Momin Education Society Mohalla ... vs The State Of Maharashtra And ...
2017 Latest Caselaw 3105 Bom

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                                                                WP/ 2292/2017


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    BENCH AT AURANGABAD


                     WRIT PETITION NO.2292 OF 2017


 1.       Momin Education Society,
          Mohalla Sayyadan, Nanded,
          Tq. and Dist. Nanded.
          (Through its Secretary)

 2.       Islahul Amal Girls High School,
          Mohalla Sayyadan, Nanded,
          Tq. and Dist. Nanded.
          (Through its Headmaster)            ...      PETITIONERS

                  VERSUS

 1.       The State of Maharashtra,
          Through Secretary,
          School Education and Sports Department,
          Mantralaya, Mumbai-32.
          (Copy to be served on Govt.
          Pleader, High Court of Judicature of
          Bombay, Bench at Aurangabad)

 2.       The Deputy Director of Education,
          Latur Division, Latur,
          Tq. and Dist. Latur.

 3.       The Education Officer (Primary),
          Zilla Parishad, Nanded,
          Tq. and Dist. Nanded.

 4.       Sir Sayyad Urdu Primary School,
          Mominpura, Nanded,
          Tq. and Dist. Nanded.
          (Through its Headmaster)            ...      RESPONDENTS

                                  .....
 Shri.   V.J.Dhage, Advocate for petitioners
 Shri.   M.B.Bharaswadkar, A.G.P. for respondent No.1 & 2
 Smt.    Yogita Kshirsagar, Advocate for respondent No.3
 Shri.   M.G.Mustafa, Advocate for respondent No.4
                                  .....




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                                                                      WP/ 2292/2017


                                  CORAM:       ANOOP V. MOHTA AND
                                               SUNIL K. KOTWAL, JJ.

                                  DATED:       13th June, 2017.



 ORAL JUDGMENT (Per Anoop V. Mohta, J.) :-



 1.               Rule.        Rule made returnable forthwith and heard

finally by consent of learned counsel for the parties, in view of

the urgency expressed.

2. Petitioners, minority aided institutions, running only

Girls school from 8th standard to 12th standard i.e. Secondary and

High Secondary school at Mominpura, Nanded, have challenged

Government Resolution dated 20.09.2016 to the extent of

granting permission to respondent No.4 to start 8 th standard on

self finance basis.

3. The challenge was raised by relying on Government

Resolution dated 02.07.2013 and 28.08.2015, whereby, as

submitted, no same standard school within the radius of 3 kms.

from the existing schools should be permitted to establish. The

submission is also made referring to Section 19 of the Right of

Children to Free and Compulsory Education Act, 2009 (Education

Act) and Rule 6 of Right of Children to Free and Compulsory

Education Rules 2010 (Education Rules) that the 8 th standard is

WP/ 2292/2017

available in adjacent petitioners' existing school. Therefore, such

extension is contrary to the Act, as well as circulars, so referred

above.

4. Respondent No.4 is aided school of Boys and Girls

upto 1st to 7th standard (primary and higher primary). There is

need in view of the Government Policy to extend 8 th standard to

schools having 1st to 7th standards, on self finance basis. By the

impugned resolution / decision dated 20.09.2016, the State, has

granted permission to more than 58 schools in Latur District.

5. The aim and object of the Education Act and the

declared policies reflected in the Government resolutions, so read

and referred by the parties, itself provide that the State is

required to have uniform education system for all the standards.

The State, accordingly, have been taking various steps, and

amending policies, and education pattern, from time to time. All

the concerned parties have been acting on it. The impugned

Resolution, itself reflects that, in the whole Maharashtra, apart

from other issues, such extensions of 8 th standards have been

granted by as per the requirement of the area / locality. The

Resolution so read and referred and part of the record itself make

position clear that the State is taking all steps revolving around

the uniform education policies. We see no infirmity in taking such

WP/ 2292/2017

decisions.

6. By passing the impugned order or taking the

decision, the State has taken note of all the circulars and the

decisions, including the circulars which petitioners have been

relying upon opposing the permission granted to respondent

No.4. The State has been trying to implement the policy decision

to club or extent the classes from 1 st to 5th standard and 6th to 8th

standard and other classes so created under the circulars. We

see there is no illegality and or any breach of provisions of the

Act, Rules and the Circulars so relied upon. The State has

granted such extension not only in favour of respondent No.4

irrespective of the distance between two schools even to many

such schools. We see no reason and no case is made out to

interfere with such a policy decision. In our view, such decision is

well within the frame work of Law and the record.

7. The judgments so referred and relied upon by the

counsel appearing for the petitioners, Shikshan Mandal,

Through the Secretary Dr. R.G.Prabhune & ors. Vs. State

of Maharashtra & ors., [2012 (2) Bom. C.R. 875] and

Shridhar Shikshan Prasarak Mandal Vs. Sangola Taluka

Shikshan Prasarak Mandal and others, 1995 (2) Mah LR

629, are of no assistance as those judgments are in reference to

WP/ 2292/2017

the provisions of Secondary School Code. The provisions of the

Education Act and the Rules made thereunder, apart from the

Government circulars so issued from time to time in every year /

session, including the impugned one, are modified and different.

Even if there is any conflict with regard to the aspect of granting

such extension of 8th standard, though other schools having 8 th

standards are available, cannot be the reason to interfere with

the State policies so reflected in the decision. The State is under

obligation to take all necessary steps to bring uniform education

system. There is no such illegality which needs to be interfered

and disturb the order at the instance of petitioners, who are

admittedly the competitor institutions, as contemplated under

the provisions of Law and even otherwise.

8. The additional factor in the present case is that the

petitioners Girls school cannot be compared with respondent

No.4 minority co-education school. The permission is granted to

respondent No.4 on self finance basis. There is no case made out

by the petitioners to interfere with the policy decisions so taken

by the State. There is no force in the contentions so raised by the

learned counsel appearing for the petitioners that, there are as

many as 8 to 10 more schools within the prescribed area within

the vicinity of school of petitioners as well as if respondent No.4.

The State has been taking steps to bring the uniform education

WP/ 2292/2017

pattern to have continuity of education to children from 1 st to 5th

standards or from 6th to 8th standards as of one class.

9. The petitioner has challenged the circular by the Writ

Petition dated 10.10.2016, and restricted it only to respondent

No.4 and did not raise any issue with regard to the permissions

so extended to other 58 such schools in the area, apart from

such extensions have been granted to thousands such schools in

other part of Maharashtra. This is also an additional factor, to

reject the petition, as no case is made out to interfere with the

education policy decisions. This Court in Arun Shivaji Chavare

Vs. Padmakar Rama Chavare and others, [2015(1) All MR

550 : 2015(1) Mh.L.J.728 : 2015(4) Bom CR 167], in which

one of us (Anoop V. Mohta, J.) has expressed as under ;

"Therefore, the Deputy Director and the Zilla Parishad and its officers including Education Officer and the Chief Executive Officer, in our view, is wrong in not continuing VI Standard course / class in the same school, which is admittedly running since long under the control and supervision of Local Authority for I to V Standards. The continuation of VI Standard in the same school, therefore, should not have been denied. No permission / recognition is necessary except certain formalities, for the record. The non-submission of report, on this wrong presumption, that a permission is required even for the Local Authority, created the situation, which is contrary to the law."

11. The submission, referring to the concept "neighbourhood" defined and reproduced above, cannot be

WP/ 2292/2017

read to overlook the specific provisions of the Act which mandate the Local Authorities to establish School within the area. This "neighbourhood school" concept, can in no way be read to mean that every local body should not comply with the mandate of the Act to establish their school within the prescribed area if, there are already private aided and / or non-aided school, is nothing but wrong interpretation of the provisions of the Act and Rules, specifically when the Act and Rules itself provide "the State Government or the Local authority, as the case may be, shall establish neighbourhood school within the areas or limits having a minimum of 20 children". The Act and the Rules itself provides to relax such condition based upon the existing facts and figures.

The establishment is already there and so also the arrangement apart from 26 students for VI class standing in the school since June 2014. Therefore, such running establishment of Local Authority just cannot be stopped / closed by not continuing them to run the class in question with all the requisite facilities and amenities as required under the Act and Rules.

10. Petition is accordingly dismissed. No costs.

          (SUNIL K. KOTWAL)                           (ANOOP V. MOHTA)
              JUDGE                                       JUDGE


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