Ramkisan Sahebrao Poul & Anr vs State Of Maha & Ors
2017 Latest Caselaw 3352 Bom

                                      1          WP 4863 of 2004

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                        Writ Petition No. 4863 of 2004


     1)      Ramkisan s/o Sahebrao Poul,
             Age 30 years,
             Occupation : Agriculture,
             R/o Village Khandali,
             Taluka Ahmedpur, Dist. Latur.

     2)      Suresh s/o Shankarrao Poul,
             Age 32 years,
             Occupation : Agriculture,
             R/o Village Khandali,
             Taluka Ahmedpur, Dist. Latur.      ..    Petitioners.

                      Versus

     1)      The State of Maharashtra,
             Through its Secretary,
             Education Department,
             Mantralaya, Mumbai - 32.

     2)      The Director of Education,
             Central Building, Pune.

     3)      Deputy Director of Education,
             Latur Division, Latur.

     4)      The Education Officer (Primary)
             Zilla Parishad, Latur.

     5)      Pandit Jawaharlal Nehru Education
             Society, Khandali, Tq. Ahmedpur,
             Through its Secretary,
             Sikandar Chand Pasha,
             Age 45 years,
             Occupation: Contractor,
             R/o Kauwa, Taluka & Dist. Latur.




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                                            2            WP 4863 of 2004

     6)      Shantiniketan Primary School
             Khandali, Taluka Ahmedpur,
             District Latur,
             Through its Head Master,
             Shri Itpar s/o Sunil Gangadhar
             Age 34 years,
             Occupation: Service,
             R/o Khandali, Taluka Ahmedpur,
             District Latur.                .. Respondents.

                                           ----

     Shri. P.D. Bachate, Advocate, for petitioners.

     Mrs. P.V. Diggikar, Assistant Government Pleader, for
     respondent Nos.1 to 3.

     Shri. A.V. Hon, Advocate, holding for Shri. V.D. Hon,
     Senior Counsel, for respondent No.4.

     Shri. B.B. Daiphale, Advocate, holding for Shri. N.P. Patil
     Jamalpurkar, Advocate, for respondent Nos.5 and 6.

                                           ----

                                 Coram:        T.V. NALAWADE &
                                               SANGITRAO S PATIL, JJ.

                                 Date:      20 June 2017.


     ORAL JUDGMENT : (Per T.V. Nalwade, J.)



     1)               The present petition is filed to challenge the

order made by the State Government by which the school,

respondent No.6, run by respondent No.5-institution is

transferred from village Khandali, Tahsil Ahmedpur,

3 WP 4863 of 2004

District Latur to Latur City. The learned counsel for the

petitioners and the learned Assistant Government Pleader

are heard.

2) Respondent No.6, primary school was started in

village Khandali in the year 1990 and it started getting

grants phase-wise form 1993-94. In the year 2000 the

institution started getting 100% grant for this school.

3) It is the case of the petitioners, who are

residents of village Khandali and according to whom, their

issues were studying in respondent No.6 school, that this

school was popular and it was doing well in the village. It

is their case that due to transfer of this school, the

students of this village have lost opportunity to receive

primary education,

4) It is the case of the petitioners that though the

school was run in a shed and there was no playground

available, the villagers were willing to provide space for

playground and funds for construction of school building.

It is their case that the respondent-institution was

4 WP 4863 of 2004

interested in shifting the school to other station and so it

was not taking steps to make available the facilities. It is

contended that ultimately by joining hands with the

officers of the Government, respondent No.5 obtained

order of transfer of the school to Latur city. It is the case

of the petitioners that neither the villagers nor the staff

members have given consent for such transfer and

necessary procedure was not followed. It is contended

that the Gram Sabha of the village in resolution dated 8-

6-2004 had opposed the transfer of the school but the

resolution was not considered and the transfer was made

against the interest of the villagers. It is contended that

ultimately, by order dated 9/17 June 2004 the Deputy

Director of Education had granted permission to transfer

the school to Latur and so the petitioners were required to

rush to the Court. The petition came to be filed on 29-6-

2004. By making amendments in the petition more

particulars are given and more reliefs are claimed like

relief of setting aside the order made by the Education

Officer which is consequential one.

                                            5           WP 4863 of 2004

     5)               One officer from the Education Department of

the State Government has filed reply-affidavit and the

aforesaid contentions made by the petitioners are denied.

It is contended that as per census of the year 1991

population of the village was 3068 and as there was

already one Zilla Parishad school in this village, shifting of

the respondent No.6, school has not affected the rights of

the people there to get primary education. It is contended

that the transfer was made subject to conditions that the

students who were admitted in respondent No.6 school

were accommodated in Zilla Parishad school of the village

and they were actually accommodated. It is contended

that there were hardly 129 students in Class 1 to Class 4

standards in this school. It is contended that the proposal

for transfer of the school was made by the Education

Officer after making inquiry. It is contended that there

were no basic amenities in the school and due to that

students were not attracted to the school and the strength

of the students was not sufficient for running the school. It

is contended that in view of these circumstances and on

the basis of report of the Education Officer, the Deputy

Director of Education had recommended to the

6 WP 4863 of 2004

Government for transfer of the school and accordingly

permission came to be granted. The conditions which

were imposed for transfer of the school are quoted in the

reply affidavit. It is contended that the transfer was made

well before starting of the academic year 2004-2005 i.e.

on 8-6-2004 and so there was no harassment to anybody

due to the transfer of the school. Similar contentions are

made in reply filed by respondent Nos.5 and 6 and it is

further contended that there were at least four primary

schools in the village and so transfer of the present school

has not affected the right to get primary education. It is

also contended that it is the responsibility of the Zilla

Parishad to see that primary education is given and there

was school of Zilla Parishad in the village where the

students were accommodated.

6) It is not specifically contended in the petition

that the order of transfer was communicated by officer

below the rank of Secretary in the Government. But such

argument was advanced. There is correspondence to show

that on the basis of order made by the Government the

Deputy Director had written to the Education Officer and

7 WP 4863 of 2004

then the Education Officer had written to the school with

regard to the transfer. Further there is reply-affidavit of

the Government to the effect that necessary inquiry was

made and as per the proposal made by the Education

Officer and the recommendation made by the Deputy

Director, the order was made. In ordinary course the

Court is expected to presume that necessary procedure in

that regard was followed. It can be said that under some

Government policy the decision of transfer of the school

was taken though there are no rules in the Maharashtra

Employees of Private Schools (Conditions of Service)

Regulation Act in this regard. Nothing was brought to the

notice of the Court by the learned counsel for the

petitioners to show that procedure given in the policy

decision was not followed. When there was the power with

the Government to make such order, the order cannot be

called as perverse and there are aforesaid circumstances

showing that the right to get primary education is not

affected due to transfer of the school. The learned counsel

for the petitioners drew attention of this Court to show

some discrepancy in the dates mentioned on the report of

the Education Officer and the other correspondence but

8 WP 4863 of 2004

that discrepancy cannot change the decision of the matter

as the other record shows that inquiry was made in the

year 2003 and the order was made in June 2004. The Zilla

Parishad had given no objection to such transfer and to

that effect the learned counsel for the Zilla Parishad has

made the submissions.

7) The petitioners themselves have admitted that

there were no basic amenities. The school was being run

in a shed even when there were four classes viz. standard

1 to standard 4 and there was no playground for the

students. The school was admittedly started in the year

1990 and till the year 2004 such facilities did not become

available and it can be said that due to shortage of funds

further steps were not taken. The Government had started

giving 100% grants and so it was necessary for the

institution to see that infrastructure for the school was

made available. It can be said that due to aforesaid

circumstances the institution must have moved for

transfer of the school. The report of the Education Officer

shows that the teachers had given consent for transfer of

the school. There is no reason to disbelieve the record to

9 WP 4863 of 2004

the effect that necessary inquiry was made. The new

school had actually started at Latur and the students were

admitted. More than 13 years have passed since the

aforesaid incident. It is not the case of the petitioners that

due to the transfer, anybody had taken steps to start one

more school or anything was done by the villagers for

having one more school after transfer of respondent No.6-

school. Such circumstances cannot be ignored.

8) Learned counsel for the petitioners placed

reliance on some observations made by this Court in the

case reported as 2013(1) Bom. C.R. 725 (Jeevanjyoti

Krida & Shikshan Prasarak Mandal v. State of

Maharashtra). The facts of this case were totally different

and so the observations made in that case by this Court

are of no use in the present matter. On the point of

competency of the authority to make order of transfer the

case reported as 2001(3) Mh.L.J. 339 (Mohansingh

Tanwani v. State of Maharashtra) was cited. The facts of

this reported case were also different. In the present

matter this Court had expressed that the Court was ready

to call the original file from the Government if the learned

10 WP 4863 of 2004

counsel for petitioners was giving up other objections.

The learned counsel submitted that he has no intention to

see the file and so such order was not made. It is already

observed that there is presumption that necessary

procedure was followed. In view of these circumstances,

this Court holds that it is not possible to interfere in the

order under challenge. In the result, the petition stands

dismissed. Rule is discharged.

             Sd/-                                         Sd/-
     (SANGITRAO S PATIL, J.)                      (T.V. NALAWADE, J.)




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