Bombay High Court
Adarsh Bahuuddeshiya Mandal, ... vs The State Of Maharashtra Through ... on 21 July, 2017
Bench: V.A. Naik
2107WP714.15-Judgment 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 714 OF 2015
PETITIONER :- Adarsh Bahu Uddeshiya Mandal, through its
Secretary, Ambedkar Ward, Bhandara.
...VERSUS...
RESPONDENTS :- 1] The State of Maharashtra, through its
Secretary, Department of Education and
Sports, Mantralaya, Mumbai.
2] Deputy Director of Education, Nagpur
Division, Nagpur.
3] Sindhu Bahu Uddeshiya Shikshan Sanstha,
through its Secretary, Jambhora, Tahsil :
Mohadi, District : Bhandara.
4] Magaswargiya Jankalyan Shikshan Sanstha,
Matora, through its Secretary, Matora,
District : Bhandara.
---------------------------------------------------------------------------------------------------
Mr. A.D.Mohgaonkar, counsel for the petitioner.
Mrs.Mrunal Naik, Asstt.Govt.Pleader for the respondent Nos.1 and 2.
None for the respondent No.3.
Mr. M.K.Kulkarni, counsel for the respondent No.4.
---------------------------------------------------------------------------------------------------
CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 21.07.2017
2107WP714.15-Judgment 2/6
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this writ petition, the petitioner challenges the order of
the Deputy Director of Education, Nagpur dated 26/12/2014 directing
the petitioner-mandal to hand over Mahesh Prathamik Shala, Jambhora
to the respondent No.4-Shikshan Sanstha as the respondent No.4 is
desirous of running the school.
2. Initially, the respondent No.4-society was running the
school which was named as Mahesh Prathamik Shala at Jambhora. The
respondent No.4 had decided to transfer the school in favour of the
respondent No.3 but the Deputy Director of Education rejected the
proposal for the transfer of the school to the respondent No.3. After the
application made by the respondent No.3 was rejected, the petitioner
made an application for transfer of the school to the petitioner-society.
The Deputy Director of Education passed an order dated 31/05/2010
permitting the transfer of the school to the petitioner-society. Being
aggrieved by the said order, the respondent No.3, which had sought the
transfer of the school to it, filed a writ petition challenging the order
dated 31/05/2010. The said writ petition was partly allowed and the
Deputy Director of Education was directed to pass a fresh order. After
the perusal of the record, the Deputy Director of Education came to a
conclusion that the transfer of the school to the petitioner-society was
2107WP714.15-Judgment 3/6
correct and the earlier order was maintained by him. The respondent
No.3 again filed a writ petition challenging the order of the Deputy
Director of Education, dated 09/05/2012 confirming the order dated
31/05/2010. This court was pleased to partly allow the said writ
petition and again remand the matter to the Deputy Director of
Education to decide the issue in regard to the correctness or otherwise
of the transfer of the school to the petitioner by the order dated
31/05/2010. In pursuance of the directions issued by this court, the
parties appeared before the Deputy Director of Education and the
Deputy Director of Education, vide order dated 26/12/2014, directed
the petitioner to hand over the school to the original management i.e.
the respondent No.4 as the respondent No.4 had expressed its desire to
run the school. The petitioner has challenged the said order in the
instant petition.
3. On hearing the learned counsel for the parties and on a
perusal of the impugned order, it appears that while passing the
impugned order, the Deputy Director of Education has not followed the
directions issued by this court while deciding Writ Petition No.5358 of
2012, by the judgment dated 09/07/2014. This court had directed the
Deputy Director of Education to re-decide the issue as to whether the
transfer could be effected in favour of the respondent No.3 or the
2107WP714.15-Judgment 4/6
petitioner. We had also observed in the judgment in the said writ
petition that it would be necessary for the Deputy Director of Education
to consider whether at the relevant time when the respondent No.4 had
decided to transfer the school in favour of the respondent No.3 or the
petitioner, it had the authority to do so, as it was argued before this
court in the previous writ petition that by the order passed by the Joint
Charity Commissioner in the year 1995, the respondent No.4 was
restrained from taking any policy decision and the transfer of the school
would be a policy decision. The said aspects have not been considered
by the Deputy Director of Education while deciding the matter after the
remand of the same to the authority. The Deputy Director of Education
has simply asked the petitioner to hand over the school to the
respondent No.4 as the respondent No.4 appeared to be willing to run
and administer the school. Before issuing the said direction against the
petitioner, it was necessary for the Deputy Director of Education to
consider whether a society that transfers a school to some other society
is entitled to again seek the transfer of the said school to itself. Neither
was this aspect considered nor were the other aspects, as to whether the
respondent No.4 was empowered to take a decision to transfer the
school in favour of the respondent No.3 or the petitioner despite the
directions of the Joint Charity Commissioner against the respondent
No.4, not to take any policy decision, were considered. It would be
2107WP714.15-Judgment 5/6
necessary for the Deputy Director of Education to firstly consider
whether it is permissible to re-transfer the school in favour of the
respondent No.4 as per the existing policy and/or whether the school
needs to be transferred in favour of the respondent No.3 or the
petitioner. Since the order of the Deputy Director of Education is sans
reasons and the order is based only on the desire expressed by the
respondent No.4 to run and administer the school, the same is liable to
be set aside. It would be necessary for the Deputy Director of Education
to re-decide the matter in accordance with law. We hope and trust that
at least this time the Deputy Director of Education will take a decision
in the matter in accordance with law as it appears that the matter is
remanded to the Deputy Director of Education on the third occasion for
passing an appropriate order.
4. In the aforesaid set of facts, the writ petition is disposed of
with a direction to the Deputy Director of Education to take a decision
whether the school could be transferred to the petitioner or the
respondent No.3 or whether it could be re-transferred to the respondent
No.4 as per the existing policy. The parties undertake to appear before
the Deputy Director of Education, on 08/08/2017 so that issuance of
notice to the parties could be dispensed with. The Deputy Director of
Education should ensure that the notice of the proceedings is served on
2107WP714.15-Judgment 6/6
the respondent No.3 as the respondent No.3 is not represented by a
counsel in this court, today. The Deputy Director of Education is
directed to take a decision in accordance with law within three months
from the date of appearance of the parties before the authority. Since
the petitioner is running the school from 31/05/2010, the petitioner
would continue to run the same till the Deputy Director of Education
decides the matter. Rule is made absolute in the aforesaid terms with
no order as to costs.
JUDGE JUDGE
KHUNTE
