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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.2283 OF 2011
Maulana Abdul Kalam Azad Education
and Welfare Society,
at Dhad, Tal & Dist. Buldhana,
through its President,
Mohd. Siraj Saudagar,
age 50 years, Occu. Social Work,
r/o Dhad, Taluka and Dist.
Buldhana. ... PETITIONER.
VERSUS
1. The State of Maharashtra,
through Secretary,
Education Department,
Mantralaya, Mumbai.
2. The Education Officer
(Secondary),
Zilla Parishad, Jalna,
Taluka & Dist Jalna.
3. Deputy Director of Education,
for Secondary and High Secondary,
Directorate of Education,
Pune. ... RESPONDENTS.
...
Advocate for Petitioners : Mr.Shah Subodh P.
AGP for Respondents: Mr.S.G. Nandedkar.
...
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wp2283.11
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CORAM : R.M. BORDE & S.S. SHINDE, JJ.
Dated: October 20, 2012.
ORAL JUDGMENT (Per R.M.Borde,J):
1. Heard.
2. Rule, returnable forthwith. By consent of parties, taken up for final disposal at admission stage.
3. Petitioner is seeking quashment of order dated 8.11.2010 passed by Deputy Secretary, School Education & Sports Department, State of Maharashtra, refusing permission to open secondary school imparting education in Urdu medium at Savangi Awagadrao, Taluka Bhokardan, District Jalna. Petitioner tendered an application in pursuance to advertisement issued by Government on 2.5.2008 seeking permission to open Urdu medium secondary school on permanent no grant basis. It is contention of petitioner that although application was tendered by petitioner, completed in all respect, it was not decided and other applicants who had applied in pursuance to ::: Downloaded on - 02/08/2016 17:30:44 ::: wp2283.11 3 said advertisement, were granted permission to open schools. Proposal tendered by petitioner was rejected by order dated 26.2.2010. Reason for rejection of proposal is stated as there is no school imparting education till 7th standard in the vicinity and as such, it is not possible for petitioner institution to acquire strength of required number ig of students for 8th standard.
Ground stated in rejection order, according to petitioner, is false. Petitioner approached this Court by presenting Writ Petition No.3700 of 2010 challenging order dated 26.2.2010 of rejection of proposal. Said Writ Petition came to be allowed by this Court by order dated 23.8.2010 and it was directed to authority to re-consider proposal tendered by petitioner. It was found that ground for rejection of proposal tendered by petitioner was factually incorrect. Application tendered by petitioner was re-considered by authority and proposal was rejected by order dated 8.11.2010.
Ground for rejection of proposal communicated to petitioner is that State Government has decided to consider application only after drawing of ::: Downloaded on - 02/08/2016 17:30:44 ::: wp2283.11 4 perspective plan for State. It is further stated that on consideration of provisions of Right to Education Act, State has decided to conduct school mapping and after ascertaining need for opening school at a particular place, permission would be accorded to open new school. Another reason recorded in the order is that issue in respect of ig according permission to open new schools has been referred to larger Bench of High Court and considering decision in Writ Petition, proposal tendered by petitioner is being rejected at State level.
4. Reasons assigned in order for rejection of proposal tendered by petitioner are unsustainable for the reason that exercise undertaken by State Government for preparing perspective plan is referable only to Marathi medium schools and, there is no exercise undertaken by State Government for preparation of perspective plan in respect of Urdu or English Medium schools.
Another reason recorded in the order referable decision of larger Bench of Bombay High Court in ::: Downloaded on - 02/08/2016 17:30:44 ::: wp2283.11 5 Writ Petition No.6727 of 2010 and other companion matters is also unsustainable.
Questions referred to Full Bench are quoted as below:
"(i) Do the provisions of Secondary Schools Code acquire statutory force because of reference made to those provisions in the Regulations framed under the Maharashtra Secondary and Higher Secondary Education Boards Regulations, the M.E.P.S. Act and the judgment of the Supreme Court in the case of M.G.Pandke v/s Municipal Council Hinganghat, 1993 Supp(1) SCC 708?
(ii) From the point of view of making application for starting a school do the Marathi medium school constitute a different class which can be treated differently by the State Government?
(iii) Does the Applicant have to indicate whether he wants grant in aid from the State Government or not at the time when he makes an application for permission to start a school and if `Yes' , then can schools be classified on the touch- stone whether they are seeking grant- in-aid or not?
(iv) If the Bombay Primary Education Act does not apply to the entire State of Maharashtra, which is the law governing establishment of primary schools in the area to which the Bombay Primary Education Act does not apply?
(v) Are all the provisions of the 2009 Act enforceable in the absence of any Rules being framed by the State Government under that Act?
(vi) Can an application be made under the Secondary Schools Code for recognition of a ::: Downloaded on - 02/08/2016 17:30:44 ::: wp2283.11 6 school without first seeking permission of the Department to start a school? "
Affidavit-in-reply is presented by State Government in above Writ Petition and it has been stated in paras 8 and 9, thus:
"8. It is submitted that a perusal of the Government Resolution dated 20th July, 2009 clearly indicates that the same was issued at the time when the Parliament was deliberating on Right to Free and Compulsory Children's Education Act, 2009. In so far as the provisions of the Act, and also the definition and concept of ''neighbourhood school'' are concerned, the same were being discussed and it was not clear as to what would be the requirement of Law, in so far as compulsory education is concerned and the corresponding duty of the State to provide compulsory education is concerned. The Government Resolution infact, is in two parts , which are distinct from each other. The first part of the Government Resolution deals with the Grants to be given to the existing Schools, in view of the fact that permissions were given from 2001 onwards on '' Permanent'' No Grant-in-Aid basis, the institutions had made representations and had requested that the word ''Permanent' should be deleted and if found eligible, the grants should be made available to these Schools also. The first part of the Government Resolution directs that the word 'Permanent' should be deleted from the Orders granting permission to start schools. The first part also deals with the Modus-
Operandi regarding grant being given to the existing schools. It was directed that the schools shall be considered for grant-in-aid ::: Downloaded on - 02/08/2016 17:30:44 ::: wp2283.11 7 from the academic year 2012-13. A Committee was also set up to decide the eligibility criteria and evaluation standard on the basis of which schools should be evaluated for receiving grants. It was also made clear that all schools will not be entitled to receive grants even after completion of 5 years. The Government Resolution makes it clear that schools will be first evaluated and if found eligible as per the evaluation standards and criteria, would be entitled to receive grant-in-aid. The second part of Government Resolution is independent of the first part and deals with another issue. Thisig Hon'ble Court had restrained the Government from giving any permissions from the year 2003 onwards and this Order of the Honourable Court was vacated in the year 2007. Consequently, the Government had invited Applications for permission to start new schools by Circular dated 29th April, 2008. However, before these Applications could be considered, draft of the said Act of 2009 was circulated and hence, the Government took a policy decision not to entertain any application made pursuant to the Circular dated 29th April, 2008, in so far as the Marathi Medium Schools are concerned. It was decided that a Master Plan be prepared, so as to ascertain whether or not, there is any need for Vernacular Medium Schools, more particularly the Marathi Medium Schools, in view of the fact that several Marathi Medium Schools had to be closed down. This was resulting into reduction in divisions of existing schools and the teachers being rendered surplus. Till such teachers are accommodated/ appointed in other Schools, the State Government has to bear expenditure towards the salary of these surplus teachers. Hence, it was necessary to formulate a policy and consequently Applications were not considered by the State Government. However, it is categorically submitted that though the State Government intends to extend the ::: Downloaded on - 02/08/2016 17:30:44 ::: wp2283.11 8 Grant-in-Aid to eligible existing Schools, whether or not, the Schools will need Grant-
in-Aid will not be a criteria for
considering the Applications for
permissions/recognition to new Schools. In Clause (5) of the said Government Resolution dated 20th July, 2009, a Committee has been established to fix the evaluation standards for considering the eligibility of Schools for receiving grants. The said Committee has made its recommendations and the recommendations have been accepted by the State Government and Government Resolution dated 15th November, 2011 has been issued by the igGovernment of Maharashtra in its Department of School Education. Hence, the Schools will be considered from the year 2012-13 for Grant-in-Aid after being evaluated and only if found eligible.
9. I say and submit that the Applicant need not indicate at the time of making an Application for permission to start a School, as to whether Grant-in-Aid is needed from the State Government or not. The Second Part of the issue would arise only if the answer to the first part of the Issue was in the affirmative. In the present case, therefore, the Second part of the question does not arise at all. In view of the enactment of Right of Free and Compulsory Children's Education Act, 2009, the Right to establish an Educational Institution has been regulated by ''Law'', as envisaged by the Constitution of India. The said Law also imposes reasonable restrictions and the same are valid and legal. A Master Plan that was proposed by Government Resolution dated 20th July, 2009 was / is in consonance with the Master Plan required to be prepared as per the provisions of the Act of 2009. It is further submitted that Rules of 2012 framed under the Act of 2011 are being suitably amended to make it clear that the criteria of School Mapping shall be applicable only for recognition of new Schools and that the ::: Downloaded on - 02/08/2016 17:30:44 ::: wp2283.11 9 School Mapping shall not be the criteria or issue for determining whether the recognition is to be granted to the existing Schools under Section 18 of the Act of 2009."
5. So far as establishment and recognition of Secondary School is concerned, it has been observed by Full Bench in para 12 that the procedure would be governed by the provisions of the Secondary Schools Code, which are held to be binding on all recognised schools, and therefore, recognition to the schools will be governed by that Code and it is clear from the provisions of the Secondary Schools Code that it is only those schools which have been permitted by Government to establish can apply for recognition.
Therefore, it is necessary for the person who wants to establish a Secondary School to apply to the Department for permission to establish a school. So far as question of school mapping / preparation of Master Plan is concerned, same is referable to only Marathi medium schools. So far as petitioner is concerned, petitioner is seeking permission to open Urdu medium secondary school.
Therefore, reasons recorded in order passed by ::: Downloaded on - 02/08/2016 17:30:44 ::: wp2283.11 10 State Government on 8th November, 2010 rejecting proposal of petitioner are unsustainable. There is nothing in judgment of High Court delivered by Full Bench which can be understood to have prohibited State authority from according sanction to petitioner. Reason recorded in the order in respect of school mapping and preparation ig of perspective plan is also not referable to Urdu medium secondary school.
6. Order dated 8th November, 2010 passed by State refusing to accord permission to petitioner
- institution to run Urdu medium secondary school, therefore, deserves to be quashed and set aside and, the same is accordingly quashed and set aside. Respondents - authorities are directed to consider application tendered by petitioner and the application shall not be rejected on grounds stated in orders dated 26.2.2010 and 8.11.2010. Since, application tendered by petitioner would be considered for according permission to run Urdu medium secondary school for academic year, 2013-14 and that ::: Downloaded on - 02/08/2016 17:30:44 ::: wp2283.11 11 application tendered by petitioner may not be in consonance with the present policy of State Government, we grant petitioner eight weeks time to make necessary amendments or required procedural compliances. On making necessary compliances with a view to bring application in conformity with present policy of State Government by the petitioner, State authorities shall consider the proposal of petitioner to open Urdu Medium Secondary School, as expeditiously as possible, preferably by end of May, 2013. If respondents find it necessary to hear petitioner, it would be open for them to do so. With these directions and observations, we allow petition. Rule is made absolute accordingly. There shall be no order as to costs.
[ S.S. SHINDE, J ] [ R.M. BORDE, J]
Kadam/*
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