed of the Constitution. The executive has to take action to make these rights meaningful to them.'
6. In Bhuvaneshwar Rao v. Principal Osmania Medical College, Hyderabad (W. P. No. 11701/85, dated 23-12-1985 (reported in : AIR1986AP196 . I have held that the Dalits have fundamental right to equality of opportunity and status in an unequal society. Social justice in establishing egalitarian society is the creed of the Constitution and distributive justice is a facet thereof. The benign equalitarian guarantee is an integral facet of equal justice under Art. 14 of the Constitution.
7. The Hindu social structure is based on caste and communities which create walls and barriers of exclusiveness and proceeded on the basis of consideration of superiority and inferiority. Thereby it created social inequality resulting in reprehensible forms of untouchability, etc., denuding the Backward Classes and Details of equality of status and opportunity. Equality implies fundamentally certain levelling process. It means that no man shall be so placed in the society that he can over-reach his neighbour to that extent it constitutes a denial of the latter's citizenship. (Vide Harold Laski's 'Grammer of Polities' - 1979 India Reprint Page 153). Equality means adequate opportunities laid open to all. By adequate opportunities, we cannot imply equal opportunity in the formal sense viz., identity of formal opportunity. The native endowments of men are by no means equal. Children, who are brought up in an atmosphere where the things of the mind are accounted highly are bound to start the race of life with advantages. Apparently, it would inevitably affect profoundly the equality of the children whom it touches. Without education, a man is so circumstanced that he knows not how to make the best of himself. Therefore, for him the purpose of society is ab initio, frustrated. When citizens are in that vulnerable ignorance and squaller, they know not themselves and the opportunities, a mockery and the fundamental rights are teasing illusions. The principles of equality in reality alone would be an adventitious aid to fundamental equality. Equality, therefore, involves up to the margin of sufficiency, identity of response to primary needs and that is what is meant by justice. We are rendering to each man his own by giving him what enables him to be a man. Obviously, Art. 46 of the Constitution when it charges the State to promote with special care the educational and economic interests of the weaker sections of the people, intended to operate in the above area affording adequate opportunity in the matter of education to the children of the weaker sections of the society with a view to rid them off apathy for education and be a useful citizen. Article 15(4) guarantees to them equality in reality in the matter of admission into educational institutions. Thereby the Constitution is protecting the weak and limiting the general power of the society as propounded by Harold Laski in his Grammer of Politics, 1979, Indian Reprint, Page 160, that :
'We so act because the common welfare includes the welfare of the weak as well as the strong.......To act otherwise is to regard them as not as persons but as instruments. It is so deny that their personality constitutes a claim. It is deliberately to weigh institutions against a section of community.'
8. In view of Art. 45 of the Constitution, it is the duty of the State to impart compulsory education to the children in the egalitarian socialist society with secularism as its goal. In Brown v. Board of Education (1953) 347 US 483 at p. 494 = 98 Law Ed 873 at p. 880, Warren, Chief Justice, has held that :
'Education is perhaps the most important function of State and local Governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. To-day it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training and in helping him to adjust normally to his environment. In these days, it is doubted that any child may reasonably be expected to succeed in life if he is denied the opportunity of education. Such an opportunity, where the State has undertaken to provide it, is a right which must be made available to all on equal terms.' Thus I have no hesitation to hold that right to education to the Dalits is a fundamental right and it is the mandatory duty of the State to provide adequate opportunities to advance their economic and educational interest by establishing schools. Therefore, under S. 20 (3) (a) the need of the locality is a constitutional need and it is the duty of the authority thereunder. It is the duty of the State to establish schools in the area of Dalits in the absence of common schools to all sections of the society. In its absence, when a private school is established, it is the mandate of the Constitution to accord permission for such a school.
9. The next question is whether the conditions prescribed in G. O. Ms. No. 181 dated May 15, 1984 have been fulfilled. It is common knowledge that the Dalits - the rickshaw pullers and the daily wage earners live in abject poverty; their houses are not palace but huts with either some semi-constructed ones or with some leaves or rags spread over the top with two bamboos as supporting poles erected with no sanitary conditions let alone protected drinking water. Under those circumstances, the questions is whether the compliance of the rigour adumbrated in G. O. Ms. No. 181 could be possible or feasible. The conditions have already been extracted and they need no reiteration. When a schools is established in such a locality, it is a well-nigh impossible to comply with all or any of the conditions prescribed therein. If the compliance thereof is insisted upon a pre-condition to accord recognition to the school established in Harijanawada, it is nothing but the officers saying 'You dalits are not entitled to a school since you can never comply with out conditions though you are in dire need of education and Constitution gives you such a right' and charge us to implement it. Consequently no school can be established in such a locality and no occasion would arise to impart education to them though it is a constitutional need and it is the duty of the State to establish such an institution. In such high educational standards as envisaged in the rules are insisted upon and the economic sufficiency and stability for establishing the schools is insisted and five years of existence without aid is called upon to survive with consistent high percentage of passes, practically no schools can be established in any area of the Dalits. The necessary conclusion is that the officials are oblivious of not only the historical but also the existing facts and thereby they addicted their constitutional duly enjoined under Art. 46 of the Constitution. Undoubtedly, the Legislature cannot foresee all the eventualities except to lay down broad guidelines in S. 20 and so relegated to the subordinate legislation to make rules to enforce the law. When the rules are made in turn generally in implementation therefore, the authorities should be realistic and pragmatic to the situation and in appropriate cases they should tailor their actions to relax them so as to subserve the purpose of the Constitution and the Act. Rules are not sacrosanct and immutable. Instead of so doing, the respondents have taken recourse to cancel the temporary permission to Classes I and II by issuing show cause notice to annihilate the very institution started and being run by an young Advocate who has no firm roots in the professional but animated to educate the children of his compatriots by collecting donations from the munificent philanthropists. When seen from this angle the complaint to police appears to emanate from behind smoke screen, as motivated. From a conspectus of the above consideration, I am constrained to hold that the authorities have derelicted their constitutional and statutory duties under S. 20 of the Act. Accordingly the show cause notice is quashed and there shall be a direction to the respondents to recognise the institution of the petitioner from L. KG to Class V and grant the entire amounts due as per rules within six weeks from the date of receipt of this order. The respondents are also directed to secure as expeditiously as possible adequate site for construction of a permanent school nearer to locality and the 3rd respondent is directed to provide necessary funds for its construction and other amenities.
10. The Writ Petition is accordingly allowed with costs. Advocates' fee Rs. 150/-.
11. Petition allowed.