Bombay High Court
Pushpabai Khobaji Barse And ... vs The State Of Maharashtra And ... on 6 June, 2017
Bench: S.V. Gangapurwala
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6851 OF 2013
1. Pushpabai w/o. Khobaji Barse,
Age : 30 years, Occ. Sarpanch,
2. Ganesh s/o. Anandrao Deshmukh,
Age : 29 years, Occ. Agri.,
3. Paraji s/o. Maroti Jabde,
Age : 31 years, Occ. Agri.,
4. Gangadhar s/o. Madhavrao Pogare,
Age : 30 years, Occ. Agri.,
5. Virbhadra s/o. Vithal Kotate
Age : 32 years, Occ. Agri.,
6. Sachin s/o. Subhashrao Shinde,
Age : 26 years, Occ. Agri.,
7. Rajshri w/o. Chakradhar More,
Age : 29 years, Occ. Agri.,
8. Bhimrao s/o. Uttamrao Pawar,
Age : 29 years, Occ. Agri.,
9. Amol s/o. Babarao Barse,
Age : 23 years, Occ. Agri.,
10.Madhukar s/o. Shivaji Barse,
Age : 45 years, Occ. Agri.,
11.Shankar s/o. Shivaji Barse,
Age : 40 years, Occ. Agri.,
12.Sunil s/o. Vithal More,
Age : 37, Occ. Agri.,
13.Vasantrao s/o. Vishwanath Bhalerao,
Age : 46 years, Occ. Agri.,
14.Baban s/o. Nagorao Hingmire,
Age : 38 years, Occ. Agri.
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15.Dinaji s/o. Munjaji Barse,
Age : 38 years, Occ. Agri.
16.Sudam s/o. Yesaji Khandagale,
Age : 44 years, Occ. Agri.,
17.Dhondiba s/o. Vishwanath Barse,
Age : 48 years, Occ. Agri.
18.Ashok s/o. Nagorao Hingmire,
Age : 38 years, Occ. Agri.
19.Shankar s/o. Jayvantrao Barse,
Age : 42 years, Occ. Agri.
20.Balaji s/o. Narayan Godre,
Age : 45 years, Occ. Agri.
All r/o. Barasgaon,
Tq. Ardhapur, Dist. Nanded PETITIONERS
VERSUS
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai 400 032
2. The Director of Education,
(Secondary and Higher Secondary)
Maharashtra State, Pune
3. The Deputy Director of Education,
Latur Division, Latur
4. Education Officer (Primary),
Zilla Parishad, Nanded
5. Swargiya Krishnaji Patil Seva
Bhavi Sanstha, Jijamata Nagar,
Hingoli, Through its President -
Shri Jaiprakash Patil Goregaonkar,
Age : 57 years, occ. Agri.,
r/o. Barasgaon, Tq. Ardhapur,
Dist. Nanded
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6. The Maharashtra Secondary and
Higher Secondary Education Board,
Latur Division, Latur
Through its Chairman),
Latur RESPONDENTS
----
Mr.S.B.Talekar, Advocate instructed by Mr.N.E.Deshmukh,
Advocate for the Petitioners
Mr.S.B.Yawalkar, A.G.P. for respondent nos.1 to 3
Mrs.Yogita Kshirsagar, Advocate for respondent no.4
Mr.R.N.Dhorde, Senior Advocate i/b. Mr.R.B.Narwade-
Patil, Advocate for respondent no.5
----
CORAM : S.V. GANGAPURWALA AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : 13th APRIL, 2017
PRONOUNCED ON : 6th JUNE, 2017
JUDGMENT
(PER : SANGITRAO S. PATIL, J.)
:
Rule, returnable forthwith. With the consent
of the learned counsel for the contesting parties, heard
finally.
2. Petitioner No. 1 is the Sarpanch of village
Panchayat, Barasgaon, Taluka Ardhapur, District Nanded,
petitioner No. 2 is the Head Master, petitioner Nos. 3
to 5 are the Assistant Teachers, petitioner No. 6 is the
clerk, petitioner No. 7 is Laboratory Assistant and
petitioner Nos. 8 and 9 are peons working in Satya
Ganpati Secondary High School, Barasgaon. Petitioner
4 wp6851-2013
Nos. 10 to 20 are the parents of the students studying
in 8th, 9th and 10th standards of the said school. The
petitioners have challenged the order dated 1st July,
2013, passed by the School Education and Sports
Department, Mantralaya, Mumbai whereby the abovenamed
school has been allowed to be transferred from village
Barasgaon District Nanded to village Sarkali, Taluka and
District Hingoli.
3. The learned counsel for the petitioners submits
that there were sufficient number of students admitted
in the above named school at village Barasgaon, which
was being run by respondent No.5. There was no reason
to transfer the said school from village Barasgaon to
village Sarkali. The proposal to transfer the said
school from village Barasgaon to village Sarkali was
opposed by the petitioners as well as the School
Committee of village Barasgaon. The Block Development
Officer and the Education Officer (Secondary) also had
expressed in clear terms that it was not in the interest
of the students, their parents and the employees of the
said school to transfer it from village Barasgaon to
village Sarkali. A resolution was also passed by the
5 wp6851-2013
Village Panchayat, Barasgaon, requesting the Authorities
not to transfer the said school from village Barasgaon.
Despite the resistance from all these corners,
respondent No.1 - the Secretary, to the Government of
Maharashtra, School Education and Sports Department
passed the impugned order granting permission to
transfer the said school from village Barasgaon to
village Sarkali.
4. The learned counsel submits that as per the
terms of the impugned order, in the absence of the
consent of the Education Committee of village Barasgaon,
the school was not liable to be transferred. The school
has been transferred at the distance of more than about
100 kms. from village Barasgaon which was not
permissible under the Government Resolution dated 17 th
February, 2009, issued by the School Education and
Sports Department. It is submitted that without giving
a prior notice under section 13 of the Maharashtra Self
Financed Schools (Establishment and Regulation) Act,
2012 ("the Act of 2012", for short) of not less than
eighteen months, the impugned order transferring the
school from village Barasgaon has been passed and
6 wp6851-2013
therefore, it is not sustainable. It is submitted that
the impugned order would have the effect of causing a
great inconvenience to the students studying in the said
school at village Barasgaon.
5. The learned counsel for the petitioners further
submits that the petitioners claimed interim relief in
the present writ petition against the proposed transfer
of the school from village Barasgaon and this Court was
pleased to direct maintenance of status quo as
prevailing on 29th August, 2013 as per the order of the
even date. However, respondent No. 5 started another
school at village Sarkali after passing of the status
quo order by this Court. It is submitted that respondent
No. 5 is running two schools, one at village Barasgaon
and another at village Sarkali. There are sufficient
number of students admitted in the school at village
Barasgaon, who have been allowed to appear for S.S.C.
Examination. The Government has released grant-in-aid
for the school at village Barasgaon, as per the
resolution dated 1st July, 2016. It is submitted that
because of the impugned transfer order, the teaching and
non-teaching staff working in the school at village
7 wp6851-2013
Barasgaon are not getting salary since 1st July, 2013.
The learned counsel for the petitioners relies on the
judgments in the cases of Jeevanjyoti Krida and Shikshan
Prasarak Mandal Vs. State of Maharashtra and others 2012
(6) ALL MR 281 and Jeejau Shikshan Sanstha, Nagpur Vs.
State of Maharashtra and others 2011 (4) Mh.L.J. 352,
wherein the guidelines have been given for transfer of
Management of Ashram Schools and ordinary Schools,
respectively. The learned counsel submits that these
guidelines have not been followed while passing the
impugned order of transfer of the school from village
Barasgaon. The learned counsel, therefore, prays that
the impugned order of transfer of school may be set
aside and the teaching and non-teaching staff of the
school at village Barasgaon may be ordered to be paid
salary with effect from 1st July, 2016.
6. Respondent No. 5 filed reply and additional
reply on 16th October, 2016 and 28th September, 2016,
respectively and strongly opposed the petition. Based on
the contentions raised in these replies, the learned
counsel for respondent No. 5 submits that the husband of
petitioner No. 1 is a person of criminal antecedents. He
8 wp6851-2013
is involved in various criminal activities. He wanted to
have control over the school that was being run by
respondent No. 5 at village Barasgaon. Therefore, he
prepared a false and fabricated proposal for transfer of
the said school from respondent No. 5 to a trust namely
Khobaji Patil Trust. In order to keep the said school
under his control, he assaulted the President of
respondent No. 5 namely Jaiprakash Patil. Petitioner
No. 1 being the Sarpanch of village Barasgaon, was
supporting her husband in these activities. Petitioner
No. 1 and her husband created such circumstances which
made it difficult for respondent No. 5 to run the school
at village Barasgaon . Therefore, respondent No. 5 made
a proposal for transfer of the school from village
Barasgaon to village Sarkali where there was no school.
He submits that there is a school available at village
Yelegaon which is within the radius of 5 kms. from
village Barasgaon. The proposal to transfer the school
from village Barasgaon was supported by the Authorities
concerned and was ultimately approved by the Government
as per the impugned order. He submits that respondent
No. 5 transferred the school from village Barasgaon to
village Sarkali and started it there with effect from
9 wp6851-2013
29th July, 2013. Accordingly, a report was given to the
Education Officer on 5th August, 2013. Thereafter,
status quo order came to be passed by this Court on 29 th
August, 2013. He submits that after transfer of the
school run by respondent No. 5 from village Barasgaon to
village Sarkali, there was no question of running the
said school at village Barasgaon. However, petitioner
No. 1, with the help of her husband and his supporters,
illegally started running school at village Barasgaon,
which has no recognition of the School Education
Department. He submits that after transfer of the
school from village Barasgaon, respondent No. 5 issued
letter on 6th August, 2013 to the Head Master of the
school at village Barasgaon calling upon him to join the
school at village Sarkali alongwith other teaching and
non-teaching staff within a period of seven days. A
public notice also was issued to that effect in "Daily
Prajawani", Nanded on 11th September, 2013. However,
none of them attended the school at Sarkali for getting
absorbed. He submits that the school has been legally
transferred from village Barasgaon to village Sarkali.
No prejudice has been caused to the students of village
Barasgaon since they are having another school available
10 wp6851-2013
at a short distance from village Barasgaon. The learned
counsel submits that the Govt. Resolution dated 17th
February, 2009 prescribing that the school should not be
allowed to be transferred at a place which is at a
distance of more than 10 kms., has been superseded by
the Govt. Resolution dated 9th June, 2010 which does not
prescribe any limit as to the distance. He submits that
the Government has considered the merits of the proposal
submitted by respondent No. 5 for transfer of the school
from village Barasgaon to village Sarkali and rightly
accorded sanction for the said transfer. He submits
that respondent No. 5 is not at all running any school
at village Barasgaon. He, therefore, submits that the
writ petition may be dismissed.
7. The learned A.G.P. filed affidavit of the
Deputy Education Officer (Secondary), Zilla Parishad,
Nanded (respondent No. 4) and supported the impugned
order of transfer of the school. He submits that there
is a school at village Yelegaon which is within 5 kms.
from village Barasgaon and therefore, no inconvenience
would be caused to the students of village Barasgaon
because of the transfer of the school to village
11 wp6851-2013
Sarkali. He also states that respondent No. 5 is
running the school at village Sarkali as per the
impugned order since before passing of the status quo
order by this Court.
8. The Government Resolution dated 9th June, 2010
issued by the School Education and Sports Department,
Government of Maharashtra supersedes the earlier
Government Resolution dated 17th February, 2009.
Naturally, the transfer of the school would be governed
by the Government Resolution dated 9th June, 2010. The
policy decision of the Government regulating transfer of
the schools has been given in the Government Resolution
dated 9th June, 2010. Since there is a specific policy
decision taken by the Government for transfer of the
schools, the judgments cited by the learned counsel for
the petitioners, containing the guidelines for transfer
of the Management of the Aashram Schools and ordinary
schools, respectively, would be of no help to the
petitioners. The same Management i.e. respondent No.5,
which was running a school at village Barasgaon, has got
transferred the said school to village Sarkali as per
the guidelines given in the Government Resolution dated
12 wp6851-2013
9th June, 2010. Since the Government Resolution dated
17th February, 2009 has been superseded, the guidelines
given in the Government Resolution, including the
condition prescribing maximum distance of 10 kms. from
the place from where the school is proposed to be
transferred, would not be in force. Therefore, the
contention of the learned counsel for the petitioners
that the school has been transferred at a distance of
100 kms. from village Barasgaon and therefore, the said
transfer is illegal, cannot be accepted.
9. As seen from the documents produced on record,
respondent No. 5 sent a proposal to the Deputy Director
of Education for transfer of the school from village
Barasgaon to village Sarkali on the ground that
petitioner No. 1 and her husband made it difficult to
run the school at village Barasgaon. Initially, as per
the letter dated 20th August, 2011, the Education Officer
did not support the proposal for transfer of the school
from village Barasgaon. However, in the subsequent
letter dated 8th February, 2013, the Education Officer
informed the Deputy Director of Education that it has
become difficult to run the school at village Barasgaon
13 wp6851-2013
and therefore, he recommended that the school be
transferred from village Barasgaon to village Sarkali.
After receiving that report, the Deputy Director of
Education recommended to the Director of Education for
transfer of the school from village Barasgaon as per
letter dated 11th March, 2013. The Director of
Education, in turn, sent the proposal for transfer of
the school to the Secretary, School Education and Sports
Department, Mantralaya, Mumbai for taking decision.
Accordingly, the decision was taken by the Secretary as
per the impugned order to transfer the school from
village Barasgaon to village Sarkali. It seems that the
procedure prescribed in the Government Resolution dated
9th June, 2010 for transfer of the school from village
Barasgaon to village Sarkali has been duly followed.
10. There are a number of documents produced on
record to show that the school was immediately
transferred from village Barasgaon to village Sarkali
and it actually started functioning at village Sarkali
with effect from 29th July, 2013. The said fact was
reported by respondent No. 5 to the Education Officer as
per letter dated 5th August, 2013. As such, the school
14 wp6851-2013
started functioning at village Sarkali prior to passing
of the order of status quo on 29th August, 2013.
11. The learned counsel for the petitioners pointed
out to term No. 4 mentioned in the impugned order
whereunder it was necessary to obtain consent of the
Guardians/Education Committee for transfer of the
school. He submits that there is decision of the
Eduction Committee dated 28th July, 2011 opposing the
proposed transfer of the school from village Barasgaon.
The learned counsel for respondent No. 5 submits that
the said resolution has been passed under the pressure
of petitioner No.1 - Sarpanch and her husband, who were
bent upon to grab the school. He submits that the said
resolution is fabricated one. We are not inclined to
enter into this factual controversy. In case this
condition was not fulfilled by respondent No. 5, it was
open to the Education Committee of village Barasgaon to
raise a grievance before the Director of Education and
seek necessary action against respondent No. 5.
However, nothing of that sort seems to have been done by
the Education Committee. In the circumstances, in the
absence of any finding of the Director of Education
15 wp6851-2013
about non-compliance of this condition by respondent No.
5, we are not inclined to attach any importance to this
contention of the learned counsel for the petitioners to
find fault with the impugned order.
12. Respondent No. 5 has produced the letters
issued to the teaching and non-teaching staff attached
to the school at Barasgaon, calling upon them to join at
the school at village Sarkali. If the said teaching and
non-teaching staff did not attend the school at village
Sarkali in response to the said letters, the petitioners
cannot claim that the condition in respect of the
absorption of the teaching and non-teaching staff
attached to the school at village Barasgaon was
fulfilled by respondent No.5.
13. The petitoners have produced certain documents
showing that the school still is being run at village
Barasgaon. It is the contention of the petitioners that
respondent No. 5 is running the said school at
Barasgaon. This fact has been flatly denied by
respondent No. 5. When respondent No. 5 itself has come
with a specific case that after the impugned transfer
order, it is not running any school at village
16 wp6851-2013
Barasgaon, the school, if any, that is being run at
village Barasgaon, cannot be said to have been
recognized by the School Education Department of the
Government of Maharashtra. Therefore, the teaching as
well as non-teaching staff attached to such unauthorised
school cannot claim salary from either respondent No. 5
or the Government.
14. The impugned order has been issued by the
Secretary, School Education and Sports Department,
Government of Maharashtra. As such, respondent No. 5
has got transferred the school from village Barasgaon to
village Sarkali with prior permission of the Government
as required under Rule 7.6 of the Secondary Schools
Code. Since the said school was not a self-financed
school, the provisions of Section 13 of the Act of 2012,
would not be applicable to its transfer. The transfer
of the said school would be governed by Rule 7.6 of the
Secondary Schools Code and the Government Resolution
dated 9th June, 2010.
15. We do not find any fault in the impugned order
of transfer of school from village Barasgaon to village
17 wp6851-2013
Sarkali. If the petitioners had any grievance against
respondent No. 5 for non-compliance of any of the terms
of the transfer order, it was necessary for them to
approach the Director of Education for necessary
relief/s. Nothing of that sort has been done by the
petitioners. The school is being run smoothly at village
Sarkali since the year 2013. The school has been
validly transferred from village Barasgaon to village
Sarkali. We do not find any substance in the Writ
Petition. Hence, we pas the following order:-
(i) The Writ Petition is dismissed.
(ii) The Rule is discharged.
(iii) No costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.V. GANGAPURWALA]
JUDGE JUDGE
npj/wp6851-2013
