Warana Education Society vs The State Of Maharashtra And Ors.
2007 Latest Caselaw 611 Bom

JUDGMENT

Swatanter Kumar, C.J.

Page 1266

1. The petitioner is an educational institution that claims to have been established in the year 1968 at Sagaon, Taluka Shirala, District Sangli. The purpose and aim of the society is to start schools in the vicinity for spreading education in rural areas. The petitioner is running a school at village Kandoor, Taluka Shirala, District Sangli, which was started with the permission from the Government and even grant-in-aid was given. Initially the school was having classes upto 8th standard and gradually classes upto 11th standard were started. The school is being run under the name of Shree Datta Vidyalaya. The population of the village has increased. There is another village by name Punawat at a distance of about 1-1/2 K.M from the village Kandoor. The students of that village used to take education in the school in question. From the academic year 1990, the Deputy Director and Director of the Education-officers of respondent No. 1, granted permission to respondent No. 6 to run a school at village Kandoor from the academic year 1990, which according to the petitioner, could not have been granted as the petitioner society was already operating in that area. A reference is being made by the petitioner to the policy of the respondent State, which contemplates that permission for a new school within a radius of 5 K.M. of the existing school cannot be granted by the authorities. The said policy is annexed at Exhibit D to the petition. It is further averred by the petitioner that due to the establishment of two high schools i.e. girls high schools by respondent No. 6 in the very village and another Shikshan Sanstha in the adjoining villages, there was adverse effect on the high school run by the petitioner as some strength of the students of the petitioner's school was reduced. In the year 2004-05, the 5th standard had to be closed down for want of sufficient students and great prejudice was caused to the interest of the petitioner society. The further grievance of the petitioner is that on the one hand the Government granted permission for starting two high schools in violation of its policy and on the other hand, the petitioner's application for starting the high school at Shirala Khurd was rejected on 28th August, 1999. This action of the respondents is thus arbitrary and discriminatory. Respondent No. 6, somewhere in the year 2004, started taking steps to obtain permission to convert its girls high school at village Kandoor into a co-educational high school so that even boy-students could be admitted and this application was under consideration of the competent authority, against which the petitioner filed various representations, but a report was submitted by the educational department of Sangli Zilla Paishad to the Education Officer on 29th August 2005. On the Page 1267 basis of this report, respondent No. 5 came to the conclusion that permission should not be granted and respondent No. 6 was informed accordingly vide its letter dated 19th September 2005. However, again on the request of respondent No. 6, in a most arbitrary manner, permission was granted to it, vide letter dated 4th October 2005 (Exhibit "H" to the petition) to convert Ambika Girls school into a co-educational school. It was stated that permission was being granted in accordance with the resolution of the Government dated 28th November 2003. The petitioner again made a representation on 27th October 2006 alleging that the said permission was granted under political influence and was against the very policy framed by the Government itself. To put it precisely, according to the petitioner, permission which was declined earlier was granted subsequently and objections of the petitioner were not appropriately considered by the competent authorities.

2. Having failed to get any relief at the hands of the respondent-authorities, the petitioner has filed the present petition under Article 226 of the Constitution of India questioning the correctness of the order passed by respondent authorities on 8th January 2007.

3. The reply affidavit has been filed on behalf of respondent No. 6 stating that the order confirming the letter dated 4th October 2005 and stay order dated 7th June 2006 are neither arbitrary nor in any way opposed to public policy. The stand of this respondent was that the Government Resolution dated 28th November 2003 intends to give permission for conversion of schools into co-educational institute from exclusively boys or girls schools, and thus in fact was implemented by passing the impugned order. According to this respondent, there are six villages surrounding the school run by this respondent where there are primary schools and there are 230 students taking education in 4th standard and there are 3 secondary schools, including the petitioner's school, and the petitioner had not at any point of time raised any objection in that behalf and the objections now taken are motivated and mala fide.

4. We may refer to the order impugned in this petition that is letter dated 8th January 2007, a true translation of which reads as under:

Most important No Sahashi 1704/(646/04) Section 1 School Education and Sports Department, Mantralaya Annexe Building, Mumbai 400032 Date : 8th January 2007

To

Divisional Deputy Director for Education Kolhapur

Sub : Ambika Kanya Vidyalaya, Kadoor run by Shri Hanuman Shikshan Sanstha Kandoor, Taluka Shirala, Dist. Sangli

Ref : 1. letter of Even number dated 4th October 2005, 7th June 2006

2. Letters of your office dated 4.9.2004 and 13.11.2005 Please see the letters under reference

Page 1268

2. Shri Hanuman Shikshan Sanstha had filed writ petition No. 4363 of 2006 in the Hon'ble High Court, in the said writ petition, the Hon'ble High Court had ordered that, the petition filed by the petitioner be withdrawn and the Sanstha should make an application to the State Government with reference to the stay granted to the conversion of said school into co-education school and after receiving an application, the State Government should decide the said application immediately and preferably within three months, and accordingly, the Government is passing the following order:

The stay order passed by the Government letter dated 7.6.2006 to conversion of Girl School viz Ambika Kanya Vidyalaya run by Shri Hanuman Shikshan Sanstha, Kandoor, Taluka Shirala, District Sangli into co-education school, is hereby cancelled and the permission granted vide letter dated 4th October 2005 for the conversion of said Ambika Kanya Vidyalaya, Kandoor, Taluka Shirala, District Sangli to co-education school and the orders issued by the said letter dated 4th October 2005 are hereby confirmed.

Sd/- A.M. Bhattalwar Deputy Secretary Government of Maharashtra

5. As far as the objection of the petitioner in relation to permitting the school run by respondent No. 6 to be converted into a co-educational institute in place of girls school is concerned, it has no merit. This is primarily for the reason that the policy of the Government under its Resolution dated 28th November 2003 had been the subject matter of judicial scrutiny and the Division Bench of this Court, vide its detailed judgment in Writ Petition No. 1773 of 2000 decided on 11th April 2000 in the case of Gramvikas Shikshan Prasarak Mandal, Sondoli v. The State of Maharashtra and Ors. Reported in 2000 (4) BCR 379, not only considered that policy and held to be in order but in fact directed the Government to encourage the co-educational institutions while granting permission in accordance with the rules. The relevant part of the judgment reads as under:

6. Before we deal with the scheme which has been formulated by the State Government, reference may be made to some of the existing provisions relating to the starting of new schools within the State. The provisions in that regard are contained in Chapter II of the Secondary School Code which is entitled "recognition, organisation and management of schools." Section 1 of Chapter II has made provisions for (i) applications for starting new schools; (ii) conditions of recognition; (iii) provisional and permanent recognition; (iv) power to grant recognition; and (v) refunal of recognition (vi) withdrawal of recognition. Para 3.2 thereof lays down the conditions which a school seeking recognition of the education department of the State must fulfill in order to secure recognition. These conditions include: (i) a consideration of whether there is a need for a school in the locality, so as to prevent unhealthy competition between institutions of the same category in the neighbourhood; (ii) existence of competent, reliable and properly constituted management; (iv) existence of proper infrastructure for the purposes of running the school; (v) engagement of duly qualified teaching Page 1269 staff meeting the qualifications prescribed by the State; (vi) the teaching of a curriculum approved by the competent authority; (vii) grant of admission according to rules laid down by the concerned department of the State; (viii) implementation of the rates of fees for students and of pay scales, allowances and conditions of service of the staff prescribed by the State; (ix) maintenance of records as directed by the State; and (x) that the management shall not conduct or allow unrecognised schools or classes to be conducted in the premises of the school or elsewhere. The Code makes provision for provisional recognition from year to year for a period of five years and thereafter, the grant of recognition subject to satisfactory working of the institution. Provisions have also been made for refusal of recognition and the withdrawal of recognition subject to the remedy of an appeal.

6. Apart from the provisions of the Code, the State Government has issued Government Resolutions dated 27th July 1992 and 3rd June, 1998 governing the grant of permissions for starting new schools or for the renewal of existing permissions. Copies of those Resolutions have been placed on the record in a compilation tendered by the learned Advocate General. The Government Resolution dated 27th July, 1992 provides that Government has in December, 1991 prepared a master plan for secondary schools and, places in the State where secondary schools were necessary have been included in the plan. The G.R. provides that in the case of villages having a pre-secondary school (a primary school upto the VIIth standard) the population should be at least 1000. In a pre-secondary school, the muster roll strength of students of the VIIth standard should be 25 (15 in the case of hilly or adivasi areas or for a linguistic minority). The case for establishing a secondary school could be considered only where pre-secondary school exists in the village and where there is no secondary school within a radius of 5 kilometres. In urban areas there should be one secondary school for a population of 10,000. Some of the provisions of these Government Resolutions have been adverted to by us for the purpose of considering the broad policy frame work already in place governing the establishment and opening of new schools.

7. In formulating appropriate norms and standards for the establishment of new primary and secondary schools in the State, certain basic considerations have to be borne in mind. These considerations include the following:

1. The first and foremost is the need for ensuring the spread of primary and secondary education to all parts of the socio economic strata and in all geographical areas of the state. Areas of under development; areas which are geographically inaccessible such as the hilly areas; areas of adivasi habitation and other socially and educationally backward areas need special priority and emphasis. These areas have to be identified by the State Government in terms of a master plan which will be valid for a period of ten years. Once formulated, the master plan should be scrupulously adhered to unless new problems require a change in a master plan that was originally formulated.

2. In granting permissions for setting up new primary, secondary and higher secondary schools, due and proper emphasis has to be given to the existence of requisite infrastructure. The spread of education has to be consistent with the maintenance of basic facilities required in Page 1270 terms of infrastructure, including a properly qualified and equipped teaching staff. Unrecognised schools with little or no infrastructure and with a lack of qualified teaching staff cannot be permitted and the State would be justified in dealing with such institutions with strictness.

3. Applications for the establishment of new schools ought to be processed and decided by a body of experts in a transparent and objective manner. The policy which has been submitted for our consideration by the learned Advocate General accepts this principle. The same which is being formulated by the State Government in the present case contemplates District and State Level Committees consisting of experts in the area and nominees of the Vice-Chancellor or the Chancellors as the case may be. Reasons, brief as they may be, should be given by the Committees for granting or rejecting applications for establishment of schools.

4. In determining whether a new school should be permitted care has to be taken to ensure that unhealthy competition between educational institutions is avoided.

5. In order to discourage the practice of establishing unauthorised institutions, the policy stipulates that no unauthorised institution shall be considered by the Government from the year 2000-2001 for the grant of permission unless the institution concerned undertakes that it shall not admit any student in the absence of permission by the Government.

6. The fundamental principle that has to be borne in mind is that provision of primary education is a constitutionally protected fundamental right. The State has a constitutional duty to provide, within the limits of its economic capacity and development the right to education. As the Supreme Court held in Unnikrishnan's case, the need for private institutions to impart education has come into being because of the limitation on the resources of the State to provide education for the society at large. The Supreme Court held as follows:

The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State.No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory--in the interest of general public--upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising/affiliating authority is the State, it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well." (At. P. 755) Private institutions which enter the arena of providing education, perform the role of supplementing the function of the State. The establishment and functioning of those institutions must therefore be subject to Page 1271 regulation by the State to secure the interest of the students and teachers, of those who are taught and those who teach. Recognition is a means of ensuring that the students of the institution can appear at examinations conducted by the State and be conferred with qualifications granted by the State and its authorities. The State also has a vital interest in the proper functioning of schools because a significant proportion of them do receive grants in aid from the State.

7. These considerations underline the need to ensure that decision of the Government on whether or not to permit the establishment of new educational institution must be transparent, objective and fair. The norms on the basis of which those decisions are arrived at should be certain and definite. The investigation of whether those norms are fulfilled must be carried out by academic experts within the Government, with the assistance of experts outside. In this manner, the process of establishing new schools in the State must meet the requirements of fair and non discriminatory treatment. Article 14 of the Constitution mandates that Governmental decisions be guided by reason and informed by public interest. The need for this is all the greater, where the right in question is the right to receive education, a part of which the right to primary education until the age of fourteen, is a fundamental right under Article 21 of the Constitution.

7-A. We clarify that the policy and scheme has been formulated by the State Government. We have made a few suggestions which have been accepted by the learned Advocate General and incorporated in the policy. The policy which has been formulated by the State Government and which will form a part of this order is as follows:

(4) The existing Master Plan for Secondary and Higher Secondary schools will be updated for the period 2000-2010. The conditions of 5 km distance prescribed for starting secondary schools will be relaxed only in the case of areas suffering from special hindrances and these are hilly, mountainous, river and tribal areas.

2. Quota for School Permission:

(1) Permission will be granted to 100 primary, 300 secondary and 50 higher secondary private schools every year from June, 2000. Primary education is a Constitutional responsibility of the Zilla Parishads, Nagar Parishads, Cantonment Boards and Municipal Corporations and primary schools will be started by these local bodies. However, interested private institutions will be permitted to start 100 primary schools except English medium schools on permanent no grant basis. Secondary and higher secondary private schools will be considered for grant in accordance with Government policy.

(2) ...

(3) No separate girls schools will be sanctioned in future. Permission will be granted only to start co-educational schools.

(4) Nearly 11,000 habitations in the State are without primary education facility as these habitations do not fulfill the existing criteria (i.e. 1.5 km vicinity and 200 population for general areas 100 population and 1 km. for tribal, hilly and remote areas). The Page 1272 condition of 1.5/1km and population is relaxed to 1/2 km. Habitation schools will be started through Gram Panchayats on the basis of Madhya Pradesh Governments' "Shikshan hami yojana". An annual expenditure for each Habitation School will be Rs. 13,000/-

8. Another aspect of the contention is that the respondent - authorities have reiterated and confirmed the letter dated 4th October 2005 by which, they had granted permission for converting the school into a co-educational institute and the stay order passed by the State Government on 7th June 2006 from converting the girls school Ambika Kanya Vidyalaya run by respondent No. 6 into a co educational school was vacated. The order of the respondent-authorities is thus in consonance with the judgment of this Court as well as the policy of the Government, which have been found to be legally enforceable. Thus we cannot find any error in this action of the respondents.

9. The impugned order dated 8th January 2007 primarily deals with only one aspect and that is confirmation of the order/permission for converting the school into a co-educational school from girls school. The contention that respondent No. 6 has been permitted to run the school within a radius of 6 K.M from the school of the petitioner is not pressed and the same is not decided by the respondent authorities under the impugned order. From the facts on record it is clear that number of schools are being run in the adjacent villages, which are even within less than 5 K.M. The school of respondent No. 6, as per the averments made in the petition, was granted permitted in year 1999 and since then the school has been running and we do not see any reason to entertain this petition at this stage. The petition in this regard obviously would suffer from the defect of delay and laches. It has to be further noticed that the petitioner under the garb of finding fault with the order dated 8th January 2007, is trying to raise untenable contentions, which hardly deserve to be considered by this Court after a lapse of nearly 8 years. In fact respondent No. 6 had earlier filed writ petition being Writ Petition No. 4363 of 2006, praying that the stay order dated 7th June 2006 passed by the Government should be vacated. However, vide its order dated 10th July 2006 the said petition was permitted to be withdrawn with liberty to approach the State Government for vacating the stay order and with a further direction that the same be decided by the authorities within three months,. It is in furtherance of this order of the court that the order dated 8th January 2007 came to be passed.

10. We hardly see any reason to interfere with the impugned order or even to direct the respondents to consider the question/objection of the petitioner, even in regard to the different schools run within the radius of 5 K.M. from each other. This is a matter which squarely falls within the domain of the Education Department of the State and they are expected to examine the pros and cons before passing any order, which in any case has to be in accordance with the rules and the policy of the State. We find that this is not a fit case where this Court should exercise its extra ordinary jurisdiction under Article 226 of the Constitution and grant any relief to the petitioner. Resultantly, the writ petition is dismissed, leaving the parties to bear their own costs.