Bombay High Court
Maulana Abdul Kalam Azad ... vs The State Of Mah And Ors on 20 October, 2012
Bench: R.M. Borde
wp2283.11
1
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.
...
::: Downloaded on - 02/08/2016 17:30:44 :::
wp2283.11
2
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
wp2283.11
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
wp2283.11
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
wp2283.11
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
wp2283.11
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
wp2283.11
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
wp2283.11
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
wp2283.11
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
wp2283.11
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
wp2283.11
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/*
