Committee Of Management Bhagauti ... vs State Of U.P.Through Secretary ...
2022 Latest Caselaw 10215 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 
Case :- WRIT - C No. - 1005662 of 2008
 

 
Petitioner :- Committee Of Management Bhagauti Lal Bansh Gopal Purva
 
Respondent :- State Of U.P.Through Secretary Basic Education Department
 
Counsel for Petitioner :- Sanjay Misra, Girish Chandra Verma
 
Counsel for Respondent :- C.S.C., Ajay Kumar, Deepak Srivastava
 

 
Hon'ble Pankaj Bhatia,J.

Heard Sri G. C. Verma, the counsel for the petitioner and the Standing Counsel Sri P.C. Rai assisted by Ms. Jayanti Singh for the State respondents and Sri Ajay Kumar, the counsel for the respondent no.4.

The present petition has been filed alleging that the petitioner is running an institution in the name of Kanya Junior High School and was granted temporary recognition on 15.05.1989 and a permanent recognition on 13.05.1997. It is stated that although the institution of the petitioner was recognized, the same was not having the fruits of the grant-in-aid. It is stated that the State Government with a view to bring certain institutions under grant-in-aid issued a Government Order dated 07.09.2006 wherein a decision was taken for bringing certain institutions under grant-in-aid who were fulfilling the criteria as specified from serial no.1 to serial no.8 in the said Government Order. The said Government Order also provided timeline for the institutions to file their applications which were to be disposed off according to the time schedule as specified. Clause 3 of the said Government Oder also created the committees at the directorate level as well as at the regional level comprising of a person as specified, who were to verify and to recommend the applications for bringing the institutions under grant-in-aid.

It is claimed that in pursuance to the said Government Order, the petitioner's institution filed an application before the District Level Committee, the said committee by means of a recommendation as contained in Annexure no.14, recommended the case of the petitioner's institution for being considered for being brought under grant-in-aid. It is stated that the recommendation as made in favour of the petitioner came up for consideration before the Regional Level Committee wherein two objections were raised against the application of the petitioner, as contained in Annexure no.9. The said two objections were firstly that the approval of the appointment made with regard to the teachers was not available in the records and second the details of the society at the time of recognition are not available. It is claimed by the petitioner that on 09.11.2006 the said two objections were duly removed by the petitioner. On the said two objections, it is claimed that the District Basic Education Officer sent a letter/report to the State Government in which he admits that due to clerical mistake of the department, objections were raised and the approval is corrected. It is claimed that despite the removal of the objections, the name of the petitioner was not included in the list of the institutions, which were approved for being taken under grant-in-aid. The said list dated 02.12.2006 is on record as Annexure no.12, which demonstrates that all the girls colleges which were granted recognition up to 23.04.1999 were taken in the list of grant-in-aid colleges.

It is stated that the petitioner's institution was granted recognition prior in point of time than the institutions who were granted the benefit. Subsequently, the Assistant Director, Basic Education raised fresh objection on 04.01.2007 in respect of the application filed by the petitioner (Annexure no.15). It is claimed that the petitioner on 18.01.2007 gave a detailed reply to the new objection submitted. It is claimed that on 17.05.2007, the Regional Level Committee considered the case of the petitioner's institution along with other institutions and recommended the name of the petitioner's institution in the list wherein the name of the petitioner's institution is contained at Serial no. 8 (Annexure no.17).

It is stated that despite the recommendation in favour of the petitioner by the Regional Level Committee, as no decision was being taken, the petitioner was constrained to approach this Court by filing a Writ Petition No.6235 (M/S) of 2007 wherein directions were issued to the State Government to take a decision on the application of the petitioner in accordance with law within a period of two months. It is stated that despite the said order, as no decision was taken, the petitioner was constrained to file a contempt petition before this Court. In the said contempt petition, it is argued that the notices were issued and during the pendency of the contempt petition, an order came to be passed on 16.06.2008 (Annexure 1) wherein the application of the petitioner was rejected on the grounds as enumerated.

The counsel for the petitioner argues that in terms of the directions issued by this Court, the order passed and impugned reveals that a meeting was convened on 31.12.2007 wherein the petitioner was heard and a report was called from the District Basic Education Officer, Faizabad. The order further records that the Director, Basic Education had sent his report dated 10.6.2008 and on going through the said report, it was found that the security money and the earnest money was deposited by the petitioner on 18.09.2006, secondly, it was observed that the approval to the appointment of one of the Assistant Teacher was not issued according to the dispatch register and thirdly that the institution has not annexed the ownership documents of the land where the institution was situate as such, it was recorded that the petitioner's institution was not eligible in terms of the provisions of the Government Order dated 07.09.2006. In the said order, it is also stated that in terms of the Government Order dated 07.09.2006, the institutions which were eligible have already been taken under grain in aid by means of a Government Order dated 02.12.2006 and further subsequent thereto, no financial budget was available and thus, it was not possible to consider the case of the petitioner. The said order is under challenge.

The counsel for the petitioner argues that in terms of the Government Order dated 07.09.2006, it was incumbent that the decision be taken by a committee constituted which has not been done in the case of the petitioner and despite there being a recommendation in favour of the petitioner, the order impugned has been passed on consideration other than that as were required under the G.O. dated 07.09.2006. He further argues that in any event the impugned order dated 16.06.2008 is violative of the principle of natural justice inasmuch as the order itself records that the petitioner was heard on 31.12.2007 whereas the foundation for passing of the order is some report dated 10.06.2008, which was never given to the petitioner nor was ever the petitioner called to explain the discrepancies as allegedly noticed in the report dated 10.06.2008. He further argues that in any view the Government Order dated 07.09.2006 provided for a decision to be taken based upon the report of the committee constituted whereas the order impugned has been passed based upon the report of the Director of Basic Education dated 10.06.2008 who is not empowered. He lastly argues that similarly placed institutions, which were granted recognition subsequent to the petitioner's recognition have been brought under grant in aid and thus, the rights of the petitioner enshrined under Article 14 of the Constitution of India for being brought under grant in aid have been violated. He also draws my attention to one of the condition as contained in the Government Order dated 07.09.2006 with regard to the ownership of the land by the institution, which condition was set aside by this Court in the judgment passed by this Court in Writ-C No. 66100 of 2006 [C/M Adarsh Janta Junior High School vs. State of U.P. and others] following the judgment in the case of Committee of Management vs. State of U.P. and others; (1994) 2 UPLBED 1127 wherein the Clause 8 was found to be arbitrary and illegal.

The counsel for the petitioner further argues that on filing of the application in terms of the Government Order, a right has accrued in favour of the petitioner for being considered within the parameters of the Government Order, which has been violated. He places reliance on the judgment of this Court in Writ - C No.4735 of 2017 (C/M Ram Daun Ram Raj Pre - Secondary School and another) wherein in similar circumstances this court had passed the order dated 27.02.2019 which was affirmed in the Special Appeal Defective No.975 of 2020 and further in Special Leave to Appeal (C) No.3359 of 202. He further places reliance on the judgment of this Court in the case of C/M Sri Satya Narain Junior High School and others vs. State of U.P. and others in Writ-C No.24767 of 2018 decided on 16.11.2021 wherein in similar circumstances, the court had considered the rights of the petitioner and have granted the relief to the petitioner therein. He also placed reliance on a similar matter being decided by this Court in Writ-C No.1000923 of 2011 (C/M Chandra Shekhar Azad Junior High School Lucknow vs. State of U.P. and others) decided on 15.07.2022. In the light of the said, he argues that the writ petition deserves to be allowed and the impugned order is liable to be set aside.

The Standing Counsel Ms. Jayanti Singh for the State has vehemently opposed the writ petition and draws my attention to the counter affidavit wherein she points out that the State Government has rightly taken a decision in rejecting the application of the petitioner. She has drawn my attention to the order dated 16.01.2008 wherein the decision was taken in respect of the certain institution, which were brought under grant in aid on 27.12.2006 on the ground that adequate budget could not be sanctioned by the State Government. She further argues that this Court in the judgment reported in 2019 (6) ADJ 255 has given certain directions to the State Government for framing a policy in respect of the said institutions and in terms of the said order, the State Government has framed a policy on 14.07.2020 whereby a decision has been taken for not taking the institution under the grant in aid list for the reasons contained in paragraph nos. 7(7), 7(8) and 8 of the Government Order dated 14.07.2020. The said condition as specified in the Government Order dated 14.07.2020 is basically based on the ground that the State Government is concentrating on improving the standard of the education in the institution which are already on the grant in aid list. In the light of the said, she argues that the present petition is liable to be dismissed.

In the light of the arguments as recorded above, this court is to see whether the impugned order rejecting the application of the petitioner vide order dated 16.06.2008 is justified or not. It bears from the record that the State Government had issued a Government Order dated 07.09.2006 for bringing the certain institutions under grant in aid, the application filed by the petitioner in pursuance to the Government Order was duly recommended by the District Level Committee as well as by the Regional Level Committee as bears from the perusal of Annexure no.17 wherein the name of the petitioner had appeared at serial no.8. It also bears from the record that the institutions similarly situated but granted recognition subsequent to the date of recognition granted to the petitioner institution have been taken under grant in aid. In view of the said, the order dated 16.06.2008 is clearly not sustainable firstly because the same is in violation of the principles of natural justice as it places reliance on a report dated 10.06.2008, which was obtained subsequent to the date of hearing which happened on 31.12.2007 without giving the said report to the petitioner or permitting him to rebut the same, the order impugned could not have been passed which has occasioned in violation of the principles of natural justice.

In normal circumstances, the matter deserves to be remanded, however considering the stand taken by the State Government in the impugned order of rejecting the application of the petitioner on the three grounds mentioned in the impugned order, I proposes to deal the same as sufficient time has elapsed and no useful purpose would be served in remanding the matter. The three grounds based upon which the impugned order has been passed denying the benefit of grant in aid to the petitioner are (i) the amount of security deposit has been done on 18.09.2006, (ii) the approval to the appointment of one of the Assistant Teacher was not mentioned in the dispatch register and (iii) the ownership documents of the land is not included in the certificate. The first objections based upon which the order has been passed are ill founded for the reason that the application of the petitioner which was found to be within the parameters of the Government Order was duly recommended by the District Level Committee as well as the Regional Level Committee and no such ground existed as against the petitioner.

With regard to the second ground which has led to the passing of the impugned order, the same does not merit any acceptance for the reason that the District Basic Education Officer himself in his order dated 01.12.2006 had recorded that all the actions with regard to the approval of the appointment of the Assistant Teacher was duly made (Annexure no.11) and with regard to the third ground which is the foundation of passing the order, that the ownership of the land documents have not been annexed is also not acceptable for the reason that in the report of the District Basic Education Officer dated 01.12.2006 (Annexure no.11), he has himself recorded that all the documents with regard to the ownership have been provided and further more that the said condition has already been set aside by this Court in Writ-C No.66100 of 2006 [C/M Adarsh Janta Junior High School vs. State of U.P. and others] decided on 13.02.2013. Even otherwise, the order impugned cannot be sustained as being without jurisdiction as the decision has to be taken by the State Government based upon the recommendation of the committees constituted under the Government Order. The State Government could not have gone beyond the said recommendations in accepting or rejecting the claim made by various institutions which has precisely been done in the present case wherein the request has been rejected despite there being a recommendation in favour of the petitioner. Even otherwise, the case of the petitioner is squarely covered by the judgment of this Court in the case of C/M Ram Daun Ram Raj Pre - Secondary School and another (supra) decided on 27.02.2019.

Thus, for all the reasons recorded above, the impugned order dated 16.06.2008 is clearly not sustainable and is liable to be quashed.

Accordingly, the order dated 16.06.2008 is set aside. The State Government is directed to take the petitioner's institution under grant-in-aid in pursuance to the Government Order dated 07.09.2006 as has been done in the case of the other eligible institutions who were applied for being taken under grant-in-aid in pursuance to the Government Order dated 07.09.2006. The decision in that regard shall be taken without fail within a period of four months from today.

The Standing Counsel is directed to communicate a copy of this order to the State Government for its compliance and in accordance with law.

The writ petition stands allowed with the said observations.

Order Date :- 16.8.2022

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