Ahilyadevi Vyayam Krida Va ... vs State Of Maharashtra And Ors.
2004 Latest Caselaw 126 Bom

JUDGMENT

B.R. Gavai, J.

1. Rule returnable forthwith. Heard finally by consent of the parties.

2. Grant of permission to open a school, in favour of respondent No. 4, at village Khandala, by the respondent No. 1, State of Maharashtra vide its order dated 3rd July, 2003 and the consequential orders passed by the respondent Nos. 2 and 3 dated 10th July, 2003 and 14th July, 2003 respectively, overlooking the claim of the petitioner, are the subject-matter of challenge in the present petition.

3. The facts in brief giving rise to the filing of the present petition, are as under:--

4. By an advertisement published in newspaper namely "Daily Deshonnati" in its issue dated 24th March, 2000, master plan was published by the respondent No. 1, State Government, for Akola district for grant of permission to open new Secondary and Higher Secondary Schools. Applications were invited for grant of permission for opening Secondary and Higher Secondary Schools at the villages notified in the said advertisement. One of the villages notified in the said advertisement was village Khandala. In response to the said advertisement, the petitioner-Society, submitted its proposal for opening School at Khandala in the prescribed form. The form in which the applications were required to be made was prescribed under the Government Resolution dated 23-3-2000 (hereinafter referred as the "Said Government Resolution").

5. The petitioner came to know from the news item published in "Daily Deshonnati", dated 25th April, 2001, that the permission was granted in favour of respondent No. 4, Society for opening school at village Khandala. The petitioner alleged that, the said permission was granted at the behest of respondent No. 5. The petitioner aggrieved by the grant of permission in favour of respondent No. 4, moved this Court by filing Writ Petition No. 2005 of 2001. In the said petition, the petitioner had prayed for quashing and setting aside the grant of permission, in favour of respondent No. 4 and further prayed for grant of permission in its favour. During pendency of the petition, the Division Bench had directed the Deputy Director of Education, Amravati to visit the school of respondent No. 4 and conduct enquiry and upon perusal of the said report, the Division Bench had come to the conclusion that it was not possible to sustain the permission granted in favour of respondent. No. 4. The said petition came to be allowed by the Division Bench of this Court, by its order dated 3rd December, 2002. The permission granted in favour of petitioner-Society was quashed and set aside. The operative part of the judgment and order dated 3rd December, 2002 passed in Writ Petition No. 2005/2001 reads thus :--

"By order dated 19-6-2002 the Division Bench directed the Deputy Director, education, Amravati to visit the school of respondent No. 4 and conduct enquiry in respect of the aforesaid conditions and submit report to this Court. Accordingly the Dy. Director of Education submitted report to this Court. It is seen from the report that the respondent No. 4 has not complied with any of the aforesaid conditions. It is also seen that there is no play ground and the school is run in a rented premises admeasuring about 15 x 15 and 12 x 12 ft. It is also observed that the respondent No. 4 has admitted 31 students and at the time of inspection only 13 students were present. In the light of the report submitted by the Dy. Director it is not possible to sustain the permission granted to the respondent No. 4. Accordingly permission granted in favour of respondent No. 4 is quashed and set aside. The Dy. Director is directed to refer the proposals of the petitioner and respondent No. 4 to the District Level Committee which will examine both the proposals in the light of the report of the Dy. Director and make appropriate recommendation to the State Government. The State Government shall accord permission to the eligible applicant as per the recommendation of the Committee. The respondent No. 4 is permitted to continue the school till the end of this Academic Year subject to the final decision taken by the State Government."

6. The State Government, again, vide its order dated 3rd July, 2003, granted permission for opening school in favour of respondent No. 4. In pursuance to the order passed by the State Government dated 3rd July, 2003, the Deputy Director passed an order dated 10th July, 2003, directing the Education Officer to permit the respondent No. 4 to run the school. The Education Officer, in turn, by an order dated 14th July, 2003, granted permission to the respondent No. 4 to run the school. These three orders dated 3-7-2003, 10-7-2003 and 14-7-2003 are under challenge in the present petition filed under Articles 226 and 227 of the Constitution of India.

7. It is the contention of the petitioner that in accordance with the directions issued by this Court and the policy decision of the State Government as laid down in the said Government Resolution, the proposals of the petitioner as well as respondent No. 4 were scrutinised and the school of the respondent No. 4 was recommended. The petitioner has made allegations in the petition, that in ordinary course, the petitioner/Society would have been granted permission to open a school. However, due to the endorsement of the Education Minister, at the behest of respondent No. 5, who was holding the office of the Minister of Slate, the same is granted in favour of respondent No. 4 instead of the petitioner/Society.

8. In response to the notice issued by this Court, an affidavit in reply has been filed on behalf of the respondent No. 3. It is the contention of the respondent No. 3, that after scrutiny of all the applications received for grant of permission to run school at village Khandala and on the recommendations of the District and the State Level Committees permission was granted to the respondent No. 4. It is contended that while granting the permission to respondent No. 4, the District as well as State Level Committees have strictly followed the norms and procedure laid down in the said Government Resolution. From the "Annexure-R1" annexed to the Affidavit-in-Reply, it appears that the District Level Committee in its meeting held on 22nd May, 2003, made comparative analysis of the facilities available with the petitioner as well as with the respondent No. 4, and has recommended the proposal of both, i.e. the petitioner as well as that of the respondent No. 4. The District Level Committee has, therefore, referred the matter to the State Level Committee to take appropriate decision.

9. The respondent No. 4, in its reply, has submitted that, it is having all the requisite facilities and that the permission granted is in accordance with the norms laid down in the said Government Resolution. The respondent No. 4 has denied the allegations of interference by respondent No. 5.

10. The respondent No. 5 has also filed his affidavit in reply, denying the allegation of interference at his behest. He has submitted that since the infrastructure was available with the respondent No. 4 and since the said school happened to be in his constituency, he had issued request letter to the Education Minister. He has submitted that, he neither intended to favour or to achieve any quota as mentioned by the petitioner.

11. Looking into the nature of the controversy, this Court vide its order dated 27-8-2003 had directed the respondent/State, to place all the original records for the perusal of the Court.

12. We have heard Shri P.C. Madkholkar, learned Counsel appearing on behalf of the petitioner, Shri S.Y. Deopujari, learned Assistant Government Pleader appearing on behalf of the respondent Nos. 1, 2 and 3 and Shri A.J. Thakkar, learned Counsel appearing on behalf of the respondent No. 4.

13. Shri Madkholkar, learned Counsel for petitioner vehemently submitted that, grant of permission in favour of respondent No. 4, Society, is not in accordance with the policy of the State Government laid down in the said Government Resolution and the directions issued by this Court in the case of Gram Vikas Shikshan Prasarak Mandal v. State of Maharashtra reported in 2001(1) Mh.L.J. 776. He submitted that, the Division Bench of this Court had issued directions to the State, to establish independent bodies at District and State level, to consider the applications seeking permission to open new schools, in a transparent and objective manner. In the submissions of Shri Madkholkar, though the District Level Committee has recommended the grant of permission in favour of petitioner, the State Level Committee and the State of Maharashtra have failed to decide the issue of grant of permission in transparent and objective manner. It is submitted that in the present case, the permission has been granted in favour of the respondent No. 4, at the behest of respondent No. 5, who is a Minister in the Government of Maharashtra. In the submission of Shri Madkholkar, the present case is a case of naked favouritism as such the permission granted in favour of respondent No. 4 is liable to be quashed and set aside and that the permission needs to be granted in favour of the petitioner.

14. Shri S.Y. Deopujari, the learned AGP and Shri A.J. Thakkar, the learned Counsel for respondent No. 4 have justified the grant of permission in favour of respondent No. 4. It is their contention that, the permission has been granted after taking into consideration, the recommendations of the District as well as the State Level Committees as such no interference is called for, in extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Shri Thakkar, the learned Counsel for respondent No. 4, further submitted that, the respondent No. 4 was having all the requisite infrastructure and was running the said school in a proper manner and that if the permission is quashed and set aside, it will be detrimental in the interest of school and students taking education in the school.

15. In the light of the allegations made in the petition, regarding the interference by respondent No. 5 and, specially, the letter dated 17-6-2003 addressed by the respondent No. 5, to the Minister for Secondary Education, therein requesting him to grant permission in favour of respondent No. 4, Society, we considered it necessary to peruse the original file.

16. From the perusal of the file, we were prima facie of the view, that the file does not contain the entire documents and, therefore, granted time to the learned AGP to produce the entire file. However, in spite of various chances given to the learned AGP, the learned AGP did not produce entire file. We are of the prima facie view, that the file produced before us, does not contain the entire documents. This is fortified by the fact that the letter at "Annexure-D" to the petition, which is duly received by the Minister for School Education, is missing from the file which is produced before us.

17. Be that as it may, even the perusal of the file, does not show that, the decision of the State Government, is in accordance with law laid down by this Court in the case of Gram Vikas Shikshan Prasarak Mandal v. State of Maharashtra (cited supra) and in the case of Dnyanganga Krida Arogya Va Shikshan Prasarak Mandal v. State of Maharashtra and others reported in 2003(2) Mh.L.J. 130.

18. The chart showing the comparative recommendations of the District Level Committee in case of the petitioner/Society and the respondent No. 4, Society are as under :--

Sr. No. Particulars Milind Shikshan Sanstha, Hivarkhed Distt. Akola.

Ahilyadavi Vyayam Krida Va Shikshan Prasarak Mandal, Khandala, Distt. Akola

1.

Govt.   letter   No.   and date/statement           of Society   in  respect  of re-inspection.
  Govt. letter dated 26-9-2000
   

Statement of President of the Society dated 3 MO-2000

 
  2.
  Revised           proposal received on.
  16-10-2000
  31-10-2000

 
  3.
  Financial Status of the Society and date
  Rs. 1,21, 123/- dated 11-10-2000
  Rs. 1,05,050/- dated 21-9-2000.

 
  4.
  Audit Report.
   

Received for the period from March, 1993 to
March, 2000.

   

Received the Audit Report of March, 99.

 
  5.
  Playground and building.
   

Consent letter for playground is submitted. Received the Gift deed of open land for building.
   

There is consent letter of Sarpanch, GramPanchayat, Khandala in respect of building and playground.

 
  6.
  Articles useful for education and School.
   

The receipt, dated 5-10-2000 for Rs.4000/-towards purchase of articles is enclosed. The receipt, dated 5-10-2000 for Rs. 13,350/- towards purchase of articles is enclosed.
  

 
  7.
  Recommendation of
District Committee.

   

Recommended due to
fulfilment of shortcomings pointed out by the District Committee.

   

Recommended due to
fulfilment of shortcomings pointed by the District Committee.


   


 

19. From the aforesaid chart, it is clear, that insofar as almost all the columns are concerned, the facilities available with the petitioner and the respondent No. 4 are almost identical, except that the respondent No. 4 has purchased certain educational material worth Rs. 4,000/- and 13,350/-. However, said purchases have been made after the permission was granted to the respondent No. 4, Society on 25-4-2001. It is pertinent to note that the District Level Committee had recommended the proposals of both i.e. the petitioner/Society as well as the respondent No. 4, Society.

20. From the perusal of the file of the State Government, it appears that the case of grant of permission to open a School at Khandala, has been processed by the respondent/State on 19th June, 2003.

21. It is pertinent to note that in the said file, it is also noted that, the petitioner/Society is a local society and that the facilities available with both i.e. the petitioner/Society as well as the respondent No. 4, Society are almost identical. The file moves on the recommendations of the District Committee. The District Committee has recommended the case of both i.e. the petitioner/Society as well as the respondent No. 4, Society and left the ultimate decision to the State Level Committee. It would be relevant to note the final notings in the said file which are made on 22-6-2003. The translated version of the same reads thus:--

"As per the decision of the Hon'ble High Court, it was necessary to make the recommendations on examining objective things by the District Committee. Accordingly the said Committee made the favourable recommendations on the proposals of both the societies as mentioned at 'A' above and thus kept the decision pending at the level of the State Committee. As per the decision of the Hon'ble High Court, a final decision is to be taken in the matter taking into consideration the recommendation of the District Committee. But the said District Committee made a vague recommendations and transferred the decision to the State Committee. This action on the part of the District Committee was not advisable. In this regard the Government's displeasure should be communicated to it.

Now, if the particulars mentioned in the proposal of both the societies, as mentioned in the report of the District Committee are examined objectively, the proposal, economic condition, audit report, the educational and utility materials of Milind Education Society are found to be more appropriate in comparison to other for granting permission to it; and, therefore, there should be no objection by selecting the said society for granting permission to it."

This endorsement made on the said file is dated 22-6-2003 and it appears that the Hon'ble Minister has finally put his endorsement on the file, on 27-6-2003.

22. From the aforesaid noting; it is clear that the State Government has found that the recommendations of the District Level Committee were vague in nature. However, on the comparative basis, it finds that the proposal of the respondent No. 4 was more suitable for grant of permission. Apart from that, no reasons are given in the said noting, as to why the case of the respondent No. 4, was preferred as against the petitioner. In the absence of any strong material available on record, it would not be possible to say that the permission in favour of respondent No. 4, came to be granted at the behest of respondent No. 5. But the fact remains that the file has started moving from 19-6-2003 i.e. immediately after two days of the letter of request dated 17-6-2003 addressed by the respondent No. 5 to the Minister for Education and crossed all tables with full speed between 19-6-2003 to 22-6-2003 and finally the Hon'ble Minister has put his endorsement on 27-6-2003, is sufficient enough to infer that the letter written by respondent No. 5 has influenced the decision of the State Government. Apart from this, in our view, since the decision of the State Government, being in total contravention of the law laid down by this Court in the case of Dnyanganga Krida Arogya Va Shikshan Prasarak Mandal v. State of Maharashtra and others (cited supra) to which one of us (Daga, J.) is a party cannot stand to the scrutiny of law. This Court after taking survey of the law laid down by the Apex Court, has observed thus :--

"..... It is needless to mention that the condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made and also enables an appellate or supervisory court to keep the authority within bounds. A reasoned order is a desirable condition of any good administration because the decision of the statutory authority in our country is subject to the supervisory writ jurisdiction of the High Court and of appellate jurisdiction of the Apex Court under Article 136 of the Constitution of India. It goes without saying that both the High Court and the Apex Court are placed under a great disadvantage if no reasons are given. The reasons are insisted upon in support of the order for three reasons;

i)       that the party aggrieved has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous;
 

ii)      that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority;
 

iii)     that the higher judicial forum gets an opportunity to read the mind of the decision making authority in the event of challenge in the Court of law.
 

30. It is needless to mention that Article 14 strikes at arbitrariness in State action and ensure a fair and equal treatment. It requires that the State action must be based on valid, relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reasons for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power.

31. Recording of reasons in support of a decision on a disputed claim by the authority concerned ensures that the decision is reached according to law on the basis of policy or expediency and is not the result of caprice, whim or fancy. The authority is expected to adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. It is also a well-known principle that the person dealing with the State must be satisfied that his case has received proper attention at the hands of the State. The reasoned conclusions, on the other hand, will also have the appearance of justice.

32. Having considered the rationale for the requirement to record the reasons for the decision of an administrative authority, we may now examine the legal basis for imposing this obligation. In Siemens Engineering and Manufacturing Company of India Limited, , the Apex Court has observed that "rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process". The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action". As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision making. Keeping in view the expanding horizon of the principles of natural justice which govern exercise of power by administrative authorities, it is all the more necessary to record reasons. The rules of natural justice are not embodied rules. The recent trend is to read requirement of principles of natural justice where they are not provided so as to prevent any arbitrary exercise of power. This view is in consonance with the law laid down by the Apex Court in A.K. Kraipak v. Union of India, ."

23. In view of aforesaid settled position of law, we are of the considered view, that the decision of the State Government in granting permission in favour of respondent No. 4 is without recording any reasons. Apart from the fact that no recommendations of the State Level Committee were made available to us, in order to appreciate as to what are the recommendations made by the State Level Committee and the reasons therefor, the State Government, has clearly come to the conclusion that the recommendations of the District Level Committee, were vague in nature and also recommended to express its displeasure to the District Level Committee. Having done so, the least that was expected from the State Government was to remand the matter to the District Level Committee and call for the recommendations afresh after directing the District Level Committee to consider the matter on an objective basis. But, without doing so, by cursory reasoning, the State Government has decided to grant permission in favour of respondent No. 4. In our view, the reasons given by the State Government are no reasons at all. As discussed hereinabove, the chart prepared by the District Level Committee, shows that the facilities available with both i.e. the petitioner and the respondent No. 4 are almost identical. Not only this, but the petitioner/Society is a local society. As laid down in the case of Dnyanganga Krida Arogya Va Shikshan Prasarak Mandal v. State of Maharashtra and Ors. (cited supra), it was expected of the State Government to give cogent and proper reasons for grant of permission in favour of respondent No. 4 and the refusal of the same in the case of petitioner/Society. However, failure to do so, in our view, has resulted in an arbitrary exercise of power violative of Article 14 of the Constitution of India. We are, therefore, of the considered view that the impugned order dated 3rd July, 2003 passed by the State Government and the consequential orders dated 10th July, 2003 passed by respondent No. 2 and dated 14th July, 2003 passed by the respondent No. 3 are liable to be quashed and set aside.

24. Shri Madkholkar, the learned Counsel for the petitioner/Society, submitted that this Court should grant permission in favour of the petitioner/Society, as was done by this Court in the case of Dnyanganga Krida Arogya Va Shikshan Prasarak Mandal v. State of Maharashtra and Ors. (cited supra). In the aforesaid case, this Court upon comparison of the facilities available with the petitioner as well as the respondent management, had come to a positive conclusion that the facilities with the petitioner-management are much better and directed grant of permission in favour of the petitioner-society. However, in the present case, the District Level Committee has found that the facilities with both the petitioner as well as respondent management are almost identical and has failed to give any objective recommendation, we are, therefore, not inclined to grant the said request. Considering the vague report of the District Level Committee, who had abdicated its powers in favour of State Level Committee we are inclined to quash and set aside the impugned orders dated 3-7-2003; 10-7-2003 and 14-7-2003 and direct that the question of grant of permission for opening Secondary School at Khandala, to be considered afresh, on merits by the District and State Level Committees and the State Government, in accordance with the directions issued by this Court in the case of Gram Vikas Shikshan Prasarak Mandal v. State of Maharashtra (cited supra)

25. The petition is, therefore, allowed with the following directions.

(i) The order dated 3rd July, 2003 issued by the respondent No. 1, State of Maharashtra, thereby granting permission to the respondent No. 4 to open a Secondary school at village Khandala and the consequential orders passed by the Deputy Director of Education, Amravati Division, Amravati dated 10th July, 2003 and the Education Officer (Secondary), Zilla Parishad, Akola dated 14th July, 2003 are hereby quashed and set aside.

(ii) The District and State Level Committees and the State Government shall consider the proposals of the petitioner/Society and the respondent No. 4, Society for opening a school at Khandala afresh on its own merit without considering the infrastructure established by the respondent No. 4 after grant of permission in its favour. The respondent No. 1, State of Maharashtra is directed to take decision in the matter by recording appropriate reasons. This process shall be completed before the commencement of Academic Session 2004-2005.

(iii) Since the school of respondent No. 4 is already running, it shall continue to run till the end of Academic Session 2003-2004. 25.

26. Rule is made absolute in aforesaid terms. The respondent No. 1 to pay the costs quantified at Rs. 10,000/- (rupees ten thousand only) to the petitioner.