Bombay High Court
Mirai Bahuddeshiya Vikas Sanstha vs The State Of Mah And Ors on 4 May, 2016
Bench: S.S. Shinde
(1) W.P. No. 9970 of 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 9970 of 2012
District : Jalgaon
Mirai Bahuddeshiya Vikas Sanstha,
Through its Chairman,
Sharad Murlidhar Netkar,
Age : 37 years,
Occupation : Legal Practitioner,
R/o. Prabhudha Colony,
Station Road, Amalner,
District : Jalgaon. ig .. Petitioner.
versus
1. The State of Maharashtra,
Through its Principal Secretary,
Tribal Development Department,
Mantralaya, Mumbai - 400 032.
2. The Commissioner,
Tribal Development,
Agra Road, Nashik.
3. The Additional Commissioner,
Tribal Development,
Agra Road, Nashik.
4. The Project Officer,
Integrated Tribal Development
Project, Yawal, Dist. : Jalgaon.
5. Gourav Bahuddeshiya Shikshan
Sanstha, Varora,
Taluka : Varora,
District : Chandrapur,
Through its Secretary. .. Respondents.
...........
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(2) W.P. No. 9970 of 2012
Mr. S.B. Talekar, Advocate, for the petitioner.
Mr. S.G. Karlekar, Asst. Government Pleader, for
respondent nos.1 to 4.
Mr. N.D. Khamborkar, Advocate, for respondent no.5.
...........
CORAM : S.S. SHINDE &
SANGITRAO S.PATIL, JJ.
Date of reserving
the judgment : 15th April 2016.
ig Date of pronouncing
the judgment : 4th May 2016.
JUDGMENT (Per Sangitrao S. Patil, J.):
Heard. Rule. Respondents waive service. By
consent of the parties, Rule is made returnable
forthwith and the petition is heard finally.
2. The petitioner (hereinafter referred to as
"Transferee Institution") has challenged the vires of
the Government Resolution bearing No.
A.Aa.Sha.2009/Pra.Kra. 126/Ka.11, issued by the
Department of Tribal Development, Government of
Maharashtra, Mantralaya, Mumbai, on 14.09.2012, where
under the Ashram School which was transferred to the
(3) W.P. No. 9970 of 2012
petitioner has been ordered to be re-transferred to
respondent no.5 (hereinafter referred to as "Original
Institution") and the recognition of the Ashram School
granted in favour of the Transferee Institution vide
Government Resolution dated 04.03.2010 came to be
withdrawn.
3. There is no dispute that the Ashram School
run by the Original Institution at village Kawadshi
(Bor). Taluka Varora, District Chandrapur, came to be
de-recognized by respondent no.2 as per the order
dated 27.02.2009, on the allegations that there was
mismanagement of the Ashram School, there was no
sufficient strength of the students, no adequate
infrastructure was available, etc. The Original
Institution preferred an appeal under Rule 2.19 of
the Ashram School Code, against the order dated
27.02.2009 to the Secretary of the Tribal Development
Department. Pursuant to the hearing of that appeal
held on 12.05.2009, the Original Institution was
given an opportunity to remove the deficiencies by
September 2009, with a view to save the tribal
(4) W.P. No. 9970 of 2012
students from suffering the loss in their academic
career as per the order dated 19.05.2009. The
Original Institution did not remove the deficiencies
within the given time. Therefore, respondent no.2
sent a letter dated 25.09.2009 and recommended that
the Ashram School run by the Original Institution
should be de-recognized permanently. Accordingly,
the Ashram School run by the Original Institution
came to be de-recognized and the Ashram School so de-
recognized was ordered to be transferred to the
Transferee Institution vide Government Resolution
dated 04.03.2010.
4. The Government Resolution dated 04.03.2010
came to be stayed by respondent no.1 as per the order
dated 28.05.2010. The said stay order was
communicated to the Transferee Institution vide
letter dated 01.06.2010. The President of the
Transferee Institution made representations against
the stay order before the Cabinet Minister as well as
the Minister of State, Tribal Development Department,
Government of Maharashtra, but it was of no avail.
(5) W.P. No. 9970 of 2012
Ultimately, the Transferee Institution received
Government Resolution dated 14.09.2012 issued by
respondent no.1 whereunder the Government Resolution
dated 04.03.2010 came to be cancelled and the Ashram
School was ordered to be re-transferred to the
Original Institution for being run again subject to
certain terms and conditions. It is this Resolution
which has been challenged by the Transferee
Institution by this Writ Petition.
5. The learned Counsel for the Transferee
Institution submits that the stay order dated
28.05.2010 as well as the final order as contained in
the Government Resolution dated 14.09.2012 have been
passed behind the back of the Transferee Institution,
without extending an opportunity of hearing. He
submits that once the Ashram School was transferred
to the Transferee Institution, as per the provisions
contained in the Ashram School Code, the said school
could not have been de-recognized without hearing the
Transferee Institution. He submits that the decision
to grant ex-parte stay on 28.05.2010 and the decision
(6) W.P. No. 9970 of 2012
to de-recognize the Ashram School allotted to the
Transferee Institution and re-transferring it to
Original Institution as per the Government Resolution
dated 14.09.2012 are arbitrary, colourable, illegal
and unconstitutional.
6. The learned Counsel for the Transferee
Institution further submits that two more Ashram
Schools were transferred by respondent no.1 from
Kinala (Borli), Taluka : Umred, District : Nagpur to
Sane Nagar, Amalner District : Jalgaon and from
Devgaon, Taluka : Chandur (Railway), District
:Amravati to Patharkheda, Taluka : Erandol,
District : Jalgaon as per the Government Resolutions
dated 04.03.2010. However, the said Ashram Schools
have not been de-recognized by respondent no.1. This
shows that the de-recognition of Ashram School of the
Transferee Institution has been done with mala fide
intention causing discrimination. He submits that as
per Rule 2.23 of the Ashram School Code, once any
Ashram School is de-recognized, the Institution,
which was previously running that school, cannot be
(7) W.P. No. 9970 of 2012
considered again for grant of approval to run the
said Ashram School. Such a school, subject to certain
conditions, is liable to transferred to other self-
serving instutiton or the Government itself may run
the said school. According to him, in view of this
provision, the Ashram School that was transferred to
the Transferee Institution after being de-recognized
due to the deficiencies noticed when it was being run
by the Original Institution, was not liable to be
again allotted to the Original Institution.
7. The learned Counsel for the transferee
school further submits that after transfer of the
Ashram School from the Original Institution to the
Transferee Institution, the Transferee Institution
invested a huge amount for the building and other
infrastructure for running the same. The Transferee
Institution was ready to absorb the teaching and non-
teaching staff of the Original Institution. It was
further ready to get the students of the said school
migrated to village Bilkheda, Taluka : Dharangaon,
District : Jalgaon. The Transferee Institution had
(8) W.P. No. 9970 of 2012
got sufficient number of students and they were being
given all the facilities and proper education in the
Ashram School run by the Transferee Institution.
However, respondent no.1, after receiving a letter
from Dr.Namdeorao Usendi, an M.L.A. from Gadchiroli,
without hearing the Transferee Institution, abruptly
and highhandedly issued Government Resolution dated
14.09.2012 directing transfer the Ashram School from
the Transferee Institution to the Original
Institution by cancelling the Government Resolution
dated 04.03.2010.
8. Relying on the judgment in the case of
Kalabharati Advertising Vs. Hemant Vimalnath Narichania,
(2010) 9 SCC 437, the learned Counsel appearing for
the Transferee Institution submits that the act of
respondent no.1 in taking review of its earlier order
of de-recognizing Ashram School from the Original
Institution is without any express statutory power.
Therefore, the impugned Government Resolution dated
14.09.2012 is liable to be quashed and set aside.
(9) W.P. No. 9970 of 2012
9. Respondents 1 to 4 filed a common affidavit-
in-reply through one Ashok s/o. Daulat Mali,
Assistant Project Officer, Education, Integrated
Tribal Development Project, Yawal, District : Jalgaon
and denied the claims of the Transferee Institution.
It is stated that the Ashram School that was run by
the Transferee Institution has again been by
respondent no.1 to the Original Institution.
Therefore, there is no question of restoration of the
said Ashram School to the Transferee Institution. It
is stated that the Transferee Institution has filed
this Writ Petition with mala fide intention to grab
money from respondent no.1 in the form of grants.
The Ashram School was transferred to the Transferee
Institution on certain conditions. One of the
conditions was to absorb the staff of the closed
Ashram School. However, when the staff members or
Teachers of the closed school attended village
Bilkheda for joining the Ashram School, they were not
allowed to join by the Transferee Institution. As
such, the Transferee Institution committed breach of
the condition of the Government Resolution dated
(10) W.P. No. 9970 of 2012
04.03.2010. It is further stated that there were
many deficiencies in the Ashram School run by the
Transferee Institution. Sufficient number of students
were not present there. Necessary infrastructure was
not available. The said Ashram School was not
included in the Master Plan. The Ashram School run
by the Transferee Institution was inspected by
respondent no.4 wherein all the deficiencies noticed
by him were mentioned.
10. It is further stated in the affidavit-in-
reply filed on behalf of respondent nos.1 to 4, that
the Original Institution made representation through
an M.L.A. of Gadchiroli Constituency whereon the then
Chief Minister granted stay to the Resolution dated
04.03.2010 transferring the Ashram School to the
Transferee Institution and directed to place the
matter before him. Accordingly, respondent no.2 sent
the report in respect of the Ashram School run by the
Original Institution to the Chief Minister wherein it
was mentioned that the Original Institution had
complied with all the requirements pertaining to the
(11) W.P. No. 9970 of 2012
infrastructure for running the Ashram School.
Considering that report, the Chief Minister ordered
to cancel the Government Resolution dated 04.03.2010
and directed to restore the Ashram School to its
original place for being run by the Original
Institution vide Government Resolution dated
14.09.2012. The recognition given to the Transferee
Institution to run the said Ashram School was
cancelled under the same Government Resolution.
11. The learned Asst. Government Pleader
appearing for the State relying on the affidavit-in-
reply of respondent nos.1 to 4 submits that the
Ashram School has been rightly de-recognized from the
Transferee Institution and was rightly ordered to be
re-transferred to the Original Institution. He denies
that the stay order passed by the Chief Minister on
28.05.2010 as well as the impugned Government
Resolution dated 14.09.2012 are arbitrary, illegal,
unconstitutional or colourable. He supports the said
Government Resolution and prays that the Writ
Petition may be dismissed.
(12) W.P. No. 9970 of 2012
12. The learned Counsel appearing for respondent
no.5 did not file any reply in writing. Relying on
the judgment of this Court in the case of Smt. Manisha
Bhimraj Patil & others Vs. The State of Maharashtra &
others, 2014(1) ALL MR 6, wherein it is held that a de-
recognized Ashram School at one place cannot be
revived at other place, he submits that the de-
recognized Ashram School of the Original Institution
was not legally transferable to the Transferee
Institution. According to him, the Transferee
Institution has no right to file this petition. He
further states that since the impugned Government
Resolution has been passed at Mumbai, this Court has
no jurisdiction to entertain the present Writ
Petition.
13. Undisputedly, the Ashram School subject
matter of this Writ Petition is governed by the
Ashram School Code published by the Secretary, Tribal
Development Department, State of Maharashtra, Mumbai,
which is in force since the year 2006-07. As per
(13) W.P. No. 9970 of 2012
Rule 2.23 of the Ashram School Code, a de-recognized
school can be transferred to any other self-serving
Institution or the Government itself may run it as
the Government Ashram School. As seen from the
Government Resolution dated 04.03.2010 and the above
referred undisputed factual position, because of
certain deficiencies on the part of the Original
Institution in running the Ashram School properly,
the said Ashram School was de-recognized by
respondent no.1 on the report of respondent no.2 and
subsequently was transferred to the Transferee
Institution. This act of transfer seems to be in
consonance with Rule 2.23 of the Ashram School Code.
It follows that the recognition to run the said
Ashram School was granted in favour of the Transferee
School as per the Government Resolution dated
04.03.2010. Therefore, if the said Ashram School was
to be de-recognized for any reasons whatsoever, it
was necessary for respondent no.2 to follow the
provisions of Rule 2.16 of the Ashram School Code.
As per the said Rule, when the recognition of any
Ashram School is proposed to be cancelled, the
(14) W.P. No. 9970 of 2012
Commission should give full opportunity to the
Institution running such school to furnish
explanation. After giving such an opportunity, the
concerned Institution should be informed the
deficiencies in running the school and should be
called upon to explain within the given time as to
why the recognition of the Ashram School should not
be withdrawn. As per Rule 2.17, if the Institution
shows readiness to remove the deficiencies, the
Commissioner should extend it a reasonable time for
removal of the deficiencies. If the Commissioner is
satisfied from the response of the Institution, then
he may continue recognition of the Ashram School
subject to certain conditions and instructions. If
no positive response is received from the
Institution, the Ashram School can be de-recognized.
14. As per Rule 2.19 of the Ashram School Code,
if any Ashram School is de-recognized by the
Commissioner, the Institution running that Ashram
School previously would have right to file an appeal
to the Secretary of the Tribal Development Department
(15) W.P. No. 9970 of 2012
within 30 days. The Secretary, in turn, would extend
the Institution an opportunity of being heard and
then record his verdict on the appeal.
15. It is evident from the facts of the present
case, that before de-recognizing the Ashram School,
that was transferred to the Transferee Institution,
provisions of the Ashram School Code have not at all
been followed. Respondent no.2 did not extend the
Transferee Institution an opportunity of being heard,
an opportunity to remove deficiencies, if any, and
simply sent a report to respondent no.1. It is well
settled that while functioning as an Authority to
grant or take away any relief, the Authority
discharging the administrative function has to follow
the principles of natural justice. It was incumbent
on the part of respondent no.2 to strictly follow the
provisions of Rules 2.16 and 2.17, and extend the
Transferee Institution, an opportunity of hearing
before withdrawing recognition of the Ashram School
that was allotted to it as per the Government
Resolution dated 04.03.2010. The action taken by
(16) W.P. No. 9970 of 2012
respondent no.1 on the report of respondent no.2, de-
recognizing the Ashram School that was allotted to
the Transferee Institution is ex facie highhanded,
arbitrary and unconstitutional. The decision recorded
in the Government Resolution dated 14.09.2012 has
been taken by respondent no.1 behind the back of the
Transferee Institution by totally ignoring the
principles of natural justice. If that be so, the
impugned Government Resolution dated 14-09-2012, de-
recognizing the Ashram School allotted to the
Transferee Institution cannot be said to be legal,
constitutional and sustainable.
16. Here reference may be made to the provisions
of Rule 2.23 of the Ashram School Code, which, in
Marathi, runs, as under :-
"2.23. Lo;alsoh laLFksekQZr dk;kZfUor vlysY;k dks.kR;kgh 'kkGsph ekU;rk
,dnk dk<wu ?ksrY;kl R;k laLFkspk ekU;rslkBh iqUgk fopkj dsyk tk.kkj ukgh o
foHkkx v'kh 'kkGk] foHkkxkus fuf'pr dsysY;k 'krhZP;k v/khu jkgwu brj Loa;lsoh
LkaLFksus gLrkarfjr djrhy fdaok 'kklu rkC;kr ?ksowu 'kkldh; vJe'kkGk Eg.kwu
pkyosy-"
(17) W.P. No. 9970 of 2012
This provision prohibits allotment of the de-
recognised Ashram School again to the same
institution, which was running it prior to its de-
recognition. The learned Counsel for the Transferee
Institution submits that re-allotment of the Ashram
School to the Original Institution after it was de-
recognized and, that too, on the letter given by a
M.L.A. from Gadchiroli, in total breach of the
provisions of Rule 2.23 of the Code, is illegal and
unsustainable. We find substance in this contention.
The impugned Resolution does not at all refer to this
Rule. It is not explained as to under what provision
the de-recognised Ashram School has been re-allotted
to the Original Institution by circumventing the
provision contained in Rule 2.23 of the Ashram School
Code.
17. The learned Counsel appearing for the
Transferee Institution alleges that the Transferee
Institution has been subjected to discrimination on
the ground, that two other Ashram Schools which were
transferred from Kinala (Borli), Taluka : Umred,
(18) W.P. No. 9970 of 2012
District : Nagpur to Shantai Bahu-uddeshiya
Shaikshanik, Sanskrutik Va Krida Mandal, Sanenagar,
Amalner, District : Jalgaon and from Devgaon,
Taluka : Chandur (Railway), District :Amravati to
Mahila Bahu-uddeshiya Vikas Sevabhavi Sanstha,
Patharkheda, Taluka : Erandol, District : Jalgaon,
vide Resolutions dated 04.03.2010, have kept
undisturbed and only the Ashram School that was
allotted to the Transferee Institution has been de-
recognized and re-transferred to the Original
Institution. We are not inclined to entertain this
submission for reason that the above-referred two
Institutions are not the parties to this Writ
Petition. It is not possible to make any comment on
the legality and correctness of the action of the
Government to allow the said Institutions to run the
Ashram Schools which were transferred to them, in the
absence of the said Institutions as parties before
this Court and without hearing them on the factual
position in respect of their Ashram Schools.
18. The contention of the learned Asst.
(19) W.P. No. 9970 of 2012
Government Pleader that the Ashram School run by the
Transferee Institution was inspected by respondent
no.3 and a number of deficiencies were noticed during
that inspection, has no relevance for deciding this
Writ Petition. It is not the case of respondent
nos.1 to 4 that the Ashram School allotted to the
Transferee Institution has been de-recognized because
of the said deficiencies and that the Transferee
Institution had been given an opportunity of hearing
as contemplated in Rules 2.16 and 2.17 of the Ashram
School Code, before de-recognizing the school
allotted to it. Therefore, the above-said contention
needs to be simply ignored.
19. The learned Counsel appearing for respondent
no.5 submits that in view of the law laid down by
this Court in the case of Smt. Manisha Bhimraj Patil &
others (supra), the de-recognized Ashram School cannot
be allotted to any other Society and, therefore, the
Transferee Institution has no locus standi to file
this Writ Petition. As per the provisions of Rule
2.23 of the Ashram School Code, the Government has
(20) W.P. No. 9970 of 2012
powers to transfer the de-recognized school to some
other self-serving Institution or the Government
itself can run it as the Government Ashram School.
In the case of Smt. Manisha Bhimraj Patil & others
(supra), the provisions of Rule 2.23 were not under
consideration of the Court. Therefore, this judgment
would be of no help to respondent no.5 to contend
that the Ashram School subject matter of the present
Writ Petition was not liable to be transferred to the
Transferee Institution.
20. The learned Counsel for respondent no.5
further submits that this Court also has no
jurisdiction to decide the present petition since the
order of the de-recognition has been passed at Mumbai
and the Principal Seat of the High Court at Mumbai
would have jurisdiction to entertain and try this
Writ Petition. We are not inclined to accept this
contention since the Transferee Institution was
running the Ashram School at Bilkheda, Taluka :
Amalner, District : Jalgaon from where it is
de-recognized, the cause of action for filing the
(21) W.P. No. 9970 of 2012
Writ Petition can be said to have arisen within the
local limits of jurisdiction of this Court.
Therefore, this Court has jurisdiction to entertain
the present Writ Petition.
21. We are of the considered view that the
Transferee Institution should have been given an
opportunity of hearing by respondent no.2 in view of
the provisions of Rules 2.16 and 2.17 of the Ashram
School Code. Passing of the Government Resolution
dated 14.09.2015 without giving an opportunity of
being heard to the petitioner, would be arbitrary,
unreasonable and unconstitutional. Therefore, the
said Government Resolution is liable to be quashed
and set aside.
22. We are not oblivious of the fact that after
setting aside the Government Resolution dated
14.09.2015, the students and staff members of the
Original Institution are likely to face some
problems. However, since this mess has been created
by the respondent authorities, they are bound to take
(22) W.P. No. 9970 of 2012
care of those students and staff members and save
them from any kind of hardship, until respondent no.2
takes final decision in the matter after hearing the
petitioner. In order to decide the matter finally
and effectually, we are of the view that before
taking final decision in the matter, respondent no.2
should hear the Original Institution as well.
23.
following order :-
In the above circumstances, we pass the
1) Government Resolution dated 14.09.2012 is quashed
and set aside.
2) Respondent no.2 shall extend the petitioner (i.e.
Transferee Institution) and respondent no.5 (i.e.
Original Institution) necessary opportunity of
hearing before taking any decision about de-
recognising the Ashram School that was allotted to
the petitioner vide Government Resolution dated
04.03.2010, in view of Rules 2.16 and 2.17 of the
Ashram School Code.
(23) W.P. No. 9970 of 2012
3) Respondent no.2 shall complete the hearing and
record his decision within eight weeks from today.
4) Respondent no.2 shall take appropriate decision
considering the merits of the claims of the rival
Institutions, the provisions of Ashram School Code,
the relevant circulars/resolutions, the Government
policy, convenience/inconvenience of the Institution,
students, staff members and all the relevant factors.
5) We make it clear that we have not expressed any
opinion on the merits of the claims of the rival
Institutions.
24. With the above directions, Rule is made
absolute. The Writ Petition stands disposed of. No
costs.
(SANGITRAO S. PATIL) (S.S. SHINDE)
JUDGE JUDGE
puranik / WP9970.12
