Bombay High Court
Phule Education Society And Anr vs The State Of Maharashtra Through ... on 7 June, 2017
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition NO. 8961 OF 2015
1 Shri. Bhairavnath Shikshan Mandal, Khed
2 Madhyamik Vidyalaya, Ubhade ...Petitioner(s)
Versus
1 The State Of Maharashtra,
Through The Secretary,
Dept. Of Education And Sports
2 The Director of Education (Secondary),
State of Maharashtra, Pune.
3 The Deputy Director of Education (Secondary)
Nashik Division, Nashik
4 The Education Officer (Secondary)
Zilla Parishad, Nashik, Dist. Nashik\
5 The Deputy Director of Education,(Primary),
Nashik Division, Nashik
6 The Education Officer (Primary),
Zilla Parishad, Nashik, Dist. Nashik ....Respondent(s)
WITH
Writ Petition NO. 992 OF 2016
Shri. Sant Dnyaneshwar Shikshan Prasarak
Mandal, Pimpalgaon And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through
The Secretary And Ors ...Respondent(s)
WITH
Writ Petition NO. 993 OF 2016
1/18
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Gavkari Parivartan And Sanshodhan Pratishthan
Through Trustee, Smt. Kavita Nagare And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through
The Secretary And Ors ...Respondent(s)
WITH
Writ Petition NO. 994 OF 2016
Jagdamba Education Society And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through
The Secretary, Dept. Of Edu. And Sports And Ors. ...Respondent(s)
WITH
Writ Petition NO. 995 OF 2016
Jagdamba Education Society And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through
The Secretary, Dept. Of Edu. And Sports And Ors. ...Respondent(s)
WITH
Writ Petition NO. 1567 OF 2017
Phule Education Society And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through
The Secretary, Dept. Of Education And Sports And Ors. ...Respondent(s)
WITH
Writ Petition (ST) NO. 3253 OF 2016
Adarsha Mahila Vikas Sanstha Maldad Rd.
(sangamner) And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through Secretary And Ors ...Respondent(s)
WITH
Writ Petition (ST) NO. 3254 OF 2016
2/18
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Shri. Sant Dnyaneshwar Shikshan Prasarak
Mandal And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through Secretary
And Ors ...Respondent(s)
WITH
Writ Petition (ST) NO. 3310 OF 2016
Adarsha Mahila Vikas Sanstha Maldad Rd.
(sangamner) And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through Secretary
And Ors ...Respondent(s)
WITH
Writ Petition (ST) NO. 3314 OF 2016
Adarsha Mahila Vikas Sanstha Maldad Rd.
(sangamner) And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through
Secretary And Ors ...Respondent(s)
WITH
Writ Petition NO. 6212 OF 2016
Kai. Bhausaheb Hire Smaranika Samiti Trust
And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary,
Dept. Of Education And Sports And Ors. ...Respondent(s)
WITH
Writ Petition NO. 6213 OF 2016
Kai. Bhausaheb Hire Smaranika Samiti Trust
And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary,
Dept. Of Edu. And Sports And Ors. ...Respondent(s)
3/18
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WITH
Writ Petition NO. 8960 OF 2015
Azad Shikshan Mandal Through Its Vice Chairman
Smt. Nirmala Patil And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary
And Ors. ...Respondent(s)
WITH
Writ Petition NO. 8962 OF 2015
Shri. Yashwant Gramseva Pratishthan Through Its
Vice-chairman, Shri. Annasaheb Nakade And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary
And Ors. ...Respondent(s)
WITH
Writ Petition NO. 8963 OF 2015
Dnyandeep Gramin Vikas Shikshan Sanstha, Kashti,
Shrigonda And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary
And Ors ...Respondent(s)
WITH
Writ Petition NO. 8964 OF 2015
Jijamata Samajik Vikas Sanstha, Bhadgaon And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary,
Dept. Of Education And Sports And Ors. ...Respondent(s)
WITH
Writ Petition NO. 9093 OF 2015
Shri. Sant Sawata Mali Shaikshanik Va
4/18
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Samajik Sanstha And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary
And Ors ...Respondent(s)
WITH
Writ Petition NO. 9327 OF 2015
Ahemadnagar Zilla Vadar Samaj Sanghatana And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary,
Dept. Of Education And Sports And Ors. ...Respondent(s)
WITH
Writ Petition NO. 9489 OF 2015
Viashwatmak Jangli Maharaj Ashram Trust And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary,
Dept. Of Education And Sports And Ors. ...Respondent(s)
WITH
Writ Petition NO. 13579 OF 2016
Phule Education Society And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary,
Dept. Of Edu. And Sports And Ors. ...Respondent(s)
Mr. Suresh S. Pakale i/by Mr. S.M. Katkar for the Petitioners in all the writ
petitions.
Mr. R.S. Apte, Senior Advocate & Special Counsel with Mr. C.P. Yadav, AGP
for Respondent Nos. 1 to 5 in all the writ petitions.
CORAM: B. R. GAVAI &
RIYAZ I. CHAGLA, JJ.
DATE : June 07, 2017
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ORAL JUDGMENT (Per B. R. Gavai, J.):
1 Leave to amend is granted. Amendment to be carried out
forthwith.
2 Initially Mr. Pakale, learned counsel for the Petitioners,
stated that the factual as well as legal issues involved in these
Petitions are common and, therefore, at his request, we have heard all
these Petitions together and are disposing of by this common
judgment and order.
3 The present Petitions apart from various legal issues, also
raise a serious issue regarding judicial propriety. The Petitioners in the
present Petitions have challenged the validity of Clause (2) of the
Government Resolution dated 15th November 2011. The Petitioners
are principally aggrieved by sub-clause (b) of Clause (2) of the said
Government Resolution. The Government Resolution has been issued
by the State Government for bringing the permanent non-grant in aid
primary and secondary schools on grant in aid basis. Certain
conditions have been imposed by the State Government for making
the said schools eligible for being admitted to grant in aid schools.
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One of the conditions which is imposed and and with which the
Petitioners are aggrieved is thus:
"(b) While making an application for assessment, the
policy of the State Government regarding reservation
in employment should be followed by the school. (This
should not be applicable to minority schools)."
4 Mr. Pakale, learned counsel appearing for the Petitioners,
submits that insistence of the Government on the said clause is totally
arbitrary, irrational and illegal. It is submitted that in view of the
judgments of the Apex Court in the case of T.M.A. Pai Foundation v.
State of Karnataka1, P. A. Inamdar v. State of Maharashtra2 and Pramati
Educational and Cultural Trust (Registered) v. Union of India 3, the un-
aided schools cannot be imposed to have a reservation policy. It is
submitted that in any case when the Petitioners have undertaken to
follow the reservation after the grand in aid is made applicable to such
schools, there is no reason in the Government denying the grant in aid
to the said schools. The learned counsel heavily relied on the order
passed by the Division Bench of this Court (Mohit S. Shah, CJ & B. P.
Colabawalla, J.) dated 7th January 2015 in Civil Application No.2367
of 2014 in Writ Petition No. 8478/2013, in support of the submission
1 (2002) 8 SCC 481
2 (2005) 6 SCC 537
3 (2014) 8 SCC 1
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that the Government cannot insist upon the reservation policy in view
of the judgment of the Constitution Bench in Ashoka Kumar Thakur v.
Union of India4.
5 Mr. Pakale further submits that after Article 21-A has been
brought in the Constitution, it is a mandate on the State Government
to reimburse the schools like the Petitioners who are discharging the
duties of the State as its agents to provide free and compulsory
education to the students. It is submitted that the State cannot run
away from its responsibility merely on the ground that the
reservation is not provided. The learned counsel further submits that
insofar as the observations made by Their Lordships of the Apex Court
in SLP No.11639-11640/2016-The State of Maharashtra v.
Trimurti Shikshan Sanstha dated 9th December 2016 are
concerned, the said would be applicable only insofar as the Trimurti
Shikshan Sanstha is concerned and would not be applicable to other
Petitioners.
6 The learned counsel relied on the judgment of the Apex
4 (2008) 6 SCC 1
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Court in the case of The Regional Manager v. Pawan Kumar Dubey5, to
point out to this Court as to what would amount to ratio decidendi
and submits that the observation of the apex Court which is relied
upon by the learned counsel for the Respondents, in the aforesaid
order of the Apex Court would not amount to ratio decidendi.
7 Mr. Apte, learned senior counsel appearing on behalf of
the State, on the contrary, submits that the order passed by the
Division Bench in Writ Petition.8478 of 2013 dated 7 th January 2015
is per incurium inasmuch as the judgment of the Apex Court on
which the Division Bench has relied i.e. in the case of Ashoka Kumar
(supra) has been expressly overruled by the Apex Court in the case of
Pramati Educational and Cultural Trust (Registered) (supra). He
further submits that earlier Division Bench judgment of this Court in
identical cases delivered by a Division Bench of this Court (Coram:
A.S. Oka and Revati Mohite Dere, JJ.) in Writ Petition No.7333/2013-
Bormalnath Shikshan Sanstha v. The State of Maharashtra dated 17 th
September 2013 has also not been brought to the notice of the
subsequent Division Bench which delivered order dated 7 th January
5 AIR 1976 SC 1766
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2015.
8 As already stated by us hereinabove, the present Petitions
raised a serious issue with regard to the judicial propriety. The
perusal of the order passed by the Division Bench of this Court
presided over by A. S. Oka, J. dated 17th September 2013 in Writ
Petition No.7333 of 2013 would clearly reveal that Clause (2) of the
Government Resolution dated 15th November 2011 which has been
considered by a subsequent Division Bench presided over by the then
Hon'ble Chief Justice in its order dated 7 th January 2015 and which is
also challenged before us, also fell for consideration before the
Division Bench in the said Petition. The learned Judges of the
Division Bench have observed thus:
"5. There are two parts of the G.R. Clause (2) of the
G.R lays down eligibility criteria. Sub-clause (b) of
Clause (2) specifically provides that only those schools
which comply with policy of reservation will be
eligible under the policy. The second part of the G.R is
as regards the assessment to be made by a Committee
constituted for that purpose. Even if the Committee
finds a School to be eligible to receive grant-in-aid, a
School becomes eligible for the benefits under the G.R,
provided eligibility criteria prescribed by clause (2) of
the G.R is satisfied. Therefore, there is no merit in the
submission of the learned Counsel appearing for the
petitioners that a School cannot be held ineligible after
the assessment of the school by the Committee.
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6. Without even making an attempt to take benefit of
communication dated 23rd May, 2013 (Exhibit `N') by
going before the concerned Authorities for satisfying
the Authorities that there was no backlog, the
petitioners have chosen to approach this Court under
Article 226 of the Constitution of India.
7. At this stage, the learned Counsel appearing for the
petitioners reiterates that for denying grant-in-aid, the
compliance with the policy of reservation is no criteria.
8. Admittedly, the second petitioner school was
permitted to be opened on permanent no-grant basis.
By the G.R, considering the demand of such schools,
subject to compliance with the conditions imposed in
the said G.R, the Government decided to convert such
schools into aided schools. If the petitioners want to
take benefit of the G.R, the petitioners will have to
satisfy the eligibility criteria provided in clause (2)
thereof. Therefore, the said contention deserves to be
rejected.
9. The learned Counsel appearing for the petitioners
relies upon Article 21-A of the Constitution of India.
His submission is that to enable the schools to comply
with Article 21-A, the Primary Schools must be given
Government aid.
10. We make it clear that even according to the case
of the petitioners, a permission was granted to the
second petitioner on "permanent no-grant basis". The
petitioners never challenged the permission. They
started running the school on permanent no-grant
basis. We do not see any inherent right in the
petitioners to get Government aid. It is only because of
the benevolent policy of the State Government under
the G.R, that certain Primary Schools which satisfy the
criteria laid down in the G.R can be granted grant-in-
aid. Therefore, we do not agree with the said
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submission."
It could thus be seen that the contention of the Petitioners therein that
they cannot be denied grant in aid, if the reservation is not followed
by them is specifically rejected by this Court. Not only that but an
argument with regard to Article 21-A has also been specifically
advanced and rejected by the Division Bench of this Court. It
appears that identical Petitions were listed before another Bench
presided over by the then Hon'ble Chief Justice. It appears that the
Division Bench did not notice the earlier order passed by the Bench
presided over by A.S. Oka, J. in Writ Petition No.7333/2013 (supra).
9 It appears that the Division Bench, therefore, observed
thus:
"7. Having carefully considered the aforesaid clauses of
the Government Resolution dated 15 November 2011
and having gone through the judgment of the
Constitution Bench in Ashok Kumar Thakur vs. Union
of India (supra), we are of the view that when the
Government is not going to grant aid with
retrospective effect, the Government cannot apply its
reservation policy with retrospective effect. In other
words, the Government cannot insist that the
reservation policy should have been followed with
retrospective effect prior to the date of application of
the school management under the Government
Resolution dated 15 November 2011. The law on the
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subject having been laid down in the judgment of
Justice Dalveer Bhandari in the Constitution Bench
decision in Ashok
Kumar Thakur vs. Union of India
(supra), the State Government cannot act contrary to
the principles laid down in the said judgment."
(emphasis supplied)
10 It could thus be seen that the observations made by the
subsequent Division Bench are in ignorance of the earlier order made
by the coordinate Court of this Court. In any case, the reliance placed
by the Division Bench in Ashoka Kumar Thakur (supra) by the Division
Bench was not merited. The judgment of the Division Bench is
delivered on 7th January 2015. In the meantime, the view taken by
the Apex Court in the case of Ashoka Kumar Thakur was already
overruled by the Apex Court in the case of Pramati Eductional and
Cultural Trust on 6th May 2014. It will be relevant to refer to the
observations of Their Lordships in the case of Pramati Educational and
Cultural Trust which read thus:
"38 We accordingly hold that none of the rights under
Articles 14, 19(1)(g) and 21 of the Constitution have
been abrogated by clause (5) of Article 15 of the
Constitution and the view taken by Bhandari,J. In
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC
1, that the imposition of reservation on unaided
institutions by the Ninety-third Amendment has
abrogated Article 19(1)(g), a basic feature of the
Constitution is not correct. Instead, we hold that the
Constitution (Ninety-third Amendment) Act, 2005
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inserting clause (5) of Article 15 of the Constitution is
valid."
11 It could thus clearly be seen that the Constitution Bench of
the Apex Court in Pramati Educational & Cultural Trust (supra) in an
unequivocal terms overruled the view taken in Ashoka Kumar Thakur
(supra) which has been relied upon by the Division Bench in its order
dated 7th January 2015. With due respect to the Division Bench, we
will have to hold that the view taken by the Division Bench in its order
dated 7th January 2015 is per incurium being contrary to the judgment
of the Constitution Bench of the Apex Court in the case of Pramati
Educational & Cultural Trust (supra).
12 In any case, when the order dated 7 th January 2015 was
challenged before Their Lordships of the Hon'ble Supreme Court,
Their Lordships have specifically observed as under:
"We have heard learned counsel for the parties.
We are not inclined to interfere with the order passed
by the High Court.
The special leave petitions are dismissed. However, we
make it clear that the respondent will be entitled to
grant-in-aid from the date on which it fulfills the
requirements of the Government Resolution dated
15.11.2011 to the satisfaction of the petitioner."
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(emphasis supplied)
13 It could thus be clearly seen that the Hon'ble Supreme
Court has clearly held that the schools should be entitled to grant in
aid only from the date on which such schools fulfill the requirement of
the Government Resolution dated 15 th November 2011 to the
satisfaction of the State Government. As already pointed out
hereinabove, Government Resolution dated 15th November 2011
specifically prescribes that for being eligible to apply for assessment
for being admitted to grant in aid, education institute must follow the
policy of the reservation as framed by the State Government. It could
thus be seen that following the policy of reservation is a basic
requirement even for making an application for assessment to be
admitted to the grant in aid. Not only this, but a subsequent
application had been made by the Respondents therein before the
Hon'ble Supreme Court for clarification of the order dated 9 th
December 2016. It will be relevant to refer to paragraph 12 and
prayer (a) of the Civil application moved by the Respondents in the
said SLP.
"12 It is, therefore, necessary to clarify that the observation in
the order dated 9th December 2016 passed by this Hon'ble Court does
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not take in its compass the right of the Petitioners to reject the salary
grant on the ground that the reservation policy was not followed prior
to the date of making Application for salary grant under Government
Resolution dated 15th November 2011. The findings in this respect
from the Hon'ble Bombay High Court are final and as confirmed by
this Hon'ble Court. The purported backlog on the date of the
Application is obviously related to the period prior to the date of the
Application. Thus, the contention of the Respondent is mischievous.
However, due to the observations of this Hon'ble Court, the absolute
authority is claimed by the Petitioners."
Prayer (a) In the interest of justice, clarify/modify the
order dated 09.12.2016 in terms of paragraph No.12 of
the Application."
14 The Application was dismissed by the Hon'ble Supreme
Court vide its order dated 10.03.2017. It would, thus, be clear that
the Supreme Court in unequivocal terms held that the satisfaction of
the Authorities with regard to the compliance of the conditions
specified in Government Resolution dated 15 th November 2011, is a
condition precedent being eligible to get grant in aid.
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15 In that view of the matter, we find no merit in the
Petitions.
16 In view of the orders of the Supreme Court, it is held and
declared that unless the schools conform to the policy of reservation
as laid down by the State Government, the schools would not be
entitled to grant in aid as per the Government Resolution dated 15 th
November 2011.
17 At this stage, it is sought to be urged by Mr. Pakale that in
most of the schools the requirement regarding reservation is
substantially complied with. We find that it will not be appropriate for
us to undertake the exercise of scrutinizing the cases individually. The
Petitioners would be at liberty to place the entire data before the
respective Competent Authorities and satisfy them with regard to the
fulfillment of the reservation policy. If the Petitioners are in a position
to satisfy the Competent Authority regarding the fulfillment of the
requirement of reservation policy, the Respondents-Competent
Authorities would certainly be required to take into consideration the
claim of the Petitioners for admitting them to the grant in aid, in
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accordance with law.
18 The Writ Petitions are, therefore, rejected, save as
observed hereinabove.
19 No costs.
(RIYAZ I. CHAGLA J.) (B. R. GAVAI J.)
