Bombay High Court
Radhabai Vitthal Sawant And ... vs The State Of Maharashtra And ... on 23 October, 2015
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9458 OF 2013
1] Radhabai w/o. Vitthal Sawant,
Age 40 Years, Occu. Household,
R/o. Badnapur, Taluka Badnapur,
District Jalna
2] Shaikh Budhan Shaikh Dagadu,
Age 55 Years, Occu. Business,
R/o. as above
3] Prayagbai w/o. Bhagwan Dhakane,
Age 58 Years, Occu. Household,
R/o. Kandari, Taluka Badnapur,
District Jalna
4] Mahadeo s/o. Shrimant Dhakane,
Age 40 Years, Occu. Agril.
R/o. as above.
5] Babasaheb s/o. Dajiba Bodkhe,
Age 40 Years, Occu. Agril.
R/o. as above.
6] Babanrao s/o. Tukaram Gite,
Age 49 years, Occu. Agril.
R/o. Akola, Taluka Badnapur,
District Jalna
7] Samsherkhan Noorkhan Pathan,
Age 42 Years, Occu. Agril.
R/o. as above.
8] Raju s/o. Baburao Salunke,
Age 32 Years, Occu. Agril.
R/o. Badnapur, Taluka Badnapur,
District Jalna
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9] Manikrao s/o. Bhaurao Dabhade,
Age 67 Years, Occu. Agril.
R/o. Dhopteshwar, Tq. Badnapur,
District Jalna.
10] Kailas s/o. Bhaurao Unage,
Age 42 Years, Occu. Agril.
R/o. Badnapur, Tq. Badnapur,
District Jalna.
11] Baliram s/o. Pandurang Kanke,
Age 51 Years, Occu. Agril.
R/o. Dawalwadi, Taluka Badnapur,
District Jalna.
12] Rameshwar s/o. Trimbak Pawar,
Age 42 Years, Occu. Agril.
R/o.Matrewadi, Tq. Badnapur,
District Jalna.
13] Raghunath s/o. Mitthu Wagh,
Age 50 Years, Occu. Agril.
R/o. Akole, Taluka Badnapur,
District Jalna.
14] Siddheshwar s/o. Tatyarao Dhakane,
Age 40 years, Occu. Agril.
R/o. Kandari, Taluka Badnapur,
District Jalna.
15] Tulshiram s/o. Karbhari Dhakane,
Age 35 Years, Occu. Agril.
R/o. as above
[In view of the order passed by this
Court on 08.04.2014, the petitioners
have been permitted to withdraw
themselves from the Petition. However,
the cause in the Petition has been
continued by appointing Advocate
Mr. V.D. Sapkal as amicus curiae] PETITIONERS
VERSUS
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1] The State of Maharashtra,
Through its Secretary,
Department of Social Justice
And Special Assistance,
Extension Building, Mantralaya,
Mumbai 400 032.
Copy to be served on Govt.
Pleader, High Court of Bombay,
Bench at Aurangabad
2] The Commissioner for the
Persons with Disabilities,
Maharashtra State, Pune
3] The District Social Welfare Officer,
Zilla Parishad, Jalna.
4] Rajmata Bahu Uddeshiya Seva Bhavi
Sanstha Beed, through its
President RESPONDENTS
...
Mr.V.D.Sapkal, Advocate, [appointed as amicus curiae], for
the petitioners
Mr.A.V.Deshmukh, AGP for the Respondent Nos. 1 and 2
Mr. S.S.Thombre, Advocate for the Respondent No.4
Respondent No.3 - served.
...
WITH
WRIT PETITION NO.3612 OF 2014
1] Atul s/o. Gorakh Kale,
Age 30 Years, Occu. Service,
R/o. Beed, Tq. and Dist. Beed
2] Vijay s/o. Sandeepan Nande,
Age 28 Years, Occu. Service
R/o. Beed, Tq. and Dist. Beed
3] Pramod s/o. Ramrao Kulkarni,
Age 38 Years, Occu. Service,
R/o. Beed, Tq. and Dist. Beed
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4] Maharudra s/o. Babasaheb Vairagal,
Age 30 Years, Occu. Service,
R/o. Beed, Tq. and Dist. Beed
5] Kanta Piraji Gaikwad,
Age 40 Years, Occu. Service,
R/o. Beed, Tq. and Dist. Beed
6] Arjun s/o. Asaram Nande,
Age 27 Years, Occu. Service,
R/o. Beed, Tq. and Dist. Beed PETITIONERS
VERSUS
1]
The State of Maharashtra,
Through the Secretary,
In the Department of Social Justice
& Special Assistance,
Extension Building, Mantralaya,
Mumbai - 32.
Copy to be served on Govt.
Pleader, High Court of Bombay,
Bench at Aurangabad
2] The Commissioner for the
Persons with Disabilities,
Maharashtra State, Pune
3] The District Social Welfare Officer,
Zilla Parishad, Jalna.
4] Rajmata Bahu-Uddeshiya Sevabhavi
Sanstha, Beed, through its President
5] The District Social Welfare Officer,
Zilla Parishad, Beed RESPONDENTS
...
Mr. A.N.Irpatgire, Advocate for the Petitioners
Mr. A.V.Deshmukh, AGP for respondent No.5
Mr. D.P.Munde, Adv.h/f. Mr. V.D.Salunke, for Applicant in
Civil Application No.12099/2015 in Writ Petition No.
3612/2014.
...
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CORAM: S.S.SHINDE &
A.M.BADAR, JJ.
Reserved on : 14.10.2015
Pronounced on: 23.10.2015
JUDGMENT: [Per S.S.Shinde, J.]:
1] Heard.
2] Rule. Rule made returnable forthwith, and
heard with the consent of the parties.
3] Both these Writ Petitions take exception to the
order / Government Resolution dated 30th May, 2013 issued
by the Social Justice and Special Assistance Department,
Government of Maharashtra, Mantralaya, Mumbai, thereby
granting permission in favour of respondent No.4 for
shifting the residential school for Handicapped, Dumb, Deaf
and Mentally affected students from Badnapur, District
Jalna to village Ghoti, Taluka Kinwat, District Nanded.
4] Writ Petition No.9458/2013, is filed by the
parents of those students, who are taking education in the
residential school for Handicapped, Dumb, Deaf and
Mentally affected. It appears that, the said Writ Petition
was listed for hearing on 8th April, 2014, when the learned
counsel Mr.N.P.Patil Jamalpurkar, appearing for the
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petitioners informed this Court that, the petitioners are not
willing to continue with the Petition, since according to
them, the grievance raised in the Petition is redressed.
However, this Court permitted the petitioners to withdraw
from the Petition, however, observed that, the Writ Petition
shall be continued by appointing amicus curiae.
Accordingly, Advocate Mr.V.D.Sapkal, is appointed as
amicus curiae to address the Court. Another Writ Petition
No.3612/2014 is filed by the employees of the said School.
Background facts leading for filing the Petitions,
as disclosed in the Memo of Petitions, are as under:
5] It is the case of the petitioners that, one
Education Society, namely Dnyanesh Jan Kalyan Seva Bhavi
Sanstha, Dharur, District Beed, was running the residential
school for Handicapped, Dumb, Deaf and Mentally affected
students at Dharur, District Beed. The said school was
closed, and therefore, same was transferred to the
respondent No.4 Education Society by the State
Government under order dated 4th August, 2008, and the
order dated 5th February, 2009. As per the said orders, the
State Government and Commissioner i.e. the respondent
Nos.1 and 2 have directed the respondent No.4 Society to
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start the residential school for handicapped, dumb and deaf
and mentally affected students at Badnapur, District Jalna.
The Commissioner, under order dated 5th February, 2009,
has granted Registration Certificate in favour of the
respondent No.4 Society to run residential school with
intake capacity of 80 students at Badnapur. The petitioners
have placed on record copies of order dated 5th February,
2009 issued by the respondent No.2 and the Registration
Certificate issued in favour of the respondent No.4 showing
permission to run the school at Badnapur.
6] It is further the case of the petitioners that, the
State Government, under order dated 28th August, 2009,
sanctioned grant-in-aid in favour of the respondent No.4
Society, for running the residential school for Handicapped,
Dumb, Deaf and Mentally affected students at Badnapur.
The petitioners have placed on record copy of order dated
28th August, 2009, issued by the State Government, thereby
sanctioning grant-in-aid in favour of the respondent No.4. It
is further the case of the petitioners that, the respondent
No.4 Society running the said residential school at
Badnapur in whole equipped building, and provided all the
facilities to all Handicapped, Dumb, Deaf and Mentally
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affected students. The respondent No.3 District Social
Welfare Officer, Jalna, has also under orders dated
28.12.2011 and 29.03.2012 given approval to the teaching
and non-teaching staff working in the said residential school
at Badnapur. The petitioners have placed on record copies
of the orders dated 28th December, 2011 and 29th March,
2012 issued by the respondent No.3 District Social Welfare
Officer, Jalna, thereby granting approval to the teaching
and non-teaching staff.
7] It is further the case of the petitioners that, the
residential school at Badnapur was running smoothly and
because of starting of the said school run by the
respondent No.4 society, the Handicapped, Dumb, Deaf
and mentally affected students are getting opportunity of
prosecuting their studies. Therefore, the number of such
students are admitted in the said School from Badnapur
Taluka and adjoining Talukas of Jalna District. There was
demand from the people of Badnapur Taluka to have
residential school for Handicapped, Dumb and Deaf and
mentally affected students, and considering the said
demand, the State Government has granted permission in
favour of the respondent No.4 Society to start such school
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at Badnapur. The children of the petitioners are admitted
in the said School at Badnapur, and they are taking
education. For teaching the children, those who are
Handicapped, Dumb and Deaf and mentally affected special
skillful teachers are required.
8] It is further the case of the petitioners that, in
the month of December, 2012, the management of the
respondent No.4 Society informed the parents of the
students that, they are going to shift the school in Beed
District, and assurance had been given that, all the
students would continue at transferred place. For the said
proposal of the respondent No.4 Society, there was
objection from the parents of the students, more
particularly from the petitioners. Without inviting objection
from the parents of the students, the State Government
granted permission in favour of the respondent No.4 to shift
the residential school for Handicapped, Dumb and Deaf and
mentally affected students from Badnapur, District Jalna to
Warwanti, Taluka and District Beed, under the order dated
23rd January, 2013. The petitioners have placed on record
copy of order dated 23rd January, 2013 issued by the State
Government, thereby granting permission to shift the
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residential School from Badnapur, District Jalna to
Warwanti, Taluka and District Beed.
9] It is further the case of the petitioners that,
even though the State Government granted permission in
favour of the respondent No.4 for shifting the residential
school from Badnapur, District Jalna to Warvanti, Taluka
and District Beed, it was not implemented by the
respondent No.4 Society. It is further the case of the
petitioners that, surprisingly, the State Government under
order dated 30th May, 2013, directed the respondent No.4
Society to shift the residential School from Badnapur,
District Jalna to village Ghoti, Taluka Kinwat, District
Nanded. The petitioners have placed on record copy of the
impugned order dated 30th May, 2013, issued by the State
Government, thereby authorizing the respondent No.4
Society to shift the residential School for Handicapped,
Dumb and Deaf and mentally affected students from
Badnapur, District Jalna to village Ghoti, Taluka Kinwat,
District Nanded. Hence this Writ Petition.
10] The learned counsel Mr.V.D.Sapkal, and the
learned counsel appearing for the petitioners in Writ
Petition No.3612/2014, made the following submissions:
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11] The action of the State Government in issuing
the impugned orders dated 23rd January, 2013 and 30th
May, 2013 are illegal. If the impugned orders are
implemented, then the great inconvenience and hardship
would be caused to the students, taking education in the
said School at Badnapur. The majority of the students are
from Badnapur Taluka. The State Government, without
considering all these problem and hardships, going to be
caused to the students, illegally issued order dated 30th
May, 2013. The State Government, after considering the
demand from the people at Badnapur Taluka, has granted
permission in favour of the respondent No.4 Society to start
and run the residential School for Handicapped, Dumb and
Deaf and mentally affected students at Badnapur. In fact,
no such residential school is required to be shifted from
Jalna District, more particularly from Badnapur Taluka,
because the strength of students is increasing day by day,
and therefore, the action of the State Government in
issuing the impugned order, is against the policy framed by
the Government, relating to start residential school for
Handicapped, Dumb and Deaf and mentally affected
students.
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12] It is further the case of the petitioners that, this
Court was pleased to entertain Writ Petition No.6092/2012
filed by the parents from village Aurad [Shahajani], Taluka
Nilanga, District Latur, having similar challenge and the
Division Bench of this Court, keeping in view the interest of
the students, those who are taking education at Aurad
[Shahajani], directed the respondents therein to close down
the Schools at transferred place, and further observed that,
if the respondent Institution wishes to run the Schools, it
can do so at Aurad [Shahajani]. The learned counsel
appearing for the petitioners invited our attention to the
observations made in the said order. It is further submitted
that, the State Government, without calling objections,
without giving opportunity of hearing to the parents, and
employees at Badnapur, has issued order contrary to the
Government Policy, and the principles laid down by the
Bombay High Court in the case of Jeejau Shikshan Sanstha Vs.
State of Maharashtra and others1. It is further submitted that, the
respondent No.4 has not paid salary to the employees
working in the School at Badnapur and the School is shifted
from Badnapur to Warwanti, Taluka and District Beed. It is
further submitted that, the impugned order, granting
1 2011 [6] Bom.C.R. 97
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transfer of the school from Badnapur to other place, is
without assigning any reasons in the impugned order,
thereby frustrating the basic object behind granting
permission to run the residential school for Handicapped,
Dumb and Deaf and Mentally affected students. It is
submitted that, the petitioners have no objection if the
State Government grants new School at Warvanti or at
Ghoti. It is submitted that, the impugned order is passed in
breach of principles of natural justice. It is submitted that,
before the impugned order was passed, it is not known
that, for such decision whether there was approval from the
Cabinet or not. It is further submitted that, in spite of
requirement of the School at Badnapur, the school is
transferred in other District. Therefore, relying upon the
pleadings in the Petitions, grounds taken therein, and
annexure thereto, the leaned counsel appearing for the
petitioners submit that, Petitions deserve to be allowed.
13] In Writ Petition No.9458/2013, the respondent
Nos. 1 and 2 have filed affidavit-in-reply. The learned AGP
appearing for the respondent - State, relying upon the
averments in the affidavit-in-reply made following
submissions:
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14] It is submitted that, the disputed school is of
residential in nature and the respondent No.4 has
undertaken to give admission to the petitioners, providing
all residential facilities to them, therefore, mentally
retarded disabled students may not affect thereby. It is
further submitted that, at the time of issuing the
Government Resolution dated 30.05.2013, by mistake it
remained to withdraw the earlier Government Resolution
dated 23.01.2013, which permitted the management to
shift the said special school at Warvanti, Taluka and District
Beed. Now the said Government Resolution dated
23.01.2013 withdrawn by the Government by issuing
Government Resolution dated 13.01.2015. It is further
submitted that, the Government also issued another
Government Resolution dated 07.08.2014, and thereby
granted a special school at Badnapur, Taluka Badnapur,
District Jalna, namely Kai. S.Y.Jagtap Guruji Shikshan
Sanstha, Vairag, Taluka Barshi, District Solapur Sanchlit
Matimand Niwashi Vidyalaya and the said special school is
residential in nature, therefore, no inconvenience or
hardship would be caused to the students, which are
admitted in the disputed special school. It is further argued
that, the impugned order i.e. Government Resolution dated
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30.05.2013 is in accordance with the Government Policy,
and therefore, Petition may be rejected.
15] The learned counsel appearing for the
respondent No.4, relying upon the averments made in the
affidavit-in-reply made following submissions:
16] Initially, 15 petitioners have filed the present
Writ Petition by stating that, there children are taking
education in the residential school for handicapped, deaf
and dumb at Badnapur, but subsequently, in view of the
fact that, the school which was run by Kai. S.V.Jagtap Guruji
Shikshan Sanstha, Vairag, Tal. Barshi, District Solapur is
transferred and started at Badnapur by the Government
vide its order dated 07.08.2014, and therefore, the
petitioners' grievance is redressed. Therefore, they made
a statement that, they are seeking permission to withdraw
the Writ Petition, and they are permitted to withdraw from
the Petition, but in view of the order passed by this Court
on 08.04.2014, the present Petition is continued. It is
further submitted that, when the State Government, by its
order dated 30.05.2014 granted permission to shift the
residential school from Badnapur, District Jalna to village
Ghoti, Taluka Kinwat, District Nanded, and in pursuant to
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that, the respondent No.4 is running a School at that place
from May, 2013. After aforesaid permission, the Competent
Authority, as per Section 50 of the Persons with Disabilities
[Equal Opportunities, Protection of Rights and Full
Participation] Act, 1995, has granted Certificate of
Registration, and therefore, both these Petitions are liable
to be rejected.
17]
It is further submitted that, as the School was
already shifted, the District Social Welfare Officer, Zilla
Parishad, Nanded has inspected the School on 18.10.2013
at village Ghoti. The respondent No.4 has placed on record
copy of inspection report dated 18.10.2013 conducted by
the District Social Welfare Officer, Zilla Parishad, Nanded
with the affidavit-in-reply. It is further submitted that, the
District Social Welfare Officer submitted a report, vide its
letter dated 18.10.2013 itself, to the Commissioner i.e.
respondent No.2, who gave 79 marks out of 100 and
granted 'A' Grade, and therefore, recommended for
granting renewal of the license of the respondent No.4. The
learned counsel invited our attention to the inspection
report dated 18.10.2013, which is placed on record with the
affidavit-in-reply.
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18] It is further submitted that, respondent No.2,
vide its order dated 03.03.2014, was pleased to grant
renewal from 01.04.2013 to 31.03.2016 for a period of 3
Years for the intake capacity of 80 students and now since
last May, 2013, the respondent No.4 is running the School
at shifted place. It is further submitted that, after
transferring the School, the account was opened in the
name of Headmaster, Matimand Niwasi Vidyalaya, Ghoti
with the State Bank of Hyderabad at village Gokunda,
Taluka Kinwat, District Nanded, vide its Account No.
62338153180. Immediately, after shifting of the School, all
the employees of the respondent No.4 have joined at the
transferred place and they have withdrawn the salary up to
December, 2013. It is further submitted that, the
petitioners in Writ Petition No.3612/2014, had also joined at
transferred place. As this School was already shifted in
May, 2013, and from May, 2013 to December, 2013, the
petitioners in Writ Petition No.3612/2014 have received the
salary at the transferred place and they have suppressed
this material facts from this Court, in fact, the petitioners in
Writ Petition No.3612/2014 ought to have disclosed this fact
in their Petition when they approached before this Court,
and therefore, the Petition is required to be dismissed on
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the ground of suppression of material facts from this Court.
As the petitioners in Writ Petition No.3612/2014 have not
come with clean hands before this Court, therefore, Writ
Petition is liable to be dismissed as the respondent No.4
had already absorbed them, and therefore, as per the
service conditions, they are required to work on shifted
place as respondent No.4 has already allowed the
petitioners to join and they have joined and withdrawn the
salary. The learned counsel appearing for the respondent
No.4 invited our attention to the copies of the record in
respect of salary and the joining reports. It is further
submitted that, though this Court had passed an interim
order on 25.11.2013 but prior to that, the School was
already shifted and since May, 2013 the respondent No.4 is
running the School at transferred place.
19] It is further submitted that, even the Block
Education Officer, Panchayat Samiti, Himayatnagar, has
also inspected the School on 31.03.2015. The respondent
No.4 has also placed on record copy of Certificate along
with the inspection report by the Block Education Officer,
Panchayat Samiti, Himayatnagar, dated 31.03.2015. It is
further submitted that, on 09.07.2015, the District Social
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Welfare Officer, Nanded, inspected the School. It is further
submitted that, since May, 2013, the respondent No.4 is
running the School and even the Tahsil Officer, Nanded had
also provided wheat 8 quintal, Rice 4 quintal for the
academic year 2015-16 and the Tahsildar has released the
said food grains to the School in pursuant to the application
filed by the Superintendent of School. It is further
submitted that, as far as inconvenience caused to the
students at Badnapur is concerned, their grievance is
redressed as there is already School, which is shifted and
running vide its order dated 07.08.2014. It is further
submitted that, as per the order dated 4th August, 2008, the
School, which was run by Dnyanesh Jankalyan Sevabhavi
Sanstha at Dharur was closed because of the non-granting
the registration. Therefore, the said School was transferred
to Badnapur, vide its order dated 05.02.2009 and to that
effect registration was also granted by the Competent
Authorities and the same school is transferred to Ghoti,
Taluka Kinwat, District Nanded.
20] It is further submitted that, as there was no
School at Ghoti, Taluka Kinwat, District Nanded, as Kinwat
Taluka is naxalite area, and therefore, as there was no any
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School available in the vicinity of Ghoti. Therefore, the
Government vide its order dated 13.05.2013 has granted
permission to shift the said School to village Ghoti and on
the basis of that, in May, 2013 itself the School was shifted
there. It is further submitted that, the Government vide its
Resolution dated 09.07.2003 and as per the added clause
No.5, as per the Resolution dated 04.12.2003, the School is
transferred from Badnapur, the Government has acted as
per the Resolution. Copies of the Government Resolution
dated 09.07.2003 along with corrigendum dated
04.12.2003 are placed on record. It is further submitted
that, now the Government has framed the policy vide its
Resolution dated 24.01.2014, but as herein this case, the
order is dated 13.05.2013, and therefore, the Resolution
dated 23.01.2014 is not applicable to the present case.
It is further submitted that, already there is one School at
Badnapur, which was shifted by the Government vide its
order dated 7th August, 2014, and therefore, there is no any
inconvenience to the students at Badnapur and more
particularly, there is need of the School at Ghoti as there is
no School in the vicinity. The said school is in the nexalite
area, and therefore, as per the Government Policy, the
School is transferred vide its order dated 30th May, 2013.
9458.2013 WP.odt
Therefore, relying upon the averments made in the
affidavit-in-reply and annexure placed on record with the
said affidavit-in-reply, the learned counsel appearing for the
respondent No.4 submits that, the Petitions are devoid of
any merits, hence same may be dismissed.
21] We have given careful consideration to the
submissions of the learned counsel appearing for the
petitioners, the learned AGP appearing for the Respondent
Nos.1 and 2, and the learned counsel appearing for the
respondent No. 4. With their able assistance, we have
carefully perused the pleadings in the Petition, and grounds
taken therein, annexure thereto, and the affidavit-in-reply
filed by the respondent Nos.1 and 2, and the affidavit-in-
reply filed by the respondent No.4 and annexure thereto.
22] Upon careful perusal of the contents of
Exhibit-D Page No.32 i.e. the Government Resolution dated
23rd January, 2013, issued by the Social Justice and Special
Assistance Department, Government of Maharashtra,
Mantralaya, Mumbai. It appears that, decision was taken to
transfer the School run by the respondent No.4 for
Handicapped, Dumb, Deaf and Mentally affected
category, from Badnapur to Warvanti, Taluka and District
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Beed. Upon careful perusal of the contents of the said
Government Resolution, no reasons are mentioned why the
Government has taken such decision to transfer the School
from Badnapur to Warvanti, Taluka and District Beed. Upon
careful perusal of the affidavit-in-reply filed by the
respondent Nos.1 and 2, there are no averments which
would disclose the reasons for transfer of the School from
Badnapur to Warvanti, Taluka and District Beed. When the
State Government takes a decision to transfer the School
from one place to another certainly there should be some
reasons for such transfer from one place to another. As
already observed, no single reason has been assigned,
either in the afore-mentioned Government Resolution, or in
the affidavit-in-reply. It is not stated either in the
Government Resolution dated 23rd January, 2013, or in the
affidavit-in-reply that, what will happen to the students,
who are studying in the School at Badnapur. It is also not
stated that, what will happen to the employees of the
School at Badnapur. The contents of Government
Resolution dated 23rd January, 2013, and also affidavit-in-
reply filed by the respondent Nos.1 and 2, are totally silent
about what weighed with the State Government to take
decision to transfer the School run by the respondent No.4
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from Badnapur to Warvanti, Taluka and District Beed. We
have carefully perused the contents of the impugned
order / Government Resolution dated 30th May, 2013, issued
by the Social Justice and Special Assistance Department. In
the said impugned Resolution also, no any reasons are
assigned by the State Government, why Government felt it
necessary to transfer the School from Badnapur, District
Jalna to village Ghoti, Taluka Kinwat, District Nanded.
23] Upon careful perusal of the reference in the
said Government Resolution, there is no reference to the
Government Resolution dated 23rd January, 2013, by which
the earlier School at Badnapur was transferred from
Badnapur to Warvanti, Taluka and District Beed. Upon
careful perusal of the contents of impugned Resolution /
order, averments in the affidavit-in-reply filed by the
respondent Nos.1 and 2, and also averments in the
affidavit-in-reply filed by the respondent No.4, it is
abundantly clear that, before taking decision of transfer of
the School from Badnapur to Ghoti, Taluka Kinwat, District
Nanded, the respondent Nos. 1 and 2, as a matter of fact,
has taken into consideration the interest of students, who
are from Handicapped, Dumb, Deaf and Mentally challenge
9458.2013 WP.odt
category, and also employees working in the said School,
and also objection raised by the parents of such students,
who are studying at Badnapur. It was incumbent, rather
obligation of the State Government to apply its mind before
taking decision of transfer of the school from Badnapur to
Warvanti or Ghoti and to make conscious application of
mind, keeping in view, the interest of the students,
studying
in the school at
employees, and parents of those students.
Badnapur, and also
Since the
the
School itself was set up to teach students from
Handicapped, Dumb, Deaf and Mentally challenged
students categories, decision of shifting of such school itself
in the first place was unjustified, that too, without assigning
any reasons. Even to think of asking the students from the
Handicapped, Dumb, Deaf and Mentally challenged
categories to shift from Badnapur to even 5 kilo meters,
would cause great inconvenience and injustice to those
students, and also mental agony to their parents.
24] The statement of objects and reasons for
establishing schools for the afore-mentioned categories and
bringing the special Act i.e. The Persons with Disabilities
[Equal, Opportunities, Protection of Rights and Full
9458.2013 WP.odt
participation] Act, 1995, are as under:
"The meeting to launch the Asian and
Pacific Decade of the Disabled Persons
1993-2002 convened by the Economic and
Social Commission for Asian and Pacific Region,
held at Beijing on 1st to 5th December, 1992
adopted the proclamation on the Full
Participation and Equality of People with
Disabilities in the Asia and the Pacific region.
India is a signatory to the said proclamation
and it is necessary to enact a
legislation to provide for the following:-
suitable
(i) to spell out the responsibility of the State
towards the prevention of disabilities,
protection of rights, provision of medical care,
education, training employment and
rehabilitation of persons with disabilities;
(ii) to create barrier free environment for
persons with disabilities;
(iii) to remove any discrimination against
persons with disabilities in the sharing of
development benefits, vis-a-vis, non-disabled
persons;
(iv) to counteract any situation of the abuse
and the exploitation of persons with disabilities;
(v) to lay down a strategies for comprehensive
development of programmes and services and
equalisation of opportunities for persons with
9458.2013 WP.odt
disabilities; and
(vi) to make special provision for the
integration of persons with disabilities into the
social mainstream.
2. Accordingly, it is proposed to provide
inter alia for the constitution of Co-ordination
Committees and Executive Committees at the
Central and State levels to carry out the
various functions assigned to them. Within the
limits
ig of their economic capacity and
development the appropriate Governments and
the local authorities will have to undertake
various measures for the prevention and early
detection of disabilities, creation of barrier free
environment, provision for rehabilitation
services, etc. The Bill also provides for
education, employment and vocational
training, reservation in identified posts,
research and manpower development,
establishment of homes for persons with
severe disabilities, etc. For effective
implementation of the provisions of the Bill,
appointment of the Chief Commissioner for
persons with disabilities at the Central level
and Commissioners for persons with disabilities
at the State level clothed with powers to
monitor the funds disbursed by the Central and
State Governments and also to take steps to
safeguard the rights of the persons with
disabilities is also envisaged.
3. The Bill seeks to achieve the above objects."
9458.2013 WP.odt
When the State Government takes a decision to
transfer the School from one place to another place, even in
the absence of any procedure to that effect, it is the duty of
the State Government to find out, what happens to the
students, studying at the place from which the School is
being shifted to some other place, and in the facts of the
present case, it was the duty of the respondent Nos.1, 2
and 3, to consider the interest of the students, studying in
the School at Badnapur. Upon perusal of the impugned
Government Resolution, neither it takes into consideration
the interest of the students studying at Badnapur, nor
anything is mentioned about the absorption of the
employees working in the said School.
25] The provisions of Section 26 of the Persons with
Disabilities [Equal Opportunities, Protection of Rights and
Full Participation] Act, 1995, makes it mandatory to the
Appropriate Governments and the local authorities to
provide children with disabilities, free education. Section
26 of the Act, reads thus:
26. Appropriate Governments and local
authorities to provide children with
disabilities, free education, etc. - The
9458.2013 WP.odt
appropriate Governments and the local authorities
shall -
(a) ensure that every child with a disability has
access to free education in an appropriate
environment till he attains the age of
eighteen years.
(b) endeavour to promote the integration of
students with disabilities in the normal
schools;
(c) promote setting up of special schools in
Government and private sector for those in
need of special education, in such a manner
that children with disabilities living in any
part of the country have access to such
schools;
(d) endeavour to equip the special schools for
children with disabilities with vocational
training facilities.
26] The provisions of Section 29 makes it obligatory
to the Appropriate Governments to set up teachers' training
institutions to develop trained manpower for schools for
children with disabilities. Section 29 of the Act reads thus:
29. Appropriate Governments to set up teachers'
training institutions to develop trained manpower
for schools for children with disabilities. - The
appropriate Governments shall set up adequate
9458.2013 WP.odt
number of teachers' training institutions and assist
the national institutes and other voluntary
organisations to develop teachers' training
programmes specialising in disabilities so that
requisite trained manpower is available for special
schools and integrated schools for children with
disabilities.
27] The provisions of Section 30 makes it obligatory
to the Appropriate Governments to prepare a
comprehensive education scheme providing for transport
facilities, supply of books, etc. to the students, and the
provisions of Section 31 mandates educational institutions
to provide amanuensis to students with visual handicap.
Upon conjoint reading of the provisions of Sections 26 to
31, it is abundantly clear that, the Appropriate
Governments and the local authorities are bound to provide
children with disabilities free education, and also trained
teachers, transport facilities, supply of books, etc. In view
of the statement of object and reasons, and the provisions
of Sections 26 to 31, the State Government and the local
authorities were under obligation to continue the school at
Badnapur. If they wanted to close the School at Badnapur,
there should have been compelling reasons disclosed for
such transfer of the school from Badnapur to other places.
9458.2013 WP.odt
However, it appears that, the object to be achieved by the
Persons with Disabilities [Equal Opportunities, Protection of
Rights and Full Participation] Act, 1995, and also to provide
free education with the facilities, including trained teachers
has been defeated by arbitrary exercise of powers by the
respondent State Government, by granting permission to
shift / transfer the school from Badnapur to Ghoti, without
assigning any reasons. Impugned decision is without taking
into consideration the interest of the students, studying in
the School at Badnapur.
28] In that view of the matter, we are of the
considered view that, issuance of impugned Government
Resolution dated 30th May, 2013, was the classic example
of arbitrary and colourable exercise of powers by the
respondent Nos.1 and 2. The respondent Nos.1 and 2, have
totally ignored the interest of the students from
Handicapped, Dumb, Deaf and Mentally challenge
categories, studying at Badnapur, and mental agony which
would be suffered by the parents of the said children, if
School is shifted. The State Government should not have
taken decision of transfer of the School, that too, without
assigning any reason except stating that, there is a need of
9458.2013 WP.odt
School for the students from Handicapped, Dumb, Deaf and
Mentally affected students at Ghoti, Taluka Kinwat, District
Nanded. It would have been different matter, if the State
Government had taken a decision to grant one more School
at Ghoti, keeping in view the object to have more schools
for the students from the afore-mentioned categories, in
that case the petitioners had no any objection for such act
of the State Government. However, in total disregard to
the interest of the students, studying in the School at
Badnapur, the employee serving therein, and the parents of
such Handicapped, Dumb, Deaf and Mentally challenge
students, the impugned decision of the State Government,
is without application of mind and arbitrary.
29] The learned AGP appearing for the respondent
Nos.1 and 2, and the learned counsel appearing for the
respondent Nos.4 were at pains to submit that, the State
Government has granted permission to transfer special
school at Badnapur namely; Kai. S.Y.Jagtap Guruji Shikshan
Sanstha, Vairag, Taluka Barshi, District Solapur, and
therefore, no inconvenience or hardship would be caused to
the students at Badnapur. The fact that, the School was
needed at Badnapur, and according to the respondent Nos.
9458.2013 WP.odt
1 and 2 and the respondent No.4, now afore-mentioned
School is transferred from Solapur District to Badnapur, that
by itself, shows that, the School was needed at Badnapur,
and the State Government should not have permitted
transfer of the School from Badnapur to Warvanti or Ghoti.
Merely because, now there is one School at Badnapur,
would not make the impugned Government decision legal.
The impugned Government Resolution / decision of allowing
to transfer of the school from Badnapur to Ghoti, Taluka
Kinwat, District Nanded, as already observed, was without
application of mind by the State Government, and the said
decision was arbitrary, illegal and such illegality and
arbitrariness cannot be permitted to be perpetuated,
because of the subsequent transfer of School at Badnapur.
30] In that view of the matter, we are of the
considered view that, the impugned Government Resolution
dated 30th May, 2013 / decision / order, allowing to transfer
the School, was arbitrary exercise of power by the State
Government without application of mind, and therefore,
same deserves to be quashed and set aside.
31] The learned counsel appearing for the
9458.2013 WP.odt
respondent No.4 argued that, as a matter of fact the School
is transferred at Ghoti, Taluka Kinwat, District Nanded, and
thereafter, transfer is granted, the license is also issued,
and the permission is granted to run the said School till
March, 2016. Therefore, keeping in view the interest of the
students, studying at Ghoti, Taluka Kinwat, District Nanded,
this Court may not entertain Petitions since there is no
challenge
by the petitioners for granting
subsequent to the transfer of the School, and also license in
approvals
favour of the respondent No.4. We cannot accept such
argument for the simple reason that, if the impugned
decision itself is a result of arbitrary exercise of powers,
subsequent steps / actions / decisions on the basis of
impugned Government Resolution, as a sequel will have to
be treated illegal, once the impugned Government
Resolution dated 30th May, 2013 is quashed and set aside.
32] In the light of discussion in the foregoing
paragraphs, the impugned Government Resolution dated
30th May, 2013, is quashed and set aside. The State
Government is directed to make alternate arrangement for
the students studying in the School at Ghoti, Taluka Kinwat,
District Nanded, with effect from 1st April, 2016 onwards for
9458.2013 WP.odt
their further studies, and also absorption of employees, who
were working in the School at Badnapur in accordance with
law. The school shifted at Ghoti, Taluka Kinwat, District
Nanded run by the respondent No.4 shall be closed down
from 1st April, 2016, and the respondent Nos.1 and 2 shall
ensure that, under any circumstance no renewal after 1st
April, 2016 be granted in favour of the respondent No.4 to
their
run the School at Ghoti. The respondent Nos. 1 and 2, and
sub-ordinates are directed not to renew the
permission of the School at Ghoti, once the period of
renewal i.e. 1st April, 2013 to 31st March, 2016 comes to an
end. If the respondent No.4 wishes to run School at
Badnapur, it can be done only with permission of the State
Government. While considering such prayer, the State
Government shall keep in view the fact that, already one
School is transferred at Badnapur and also other relevant
factors, we leave it to the respondent Nos.1 and 2 to take
such appropriate decision in accordance with law.
33] Petitions are allowed to the above extent. Rule
is made absolute in above terms. Civil Application No.
12099/2015 is also disposed of.
9458.2013 WP.odt
34] We express word of gratitude to the learned
counsel Mr. V.D.Sapkal, appointed as amicus curiae, for
rendering able assistance to this Court for reaching to the
proper conclusion. We quantify his fees Rs.10,000/-.
Sd/- Sd/-
[A.M.BADAR] [S.S.SHINDE]
JUDGE JUDGE
DDC
