Bombay High Court
Maharashtra Urdu Shala ... vs The State Of Maharashtra And ... on 12 August, 2016
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9967 OF 2013
1. Maharashtra Urdu Shala
Sangharsha Samiti, Aurangabad,
through its Executive President
Prof. Shaikh Mansur Mustafa,
Age : 48 years,
R/o Aurangabad, Dist. Aurangabad
2. Al-Sabaha Shikshan Aani Samajik
Karya Sanstha, Aurangabad through
its Secretary Prof. Shaikh Mansur
Mustafa, Age : 49 years, Occu.
Service, R/o House no. 8-17-262,
Wahed Colony, Aurangabadig
3. Kohetur Education and Welfare
Society, Aurangabad, through
its Chairman Mohammad Gaus
Shaikh Habib, Age : 56 years,
Occu. Business, R/o House
No. 1-12-42, Juna Bazar,
Aurangabad
4. Johar Educational and Welfare
Society, Aurangabad, through
its President Mohammad Ajmal Khan
Afzal Khan, Age : 54 years,
Occu. Business and social work,
R/o Near Water Tank, Shahaganj,
Shahabazar, Aurangabad
5. Rojabag Education Society,
Aurangabad, through its
Secretary Siddiqui Ahmed
Mohiyouddin, Age : 63 years,
Occu. Pensioner, R/o House No.3,
Krisent Society, Rojabag,
Aurangabad
6. Bharat Educational and Social Society,
Rani-Unchegaon, Tq. Ghanasawangi,
District Jalna, through its Secretary
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Qureshi Shariq Mohammad Iqbal,
Age : 29 years, Occu. Agriculture,
R/o At Post Rani-Unchegaon, Tq.
Ghanasawangi, District Jalna
7. United Education, Welfare and
Cultural Society, Aurangabad,
through its Chairman Shaikh
Ziayuddin Ahmed, Age : 40 years,
Occu. Service, R/o House No.6-22-8,
Mujib Colony, Katkatgate,
Aurangabad
8. The Rehmaniya Welfare Education
Society, Kannad, Dist. Aurangabad,
through its Secretary
9.
Taha Shikshan Prasarak Mandal,
Kannad, District Aurangabad,
through its Secretary
10. Optimistic Education and Welfare
Society, Aurangabad,
through its President
11. Muslim Vikas Manch, Aurangabad,
through its Secretary
12. Mohamadi Institute for Research,
Muslim Development and Education
and Computer, Jalna, through
its President PETITIONERS
VERSUS
1. The State of Maharashtra,
through its Secretary,
School Education and Sports
Department, Mantralaya,
Mumbai-32
2. The Director of Education
(Secondary),
Maharashtra State, Pune
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3. The Director of Education
(Primary),
Maharashtra State, Pune
4. The Education Officer (Secondary),
Zilla Parishad, Aurangabad
5. The Education Officer (Primary),2
Zilla Parishad, Aurangabad RESPONDENTS
----
Mr. V.D. Sapkal, Advocate for the Petitioners
Mr. V.H. Dighe, A.G.P. for respondent Nos. 1 to 4
None for respondent No. 5
----
ig CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 21st JULY, 2016
JUDGMENT PRONOUNCED ON : 12th AUGUST, 2016
JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
Rule. Rule made returnable forthwith. With the
consent of the learned counsel for the petitioners and
the learned A.G.P., heard finally.
2. The petitioners have taken exception to the
Government Resolution dated 15th November, 2011, issued
by the Department of School Education and Sports,
Government of Maharashtra, Mantralaya, Mumbai whereby
the minimum strength of the students in the last year of
primary school and 10th standard of secondary school has
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been fixed as 30.
3. The learned counsel for the petitioners submits
that the petitioners are the Minority Institutions
running the schools in Urdu medium. According to him,
the petitioners being Minority Institutions, the schools
run by them are governed by the provisions of the
Secondary Schools Code. As per Clause-III, Appendix-
TWENTY-TWO of the Secondary Schools Code, the Minority
Language Secondary Schools and the Schools in Tribal
Areas are allowed to be opened on grant in aid basis for
minimum average attendance in a class with 12 students.
As such, the Minority Language Secondary Schools and the
Schools in Tribal, hilly and remote areas are treated at
par. As per Proforma-A Class-I of the impugned Govt.
Resolution dated 15th November, 2011, for the purpose of
evaluating the performance of Primary/Secondary Schools,
minimum attendance of the students has been prescribed
as 30. The Department of School Education and Sports,
Government of Maharashtra issued another Resolution
dated 16th July, 2013 and reduced the strength of minimum
attendance of the students in Primary/Secondary schools
which are being run in hilly and remote areas from
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30 to 20. However, though the petitioners-Institutions
are running the Primary/Secondary schools in Urdu medium
and were being treated at par with the schools in Tribal
areas, the condition of minimum strength of the students
has not been relaxed in respect of the petitioner
Institutions.
4. He then submits that the petitioner
Institutions have been subjected to discrimination by
not treating them at par with the schools that are being
run in Tribal and Hilly areas. The petitioner
Institutions have been treated at par with the other
general Primary/Secondary schools which are much
advanced than the petitioner Institutions. According to
him, unequals cannot be treated equally and equals
cannot be treated unequally. By making Government
Resolution dated 15th November, 2011 applicable to the
petitioner Institutions, their fundamental right of
equality under Article 14 of the Constitution of India
has been infringed.
5. He further submits that Muslim community in the
State of Maharashtra is educationally and socially
backward. It is essential to teach the students from
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Muslim community in their language i.e. Urdu so as to
encourage them to show progress in their career. He
submits that for the purpose of imparting education in
Urdu medium, certain protections have been granted under
Article 29 and 30 of the Constitution of India on the
basis of linguistic minority. He submits that if the
Government Resolution dated 15th November, 2011 is made
applicable for Urdu medium schools, none of the said
schools would be eligible for the purpose of getting
grant-in-aid.
6. He further submits that the Department of
School Education and Sports, Government of Maharashtra
issued one more Resolution dated 20th November, 2013 and
revised the norms for opening and continuation of
secondary schools run in the Hilly, Tribal and Naxalite
areas, reducing the minimum strength of the students for
opening and continuing the division for 9th and 10th
standards to 15. However, the said Government Resolution
has not been made applicable to the petitioner
Institutions and they have been treated at par with the
general category schools. Relying on the averments made
in the petition and the documents annexed thereto, he
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submits that Government Resolution dated 15th November,
2011 is arbitrary and unconstitutional since it has
infringed the fundamental rights of the petitioner
Institutions. He, therefore, prays that respondent No.
1 may be directed to amend the Government Resolution
dated 15th November, 2011, particularly in respect of the
minimum strength of the students required for opening
and continuing the primary/secondary schools to make it
in consonance with the provisions of the Secondary
Schools Code and the Right of Children to Free and
Compulsory Education Act, 2009.
7. Respondent Nos. 1 and 3 filed affidavit-in-
reply and opposed the petition. They denied that by
issuing Govt. Resolution dated 15th November, 2011, any
right of the petitioner has been infringed. According to
them, there is no difference in general schools of
Marathi medium and the schools of linguistic minority.
They are to be treated at par. The Secondary Schools
Code is a compilation of instructions and has no
statutory force. The provisions of the Right of Children
to Free and Compulsory Education Act, 2009, which has
come into force from 1st April, 2010, would supersede the
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provisions of the Secondary Schools Code. It is stated
that the petitioners cannot claim that they should be
treated at par with the schools run in Hilly, Tribal and
Naxalite areas where because of geographical and social
reasons, the strength of the students remains very less.
Therefore, the petitioners cannot get any benefit as
given to the schools which are being run in Hilly,
Tribal and Naxalite areas pursuant to the Govt.
Resolution dated 16th July, 2013. The Govt. Resolution
dated 20th November, 2013 is in respect of the secondary
schools for 9th and 10th standards. It is not applicable
to the primary school.
8. The learned counsel for respondent No. 1 and
the learned counsel for respondent No.3, submit that the
petitioners cannot claim parity with the schools run in
Hilly, Tribal and Naxalite areas. They cannot claim any
special concession in the matter of minimum required
strength of the students for opening and continuing a
division in primary/secondary schools. According to
them, no right of the petitioners has been infringed.
Therefore, they pray that the writ petition may be
dismissed.
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9. There is no dispute that the petitioners are
the linguistic minority institutions running the schools
for imparting education to the children of Muslim
community mainly in Urdu medium. The petitioners are
governed by the Secondary Schools Code. As per Rule 98
(3) of the said Code, the minimum strength of the
students required for opening and continuing a class of
primary/secondary school is 15. Relying on the judgment
in the case of Shikshan Mandal through the Secretary Dr.
R.G. Prabhune and others Vs. State of Maharashtra and
others, 2012 (2) Bom.C.R. 875, the learned counsel for
the petitioners submits that the provisions of the
Secondary Schools Code have statutory status. He cites
the judgment in the case of M.G. Pandke Vs. Municipal
Council Hinganghat, District Wardha, 1993 AIR S.C. 142
wherein it has been observed in paragraph No. 8 of the
judgment that the provisions of the Maharashtra
Secondary Education Board Act, 1965 and the Maharashtra
Secondary Education Board Regulation, 1966 give
statutory recognition to the Secondary Schools Code.
Under the Maharashtra Regulations, it is obligatory for
the schools, which have been given recognition under the
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Maharashtra Act and the Maharashtra Regulations, to
follow the provisions of the Code. In view of this
judicial pronouncement, the contention of the learned
counsel for respondent No. 3 that the provisions of the
Secondary Schools Code have no statutory force, cannot
be accepted.
10. As per the norms prescribed in Clause-III of
Appendix-TWENTY SECOND of the Secondary Schools Code,
the Minority Language Secondary Schools and the Schools
in Tribal Areas are treated at par in the matter of
minimum average attendance of the students in a class
for opening the schools on grant-in-aid basis.
Accordingly, the minimum average attendance of the
students was fixed at 12.
11. The learned counsel for the petitioners invites
our attention to the Govt. Resolution dated 10th
February, 1994 whereunder for the purpose of opening and
continuing the schools on grant-in-aid basis, the
minimum strength of linguistic minority schools has been
prescribed as 15. From this Resolution, it is clear
that the linguistic minority schools were given some
special concession and were not treated at par with the
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general schools. It is further clear that the
linguistic minority schools were treated at par with the
schools in Hilly, Tribal and Naxalite areas. If that be
so, the Government Resolution dated 15th November, 2011
whereunder the linguistic minority schools of the
petitioners have been treated at par with the general
schools and not at par with the schools in Hilly, Tribal
and Naxalite areas, certainly would subject the
petitioner-Institutions to discrimination. By this Govt.
Resolution, an attempt has been made to treat the
unequals as equally and the equals as unequally. The
petitioner Institutions have a right to be treated at
par with the schools which are being run in Hilly,
Tribal and Naxalite areas since they were being given
such concession prior to the impugned Government
Resolution dated 15th November, 2011. The petitioners
are entitled to get excluded from the operation of the
Government Resolution dated 15th November, 2011 so far as
the requirement contained in Proforma-A, annexed thereto
about the minimum strength of the students in a class as
`30'. The petitioners are entitled to be treated at par
with the schools run in Hilly, Tribal and Naxalite
areas. They are entitled to get the benefit of the
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Government Resolution dated 16th July, 2013, which is
extended to the schools run in Hilly, Tribal and
Naxalite areas. In the circumstances, we accept the
claim of the petitioners for treating them at par with
the schools run in Hilly, Tribal and Naxalite areas. In
the result, we pass the following order :-
(i) It is declared that the minimum strength of the
students as 30 for opening and continuing the
primary/secondary schools as mentioned in
Proforma-A, annexed to the Govt. Resolution
dated 15th November, 2011, is not binding on the
petitioners.
(ii) Respondent No. 1 shall issue corrigendum to the
Government Resolution dated 15th November, 2011,
reducing the minimum strength of the students
required for opening and continuing the
primary/secondary schools by the petitioners
from 30 to 20.
(iii) Rule is made absolute in the above mentioned
terms.
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(iv) The writ petitions are accordingly disposed of.
(v) No costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
npj/wp9967-2013
