Miyasab Shaikshanik Va Sevabhavi ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 12542 Bom

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                                                      915 WP-6504.2016 (J).odt

           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                     915 WRIT PETITION NO.6504 OF 2016

 1.       Miyasab Shaikshanik Va Sevabhavi
          Sanstha, Bori, Taluka and Dist. Latur
          Through it's President
          Abdul Jabar s/o Abdul Gafoor Sagre,
          Age : 59 years, occ : agri.,
          R/o Bori, Taluka and Dist. Latur.


 2.       Priyadarshani Primary School
          New Khaja Nagar, Osmanabad,
          Taluka and District Osmanabad
          Through it's Head Master.                                Petitioners


                           Versus


 1.       The State of Maharashtra
          Through it's Secretary,
          School Education and Sports
          Department, Mantralaya,
          Mumbai - 32.


 2.       The Director of Education (Primary),
          Maharashtra State, Pune.


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


 4.       The Education Officer (Primary),
          Zilla Parishad, Osmanabad.                               Respondents

                                       ...
                  Mr. V.D. Gunale, Advocate for the petitioner.
               Mr. S.R. Yadav, A.G.P. for respondent Nos. 1 to 3.
               Mr. S.N. Rodge, Advocate for respondent No. 4.
                                       ...

                                CORAM :      RAVINDRA V. GHUGE AND
                                             S.G. MEHARE, JJ.

                                DATE   :     03-09-2021


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                                                      915 WP-6504.2016 (J).odt



 JUDGMENT (Per Ravindra V. Ghuge) :

1. Rule. Rule made returnable forthwith and heard finally

by the consent of the parties.

2. By this petition, the petitioner Management has put-forth

prayer clauses [C] and [D] as under :-

"(C) By writ of mandamus or any other writ, order or direction, the respondents be directed to release 20% grants in aid to the divisions of 5th and 6th Std., from June 2010 and to the division of 6th and 7th Std., from June 2011 of the petitioner No. 2 School. By modifying the communication dated 7th February 2014 issued by the respondent No. 3.

(D) Pending hearing and final disposal of this writ petition, the respondents be directed to release 20% grant-in-aid to the 5th to 7th Std., divisions of petitioner school from June 2010 and June 2011 respectively and subsequent grants as per the policy i.e. 100% from 5th year after opening of additional divisions of the petitioner school".

3. We have extensively heard the learned Advocate for the

petitioner and the learned A.G.P. Though this hearing went on for

quite some time, none appeared for respondent No. 4 - Education

Officer.

4. The petitioner has primarily approached this Court on

the foundation that other similarly situated schools have been

granted 20% grant-in-aid from the academic year 2010-2011 after

the District Evaluation Committee examined all these schools. The

petitioner school scored higher marks and yet is granted 20% grant-

in-aid only from the academic year 2012-2013. It is submitted that

915 WP-6504.2016 (J).odt

the three schools namely Kailaswasi Raosaheb Patil Primary

School, Paranda, Dr. Babasaheb Ambedkar Primary School,

M.I.D.C. Kallamb, District Osmanabad and Saraswati Primary

School, Paranda, District Osmanabad have been granted 20%

grants for 5th to 7th Standards.

5. The learned Counsel for the petitioners has strenuously

canvassed that all factors being equal in comparison to the

petitioners vis-a-vis the three schools, the same treatment should

have been meted out to the petitioner. Kailaswasi Raosaheb Patil

School scored 94 marks and the petitioner Miyasab Shaikshanik Va

Sevabhavi Sanstha which runs Priyadarshani Primary School,

scored 81 marks. Saraswati Primary School, Paranda scored 94

marks. Dr. Babasaheb Ambedkar Primary School scored 75 marks.

He, therefore, makes a grievance that the Government Resolution

dated 08-11-2000 and not the Government Resolution dated

15-11-2011, would apply to the case of the petitioner.

6. The learned A.G.P. relies upon the affidavit-in-reply filed

by Shri Sunil Ratansing Chauhan, Director of Education (Primary)

dated 9th February 2018, the reply filed by Shri Sanjay Manikrao

Yadgire, Deputy Director of Education dated 5th December 2018,

also an additional affidavit filed by Smt. Swati Madhukar Nanal,

dated 24th June 2019 and the additional affidavit filed by Shri

Gajanan Sugdeo Susar dated 21st January 2020. He points out

that the Department has followed the Government Resolution dated

15-11-2011, so also the Government Resolution dated 08-11-2000.

915 WP-6504.2016 (J).odt

He refers to the order passed by this Court dated 11-03-2019

and the order dated 20-11-2019, which read as under :

Order dated 11-03-2019

"1. The State contends that 20% grant was released to the petitioner No.2-Institution from the year 20122013, whereas, contention of the petitioner is that the same was released in the year 2016. The State, in its additional affidavit, has stated that Dr. Babasaheb Ambedkar Prathmik Vidyamandir, Diksal, Kalamb was at serial No.3 and was considered for grantinaid in the year 20102011.

2. The State shall clarify the distinguishing factors for giving grantinaid to the other institution as referred above, from the year 20102011.

3. Stand over to 25.03.2019".

Order dated 20-11-2019

"1. This Court, by order dated 11.3.2019 directed to clarify the distinguishing factors for giving grant-in-aid to the other institutions, as referred to in the order from the year 2010- 2011. On 25.3.2019, it was noticed by this Court that though the time was granted to clarify the said position, the reply was not filed. This Court, therefore, granted time with a condition that if the affidavit is not filed, the concerned officer shall personally remain present in the Court.

2 On the next date i.e. 24.4.2019, affidavit was not filed, however, the concerned officer was personally present in the Court and sought time to file affidavit. Accordingly time was granted by observing that if no affidavit is filed on the next date, the Court would impose costs upon the respondents.

3 Thereafter on 24.6.2019, an affidavit was filed on behalf of respondent No.1 by one Swati Madhukarrao Nanal, Deputy Secretary, School Education & Sports Department, Mantralaya, Mumbai. On perusal of the said affidavit and the affidavit earlier filed at page No.123, we are not satisfied with both the affidavits. The clarification which was sought by this Court is not yet given by the respondent State.

4 Today Mr Sonpawale, learned AGP again requested for time to bring the necessary facts on record and to clarify the distinguishing factors for giving grant-in-aid to the other institutions. Time of three weeks is granted as sought by the learned AGP. It is made clear that, on the issue regarding clarifying distinguishing factor for giving grant-in-aid, no

915 WP-6504.2016 (J).odt further time will be granted and the matter would be decided on merit.

5 Stand over to 11.12.2019".

7. He further submits that the subsequent Government

Resolution dated 15-11-2011 is not contrary to the Government

Resolution dated 08-11-2000, inasmuch as, the earlier Government

Resolution has not been nullified by the subsequent Government

Resolution. In both these Resolutions, the Government has insisted

on an education institution being in order and achieving higher

norms of education. The Evaluation Committee is constituted of

experts in the field of education and as these grants-in-aid to the

institutions would lead to the payment of salaries to the extent of the

percentage of grants, the Education Department of the State of

Maharashtra was justified in legitimately expecting the best schools

to be considered for such grants. Mr. Yadav further submits that

distribution / allotment of grants is not a bounty. These grants

originate from the tax payers' money. The law is crystalized that only

approved teachers can be granted salaries through the grants and

the teachers who are not approved, cannot be paid their salaries

through the grants of the Government. If a teacher, who is not

approved, is continued by the Management as a matter of choice,

the Management has to pay the salaries of such teachers.

8. We find that the bone of contention put-forth by the

petitioner is limited to the aspect as to whether the Education

Department has unethically given differential treatment to the

915 WP-6504.2016 (J).odt

petitioner causing prejudice to it. If three institutions are granted the

aid, the Education Department has to justify the reason for refusing

to grant such aid to the petitioner from the academic year 2010-

2011. It is undisputed that the petitioner was eventually granted

20% aid, which is the beginning point of such grants, for the

academic year 2012-2013.

9. The learned A.G.P. clarifies that the decision to grant

20% aid has been announced through a Resolution published on

13th November 2013. This is not an issue for debate in this

proceeding.

10. We find from a document placed before us dated

31.12.2012 which is the order passed by the Education Officer

(Primary) granting approval to the four Assistant Teachers appointed

by the petitioner for the 5th to 7th Standards after it was granted these

divisions as a part of the natural growth of the school. Though these

teachers were granted approval with retrospective effect from

15.06.2009, the Management had tendered it's proposal for approval

on 17-10-2012.

11. It is noteworthy that the Evaluation Committee

evaluated the three Standards of the petitioner school in 2011 and

the said evaluation was considered in it's meeting dated 31-10-2011.

In this meeting, admittedly all the four teachers were working without

approval. A further evaluation was also conducted which was tabled

in the meeting dated 24-05-2012. Even then there was no approval

granted. The Education Department has put-forth a specific

915 WP-6504.2016 (J).odt

contention that the other schools, which were granted 20% aid from

the academic year 2010-2011, have produced approvals of their

teachers during the evaluation.

12. We find from the record and especially from Clause-5 of

the Government Resolution dated 08-11-2000 that the State

Government was generating funds for aiding the primary schools

based on the availability of the funds that could be allotted. It is

provided that if in a particular financial year, the Department is short

of funds and the aid could not be provided for that year, the school

would not be entitled to claim the arrears of the unpaid aid amount in

the subsequent financial year. The salaries of the approved

teachers and the expenditure of the school in the absence of aid due

to paucity of funds, would be the responsibility of the school. It

would not be a matter of legitimate expectation, much less a right of

such school, that if the aid is not provided in a particular academic

year, the school would demand such arrears in the subsequent

academic year.

13. It calls for no debate as regards the sanctity of an

approval granted by the Education Officer to the appointment of a

teacher. The approval order reflects the following aspects :

(a) prior permission of the Education Officer for recruitment is

taken;

(b) surplus teachers are not available when such recruitment is

made;

915 WP-6504.2016 (J).odt

(c) the reservation roster is followed;

(d) there is a sanctioned post which was advertised;

(e) an approved selection process was followed while

making recruitment;

(f) the selected candidate is possessing the requisite educational

qualification;

(g) only an approved teacher is entitled for salary through grants;

(h) an approval would render a placement to the approved

teacher in the seniority list and besides being eligible for

salary through the grants, he would also be eligible for further

service benefits based on his seniority.

14. The record reveals that the petitioner invited the

attention of the Evaluation Committee in 2011 when these four

teachers, though appointed, were not approved. An approval, as

noted above, would be the ultimate test or the litmus test for

establishing a legally made appointment. In fact, the petitioner

Management submitted it's proposal to the Education Officer for

seeking approval on 17-10-2012, by which time, two meetings of the

Evaluation Committee were conducted on 31.10.2011 and

25.04.2012. The proposal for approval was accepted by the

Education Officer on 31.12.2012. Clause-5 of the Government

Resolution dated 08-11-2000 precludes the petitioner from seeking

grants with retrospective effect when, on the date of evaluation, it

was apparently not eligible. A further evaluation after the approval of

915 WP-6504.2016 (J).odt

the teachers made them eligible for the grant in aid which was

provided for the academic year 2012-2013.

15. Taking a overall view of the factors discussed above and

the provisions of the Government Resolution dated 08-11-2000,

which, according to the petitioner is applicable to his case, we do not

find any merits in this petition. The same is, therefore, dismissed.

Rule is discharged.

    (S.G. MEHARE, J.)                       (RAVINDRA V. GHUGE, J.)

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