Bombay High Court
Adiwasi Magaswargiya Vikas ... vs The State Of Maharashtra And Ors on 14 September, 2017
Bench: R.D. Dhanuka
WP No. 3480/2008
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO. 3480 OF 2008
Adiwasi Magaswargiya Vikas
Shikshan Prasarak Mandal,
Kalamnuri,District Hingoli.
Through its President
Amrutrao s/o Shankarrao Dukare
(Bothikar)
Age : 46 yrs, occu.: social worker
R/o Limbi, Taluka Kalamnuri,
District Hingoli. Petitioner.
Versus
1. The State of Maharashtra
Through the Secretary
Tribal Development Department,
Maharashtra State, Mantralaya,
Mumbai - 32.
(Copy to be served on G.P.
High Court of Bombay, Bench
at Aurangabad.
2. The Commissioner Integrated
Tribal Development Department,
Mantralaya State Nashik.
3. The Project Officer,
Integrated Tribal Development
Department, Project Kinwat,
Taluka Kinwat, Dist. Nanded.
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WP No. 3480/2008
(2)
4. Shri Sadguru Datta Dharmik
and Parmatharik Trust, Indoor
Through its President
R/o Sajanpuri, Tal. Khamgaon,
District Buldana. Respondents.
***
Mr. G.K. Salve, Advocate for the petitioner
Mr. Y.G. Gujrathi, A.G.P. for respondent Nos.1to3.
Mr. V.D. Salunke, Advocate for respondent No. 4.
***
CORAM : R.D. DHANUKA &
SUNIL K. KOTWAL,JJ.
Dated : 14-09-2017.
ORAL JUDGMENT (PER R.D. DHANUKA,J.) :
1. By this Writ Petition filed under Article
226 of the Constitution of India, the petitioner
has impugned the order dated 07.08.2007 and the
order dated 10.04.2008 issued by Adiwasi Vikas
Mantralaya i.e. respondent No.1, thereby
derecognising the school of the petitioner and
transferring the Management and School to the
respondent No.4-Shri Sadguru Datta Dharmik and
Parmarthik Trust, Indoor.
WP No. 3480/2008
2. Some of the relevant facts for the
purpose of deciding this Writ Petition are as
under.
3. The petitioner had submitted a proposal
to the respondent No.1 to run a Primary School at
village Limbi. On 10.08.1987, respondent No.1
granted permission to run Ashram School at village
Limbi. It is the case of the petitioner that the
petitioner thereafter started running the said
school which was inspected by the Authority from
time to time. On 12.09.1994, a show-cause notice
was issued by the respondent No.1 to the
petitioner alleging certain deficiencies on the
part of the petitioner in running the said Ashram
School. The petitioner responded to the said show
cause notice. On 22.08.1995 the respondent No.1
cancelled the recognition of the Primary Ashram
School run by the petitioner.
4. The petitioner, therefore, filed a Writ
WP No. 3480/2008
Petition (No. 4562 of 1995) challenging the said
order dated 22.08.1995. During the pendency of
the said Writ Petition, the respondent No.1 issued
a show cause notice on 22.07.2003. The petitioner
responded to the said show cause notice. The said
Writ Petition No.4562 of 1995 came to be decided
by this Court on 01.08.2003 after noticing that
the show cause notice was given to the petitioner
during pendency of the said Writ Petition, the
petitioner was directed to reply to the said show
cause notice and the concerned officer was
directed to take appropriate action in that
regard.
5. It is the case of the petitioner that the
petitioner, however, could not remove all the
deficiencies due to shortage of water and for want
of grant-in-aid issued by respondent No.1 to the
petitioner. The petitioner once again impugned
the order dated 11.03.2005 passed by respondent
No.2. On 26.06.2006 this Court disposed of the
said Writ Petition No. 5398 of 2005 directing
WP No. 3480/2008
respondent Nos.2 and 3 to cause inspection of the
Primary Ashram School of the petitioner and made
it clear that if it was found that the petitioner
had removed all the deficiencies, then the School
be reconsidered for grant of recognition. The
said petition was made absolute in those terms.
6. Pursuant to the said order passed by this
Court, the respondent No.1 deputed an Inspector to
make inspection of the School of the petitioner.
The said Inspector submitted report dated
05.02.2007 pointing out the various deficiencies.
It is the case of the petitioner that by the said
report, the said Inspector made recommendation to
the respondent No.1 to grant permission to the
petitioner to continue the School for another
period of 2 years on certain terms and conditions.
7. It is the case of the petitioner that
inspite of the said recommendation made by the
Inspector, the respondent No.1 once again
WP No. 3480/2008
derecognised the petitioner's School by passing an
order dated 07.08.2007 without considering the
inspection report dated 05.02.2007 and withdrew
the recognition of the School run by the
petitioner.
8. It is the case of the petitioner that the
State Government thereafter took a decision on
31.08.2005 not to grant further permission to open
Ashram School to any party. Respondent No.4 had
independently made an application for permission
to start new School. It is the case of the
petitioner that the respondent No.1, instead of
withdrawing the said order of recognition, passed
an order on 10.04.2008 thereby transferring the
Management of the School run by the petitioner to
respondent No.4 in a different District. Being
aggrieved by the order dated 07.08.2007 and order
dated 10.04.2008, petitioner preferred this Writ
Petition for a writ of certiorari for quashing and
setting aside the orders dated 07.08.2007 and
10.04.2008.
WP No. 3480/2008
9. Learned Counsel for the petitioner
invited our attention to various annexures to the
Writ Petition and would submit that in view of the
respondent No.1 not having issued any grant-in-aid
for the period of more than 10 years and due to
various unavoidable circumstances, the petitioner
could not remove all the deficiencies pointed out
by the respondent No.1. He submits that though
the Inspector, who was deputed pursuant to the
order passed by this Court in Writ Petition filed
by the petitioner which came to be allowed, made
recommendation to give opportunity to the
petitioner to continue the said School for a
period of two years, the respondent No.1 ignored
the said report submitted in favour of the
petitioner and once again derecognised the School
run by the petitioner.
10. It is submitted by the learned Counsel
that there is no provision in the Ashram School
Code permitting respondent No.1 to transfer the
Management and School run by the Ashram School to
WP No. 3480/2008
any other School run by any other Management. He
submits that the School which was run by the
petitioner has been illegally transferred
depriving the tribal students who were being
provided education by the petitioner in the said
School from last several years.
11. It is submitted by the learned Counsel
for the petitioner that in so far as the financial
capacity and ability of respondent No.4 to run the
School is concerned, the petitioner does not
dispute this fact. He further submits that if the
grant-in-aid would have been granted by the
respondent No.1 to the petitioner, the petitioner
also would have removed all the deficiencies
pointed out by the respondent No.1.
12. In support of his submission that the
respondent no.1 could not have passed the order of
transfer of Management and School to respondent
No.4 without there being any provision in the
WP No. 3480/2008
Ashram School Code, the learned Counsel placed
reliance on the Judgment delivered by Division
Bench of this Court in the case of Jeevanjyoti
Krida and Shikshan Prasarak Mandal Versus State of
Maharashtra and others [2012 (6) ALL MR 281] and
in particular paragraphs 10 to 12 thereof.
13. Mr. Gujrathi, learned A.G.P. for
respondent Nos. 1 to 3 on the other hand invited
our attention to various averments made in the
reply affidavit filed by respondent Nos.1 to 3.
He submits that the opportunities were granted to
the petitioner by respondent No.1 to remove all
the deficiencies pointed out by the respondent
Nos.1 to 3 from time to time. However, the
petitioner could not remove all such deficiencies.
He invited our attention to Clauses 3.22 and 3.23
of Ashram School Code and would submit that the
respondent No.1 having derecognised the
petitioner, the petitioner could not have applied
for continuation of the permission to run the
School. He submits that under Clause 3.23 of the
WP No. 3480/2008
said Ashram School Code, the State Government has
been empowered to transfer the management of such
derecognised School and the School or to run the
said School itself.
14. Learned A.G.P. distinguished the judgment
of this Court in the case of Jeevanjyoti Krida and
Shikshan Prasarak Mandal (supra) relied upon by
the petitioner on the ground that the relevant
provisions of the Ashram School Code and more
particularly Clause 3.22 and 3.23 thereby
permitting the Government to transfer the
Management and School to another School was not
brought to the notice of this Court at the time of
hearing of the said matter.
15. It is submitted by learned A.G.P. that
the petitioner could not have impugned both the
orders i.e. dated 07.08.2007 and 10.04.2008 in the
same Writ Petition. He also submits that the
petition is barred by delay and latches.
WP No. 3480/2008
16. Learned A.G.P. further submits that the
permission was duly granted in favour of the
respondent No.4 of transfer of Management as well
as School which is being run properly by the
respondent No.4. There are no complaints as on
today against the respondent No.4 in running the
said School and Management transferred by the
impugned order.
17. Mr. V.D. Salunke, learned Counsel for
respondent No.4 invited our attention to various
annexures to the detailed affidavit-in-reply filed
by respondent No.4 on 10.02.2008 and also to the
additional affidavit filed on 07.04.2014. He
submits that the respondent No.4 has spent more
than Fifteen Crore Rupees on starting the School
transferred by respondent No.1 in favour of
respondent No.4. There are more than 650 students
taking education in the said School transferred to
the respondent No.4. Learned Counsel invited our
attention to several annexures annexed to the said
affidavit-in-reply to show that majority of
WP No. 3480/2008
students who are taking education in the said
School belong to Pardhi community and others are
belonging to other tribal majority from Buldana
District.
18. It is submitted that ultramodern
facilities are provided by respondent No.4 in the
said School to the students. In support of this
submission learned Counsel invited our attention
to the various photographs annexed to the
affidavit-in-reply to indicate that solar water
system, water cooler, water purifier, computer
lab, school bus and other facilities are provided
to the students. The students have also been
provided with sports material and library
facilities. He submits that respondent No.4
Institution has undertaken large number of
educational projects in several States of this
Country.
19. It is submitted that inspite of several
WP No. 3480/2008
opportunities granted by the respondent No.1 to
the petitioner to remove deficiencies, the
petitioner was unable to remove the said
deficiencies. Learned Counsel placed reliance on
Clauses 3.22 and 3.23 of Ashram School Code in
support of his submission that the School of the
petitioner has been derecognised by respondent
No.1 and the petitioner has thus no locus to
challenge the order of transfer issued by
respondent No.1. He also submits that the
petition is barred by delay and latches. He
submits that after hearing the respondent No.4 and
other respondents, this Court was pleased to
vacate the interim order earlier passed in favour
of the petitioner.
20. It is submitted by learned Counsel that
the balance of convenience is in favour of
respondent No.4. Respondent No.4 having spent
substantial amount in constructing the School
building and to carry out expansion by spending
substantial amount by respondent No.4 itself, this
WP No. 3480/2008
Court cannot interfere with the impugned orders
passed by respondent No.1 at this stage.
21. A perusal of the record clearly indicates
that the respondent No.1 had passed an order of
derecognition of the School of the petitioner on
more than one occasion. Though this Court had
granted opportunities to the petitioner to remove
deficiencies from time to time, the petitioner
could not remove those deficiencies. A perusal of
the averment made by the petitioner and in
particularly paragraphs 15 to 19, clearly
indicates that even after giving opportunity to
the petitioner, the petitioner could not remove
all the deficiencies. It is the case of the
petitioner that the petitioner could remove only
90% of the deficiencies. In our view, since the
petitioner could not remove all the deficiencies
inspite of several opportunities granted by
respondent No.1, which deficiencies would have
affected the students at large in the petitioner
School, the respondent No.1 in these circumstances
WP No. 3480/2008
was justified in derecognising the petitioner
School by passing the order dated 07.08.2007.
Even today the learned Counsel for the petitioner
is not able to satisfy before this Court that the
petitioner was in a position to remove all the
deficiencies pointed out by the respondent No.1
from time to time.
22. In so far as the impugned order dated
10.04.2008 passed by respondent No.1 thereby
transferring the Management and School run by the
petitioner to respondent No. 4 is concerned,
though the learned Counsel for the petitioner
initially raised an issue that the said impugned
order dated 10.04.2008 was without any powers
described under the provisions of Ashram School
Code, when the attention of the learned Counsel
was invited to Clause 3.23 of Ashram School Code,
the learned Counsel fairly admitted that the said
power of transfer of Management and School vests
with the respondent No.1.
WP No. 3480/2008
23. In so far as judgment delivered by
Division Bench of this Court in case of
Jeevanjyoti Krida and Shikshan Prasarak Mandal
Versus State of Maharashtra and others (supra)
relied upon by learned Counsel for the petitioner
is concerned, a perusal of the said judgment
clearly indicates that the powers vested in
respondent No.1 to transfer the Management and
School to another Institute prescribed under
Clause 3.22 read with Clause 3.23 of Ashram School
Code were not brought to the notice of the
Division Bench of this Court. In our view, the
said judgment is clearly distinguishable in facts
of the case and would not assist the case of the
petitioner.
24. Mr. Salve, the learned Counsel for the
petitioner fairly did not dispute the capacity and
ability of respondent No.4 to run the School
transferred by respondent No.1 in favour of
respondent No.4. Be that it may be, a perusal of
the record produced by respondent No.4 by filing
WP No. 3480/2008
detailed affidavit before this Court for perusal,
clearly indicates that all ultramodern facilities
are provided by respondent No.4 to the large
number of students admitted by respondent No. 4
after transfer of the Management and School
pursuant to the impugned orders. On the other
hand, the petitioner could not remove all the
deficiencies inspite of several opportunities
granted by respondent No.1. The respondent No.4
has spent substantial amount on construction of
the building and for providing various ultramodern
facilities to the students which cannot be
overlooked by this Court while considering the
challenge to the impugned orders in this petition.
In our view, any interference with the impugned
orders passed by respondent No.1 at this stage
would definitely cause inconvenience not only to
the respondent No.4, but also large number of
students who are taking education in the School
run by respondent No.4. In our view, balance of
convenience is in favour of the respondent No.4.
WP No. 3480/2008
25. In so far as the issue of locus of the
petitioner raised by learned A.G.P. and Mr. V.D.
Salunke, learned Counsel for respondent No.4 is
concerned, in our view since the order of
derecognition dated 07.08.2007 passed by
respondent No.1 was the subject-matter of
challenge in this petition, the petitioner could
challenge the order dated 10.04.2008 issued by
respondent No.1 thereby transferring the
Management of School to respondent No.4. If this
Court would have taken a view that the order dated
07.08.2007 derecognising the School of the
petitioner was illegal, this Court would have
considered the subsequent order dated 10.04.2008
issued by respondent No.1 transferring the
Management and School of the petitioner to
respondent No.4. We are, therefore, of the view
that there is no merit in this objection raised by
respondent Nos.1 to 3 on one hand and respondent
No.4.
WP No. 3480/2008
26. In so far as the issue of delay raised by
respondent Nos.1 to 3 on one hand and respondent
No.4 is concerned, in our view, both the learned
Counsel are right in their submission that during
the period of more than one year's delay the
respondent No.4 has already taken steps to start
said School and has spent substantial amount. We
are, thus, not inclined to interfere with the
impugned orders also on the ground of delay and
latches on the part of the petitioner which are
not explained by the petitioner in this petition.
In our view, Clauses 3.22 and 3.23 clearly vest
powers in respondent No.1 to transfer the
Management as well as School if the conditions
described in those provisions are not satisfied by
the School who was granted permission to run such
Ashram School under the provisions of Ashram
School Code or to run the School itself. In these
circumstances, we do not find any infirmity with
the order dated 10.04.2008 passed by the
respondent No.1 transferring Management and School
run by the petitioner to respondent No.4. In our
WP No. 3480/2008
view, there is no merit in the petition and thus
we pass the following order.
ORDER
(i) Writ Petition No. 3480 of 2008
is dismissed.
(ii) Rule is discharged.
(iii) No order as to costs.
( SUNIL K. KOTWAL) ( R.D. DHANUKA)
JUDGE JUDGE
vdd/
