1 WP 6639 of 2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 6639 of 2004
1) Shri. Sevalal Education Society,
Hanegaon, Taluka Degloor,
District Nanded,
Through its Secretary
Phulsing Goma Rathod.
2) Kai. Indirabai Deshmukh High School,
Hanegaon, Taluka Degloor,
District Nanded
Through its Head Master,
Shankar s/o Kishanrao Rathod,
Age 44 years, Occupation: Service,
R/o. Hanegaon, Taluka Degloor,
District Nanded. .. Petitioners.
Versus
1) The State of Maharashtra
Through Education Department,
Mantralaya, Mumbai.
2) The Deputy Director of Education,
Aurangabad Division, Aurangabad.
3) The Education Officer (Secondary)
Zilla Parishad, Nanded. .. Respondents.
----
Shri. V.P. Golewar, Advocate, for petitioners.
Shri. V.M. Kagne, Assistant Government Pleader, for
respondents.
----
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2 WP 6639 of 2004
Coram: R.D. DHANUKA &
SUNIL K. KOTWAL, JJ.
Date : 9 AUGUST 2017
ORAL JUDGMENT (Per R.D. Dhanuka, J.):
1) By this petition filed under Article 226 of the
Constitution of India, the petitioners seek a writ of mandamus against the respondents to grant permission / recognition in favour of the petitioners to run classes of second division of 10th standard from academic year 1998- 99 on grant-in-aid basis and also seeks approval to the appointment of Mr. D.R. Chavan on the post of Assistant Teacher on clear and vacant post from academic year 1998-99 on grant basis.
2) It is the case of the petitioners that the respondents have already sanctioned additional divisions of 8th standard in the year 1996-97 and additional division of 9th standard in the year 1997-98 as per natural growth, and in view of the number of the students admitted in accordance with the norms. It is the case of the petitioners that some time in the month of July 1998, the ::: Uploaded on - 10/08/2017 ::: Downloaded on - 12/08/2017 02:09:52 ::: 3 WP 6639 of 2004 petitioners made a proposal for sanction of additional division of 10th standard to the respondents. Pursuant to the said application, the concerned officer from Education Department had visited the school of the petitioners and submitted a report.
3) The learned counsel for the petitioners invited our attention to some of the correspondence annexed to the petition. He submitted that though there were total 79 students admitted in the petitioner No.2 school in the academic year 1997-98 and 107 students in the year 1998- 99, in the letter addressed by the Education Officer to the Deputy Director of Education the number of students for the year 1998-99 in the 10 th Standard were erroneously mentioned as 48. He invited our attention to the letter dated 5 December 1998 addressed by the Education Officer to the Deputy Director of Education correcting the said mistake and placing on record that the number of students admitted by the petitioner No.2 in the year academic year 1998-99 were 107. He submitted that though said mistake was corrected by the Education Officer, the Deputy Director of Education did not decide ::: Uploaded on - 10/08/2017 ::: Downloaded on - 12/08/2017 02:09:52 ::: 4 WP 6639 of 2004 the application for grant of permission to start second division of 10th Standard.
4) It is submitted by the learned counsel for the petitioners that for the first time on 10 October 2001 the Education Officer informed the petitioners that permission to start second division of 10 th standard was granted to the petitioners, however, on no grant basis. The approval to the appointment of D.R. Chavan was also granted, however, without any grant. He submitted that since the respondents had already granted permission to the petitioners for stating second division for 9 th Standard, the students who passed in 9th standard were to be promoted to the 10 standard and in view of the natural growth, respondents were bound to grant permission to start second division of 10th Standard. He submitted that in view of the permission granted for the year 1998-99 without grant belatedly the petitioners would not get any grant-in-aid for the relevant years till the new G.R. dated 14 July 2000 came to be issued by the Government. He submitted that the proposal and the representations made by the petitioners were not decided by the respondents. ::: Uploaded on - 10/08/2017 ::: Downloaded on - 12/08/2017 02:09:52 :::
5 WP 6639 of 2004
5) Mr. Joshi, learned Assistant Government
Pleader, on the other hand, submitted that the petitioners had started the second division of 10 th Standard without obtaining prior permission of the respondents. The respondents thus considered the number of students only of the first division of 10th standard while granting permission to start second division while passing an order dated 10 October 2001. He submitted that there is gross delay on the part of the petitioners to file this petition. He submitted that after the Government Resolution was issued on 14 July 2000, the petitioners filed this petition belatedly. He submitted that this Court thus cannot interfere in this petition.
6) A perusal of the record indicates that the petitioners had made proposal some time prior to November 1998 followed by further representations but there was no decision taken by the respondents on the said application made by the petitioners. A perusal of the record further indicates that in the first letter addressed by the Education Officer to the Deputy Director of Education, the number of students in the 10th standard ::: Uploaded on - 10/08/2017 ::: Downloaded on - 12/08/2017 02:09:52 ::: 6 WP 6639 of 2004 admitted by the petitioners were not mentioned as admitted by the petitioners. When this mistake was pointed out by petitioners to the Education Officer, the Education Officer by his letter dated 5 December 1998 addressed to the Deputy Director of Education corrected the mistake and pointed out that 107 students were admitted by the petitioners.
7) It is the case of the petitioners that the concerned officer from the Education Department had also visited the petitioner No.2 school and had verified the number of students admitted by the petitioner No.2 in the 10th standard. The Education Officer has in his letter dated 5 December 1998 addressed to the Deputy Director of Education had accordingly made recommendation to grant sanction in favour of the petitioners for second division of 10 standard.
8) In so far as the stand taken by the respondents in the affidavit-in-reply is concerned, in our view, the proposal made by the petitioners followed by representations was not decided at all by the respondents ::: Uploaded on - 10/08/2017 ::: Downloaded on - 12/08/2017 02:09:52 ::: 7 WP 6639 of 2004 till 10 October 2001. That letter simpliciter grants permission to start second division of 10 standard on no grant basis. It is the case of the respondents that, the said order dated 10 October 2001 was passed based on the Government Resolution dated 14 July 2000. In our view the reasons recorded in the affidavit-in-reply for the first time which are not recorded in the order dated 10 October 2001 cannot be considered by this Court.
9) In these circumstances, we are of the view that, since there was no decision taken by the respondents based on the proposal made by the petitioners for permission to start second division of 10 th standard, the said proposal is required to be decided first. We, therefore, pass the following order :-
(a) The Deputy Director of Education, Aurangabad Region, Aurangabad is directed to consider the proposal of the petitioners for starting second division of the 10 th standard for the academic year 1998-99 on the basis of Government Resolutions applicable to the petitioners on the date of such proposal and the prevailing law on that date.
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8 WP 6639 of 2004
(b) The Deputy Director of Education shall also
decide whether the petitioners had fulfilled all
requirements including the requirement of number of students required for the purpose of making such proposal for second division of 10 th Standard and also the effect of the petitioners already having commenced second division of 10th standard without obtaining any prior permission.
(c) The proposal of the petitioners shall be considered within 8 weeks from the date of receipt of the copy of this order. The Deputy Director of Education is directed to consider the proposal after hearing the petitioners through their authorized representative and shall pass appropriate order in accordance with law after following principles of natural justice. The decision shall be communicated to the petitioners within one week from the date of passing of such order.
(d) It is made clear that we have not expressed any view as to whether the petitioners were eligible to make such proposal for second division of 10 th standard or not ::: Uploaded on - 10/08/2017 ::: Downloaded on - 12/08/2017 02:09:52 ::: 9 WP 6639 of 2004 and the said issue is kept open. Rule is made absolute in the above terms. No order as to cost. The parties to act on the authenticated copy of this order.
Sd/- Sd/-
(SUNIL K. KOTWAL, J.) (R.D. DHANUKA, J.)
rsl
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