Bombay High Court
Late Abdul Quadar Patel Gramin ... vs State Of Maharashtra And Others on 7 October, 2015
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2548 OF 2015
Late Abdul Quadar Patel Gramin Vikas
Sanstha Chikhlwardha, Tq. Ghatanji,
Dist. Yeoatmal
[Through its Secretary]
Abdul Rafiq s/o. Abdul Majid Patel,
Age 55 Years, Occ: Secretary,
R/o. A/P. Chikhlwardha, Tq. Ghatanji,
Dist. Yeoatmal PETITIONER
VERSUS
1] The State of Maharashtra,
[Through its Principal Secretary],
School Education and Sports
Department, Mantralaya,
Mumbai - 32.
2] The Director of Education,
Central Building,
M.S.Pune [Primary School Education].
3] The Deputy Director of Education,
Latur.
4] The Education Officer [Primary],
Zilla Parishad, Nanded,
Dist. Nanded RESPONDENTS
...
Mr. S.K.Mathpati, Advocate for the Petitioner
Mr. S.K.Kadam, AGP for the Respondent Nos. 1 to 3
Mr. Sham B. Patil, Advocate for the Respondent No.4.
...
CORAM: S.S.SHINDE &
A.M.BADAR, JJ.
Reserved on : 30.09.2015
Pronounced on: 07.10.2015
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JUDGMENT: [Per S.S.Shinde, J.]:
1] Heard.
2] Rule. Rule made returnable forthwith, and
heard with the consent of the parties.
3] This Petition takes exception to the order dated
25.09.2014 passed by the respondent No.1, and the order
dated 2nd February, 2015, thereby rejecting the prayer of
the petitioner seeking permission to start new Urdu Medium
Primary School at Gondwadsa, Taluka Mahoor, District
Nanded, and also takes exception to the Government
Resolution dated 25th September, 2013.
4] Heard the learned counsel appearing for the
petitioner. He invited our attention to the pleadings in the
Petition and grounds taken therein, and submits that, the
petitioner has experience of running educational institution.
The proposal of the petitioner was initiated in the Year
2008, and therefore, the Government Resolution which is
issued by the State of Maharashtra on 25th September,
2013 is not applicable in case of the petitioner. It is
submitted that, right to establish and administer
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educational institution is right given and specifically
protected by Article 30 [1] of the Indian Constitution, which
can not be abrogated by Government also, and hence the
applicability of Government Resolution dated 25th
September, 2013 to the minority educational institution is
unconstitutional or bad in law. It is further submitted that,
initially, the constitutional validity of the 2009 Act was
considered by a Three Judges Bench of Court in Society for
Unaided Private School of Rajasthan Vs. Union of India and
another reported in 2012 [6] SSC 102. The Supreme Court
has already held that, the 2009 Act to be constitutionally
valid. It is also held that, the 2009 Act is not applicable to
unaided minority Schools protected under Articled 30 [1] of
the Constitution by the Apex Court in the case of Pramati
Education & Cultural Trust & Others Vs. Union of India &
Others reported in 2014 [3] Bom.C.R. 496. It is observed in
the said Judgment that, if the 2009 Act is made applicable
to minority school, aided or unaided, the right of minorities
under Article 30 [1] of the Constitution will be abrogated.
Therefore, the 2009 Act insofar it is made applicable to
minority schools referred in clause [1] of Article 30 of the
Constitution is ultra vires the Constitution. Right to Children
to Free Compulsory Education, 2009 Act will not be
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applicable to Minority Schools [Aided or Unaided] which are
protected under Article 30[1] of the Indian Constitution.
5] It is further submitted that, five Judges Bench
has already come to the conclusion that, the majority
Judgment of Apex Court in Society for Unaided Private
School of Rajasthan Vs. Union of India and Another reported
in 2012 AIR SC 3445, 2012 SSC 102 insofar as it holds that,
the Right to Children to Free Compulsory Education 2009
Act is applicable to aided minority school is not correct. It
is further submitted that, under Article 30 [1] the
Constitution, all minorities, whether based on religion or
language, shall have the right to establish and administer
educational institutions of their choice, the State while
making the law to provide free and compulsory education
to all children of age of six to fourteen years can not be
allowed to encroach on this right of the minority institutions
under Article 30 [1] of the Constitution.
6] Therefore, the learned counsel appearing for
the petitioner submits that, the Petition may be allowed.
7] On the other hand, the learned AGP appearing
for the Respondent - State invited our attention to the
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averments in the affidavit-in-reply filed by the respondent
Nos. 1 to 3 on 5th June, 2015 and 15th June, 2015 and also
the contents of the aforementioned Government Resolution
and submits that, the Petition may be rejected.
8] We have given anxious consideration to the
rival submissions. With able assistance of the learned
counsel appearing for the petitioner, and the learned AGP
appearing for the respondent - State, we have carefully
perused the pleadings in the Petition, and the grounds
taken therein, and also annexure placed on record with the
Petition, and the affidavit-in-reply filed by the respondent
Nos.1 to 3.
9] The petitioner has stated detailed facts leading
for filing the Petition in the memo of Petition, and also
comprehensive grounds are taken in support of the
contention of the petitioner, as and when it is necessary,
we will refer to the relevant pleadings / grounds. Upon
careful perusal of the pleadings in the Petition, it is
abundantly clear that, the petitioner institution did file
proposal seeking permission to start Urdu Medium Primary
School at Gondwadsa, Taluka Mahoor, District Nanded. It
further appears that, time to time the petitioner, on refusal
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by the respondent to grant permission to start New Urdu
Primary School, has approached this Court. This Court
granted liberty to the petitioner to apply afresh. It appears
that, in pursuant to the order passed by this Court on 26th
November, 2012, the petitioner did file fresh proposal with
the respondent, however, the respondent No.1 has rejected
the same and communicated the same order by letter
dated 2nd February, 2015 to the Education Officer [Primary],
Zilla Parishad, Nanded of which copy was marked to the
present Petitioner. Upon careful perusal of the contents of
the impugned letter, the Government of Maharashtra
issued Government Resolution dated 25th September, 2013
and entrusted responsibility of opening and running Primary
as well as Higher Primary Schools with the local bodies, and
therefore, on that ground the proposal of the petitioner
seeking permission to start Urdu Medium Primary School at
Gondwadsa, Taluka Mahoor, District Nanded has been
rejected.
10] Upon perusal of the affidavit-in-reply filed by
the respondent Nos.1 to 3, it is stated that, in view of the
aforementioned Government Resolution, it is not open for
the State Government to grant permission to provide
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institutions to start primary schools and those have to be
run by the local bodies.
11] We have carefully perused the contents of the
Government Resolution, and we do not find express
prohibition to allow the private institutions to establish the
Primary and Higher Primary School. On specific query to
the learned AGP for the Respondent - State, how many
schools have been established in pursuant to the said
Government Resolution by the local bodies in the Nanded
District, the learned AGP on instructions submitted that,
there is no single Urdu Primary School is opened /
established by the local bodies in the Nanded District.
Upon careful perusal of the affidavit-in-reply, it appears
that, after aforementioned Government Resolution came
into force, the State Government has granted permission to
Chistiya Education and Welfare Society, Jalna to run Urdu
Primary School at Jalna on 24th July, 2014. Therefore, it is
not the case that, the Government has stopped granting
permission. At present, we do not see any reason to
consider the challenge of the petitioner to the Government
Resolution on the ground that, the petitioner being minority
institution, and it has right to establish and administer the
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School invoking Article 30 of the Constitution of India,
therefore, said Resolution may be quashed. Admittedly,
the proposal seeking permission to open New Urdu Primary
School was initiated by the petitioner in the year 2008-09,
which is prior to issuance of such Government Resolution.
12] Therefore, we reject the contentions of the
respondents ig that, in view of the aforementioned
Government Resolution, the proposal of the petitioner
cannot be considered on merits. The petitioner has placed
overwhelming material on record including
recommendations of the local authorities and also
petitioner is ready to place on record the Resolution of the
Grampanchayat for opening such School at village
Gondwadsa. Therefore, the impugned communication
stands quashed. We direct the respondent No.1 to consider
the proposal of the petitioner afresh on merits, and not to
reject the same on the ground that permission can not be
granted in view of aforementioned Resolution dated 25th
September, 2013.
13] The petitioner shall submit copy of the Petition
with annexure to the respondent No.1. One of the grounds
raised by the petitioner in this Petition is that, before taking
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decision rejecting the proposal of the petitioner, the
petitioner was not heard. We hope and expect that, the
respondent No.1 will hear the petitioner and allow the
petitioner to place on record further additional documents,
if any, in support of his contention, and then take final
decision as expeditiously as possible and preferably within
3 months from today.
14]
With the above observations, the Petition is
partly allowed. Rule is made absolute in above terms.
Sd/- Sd/-
[A.M.BADAR] [S.S.SHINDE]
JUDGE JUDGE
DDC
