Sevalal Education Society & Anr vs The State Of Mah. & Ors
2017 Latest Caselaw 5788 Bom

                                       1       WP 6639 of 2004

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                         Writ Petition No. 6639 of 2004


     1)      Shri. Sevalal Education Society,
             Hanegaon, Taluka Degloor,
             District Nanded,
             Through its Secretary
             Phulsing Goma Rathod.

     2)      Kai. Indirabai Deshmukh High School,
             Hanegaon, Taluka Degloor,
             District Nanded
             Through its Head Master,
             Shankar s/o Kishanrao Rathod,
             Age 44 years, Occupation: Service,
             R/o. Hanegaon, Taluka Degloor,
             District Nanded.                   .. Petitioners.

                      Versus

     1)      The State of Maharashtra
             Through Education Department,
             Mantralaya, Mumbai.

     2)      The Deputy Director of Education,
             Aurangabad Division, Aurangabad.

     3)      The Education Officer (Secondary)
             Zilla Parishad, Nanded.           .. Respondents.

                                      ----

     Shri. V.P. Golewar, Advocate, for petitioners.

     Shri. V.M. Kagne, Assistant Government Pleader, for
     respondents.

                                      ----




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                                            2        WP 6639 of 2004

                                Coram:         R.D. DHANUKA &
                                               SUNIL K. KOTWAL, JJ.

                                Date   :       9 AUGUST 2017


     ORAL JUDGMENT (Per R.D. Dhanuka, J.):



     1)               By this petition filed under Article 226 of the

Constitution of India, the petitioners seek a writ of

mandamus against the respondents to grant permission /

recognition in favour of the petitioners to run classes of

second division of 10th standard from academic year 1998-

99 on grant-in-aid basis and also seeks approval to the

appointment of Mr. D.R. Chavan on the post of Assistant

Teacher on clear and vacant post from academic year

1998-99 on grant basis.

2) It is the case of the petitioners that the

respondents have already sanctioned additional divisions

of 8th standard in the year 1996-97 and additional division

of 9th standard in the year 1997-98 as per natural growth,

and in view of the number of the students admitted in

accordance with the norms. It is the case of the

petitioners that some time in the month of July 1998, the

3 WP 6639 of 2004

petitioners made a proposal for sanction of additional

division of 10th standard to the respondents. Pursuant to

the said application, the concerned officer from Education

Department had visited the school of the petitioners and

submitted a report.

3) The learned counsel for the petitioners invited

our attention to some of the correspondence annexed to

the petition. He submitted that though there were total

79 students admitted in the petitioner No.2 school in the

academic year 1997-98 and 107 students in the year 1998-

99, in the letter addressed by the Education Officer to the

Deputy Director of Education the number of students for

the year 1998-99 in the 10 th Standard were erroneously

mentioned as 48. He invited our attention to the letter

dated 5 December 1998 addressed by the Education

Officer to the Deputy Director of Education correcting the

said mistake and placing on record that the number of

students admitted by the petitioner No.2 in the year

academic year 1998-99 were 107. He submitted that

though said mistake was corrected by the Education

Officer, the Deputy Director of Education did not decide

4 WP 6639 of 2004

the application for grant of permission to start second

division of 10th Standard.

4) It is submitted by the learned counsel for the

petitioners that for the first time on 10 October 2001 the

Education Officer informed the petitioners that permission

to start second division of 10 th standard was granted to

the petitioners, however, on no grant basis. The approval

to the appointment of D.R. Chavan was also granted,

however, without any grant. He submitted that since the

respondents had already granted permission to the

petitioners for stating second division for 9 th Standard, the

students who passed in 9th standard were to be promoted

to the 10 standard and in view of the natural growth,

respondents were bound to grant permission to start

second division of 10th Standard. He submitted that in

view of the permission granted for the year 1998-99

without grant belatedly the petitioners would not get any

grant-in-aid for the relevant years till the new G.R. dated

14 July 2000 came to be issued by the Government. He

submitted that the proposal and the representations made

by the petitioners were not decided by the respondents.

                                            5        WP 6639 of 2004

     5)               Mr.      Joshi,   learned   Assistant          Government

Pleader, on the other hand, submitted that the petitioners

had started the second division of 10 th Standard without

obtaining prior permission of the respondents. The

respondents thus considered the number of students only

of the first division of 10th standard while granting

permission to start second division while passing an order

dated 10 October 2001. He submitted that there is gross

delay on the part of the petitioners to file this petition. He

submitted that after the Government Resolution was

issued on 14 July 2000, the petitioners filed this petition

belatedly. He submitted that this Court thus cannot

interfere in this petition.

6) A perusal of the record indicates that the

petitioners had made proposal some time prior to

November 1998 followed by further representations but

there was no decision taken by the respondents on the

said application made by the petitioners. A perusal of the

record further indicates that in the first letter addressed

by the Education Officer to the Deputy Director of

Education, the number of students in the 10th standard

6 WP 6639 of 2004

admitted by the petitioners were not mentioned as

admitted by the petitioners. When this mistake was

pointed out by petitioners to the Education Officer, the

Education Officer by his letter dated 5 December 1998

addressed to the Deputy Director of Education corrected

the mistake and pointed out that 107 students were

admitted by the petitioners.

7) It is the case of the petitioners that the

concerned officer from the Education Department had

also visited the petitioner No.2 school and had verified the

number of students admitted by the petitioner No.2 in the

10th standard. The Education Officer has in his letter

dated 5 December 1998 addressed to the Deputy Director

of Education had accordingly made recommendation to

grant sanction in favour of the petitioners for second

division of 10 standard.

8) In so far as the stand taken by the respondents

in the affidavit-in-reply is concerned, in our view, the

proposal made by the petitioners followed by

representations was not decided at all by the respondents

7 WP 6639 of 2004

till 10 October 2001. That letter simpliciter grants

permission to start second division of 10 standard on no

grant basis. It is the case of the respondents that, the said

order dated 10 October 2001 was passed based on the

Government Resolution dated 14 July 2000. In our view

the reasons recorded in the affidavit-in-reply for the first

time which are not recorded in the order dated 10

October 2001 cannot be considered by this Court.

9) In these circumstances, we are of the view that,

since there was no decision taken by the respondents

based on the proposal made by the petitioners for

permission to start second division of 10 th standard, the

said proposal is required to be decided first. We,

therefore, pass the following order :-

(a) The Deputy Director of Education, Aurangabad

Region, Aurangabad is directed to consider the proposal

of the petitioners for starting second division of the 10 th

standard for the academic year 1998-99 on the basis of

Government Resolutions applicable to the petitioners on

the date of such proposal and the prevailing law on that

date.

                                             8           WP 6639 of 2004

     (b)                The Deputy Director of Education                     shall also

     decide         whether       the     petitioners        had        fulfilled        all

requirements including the requirement of number of

students required for the purpose of making such

proposal for second division of 10 th Standard and also the

effect of the petitioners already having commenced

second division of 10th standard without obtaining any

prior permission.

(c) The proposal of the petitioners shall be

considered within 8 weeks from the date of receipt of the

copy of this order. The Deputy Director of Education is

directed to consider the proposal after hearing the

petitioners through their authorized representative and

shall pass appropriate order in accordance with law after

following principles of natural justice. The decision shall

be communicated to the petitioners within one week from

the date of passing of such order.

(d) It is made clear that we have not expressed any

view as to whether the petitioners were eligible to make

such proposal for second division of 10 th standard or not

9 WP 6639 of 2004

and the said issue is kept open. Rule is made absolute in

the above terms. No order as to cost. The parties to act

on the authenticated copy of this order.

                    Sd/-                          Sd/-
     (SUNIL K. KOTWAL, J.)             (R.D. DHANUKA, J.)




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