Bombay High Court
Madhukar Sikshan Prasarak ... vs The State Of Maharashtra And ... on 29 February, 2016
Bench: S.S. Shinde
1 WP No. 8685/2014
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8685 OF 2014
1) Madhukar Sikshan Prasarak Mandal
Khinala, Tq. Biloli, Dist.Nanded
Through its President -
Jayawant s/o Hullaji Gaikwad
Age: 61 Yrs., occu. Agril.
R/o Kinala, Tq. Biloli,
District Nanded.
2) Jai Shankar Residential Handicap
School, Jalkot, Tq. Jalkot,
District Latur. - PETITIONERS
VERSUS
1) The State of Maharashtra
Through Secretary,
Social Justice Special Assistance
Department, Maharashtra State,
Mantralaya, Mumbai.
2) The Minister for Social Justice,
Maharashtra State, Mantralaya,
Mumbai.
3) The Commissioner Handicap,
Welfare, Maharashtra State,
3, Church Road, Pune.
4) Maharani Ahilyadevi Holkar
Samajik Bahuuddeshiya Seva
Bhavi Sanstha, Nerul,
New Mumbai.
Reg.No.MAH/592/2012/Thane
Om Gagangiri Plot No.A/86,
Sector 20, Nerur (West)
Navi Mumbai 400 706
Through its President -
Mahadeo Baba Pukale. - RESPONDENTS
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2 WP No. 8685/2014
Mr.VD Salunke, Advocate for Petitioner/s
Mr.SK Tambe,AGP for Respondent Nos.1 to 3;
Mr.Sachin S.Deshmukh, Adv. For Respondent No.4.
-----
CORAM : S.S.SHINDE &
P.R.BORA,JJ.
DATE OF RESERVING JUDGMENT :- 5
th
DECEMBER,2015.
DATE OF PRONOUNCING JUDGMENT 29
th
FEBRUARY, 2016.
JUDGMENT (PER:-P.R.BORA,J.)
1)
Heard. Rule. Rule made returnable
forthwith. With the consent of learned Counsel for
the parties, the petition is taken up for final
disposal at admission stage.
2) The petitioners have filed the present
petition for quashment of orders dated 7.7.2012;
6.9.2014 and 12.9.2014. Petitioner No.1 is a
registered trust duly registered under the provisions
of Bombay Public Trusts Act, 1950. Petitioner No.2
is a school run by petitioner No.1-trust.
3) Petitioner No.1 had started petitioner No.2
school in the year 1992 and successfully run the same
till the year 2012. The school was duly approved by
the Government and was also receiving grant-in-aid
from the Government. In the year 1999, a license was
received to run the said school and the said license
was regularly renewed by the respondents till 31st
March, 2011. The license issued by Respondent No.3
to run the petitioner no.2 school has been cancelled
by Respondent No.3 vide order dated 7.7.2012. Before
passing the aforesaid order, Respondent No.3 had
issued notice dated 26.6.2012 to the petitioners.
The notice dated 26.6.2012 was issued by Respondent
No.3, relying on the report of District Social
Welfare Officer, Zilla Parishad, Latur. The
petitioners had submitted their reply to the said
show cause notice on 30th June, 2012. Respondent
No.3, however, was not convinced with the reply so
filed by the petitioners and cancelled the
registration of petitioner no.2 - school; vide order
passed on 7.7.2012 w.e.f. 23rd October, 2011.
4) Being aggrieved by the order of cancellation
passed by Respondent No.3, the petitioners preferred
an appeal before the Hon'ble Minister for Social
Justice, State of Maharashtra, Mumbai (Respondent
No.2). It is the contention of the petitioners that
the appeal so filed by them was rejected by the
Hon'ble Minister on 3.12.2013 without affording the
petitioners appropriate opportunity of hearing. The
petitioners had, therefore, filed Writ Petition No.
5473/2012 before this Court, whereupon the learned
Division Bench of this Court quashed the order dated
3rd December, 2013 passed by the Hon'ble Minister and
directed the Hon'ble Minister to hear the appeal
afresh by extending due opportunity of hearing to the
petitioners. Accordingly, the appeal was re-heard by
the Hon'ble Minister. The Hon'ble Minister vide
order dated 6.9.2014 rejected the appeal and
confirmed the order dated 7.7.2012 passed by
Respondent No.2. After dismissed of the appeal,
Government Resolution dated 12.9.2014 came to be
passed whereby petitioner No.2-school has been
transferred to Respondent No.4. Aggrieved by the
orders dated 7.7.2012, 6.9.2014 and 12.9.2014, the
petitioners have invoked the jurisdiction of this
Court and have prayed for quashment of the aforesaid
three orders.
5) It is the contention of the petitioners that
while dismissing the appeal filed by the petitioners,
the Hon'ble Minister has not at all considered the
grounds raised by the petitioners in their memo of
appeal. It is the further contention of the
petitioners that vide Government Resolution dated 12th
September, 2014, the respondents have illegally
transferred petitioner No.2-school to Respondent
No.4. According to the petitioners, Petitioner No.2-
school could not have been transferred to Respondent
No.4 in view of Clause 10 of the Government
Resolution dated 24th January, 2014, which prescribes
that the institution, to which non-functioning or
closed down handicapped school receiving grant-in-aid
is to be transferred, must be functioning for more
than three years; whereas Respondent No.4 has not
completed the said period of three years. It is the
further contention of the petitioners that the
petitioners were constrained to close down petitioner
no.2 school for the reason that no grants were
received to petitioner no.2-school from 2007-2008 and
even salary grants were not paid to it for the year
2009-2010 and 2010-2011. It is the further
contention of the petitioners that time and again,
requests were made by the petitioners for release of
the grants, however, no grants were released and in
such circumstances, the petitioners were left with no
option, but to close down petitioner no.2-school. It
is the further contention of the petitioners that
Respondent No.3, at the first instance and Respondent
No.2 thereafter completely ignored the fact that no
grants were received to the petitioners for
consecutive period of three years and that was the
reason that the petitioners were compelled to close
down the school. In the circumstances, according to
the petitioners, the right step on the part of the
respondents would have been to release the arrears of
grants and not to cancel the license of the
petitioner no.2-school. It is the further contention
of the petitioner that after dismissing the appeal
vide order dated 6.9.2014, making undue haste and
without following due procedure and without observing
the Rules and more particularly, the guidelines in
Government Resolution dated 24.1.2014, order dated
12.9.2014 has been illegally passed thereby
transferring petitioner no.2-school to Respondent
no.4. The petitioners have, therefore, prayed for
setting aside all the aforesaid three orders.
6) Smt.Chaya Nagorao Gadekar, who is working as
District Social Welfare Officer, Zilla Parishad,
Latur, has filed an affidavit in reply on behalf of
Respondent Nos. 1 to 3. As contended in the said
affidavit in reply, Respondent No.3 has rightly
cancelled the license of petitioner no.2-school since
petitioner no.1-trust has failed in properly running
the said school. It is further contented that the
District Social Welfare Officer had visited
petitioner no.2-school on four occasions in the
period between 23rd October, 2011 to 29th February,
2012 and on all four occasions, petitioner no.2-
school was found to be non-functioning /closed. It
is further contended that the reason stated by the
petitioners for closing down the school that they had
not received non-salary and salary grants, is
unacceptable. It is further contended that it was
the statutory obligation on the petitioners to run
the school from their own funds till actual
realization of the outstanding grants from the
Government.
7) It is further contended that the petitioners
themselves have consented for transfer of petitioner
no.2-school to Respondent no.4and as such, they are
now estopped from taking any contrary plea and object
the order of such transfer vide Government Resolution
dated 12th September, 2014. It has also been
contended that the decision dated 7.7.2012,
cancelling the license of petitioner no.2-school was
accepted by the petitioners and that was the reason
that they did not challenge the aforesaid order or
file the appeal taking exception to the said order
for the period of more than one year. It is further
contended that the petitioners did not disclose any
sufficient ground for occurrence of delay on their
part in preferring the appeal against order dated
7.7.2012 and as such, on the ground of delay itself,
the said appeal was liable to be dismissed.
8) It is further contended that the petitioners
have falsely contended that first dismissal of the
appeal, vide order passed by the Hon'ble Minister on
3.12.2013 was without affording opportunity of
hearing to the petitioners. It is contended that
despite repeated opportunities given, the petitioners
remained absent on the given dates and in the
circumstances, ultimately, the Hon'ble Minister
passed order dated on 3.12.2013. It is further
contended that there were complaints against the
petitioners from the employees of petitioner no.2-
school and that was the additional reason for
cancellation of the license and transfer of the
petitioner no.2-school to Respondent no.4.
9) Shri Prashant Mahadeo Pukle has filed an
affidavit in reply on behalf of Respondent No.4.
Respondent no.4 has in toto denied the contentions
raised in the petition. According to Respondent
no.4, the petitioners have not approached the court
with clean hands and have suppressed the material
facts from the Court. Respondent No.4 has contended
that the petitioners were duty bound to disclose, at
the first instance that they had passed a Resolution
dated 18.7.2012, thereby according their consent for
transfer of petitioner no.2-school to Respondent
no.4. It is further contended that by suppressing
the material facts and more particularly, the aspect
of consent given by them, the petitioners have
secured the relief in writ petition No. 5473/2014 and
have thereafter secured the interim relief in the
present petition. According to Respondent No.4, on
the sole ground that the petitioners have not
disclosed the material facts, the petition deserves
to be dismissed in limine. It is further contended
that Respondent No.4-institution has already
commenced the school and has given admission to 32
children with disability in the said school at Sangli
for the academic year 2015-2016. It is further
contended that as provided in Government Resolution
dated 12.9.2014, Respondent no.4-institution has
absorbed all the employees of petitioner no.2-school
and accordingly they all have resumed their duties at
the school at Sangli. In the circumstances,
according to Respondent no.4, it is now impermissible
to reverse the situation. It is further contended
that there were serious complaints of the employees
of petitioner no.2 against the petitioners regarding
improper administration and negligence of the office
bearers of petitioner no.1-trust. Respondent No.4
has, also therefore, prayed for dismissal of the
petition.
10) Shri V.D.Salunke, learned Counsel appearing
for the petitioners vehemently submitted that the
reasons cited in order dated 7.7.2012 passed by
Respondent no.3, are wholly incorrect and
unsustainable. According to learned Counsel, at the
time of hearing before Respondent no.3 before passing
of the impugned order dated 7.7.2012, Shri Jaywant
Gaikwad, President of petitioner no.1-trust had
brought to the notice of Respondent no.3 that
petitioner no.1-school had not received non-salary
grants for the years 2007-2008; 2008-2009 and 2009-
201o and salary grants for the years 2009-2010 and
2010-2011. Learned Counsel further submitted that
Shri Gaikwad had also submitted at the relevant time
that if the arrears of the grants are released, the
petitioners were ready to re-start the school from
new academic year and had, therefore, prayed for not
taking any action of cancellation of the license.
Learned Counsel submitted that without considering
the submissions made on behalf of the petitioners and
without any fault on the part of the petitioners,
Respondent No.3 cancelled the license of petitioner
no.2-school vide order dated 7.7.2012.
11) Learned Counsel further submitted that
though the petitioners had passed a resolution on
18.7.2012 in respect of giving consent for transfer
of petitioner no.2-school to Respondent no.4,
subsequently the said resolution was cancelled in the
meeting of the petitioner no.1-trust held on
15.8.2013. The learned Counsel submitted that the
petitioners have not suppressed any fact from this
court. Learned Counsel pointed out that the
petitioners themselves have placed on record the
resolution dated 18.7.2012 along with the present
petition and have also placed on record the
subsequent resolution dated 15.8.2013.
12)
Learned Counsel submitted that in the
written submissions filed before Hon'ble Minister on
22.1.2014 also, the petitioners had referred to the
resolution dated 18.7.2012 as well as 15.8.2013.
Learned Counsel further submitted that the President
of Respondent no.4-institution viz. Prashant Mahadev
Pukle was previously serving in Mantralaya and by
misusing acquaintances with the employees working in
Mantralaya, he has got dismissed the appeal filed by
the petitioners and also got issued the Government
Resolution dated 2.9.2014 in favour of his own
institution.
13) We have heard the learned Counsel for
respective parties and perused the impugned orders
and the documents placed on record by the parties.
Perusal of order dated 7.7.2012 reveals that
Respondent no.3 has cancelled the license of
petitioner no.2-school on the ground that in the
visits made by the District Social Welfare Officer,
Zilla Parishad, Latur, on about four occasions,
petitioner no.2-school was found non-functioning and
closed and further that the reasons assigned by the
petitioners in justification of the closure of the
school are unacceptable. Respondent No.3 has further
observed that it was not appropriate on the part of
the petitioners to close down the school on the
ground of non release of the salary and non-salary
grants by the Government. Respondent No.3 has
further observed that from the reasons cited by the
petitioners, he has reason to believe that petitioner
no.1-trust is incompetent and ineligible for running
petitioner no.2-school.
14) Prior to making the observations, as
above, Respondent no.3 has recorded in brief, the
respective submissions of Shri P.P.Vaidya - Assistant
Advisor; District Social Welfare Officer, Zilla
Parishad, Latur; Shri Jaywant Gaikwad - President of
petitioner no.1; Shri R.P.Gaikwad (Teacher); Shri
U.G.Tidke and other 12 employees working in
petitioner no.2-school. The fact that petitioner
no.2-school was not functioning on the dates referred
to in the report of the District Social Welfare
Officer, has not been disputed by the petitioners.
However, Shri Jaywant Gaikwad as well as Shri
R.P.Gaikwad and U.G.Tidke and other 12 employees of
petitioner no.2-school have specifically submitted
that the petitioners have not received non-salary
grants for the year 2007-2008; 2008-2009 and 2009-
2010 and salary grants for the years 2009-2010, and
2010-2011. It was specifically submitted by Shri
Jaywant Gaikwad and R.P.Gaikwad and others that since
the employees of petitioner no.2-school had not
received their salary for the period 21 months, they
have not admitted the students in the said school.
It was also stated by Shri Jaywant Gaikwad and the
employees of the petitioner no.2-school that if the
arrears of the salary and non-salary grants are
released, they will re-start the school from the new
academic session. They had also requested Respondent
no.3 that in such circumstances, the license of
petitioner no.2-school shall not be cancelled.
15) From the observations recorded by Respondent
no.3 immediately after he has recorded the
submissions of Shri Jaywant Gaikwad and Shri RP
Gaikwad and others, it is however revealed that he
was not satisfied with the explanation given by the
petitioners as well as the employees of the
petitioner no.2-school, and as we have noted earlier,
Respondent no.3 has further observed that it was
wholly inappropriate and unjustified on the part of
the petitioners to close down the school on the
ground that they have not received the salary and
non-salary grants.
16) We, however, find it difficult to agree with
the observations so made by Respondent no.3 and the
order consequently passed by him, cancelling the
license of petitioner no.2-school for the reasons as
assigned in the said order. It is not the case that
the petitioners took decision of closing down the
school within few months of not receiving the salary
and non-salary grants. Undisputedly, the petitioners
had not received non-salary grants for the period of
three years and salary grants for the period of two
years. The specific contention of the petitioners
that the petitioner no.2-school had not received
salary grants for the period of more than 21 months,
has not been denied or disputed by the respondents.
Even if the contention of Respondent no.3 that non-
governmental organizations shall be financial strong
enough so as to withstand in the situation of non-
receiving the grants from the Government for some
period is accepted, in no circumstances, it can be
approved that even if they do not receive the grants
for three years, they shall continue their
activities.
17) The question arises when the Government has
approved the petitioner no.2-school and has also
approved the staff on the establishment of the said
school, why Government shall not timely, at least
within the reasonable period, pay salary grants as
well as non-salary grants. It can be understood, if
the arrears are of few months. But there cannot be
any justification for not releasing/providing the
grants for a long period of three years and ask the
NGO to run the school. In such circumstances,
according to us, the petitioners cannot be blamed, if
they had taken a decision of not running the school
any further. It is quite evident that the petitioners
were left with no other option except to take a
decision not to run the school and close it down. It
was an action in distress. For the said reason,
Respondent No.3 has held the petitioners to be
incompetent, incapable and ineligible to run
petitioner no.2-school. The opinion so recorded by
Respondent no.3 is disgusting and cannot be
subscribed. Respondent No.3 has also noted that
providing salary and non-salary grants is the
function within the jurisdiction of the District
Social Welfare Officer, Zilla Parishad, Latur. If
that be so, Respondent No.3, ought to have first
taken to task the said District Social Welfare
Officer and ought to have known from him the reason
for not releasing the grants for years together. In
fact, it was the District Social Welfare Officer, who
was supposed to justify the delay occurred in
releasing the grants. It is ridiculous that the
Officer, who according to Respondent no.3 was
responsible for release of the salary and non-salary
grants, recommended for closure of the petitioner
no.2-school and Respondent no.3 accepted his
recommendations.
18) In the above circumstances, the order dated
7.7.2012 passed by Respondent No.2 can not be
sustained.
19) The petitioners challenged the aforesaid
order by filing the appeal before the Hon'ble
Minister for Social Justice at Mumbai. Much has been
argued by the respondents that the appeal so filed by
the petitioners was not liable to be considered and
ought to have been rejected solely on the ground of
delay caused in preferring the said appeal. It was
also sought to be contended that the petitioners in
the aforesaid appeal did not provide any reason for
delay which was caused in preferring the said appeal
and had also not prayed for condonation of the said
delay. We have recorded the aforesaid objections
raised by the respondents only for the purpose of
rejecting the same. In view of the fact that the
Hon'ble Minister did entertain the said appeal and
also decided the same, now, there is no propriety in
raising the objections, as aforesaid, that there was
delay and further that the same was not explained and
was not sought to be condoned.
20) It is the matter of record that the order
passed on 3rd December, 2013 by the Hon'ble Minister,
thereby rejecting the appeal filed by the
petitioners, was challenged by the petitioners by
filing WP No.5473/2014 (Madhukar Shikshan Prasarak
Mandal, Khinala & Anr. Vs. The State of Maharashtra
and Ors.) before this court. The Division Bench has
allowed the said Writ Petition on the ground that
before passing the impugned order, the Hon'ble
Minister did not give the adequate opportunity to the
petitioners to put forth their case. The Hon'ble
Minister was directed by this Court to decide the
appeal afresh within a period of four months from
the date of the said order. Accordingly, the
Hon'ble Minister decided the said appeal and vide
order dated 6.9.2014 rejected the same and confirmed
the order dated 7.7.2012 passed by Respondent No.2.
21) We have perused both the aforesaid orders;
first dated 3.12.2013 and subsequent dated 6.9.2014.
In none of the aforesaid orders, the Hon'ble Minister
seems to have considered the contentions raised by
the petitioners. In the order dated 7.7.2012, the
submissions made on behalf of the petitioners are
recorded. As we have noted herein before, it was the
precise contention of the petitioners that since they
had not received non-salary as well as salary grants
for the period of more than three years, they were
compelled to take the decision to close down the
school. In the appeal filed by the petitioners
before the Hon'ble Minister also, a written
submission dated 22.1.2014 was made by the
petitioners, contending therein that they had not
received the salary and non-salary grants for a
considerable long period and that was the only reason
that they were compelled to take the decision to
close down the school. In the memo of appeal dated
23rd October, 2013 and in the written submissions
dated 22.1.2014, it is specifically averred by the
petitioners that since in the meantime they had
received part payment towards arrears of non-salary
and salary grants, they were willing to re-start the
school from the academic year of 2014-2015 and in the
circumstances, the petitioners had prayed for setting
aside the order dated 7.7.2012 passed by Respondent
No.2. In both the orders, the Hon'ble Minister has,
however, not even referred to the aforesaid
submissions and without assigning any cogent and
sufficient reason has dismissed the appeal filed by
the petitioners. In the subsequent order passed on
6.9.2014 though there is a passing reference to the
fact that the erstwhile employees of the petitioners'
school had made representation against the president
of petitioner No.1-trust as regards the injustice
caused to them by the said president, no details are
provided as to what sort of complaint was made by the
said employees and whether any opportunity was given
to the president of the petitioner No.1-trust to meet
the allegations made against him. Moreover, in the
order dated 7.7.2012 whereby the license to
petitioner No.2-school came to be cancelled, there is
no whisper about any complaint by the employees of
petitioner No.2-school against the president of
petitioner No.1-trust. The order dated 7.7.2012 does
not disclose that the complaint made by the
employees of petitioner No.2-school against the
president of petitioner No.1-trust, is one of the
reasons resulting in cancellation of the license. As
such, the order passed by the Hon'ble Minister on
6.9.2014 also cannot be sustained and will have to be
set aside.
22) It was sought to be contended by the learned
Counsel appearing for Respondent No.4 that the order
dated 6.9.2014 passed by the Hon'ble Minister cannot
be faulted on the ground that it does not contain the
elaborate reasons. The learned Counsel, relying on
the judgment of the Hon'ble Apex Court in the case of
S.N.Mukherjee Vs. Union of India - (1990) 4 SCC 594,
and more particularly para 34 thereof, submitted that
when the Hon'ble Minister has confirmed the order
appealed again and when the said order dated 7.7.2012
was a speaking order containing the reasons, it was
not necessary for the Hon'ble Minister to again give
the detailed reasoning.
23) There cannot be a quarrel with the
conclusions recorded by the Hon'ble Apex court in the
cited judgment. However, in the said judgment
itself, in para 36 thereof, the Hon'ble Apex Court
has recorded that, "the extent and nature of the
reasons would depend on facts and circumstances of
the particular case. What is necessary is that the
reasons are clear and explicit so as to indicate that
the authority has given due consideration to the
points in controversy." In the instant case, as we
have already noted, Respondent No.3, while passing
the order dated 7.7.2012, though has in earlier part
of the said order, recorded the submissions of the
parties, has failed in considering the said
submissions while arriving at the conclusion. In the
circumstances, it cannot be accepted that the reasons
recorded in the order dated 7.7.2012 are clear and
explicit so as to infer that the authority concerned
has given due consideration to the points in
controversy. Respondent No.3 has utterly failed in
considering the submissions made on behalf of the
present petitioners in regard to non-receiving salary
and non-salary grants, because of which according to
them they were compelled to close down the school.
In the appeal, the Hon'ble Minister also failed in
considering the said submissions and has mechanically
confirmed the order passed by the subordinate
authority.
24) The next point, which falls for our
consideration, is the correctness and legality of the
Government Resolution dated 12.9.2014 whereby the
petitioner No.2 school has been transferred to
Respondent No.4. Our attention was invited by the
learned Counsel for the petitioners to the Government
Resolution dated 24th January, 2014, which pertains to
transfer of the non-functioning/closed schools for
disables. The aforesaid Government Resolution
prescribes certain terms and conditions for transfer
and shifting of non-functioning/closed schools for
disables to other institution at other place.
Condition No.10 thereof reads as under,-
"बंद पडलेलया अनुदािनत अपंगाचया िवशेष शाळा/कमरशालाचे हसतातरण
करावयाची संसथा ही सथापन होवून तीन वषाचा कालावधी पूणर झालेली असावी."
Respondent No.4-trust, to which petitioner No.2-
school has been transferred, vide Government
Resolution dated 12.9.2014, is admittedly registered
in the year 2012. It is thus evident that it has not
completed the period of three years as envisaged in
Condition No.10 of the Government Resolution dated
24th January, 2014, reproduced herein above. In the
circumstances, it was impermissible for Respondent
no.1 to transfer the petitioner No.2-school to
Respondent No.4, vide the impugned Government
Resolution.
25) It was sought to be canvassed by Shri
Deshmukh, the learned counsel appearing for
Respondent No.4 that the requirements, as are
mentioned in the Government Resolution dated 24th
January, 2014 would not apply in the instant case,
since the decision to transfer the petitioner No.2-
school to Respondent No.4 was taken prior coming into
effect of the said Government Resolution based on the
report dated 20.9.2013 submitted by the Commissioner.
We are, however, not convinced with the arguments so
made. When the Government has laid down certain
guidelines for transfer of the non-functioning/closed
schools for disables, vide Government Resolution
dated 24th January, 2014, there was no reason for
Respondent No.1 to deviate from or to give go-bye to
the said guidelines/terms and conditions while
issuing Government Resolution dated 12.9.2014.
Receiving report from the Commissioner is the part of
the process for transfer of such school. The
ultimate decision, however, was taken on 12.9.2014
and as such, Respondent No.1 was bound to observe the
guidelines/terms and conditions incorporated in the
Government Resolution dated 24th January, 2014. The
Government Resolution dated 12.9.2014 issued in utter
disregard of and without observing the stipulations
in the Government Resolution dated 24th January, 2014,
thus, cannot be sustained.
26) Shri Deshmukh, the learned Counsel appearing
for Respondent No.4, vehemently submitted that the
petitioners are estopped from raising any objection
either to the order dated 7.7.2012 whereby their
license has been cancelled, or order dated 12.9.2014
whereby petitioner No.2-school has been transferred
to Respondent No.4 and allowed to be shifted at
Bandgaon, in view of the resolution passed by the
petitioners in their meeting dated 18.7.2012,
consenting for the transfer of petitioner No.2-school
to Respondent No.4 and to shift the same in the
district of Sangli.
. Shri Deshmukh further submitted that it was
Shri Jaywant Hullaji Gaikwad, president of Respondent
No.1-trust, who had taken all positive steps for
transfer of petitioner No.2-school in favour of
Respondent No.4 and that was the reason that the
Government Resolution dated 12.9.2014 came to be
issued. The learned Counsel further submitted that
with some oblique motive and for some extraneous
reasons, Shri Gaikwad resiled from his earlier stand
and has come out with a case that the transfer of
petitioner No.2-school to Respondent No.4 is contrary
to the rules and regulations framed for transfer and
shifting of such school. The learned Counsel further
submitted that passing of the Resolution on 18.7.2012
by the petitioners thereby according their consent to
transfer the petitioner K.D.Sharma Vs. Steel
Authority of India Ltd., and OrNo.2-school to
respondent No.4, volumely indicates that they had
accepted the decision dated 7.7.2012 whereby the
license of petitioner No.2-school was cancelled.
27) The learned Counsel further submitted that
not initiating any action for a considerable long
period of more that 1½ years also indicates that the
petitioners had no objection for transfer of
petitioner no.2-school to respondent No.4. The
learned Counsel further submitted that Shri Gaikwad,
the president of petitioner No.1-trust, abruptly
changed his stand and preferred the appeal before the
Hon'ble Minister. The learned Counsel submitted that
since the petitioners, vide the resolution passed on
18.7.2012 have already consented for transfer of the
school, the Hon'ble Minister dismissed the appeal
filed by the petitioners.
28) The learned Counsel further submitted that
while obtaining the orders from this Court in Writ
Petition No.5473/2014, the petitioners have
suppressed the material fact that they had passed a
resolution on 18.7.2012, whereby a consent was
accorded to transfer of petitioner No.2-school to
Respondent No.4. The learned Counsel submitted that
had this fact been brought to the notice of the this
court, perhaps no order, as has been passed by the
Division Bench of this Court would have been passed.
The learned Counsel submitted that on this count
alone, the present petition needs to be rejected.
Placing reliance on the judgment of the Hon'ble Apex
Court in the case of K.D.Sharma Vs. Steel Authority
of India Ltd., and Ors. reported at (2008) 12 SCC
481, the learned Counsel submitted that the present
petitioners, who secured favourable order in the
earlier petition by suppressing material facts from
this court, are not entitled to claim any equitable
relief from this Court.
29) The learned Counsel has placed on record the
copy of the writ petition No.5473/2014 along with
documents annexed thereto. It is true that in the
memo of the petition, it is not mentioned that some
resolution was passed on 18.7.2012 and consent was
accorded for transfer of the petitioner No.2-school
in favour of respondent No.4. However, as has been
pointed out by the learned Counsel for the
petitioners, the petitioners had annexed with their
petition the copy of explanation dated 22nd January,
2014 submitted by them before the Hon'ble Minister,
which contains both the facts that of passing of the
earlier resolution dated 18.07.2012 and the
subsequent resolution dated 15.08.2013. As such, it
is difficult to accept the contention raised by the
respondent No.4 that, the petitioners have suppressed
the fact of passing of resolution by them, according
consent for transfer of petitioner No.2 school to
respondent No.4.
30) Further, we agree with the submission made
by the learned Counsel for the petitioners that the
main grievance raised in writ petition No.5473/2014
was that without giving any opportunity of hearing,
the Hon'ble Minister had passed the order dated
03.12.2013 and as such it was not that relevant and
necessary whether all earlier facts including that of
passing the resolution dated 18.07.2012 by the
petitioners, were mentioned in the petition or not.
Further, the argument advanced on behalf of the
respondent No.4 that, the Hon'ble Minister rightly
dismissed the appeal filed by petitioners since the
petitioners themselves had passed resolution thereby
according their consent to transfer the school, also
cannot be accepted, in view of the fact that, the
petitioners had subsequently passed the another
resolution in their meeting held on 15.08.2013 and
has thereby withdrawn the consent accorded by them
vide resolution passed in the meeting dated
18.07.2012 and this fact was very well brought to the
notice of the Hon'ble Minister by the petitioners.
It is transpired from the affidavit in reply
presented on behalf of respondent Nos. 1 to 3 that,
the proposal was forwarded by respondent No.3 to
respondent No.1 on 20.09.2013 recommending the
transfer of petitioner No.2 school to respondent
No.4. A copy of the said report, however, has not
been filed on record either by the petitioners or by
the respondents. In the affidavit in reply filed on
behalf of respondent Nos. 1 to 3, nothing has been
disclosed as to what were the considerations for
allowing the shifting of petitioner No.2 school from
Jalkot, Dist. Latur to Bandgaon, Dist. Sangli, having
distance of about 350 Kms. Respondent Nos. 1 to 3
have also not brought on record as to what procedure
was followed for transfer and shifting of the
petitioner No.2 school after its license in the name
of the petitioner No.1 was cancelled, vide order
dated 07.07.2012.
31)
As provided under section 26 of the Persons
with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 (for short
the said Act), it is mandatory for the Government and
the local authorities to provide free education to
the children with disabilities. Section 26 reads as
under;
"26. Appropriate Governments and local
authorities to provide children with
disabilities, free education, etc. - The
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.
As provided in sub clause (c) of Section 26
reproduced herein above, the special schools are to
be set up in such a manner that, children with
disabilities living in any part of the country, can
have access to such schools. In view of the
provision as above if at all any such special school
is to be transferred and shifted whatsoever may be
the reason, it is to be necessarily shifted at such a
place to which the children with disabilities
admitted in the said school to be transferred, can
have easily access. It is not stated either in the
Government Resolution dated 12.09.2014 or in the
affidavit in reply filed by the respondent Nos. 1 to
3 whether any arrangement was made for the further
education of the children which were taking education
in the petitioner No.2 school. According to us,
while ordering the transfer and shifting of any such
school, in any eventuality, the prime consideration
should be to the interest and welfare of the children
with disabilities studying in such school. We regret
to state that, in the instant case, neither the
petitioners, nor the respondents have disclosed as to
what has happened to the students who were studying
in the petitioner No.2 school after its license has
been cancelled. Such students probably could not
have gone to District Sangli where the said school is
directed to be shifted. It is further beyond pale of
our understanding as to how any such school, the
license to which was granted admittedly after having
taken into consideration the need of the special
children in the said area can be shifted out of the
said area and that too at the distance of 350 Kms.
The question arises, was it not possible for the
respondents to explore the possibility whether any
other organization can run such school, if not at the
same place, in the nearby place within the distance
of few kilo meters so that the special children,
taking education in the subject school can
conveniently continue their education in the same
school at the transferred place. It appears
unconscionable that, any such school can be permitted
to be shifted at the distance of 350 Kms. Respondent
Nos. 1 to 3 have not disclosed whether they had
invited applications from the eligible
organizations/institutions to run the petitioner
No.2-school, which was fully granted and if yes, how
many applications/offers were received to them.
Further, nothing has been brought on record by
respondent Nos. 1 to 3 as to what were the special
circumstances that the petitioner No.2 School has
been transferred to respondent No.4 and is allowed to
be shifted from Jalkot, Dist. Latur to Kumathe. Dist.
Sangli at the distance of 350 Kms. It is quite
evident that, before taking the decision of transfer
and shifting of petitioner No.2 school from Jalkot,
Dist. Latur to Kumathe, Dist. Sangli, the respondents
had not taken into consideration the interest of the
students taking education in the petitioner No.2
school.
32) Respondent No.4 has filed on record the
report submitted by the Social Welfare Officer, Zilla
Parishad, Latur on 21 points pertaining to the
transfer and shifting of petitioner No.2-school.
Vide point No.4 thereof the Social Welfare Officer
was required to inform as to what arrangement has
been made for further education of the students
taking education in petitioner No.2-school. The
information provided by the Social Welfare officer in
response to the said query is annoying. The Social
Welfare Officer has informed that the students have
been given in a custody of their parents along with
Transfer Certificate. However, no further
information has been made available as to what
ultimately happened to the said students; whether
they have been admitted to any other school or are
deprived from taking any further education. We have
purposely mentioned all the above facts to indicate
as to how the aspect, which in fact requires to be
prominently considered,, is lost sight of while
allowing the transfer and shifting of such school.
33) It is surprising that the Government
Resolution dated 24th January, 2015, which relates to
transfer and shifting of the non-functioning and or
closed down schools for special children, does not
prescribe any restriction pertaining to the area or
distance beyond which shifting of such school shall
not be permitted.
34) In the case of Jijau Shikshan Sanstha
Nagpur, Vs. State of Maharashtra and Ors., reported
at 2011 (4) Mah.L.J. 352, the Division Bench of this
Court had laid down the following modalities to be
followed in the matter of change of management of the
Secondary Schools, -
"(1) A public notice shall be
published and displayed at appropriate
and prominent newspapers in the
concerned area at the cost of
transferor or transferee society about
the proposed change in the management
of a grant-in-aid school and objections
should be invited from all the
interested persons including students,
their parents, teaching and non-
teaching staff, the citizens of the
area and the other school, if it is
going to adversely affect, may be
because of transfer of one area to
another.
(2) Enquiry shall be held about the
reasons etc. for proposed change of
management. The enquiry shall include
independent report from Education
Officer and Vigilance Section, to find
out bona fides behind the proposal.
(3) All objections shall be heard by
the Deputy Director of Education who
shall then pass a reasoned order which
fact shall be made known by
publication/display as stated in (1)
above.
(4) Actual transfer/change of
management shall not be allowed to take
place for a period of thirty days from
the date of publication about fact of
passing of order and it should be
preferably from the commencement of the
new academic session subject to prior
permission of the Charity Commissioner
under section 36 of the BPT Act."
35) It is further significant to note that in
pursuance of the directions, as above, given by the
Division Bench of this Court, vide Government
Resolution dated 17th February, 2012, the State
Government has amended Rules 12.1 to 12.5 of the
Secondary School Code. In Rule 12.6, which has been
inserted vide the aforesaid Government Resolution,
the procedure to be followed in change of management
has been provided. Clause (a) thereof is more
relevant, which reads thus, -
"12-6 'kkGk O;oLFkkiu cnykckcr [kkyhy dk;Zi/nrhpk voyac
djkok-
¼v½ /kekZnk; vk;qDr o foHkkxh; f'k{k.k milapkydkadMqu
iqoZijokuxh feGkY;kuarj O;oLFkkiu cny izfØ;sr lekfo"V gks.kkÚ;k
nksUgh 'kS{kf.kd laLFkkuh ¼O;oLFkkiu cnykl bPNqd 'kS{kf.kd laLFkk o
O;oLFkkiu rkC;kr ?ks.kkjh 'kS{kf.kd laLFkk½ Lo[kpkZus lacaf/kr ftYg;karhy
lokZf/kd [kikP;k nksu ejkBh orZekui=kr o jkT; Lrjkoj [ki vl.kkÚ;k
,dk ejkBh orZekui=kr mDr O;oLFkkiu cnykckcr tkghj izfl/nh
n;koh- 'kkGk ifjljkrhy ukxjhd] lacaf/kr 'kkGsps fo|kFkhZ o R;kaps
ikyd] lacaf/kr 'kkGsps f'k{[email protected]'k{kdsrj deZpkjh] ifjljkrhy brj
'kkGk ;kauh mDr O;oLFkkiu cnykckcr vkiY;k gjdrh o lqpuk lacaf/kr
foHkkxh; f'k{k.k milapkyd dk;kZy;kdMs orZekui=kr tkghj izfl/n
>kY;kP;k fnukadkiklqu ia/kjk fnolkaps vkr iksgprhy v'kk fjrhus
ikBokO;kr-"
36) We have come across one more resolution
dated 31st July, 2013 issued by the School Education
and Sports Department of the State Government in
respect of shifting of the primary, secondary and
higher secondary schools from one place to another.
Clause 2 of the said Resolution prescribes the
compliance of the following aspects before according
permission to shift the school, -
"(2) LFkykarjkph ijokuxh ns.;kiqohZ [kkyhy ckchaph iqrZrk gks.ks
vko';d jkghy -
¼i½ vioknkRed ifjfLFkrhckcr lacaf/kr l{ke vf/kdkjh ;kapk
nk[kyk-
¼ii½ T;k fBdk.kh 'kkGk LFkykarfjr djko;kph vkgs rh tkxk iqohZP;k
tkxsiklqu izkFkfed] mPp izkFkfed] ek/;fed o mPp ek/;fed 'kkGsdfjrk
vuqØes 1] 3] 5 o 10 fd-eh- is{kk tkLr varjkoj vlq u;s-
¼iii½ T;k uohu fBdk.kh 'kkGk LFkykarfjr djko;kph vkgs rsFks bekjr
¼Lor%ph fdaok HkkM;kph½ o bZrj loZ ckch ckydkapk eksQr o lDrhP;k
f'k{k.kkpk gDd vf/kfu;e 2009 P;k fudÔkizek.ks vl.ks vko';d jkghy-
¼iv½ 'kkGsrhy f'k{kd&f'k{kdsrj deZpkÚ;kauk ¼dk;e o rkRiqjR;k
lsosrhy½ LFkykarfjr fBdk.kh lkekoqu ?;kos ykxsy- rlsp f'k{kd&f'k{kdsrj
deZpkÚ;kaph dks.krhgh inok< ekU; dsyh tk.kkj ukgh o deZpkjh vfrfjDr
BjY;kl R;kauk laj{k.k vl.kkj ukgh-
¼v½ 'kkGsl iVla[;[email protected] gtsjh ;kae/;s dks.krhgh lqV fnyh
tk.kkj ukgh-
¼vi½ LFkykarjkph ijokuxh fnY;kuarj R;kckcrP;k vVh o 'krhZ laLFkk
iq.kZ djhr ulY;kps dsaOgkgh fun'kZukl vkY;kl fdaok pqdhph ekfgrh
lknj dsY;kps fu"iUu >kY;kl LFkykarjkps vkns'k jn~n dj.;kr ;srhy-
¼vii½ LFkykarjkiqohZps fBdk.kh fo|kF;kZaph f'k{k.kkph lks; >kyh vkgs
;kph [kk=h dj.ks vko';d vkgs-
¼viii½vuqnkfur 'kkGk LFkykarfjr gksr vlY;kl LFkykarjkiqohZP;k
fBdk.kh vU; vuqnkfur 'kkGk miyc/k vlkoh-
37) The guidelines, as aforesaid, in respect of
the transfer and shifting of the primary and
secondary schools can be followed in the matters of
transfer and shifting of the schools established
under the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full
Participation) Act, 1995. We, therefore, direct that
the modalities as are incorporated in the Government
Resolutions dated 31st July, 2013 and 17th February,
2012, referred to herein above, shall also be
followed in the cases of transfer and shifting of the
schools for special children established under the
provisions of the Act of 1995.
38) For the reasons recorded herein above,
issuance of the Government Resolution dated 12 th
September, 2014, according to us, was the arbitrary
exercise of powers by the respondent Nos. 1 to 3. The
respondent Nos. 1 to 3 have totally overlooked the
interest of the students, who were studying in
petitioner No.2-school at Jalkot and the mental agony
which would be suffered by the parents of the said
children because of the shifting of the school at the
distance of about 350 kms. The State Government
should not have taken the impugned decision of
permitting transfer and shifting of petitioner No.2-
school at the distance of around 350 kms from the
existing place. In the circumstances, in no case,
the decision of allowing the transfer and shifting of
petitioner No.2-school at Kumathe District Sangli,
vide Government Resolution dated 12th September, 2014
in favour of respondent No.4 can be sustained.
39) The next question arises as to what will be
the fate of the students with disabilities, who have
taken admission in the school, allegedly started by
Respondent No.4 at village Kumathe Tq. Tasgaon
District Sangli. As has been contended by Respondent
No.4, 32 students have been admitted in the said
school. It is the further contention of Respondent
No.4 that almost all the employees of petitioner
No.2-school have been absorbed by them and they have
already resumed at the transferred place. As is
revealing from the documents filed on record by
Respondent No.4, the school has been started at
village Kumathe Tq. Tasgaon District Sangli w.e.f.
15th June, 2015. It is the further contention of
Respondent No.4 that at the relevant time, Respondent
No.4 was not aware of the order passed by this Court
in the present matter on 25th September, 2014,
granting status quo with regard to the transfer of
the petitioner No.2-school.
40) We do not wish to enter into the controversy
whether at the relevant time, Respondent No.4 was
aware or not about the status quo order passed by
this Court on 25th September, 2014. However,
Respondent Nos. 1 to 3 had certainly become aware of
the said order of status quo since the learned AGP
has waived notices for the said respondents on 25 th
September, 2014 itself and the order of status quo
was passed by the Court in his presence.
41) It was incumbent on the part of Respondent
Nos. 1 to 3 and more particularly Respondent No.3 to
inform Respondent No.4 about the order passed by this
Court on 25th September, 2014 whereby this Court had
directed the respondents to maintain status quo with
regard to the transfer of the subject school. In
view of the order so passed, Respondent No.3 ought to
have informed Respondent No.4 not to proceed further
towards the establishment of the school at village
Kumathe and ought to have asked Respondent No.4 to
wait till decision of the present petition or any
further order by this Court revoking the order of
status quo or otherwise. No concrete material is
placed on record by Respondent No.4 as to when and
how it got knowledge of the order of status quo
passed by this Court on 25th September, 2014.
Respondent No.4 has also not disclosed whether the
steps taken by it towards starting of the school at
village Kumathe were with the concurrence and
knowledge of Respondent No.3 and/or his subordinate
officers at District Sangli.
42) In the affidavit in reply filed on behalf of
Respondent Nos. 1 to 3 also, nothing is mentioned
whether they had informed Respondent No.4 about the
order passed by this Court on 25th September, 2014
directing status quo to be maintained with regard to
the transfer of the subject school. Since the order
of stutus quo was passed by this court within
thirteen days of issuance of the Government
Resolution dated 12.9.2014, had Respondent No.3
informed Respondent No.4 that this Court had directed
to maintain status quo as regards the transfer of the
subject school, probably Respondent No.4 would not
have proceeded further. However, if the facts would
be otherwise, it can only be said that Respondent
No.4 has incurred the risk at its own in setting the
school at the transferred school at the transferred
place despite the order of status quo. Of course,
this is a matter in between Respondent No.4 and
Respondent Nos. 1 to 3 and Respondent No.4 would be
at liberty to get redressed its grievance, if any, by
resorting to appropriate remedy. However, on this
ground, the Government Resolution dated 12th
September, 2014 cannot be legalized.
43) For the reasons recorded as above, we are
inclined to allow the present petition. Hence,
following order, -
ORDER
i) The order dated 7th July, 2012 passed by
Respondent No.3; the order dated 6th September, 2014
passed by Respondent No.2 and Government Resolution
dated 12th September, 2014, are quashed and set aside;
ii)
Respondent Nos. 1 to 3 are directed to allow
petitioner No.1-trust to re-start petitioner No.2-
school at its original place, i.e. village Jalkot Tq.
Jalkot, District Latur from the academic year 2016-
2017 and renew the Certificate of Registration under
the provisions of the Act of 1995 subject to the
necessary compliances to be made by petitioner No.1.
iii) Petitioner No.1 shall allow all of its
previous employees, who may be willing, to resume the
services with petitioner No.2-school.
iv) Rule is made absolute in above terms.
sd/- sd/-
(P.R.BORA) (S.S.SHINDE)
JUDGE JUDGE
Later on :
44) At this stage, the learned counsel appearing
for Respondent No.4 has prayed for staying the effect
of the order passed by this Court for next eight
weeks. The learned counsel submitted that Respondent
No.4 has already started the school at the
transferred place and has also admitted 32 children
with disability in the said school.
45 We are, however, not inclined to accept the
request so made for the reason that after issuance of
the Government Resolution dated 12.09.2014, on the
basis of which, Respondent No.4 is claiming to have
started the school at village Kumathe, Dist. Sangli,
was immediately challenged by the present petitioner
by filing the present Writ Petition and on 25.09.2014
i.e. within 13 days of issuance of the aforesaid
Government Resolution, the status-quo was directed to
be maintained by this Court with regard to the
transfer of the subject school. Though it is the
contention of the learned Counsel appearing for
Respondent No.4 that, Respondent No.4 was not aware
of the order of status-quo passed by this Court on
25.09.2014, Respondent Nos.1 to 3 had certainly
become aware of the order of status-quo, since the
same was passed in their presence. As we have
discussed in the body of the judgment, nothing has
been further brought on record by Respondent No.4
whether the further acts undertaken by Respondent
No.4, pertaining to creation of infrastructure for
the school and making admissions of the children with
disability in the said school, were with concurrence
of or under intimation to Respondent Nos.1 to 3 -
Authorities. Though Respondent No.4 is claiming to
have started the school in June, 2015, admittedly the
Certificate of Registration has not been issued in
his favour.
For the reasons stated above, the request
for staying the effect of the judgment and order
passed by this Court today for eight weeks stands
rejected.
Sd/- sd/-
(P.R.BORA) (S.S.SHINDE)
JUDGE JUDGE
bdv/
fldr 11.1.16..
