Bombay High Court
Rehmaniya Urdu Education ... vs The State Of Maharashtra, Through ... on 8 March, 2016
Bench: B.P. Dharmadhikari
Wp4107.15 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.4107 OF 2015.
PETITIONER: Rehmaniya Urdu Education Society,
Manora, Tq.Manora, Distt.Washim
through its President, Wahidoddin
Waziroddin Sheikh, aged about 50
years, r/o Vasant nagar, Manora, Distt.
Washim.
: VERSUS :
RESPONDENTS:1) The State of Maharashtra,
through Principal Secretry, School
Education Department, Mantralaya,
Mumbai 0 32.
2) The Director of Education Secondary
and Higher Secondary, Maharashtra
State, Pune.
3) The Deputy Director of Education,
Amravati Division, Amravati.
4) The Education Officer (Secondary),
Zilal Parishad, Akola.
5) Shah Babu Education Society,
Patur Distt.Akola, through its Secretary
Patur, Tq.Patur, Distt.Akola.
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Mr.F.T.Mirza, Advocate for the petitioner.
Mrs.M.N.Hiwase, AGP for respondent nos.1 to 4.
Mr.A.A.Naik, Advocate for respondent no.5.
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Wp4107.15 2
CORAM
: B.P.DHARMADHIKARI AND
P.N.DESHMUKH, JJ.
DATED: MARCH 08, 2016.
ORAL JUDGMENT : (B.P.Dharmadhikari, J.)
1. Heard Advocate Mr.Mirza, learned counsel for the
petitioner, learned AGP for respondent nos.1 to 4 and
Mr.Akshay Naik, learned counsel for respondent no.5 by
issuing Rule and making it returnable forthwith.
2. The question to be looked into is whether change in
placement of petitioner and respondent no.5, respectively, on
4th of June, 2015 by the District Level Committed headed by
respondent no.3 for grant of a School is in accordance with
law or not. It is not in dispute that both, petitioner and
respondent no.5, applied and in first consideration on 3rd of
February, 2015, petitioner has been placed at Sr.No.1 while
respondent no.5 has been placed at Sr.No.2 for grant of an
unaided school at village Dhotra Shinde.
3. As required by the provisions of Section 6 of the
Maharashtra Self-Financed Schools (Establishment and
Regulation) Act, 2012 (hereinafter to referred as "2012 Act')
this provisional placement was published and objections were
invited. The objections received were scrutinized in the
meeting dated 12th of May, 2015 and the placement was
maintained. This placement is required to be sent to State
Government for further consideration and grant of school.
4. It is not in dispute that same Committee has on 4th
of June, 2015 published another list in which the placement
has been altered and respondent no.5 has been placed at
Sr.No.1 and petitioner has been shifted to Sr.No.2.
5. In this background, contention of Advocate
Mr.Mirza is, Committee headed by respondent no.1 could not
have undertaken impugned exercise as law does not permit.
In alternative, he adds that as after inviting suggestions and
objections, petitioner was placed at Sr.No.1, the displacement
from that number causes a prejudice and hence the
entitlement which ensued because of that placement could
not have been taken away without extending petitioner an
opportunity of hearing. He is relying upon the provisions of
Section 4 and Section 6 of the 2012 Act, mentioned supra to
substantiate his contention.
6.
Learned Assistant Government Pleader has relied
upon reply - affidavit to submit that an error which had
occurred inadvertently has been corrected and therefore the
placement got changed.
7. Advocate Shri Akshay Naik appearing for
respondent no.5 is relying on the provisions of Section 4 as
also Section 6 read with Schedule 'C' of 2012 Act to urge that
the petitioner ought to have been given 10 marks for the
financial condition and inadvertently it was given 8 marks.
When the list as finalized on 12th of September 2015 was
perused by respondent no.2 - Director of Education
(Secondary and Higher Secondary), he sent back the matter
to respondent no.3 for correcting that error and accordingly
that error has been corrected. He, therefore, contends that in
this situation as steps taken are in administrative exercise of
power and the factual error has been rectified, no legal right
of petitioner has been violated. Writ jurisdiction cannot be
exercised to restore an illegality.
8. It is not in dispute that the consideration of rival
claims has to be in terms of the Government Resolution dated
25th of November, 2013 and Schedule "D" therewith. It is
also not in dispute that both, petitioner and respondent no.5
were initially given 8 marks and after rectification, against
head "financial" stability petitioner has been given 10 marks.
9. At Sr.No.2 in Schedule 'D', an educational
institution having balance of Rs.5 lakhs in its bank account
and amount of Rs.10 lakhs or more in Fixed Deposit for a
period of five years is to be given 10 marks. If the balance in
bank account is Rs.5 lakhs and FDR for 5 years is in excess of
Rs.5 lakhs but up to Rs.9,99,000/-, 8 marks are to be
awarded. This is the only yardstick prescribed for examining
financial stability. Schedule 'D' also stipulates that cash in
balance in bank account cannot be withdrawn for a period of
one year.
10.
Financial condition of respondent no.5 has been
placed on record in rejoinder filed by petitioner in paragraph
no.5. The same is reproduced here for ready perusal.
Sr.No. Amount Duration.
1. Bank Balance Rs.6,00,211/- As on 04/10/2014.
2. FDR Rs.5 Lakhs. 4/10/2014 to 4/10/2019.
3. FDR Rs.2 Lakhs. 21/10/2013 to 21/10/2018
4. FDR Rs.5 Lakhs. 26/3/2012 to 26/3/2017.
5. FDR Rs.3 Lakhs. 26/3/2012 to 26/3/2017.
11. In this background when legal provisions are
looked into, Section 4(1) of 2012 Act, in its first part,
mandates that such applicant desirous of establishing a new
school has to deposit the amount as specified in Schedule 'C'
as Fixed Deposit in any Bank. Perusal of Schedule 'C' reveals
that where a new school from primary level to higher
Secondary level is proposed in village Panchayat area,
minimum amount to be deposited is Rs.5 lakhs. Later part
of Section 4(1) stipulates that before a Letter of Intent is
issued to successful applicant that amount is required to be
deposited jointly in the name of Management and concerned
District Education Officer (Secondary) by way of National
Saving Certificate or Fixed Deposit, etc.
12. The bank balance of respondent no.5 on 4 th of
October, 2014 pointed out in counter affidavit of petitioner is
Rs.6,00,211/-. Similarly, FDR of Rs.5 lakhs for period from
4th from October, 2014 to 4th of October, 2019 (five years)
has been pointed out. Other FDR of Rs.5 lakhs for period
from 26th of March, 2012 to 26th of March, 2017 has also
been pointed out. However, this period commences prior to
4th of October, 2014. There are two other FDRs in the sum
of Rs.2 lakhs and 3 lakhs, respectively. Those FDRs are also
for the period of five years but then there also the period
commences from a date prior to 4th of October, 2014.
13. Shri Mirza, learned counsel for the petitioner, in
this back ground has invited our attention to the Government
Resolution dated 19th of August, 2015 to urge that said G.R.
expressly clarifies that such FDR must be valid for a period of
three years from the date on which the proposal is moved by
respective institutions. This clarification has given after the
relevant date i.e. after 4th of October, 2014 and in Schedule
'D' in Government Resolution dated 25th of November, 2013
with reference to which eligibility of petitioner and
respondent no.5 has been judged, there was no such
stipulation. The only rider was, amount in bank account
could not have been withdrawn for a period of one year and
existing FDR of Rs.10 lacs for five years.
14. Thus, respondent no.5 in terms of Schedule 'D'
Clause 2, pointed out bank balance in excess of Rs.5 lakhs
and also four Fixed Deposit receipts where total amount of
Rs.15 Lakhs has been shown as invested for period of five
years. It appears that petitioner had raised an objection to
FDR vide receipt No.088565 for period 21 st of October, 2013
to 21st of October, 2018. That FDR is in the sum of Rs.2
lakhs and objection of petitioner was accepted by the
Committee. Hence, even if that FDR is discarded,
respondent no.5 has shown total FDRs, worth Rs.13 Lakhs.
All were/are for duration of 5 years.
15. In this situation, as Letter of Intent is yet to be
issued, it is clear that grant of 8 marks to respondent no.5
was an error which has been rightly corrected by the
Committee.
16. The correction is supported by records and
petitioner can challenge the same if the facts looked into by
Committee are incorrect. However, its insistence is on grant
of an opportunity of hearing. Petitioner has not pointed out
any prejudice caused to it in the matter. Its submission that
FDR obtained prior to 4th of October, 2014 might have been
used by respondent no.5 for some other school is without any
merit as it was not the objection raised before Committee.
Petitioner has not pleaded that any other unaided school has
been awarded to respondent no.5 after 2012 till 4th of
October, 2014.
17. The respondent nos.2 and 3 were only processing
the proposals received and have corrected an inadvertent
error which has occurred while compiling data. Accordingly,
they have placed respondent No.5 at Sr.No.1 and petitioner
at Sr.No.2. In this situation, we find no substance in the
challenge as raised in the petition. Petition is accordingly
dismissed. Rule discharged. No costs.
JUDGE JUDGE.
Chute
