Navshakti Education Society, ... vs State Of Maharashtra, Department ...
2022 Latest Caselaw 11371 Bom

WP 6781-19                                    1                       Judgment

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR.

                       WRIT PETITION NO. 6781/2019

1.     Navshakti Education Society, Agargaon, District
       Nagpur, through its President Dhumsingh Jadhav.

2.     Dhumsingh Jadhav, President, Navshakti
       Education Society, R/o Plot No.21, Balaji Nagar
       (West), Manewada Road, Nagpur-27.                        PETITIONERS

                                  -VERSUS-

1.     State of Maharashtra,
       Department of V.J.N.T. through its Secretary,
       Mantralaya, Mumbai-32.
2.     Additional Commissioner,
       Social Welfare Development Department,
       Nagpur Division, Nagpur.
3.     Sayali Bahu-uddeshiya Society, through its
       Secretary having its office address at
       Pendhari (Kajali), Tah. Hingna, District Nagpur.
4.     The Commissioner, VJNT Department,
       3, Church Road, Pune-411 001.                          RESPONDENTS
__________________________________________________________________________
                Shri K.V. Deshmukh, counsel for the petitioners.
Ms S.S. Jachak, Assistant Government Pleader for the respondent nos.1, 2 and 4.
    Shri R.L. Khapre, Senior Advocate with Shri A.S. Dhore, counsel for the
                               respondent no.3.


CORAM :        A. S. CHANDURKAR        AND    URMILA JOSHI-PHALKE, JJ.
DATE ON WHICH ARGUMENTS WERE HEARD                : 23RD SEPTEMBER, 2022.
DATE ON WHICH JUDGMENT IS PRONOUNCED : 10TH NOVEMBER, 2022.
JUDGMENT        (PER : A.S. CHANDURKAR, J.)

RULE. Rule made returnable forthwith and heard the learned

counsel for the parties.

WP 6781-19 2 Judgment

2. The challenge raised in this writ petition is to the Government

Resolution dated 07.03.2019 issued by the Vimukta Jati, Nomadic Tribes,

Other Backward Class and Special Backward Class Welfare Department of

the State of Maharashtra. By the said Government Resolution the

respondent no.3 has been permitted to operate the Ashram School that

was initially being run by Lokjagruti Shikshan Sanstha at Village Gose

(Bu.), Taluka Paoni, District Bhandara. Though such decision was taken

by issuing Government Resolution dated 05.03.2019, that Government

Resolution was superceded by the Government Resolution dated

07.03.2019.

3. The facts in brief that are relevant for considering the challenge as

raised are that the aforesaid Department on 24.04.2018 issued

Government Resolution prescribing the modality for transfer/shifting of

an Ashram School that had been either closed down or whose recognition

has been cancelled. The said policy pertained to such schools that were

being run for students from the V.J., N.T., O.B.C. and S.B.C. Category. As

per Clause 22 thereof if the recognition of an Ashram School was

cancelled for lack of number of students or such Ashram School had been

closed down, it was permissible to transfer such Ashram School at a

nearby place, adjoining Taluka or even adjoining District. It was however

stipulated that the transferred place should not exceed fifty kilometers

from the school proposed to be transferred. As per Clause 26 in an WP 6781-19 3 Judgment

exceptional situation and considering the need, the terms and conditions

in the Government Resolution could be relaxed and the final authority in

that regard was with the State Government. In terms of the aforesaid

Government Resolution an advertisement was published by the

Directorate on 29.05.2018 inviting proposals from societies interested in

operating such Ashram Schools that had been closed down. A Secondary

Ashram School by the name Baba Khatalu Secondary Ashram School at

Gose (Bu.), Taluka Paoni, District Bhandara that was being conducted by

Lokjagruti Shikshan Sanstha was one such Ashram School that had been

closed down. The recognition of the primary school that was operating

Classes 1 to 7 as well as a secondary school conducting Classes 8 to 10

came to be cancelled on 30.05.2013. The petitioner no.1-Society

alongwith four others had responded to the aforesaid advertisement with

regard to the secondary school. On 13.08.2018 a note-sheet was prepared

by the Department in which it was stated that all the five applications

were considered and none of the applicants were found to be qualified for

allotment of the said Ashram School. It was then directed by the Hon'ble

Minister for Vimukta Jati, Nomadic Tribes, Other Backward Class and

Special Backward Class Welfare Department that as per Government

Resolution dated 24.04.2018 one Institution be selected from amongst the

applicants. Thereafter on 21.09.2018 a Committee comprising of three

members came to be constituted to re-examine the aforesaid proposals.

After the report was submitted by the said Committee the matter was WP 6781-19 4 Judgment

again considered and the Hon'ble Minister directed allotment of the

aforesaid Ashram School to the respondent no.3-Society. Pursuant

thereto initially Government Resolution dated 05.03.2019 came to be

issued allotting the secondary Ashram School to the respondent no.3-

Society. However, thereafter Government Resolution dated 07.03.2019

came to be issued wherein it was stated that by exercising the power of

relaxation conferred under Clause 26 of the Government Resolution dated

24.04.2018 the aforesaid Ashram School was transferred to the

respondent no.3-Society. The earlier Government Resolution dated

05.03.2019 was superceded. Various conditions were imposed in the

order granting permission which included the absorption of the existing

staff members and compliance with various necessary conditions. The

petitioner no.1-Society being one of the applicants for allotment of the

secondary Ashram School being aggrieved by the aforesaid Government

Resolution dated 07.03.2019 has challenged the same in the present writ

petition.

4. Shri K.V. Deshmukh, learned counsel for the petitioners after

referring to the Government Resolutions dated 24.04.2018, 21.09.2018 as

well as other documents on record submitted that the State Government

was not justified in allotting the said Ashram School to the respondent

no.3-Society. The said Society did not satisfy various requirements

prescribed by the Government Resolution dated 24.04.2018. While the WP 6781-19 5 Judgment

existing Ashram School run by the petitioner no.1-Society was at a

distance of about Eighteen to Nineteen kilometers from the Ashram

School to be allotted, the Institution being run by the respondent no.3-

Society was at a distance of about One Hundred and Fifty kilometers.

The petitioner no.1-Society was already running two primary and two

secondary schools and hence the staff engaged by it had sufficient

experience to run another Ashram School. On the contrary the

respondent no.3-Society had no experience of running any school. The

discretion exercised under Clause 26 was without any justification

inasmuch as under the said Clause the power of relaxation could have

been exercised only in exceptional circumstances. Such discretion had

been exercised to favour the respondent no.3-Society by disregarding

other conditions stipulated in the said Government Resolution. There was

no comparative assessment undertaken by the respondent no.1 while

holding the respondent no.3-Society to be eligible. Since all the five

applicants had been found to be not qualified it was not open for the

respondent no.1 to have chosen the respondent no.3-Society from

amongst them. He invited attention to the relevant averments made in

paragraph 4 of the writ petition to indicate that the location of the

institution proposed to be run by the respondent no.3-Society was at a

distance of about One Hundred and Fifty kilometers from the earlier

Ashram School. Since the petitioner no.1-Society was eligible in terms of

the Government Resolution dated 24.04.2018 and it had also applied for WP 6781-19 6 Judgment

being allotted the Ashram School it had sufficient locus to challenge the

allotment of the Ashram School to the respondent no.3-Society. In

support of his submissions the learned counsel for the petitioners placed

reliance on the decisions in Sant Dnyaneshwar Shikshan Sanstha &

Another Versus State of Maharashtra & Others [2019 (4) Scale 1],

Shetkari Shikshan Prasarak Mandal, Ashti Versus State of Maharashtra &

Others [2002 (1) Mh.L.J. 814], Chairman-cum-M.D., Coal India Limited

& Others Versus Ananta Saha & Others [(2011) 5 SCC 142], Rameshwar

Versus Jot Ram [AIR 1976 SC 49] and Jeevanjyoti Krida and Shikshan

Prasarak Mandal Versus State of Maharashtra & Others [2012 (6)

Mh.L.J. 836]. It was thus prayed that the allotment of the Ashram School

to the respondent no.3-Society vide Government Resolution dated

07.03.2019 be set aside and the petitioner no.1-Society be allotted the

Ashram School in question for being run.

5. Ms S.S. Jachak, learned Assistant Government Pleader for the

respondent nos.1, 2 and 4 opposed the aforesaid submissions. Placing

reliance on the affidavit-in-reply filed on behalf of the said respondents it

was denied that any favour was extended to the respondent no.3-Society

by allotting the secondary Ashram School that had been closed down.

The discretion under Clause 26 had been exercised after considering the

entire material on record as well as the factual situation. The petitioner

no.1-Society was not recommended and since it was not found to be WP 6781-19 7 Judgment

eligible, it had no locus to challenge the allotment of the Ashram School

in favour of the respondent no.3-Society. It was further submitted that

after the respondent no.3-Society started operating the Ashram School,

regular inspections were conducted and as per the reports dated

01.08.2019 and 21.11.2019 there were no deficiencies in the said Ashram

School which was being run satisfactorily by the respondent no.3-Society.

The respondent no.2 had recently visited the said Ashram School on

24.09.2021 and the said school was being run in accordance with the

prescribed norms. Since the terms and conditions imposed on the

respondent no.3-Society had been complied with, the Authorities had no

grievance in that regard.

Shri R.L. Khapre, learned Senior Advocate for the respondent no.3-

Society also opposed the writ petition. According to him the petitioner

no.1-Society had no locus whatsoever to challenge the allotment of the

Ashram School in favour of the respondent no.3-Society. The power of

relaxation conferred by Clause 26 of the Government Resolution dated

24.04.2018 had been appropriately exercised in a fair manner. After

being satisfied that the respondent no.3-Society was entitled to be allotted

the said Ashram School in the light of its earlier record, the same had

been done. Considering the nature of power being exercised, it was not

necessary to record detailed reasons as to why the respondent no.3-

Society was found eligible for such allotment. The power exercised in this

regard was legislative in nature and the same was not required to be WP 6781-19 8 Judgment

supported by any reasons. It was then submitted that after allotment of

the said Ashram School it was being run in a satisfactory manner. Regular

inspections were being carried out by the Authorities and they did not

notice any deficiency whatsoever. The said school was affiliated to the

Maharashtra State Board of Secondary and Higher Education and the

result for the S.S.C. examination conducted in March-2020 as well as

March-2021 was 100%. The results were slightly affected only in March-

2022 as it was 78.57% on account of the death of parents of four students

in the pandemic. The respondent no.3-Society was also permitted to run

vocational courses and all the staff members of the erstwhile Ashram

School that had been closed down had been accommodated. In these

facts therefore there was no reason to interfere with the Government

Resolution dated 07.03.2019 especially at the instance of the petitioner

no.1-Society which was not found eligible. In support, the learned counsel

for the respondent no.3 relied upon the decisions in State of Rajasthan

Versus Sriram Verma & Another [(1996) 6 SCC 493] and K.T. Plantation

Private Limited & Another Versus State of Karnataka [(2011) 9 SCC 1].

It was thus submitted that the writ petition was liable to be dismissed.

6. We have heard the learned counsel for the parties at length and

with their assistance we have also gone through various documents

placed on record. The factual aspects on record indicate that in view of

closure of the existing secondary Ashram School it was proposed to invite WP 6781-19 9 Judgment

applications from the societies interested in running the said Ashram

Schools. The advertisement in that regard is dated 29.05.2018. In

response thereto five applications were received for being allotted the

Secondary Ashram School that was located at Taluka Paoni, District

Bhandara. The proposals as received were examined by a three member

committee pursuant to the Government Resolution dated 21.09.2018. As

per the said Government Resolution the Committee was specifically

required to examine whether the society seeking allotment of Ashram

School had its own land. In case the society did not own such land the

same was required to be acquired by purchasing the same within a period

of one month and till such period it was not permissible to start the

Ashram School. Further it was stipulated that the Ashram School should

be located in the same village or in a nearby village. Preference was also

to be given to a society having experience of running an Ashram School.

The three member committee that had examined the five proposals found

that none of the applicants were eligible for being allotted the said

Ashram School. It was noted that none of the societies owned land on

which the Ashram School could be started. The report of the said

committee was placed before the State Government for consideration.

The proposals were to be examined in the light of the Government

Resolution dated 24.04.2018. It appears that the State Government on

01.03.2019 proceeded to allot the said Ashram School to the respondent

no.3-Society. In the note-sheet placed on record by the petitioners it has WP 6781-19 10 Judgment

been noted by the Hon'ble Minister that the Ashram School be allotted to

the respondent no.3-Society. Except aforesaid statement it cannot be

gathered as to what was the reason behind such allotment. In this regard

it is necessary to refer to the Government Resolution dated 24.04.2018

that has been issued in the matter of transfer/allotment of Ashram Schools

that have been closed down. Amongst various conditions stipulated

therein Condition No.13 requires an interested society to be owning two

acres of land in a rural area or one acre land in an urban area where such

Ashram School could be relocated. As per Condition No.22 when an

Ashram School has been closed down on account of its de-recognition due

to reduction in the number of students the same can be allotted to

another society in the vicinity. However the distance between the area

where the Ashram School is located and the area where it is proposed to

be relocated should not be more than fifty kilometers. As per Clause 26

in an exceptional situation after considering the need it was permissible

for the State Government to relax certain terms and conditions.

7. At this stage it would be necessary to refer to the decision in

Jeevanjyoti Krida and Shikshan Prasarak Mandal (supra) where the

Division Bench noted the absence of a transparent procedure in the matter

of transfer of a de-recognized Ashram School. The State Government was

directed to frame a policy in that regard so as to obviate an arbitrary

exercise of power. Till such policy was formulated the Court issued WP 6781-19 11 Judgment

various directions which included the requirement of passing a reasoned

order while permitting such relocation of an Ashram School. The

aforesaid decision was considered by the Hon'ble Supreme Court in Sant

Dnyaneshwar Shikshan Sanstha & Another (supra). Therein an Ashram

School that had been closed down came to be transferred at a place which

was about four hundred kilometers away from such school. It was noted

that after the decision of this Court in Jeevanjyoti Krida and Shikshan

Prasarak Mandal (supra), Government Resolution dated 19.12.2016 came

to be issued. After finding that the Ashram School had been transferred

at a distance of four hundred kilometers when as per the Government

Resolution dated 01.08.2007 the application for transfer was required to

be considered within a distance of ten kilometers, the order passed by the

High Court setting aside such transfer was not interfered with.

8. From the aforesaid decision it becomes clear that the allotment of

an Ashram School is required to be undertaken in a transparent manner

and after complying with the stipulations prescribed by the Government

Resolution dated 24.04.2018. A reading of the entire Government

Resolution clearly indicates that it was mandatory for a society seeking

allotment of a closed Ashram School to own land. Further, distance

between the Ashram School that was closed down and the place where it

was proposed to be transferred was not to exceed fifty kilometers. It was

however permissible in exceptional cases after considering the respective WP 6781-19 12 Judgment

merits to relax certain terms and conditions of the said Government

Resolution. It is however seen from the record that of the five applicants

seeking allotment of Ashram School, none of them were owning any land

of their own. The committee constituted to examine the proposals thus

rejected all the applications by finding them ineligible. It cannot be

gathered from the note-sheet placed on record as well as the impugned

Government Resolution dated 07.03.2019 as to the basis for allotment of

the closed Ashram School to the respondent no.3. There has been no

comparative assessment amongst the five applicants before determining

the allotment of the said Ashram Schools to the respondent no.3. It is an

admitted position that the respondent no.3-School is at a distance of

about one hundred and fifty kilometers from the area where the Ashram

School that was de-recognized was located. Once the committee found

that none of the applicants were eligible it was necessary for the State

Government to have indicated the reason for preferring the respondent

no.3 while disallowing the claim of the other applicants. There is no

reason indicated as to why the claim of the respondent no.3 came to be

accepted. Though it would not be permissible to consider any extraneous

material other than the reasons stated in the impugned order as a reason

for supporting the same, for the record we may state that in paragraph 6

of the affidavit filed on behalf of the respondent nos.1, 2 and 4 it has

merely been stated that the State Government after considering all the

available material on record proceeded to rely upon Clause 26 of the WP 6781-19 13 Judgment

Government Resolution dated 24.04.2018 while allotting the school to

the respondent no.3. What material was considered has not been indicated.

9. Other pertinent aspects that cannot be ignored are that the

application moved by the respondent no.3 for allotment of the Ashram

School was dated 22.02.2018 which is much prior to the issuance of the

Government Resolution dated 24.04.2018 prescribing norms for allotment

of an Ashram School. Further according to the respondent no.3 it was

holding a lease for a duration of five years from 01.02.2018 to

31.12.2023 that was executed in its favour on 17.02.2018. The Ashram

School was proposed to be conducted on said plot. This unregistered

lease-deed of immovable property is for a period of five years and has

been executed on a stamp paper of Rupees Hundred. While the area

where the petitioners proposed to conduct its Ashram School if allotted

was at a distance of about eighteen to nineteen kilometers from the place

where the earlier Ashram School was located, the area proposed by the

respondent no.3 was at a distance of one hundred and fifty kilometers.

The averments made by the petitioners in this regard have not been

denied by the respondent no.3. It thus becomes clear that in the light of

these factual aspects it was necessary for the State Government to have

indicated at least briefly as to which aspect was considered by it as being

the reason for relaxing the conditions stipulated under the Government

Resolution dated 24.04.2018. Though Clause 26 thereof permits WP 6781-19 14 Judgment

relaxation of such conditions the same can be done only after

comparatively assessing the case of each applicant and thereafter briefly

indicating the reason for choosing one of them. This aspect is absent in

the present case.

10. Finding itself in such position, the learned Senior Advocate for the

respondent no.3 tried to extricate its case by urging that on 09.04.2019

pursuant to a gift-deed executed by one Govinda Narayan Kohale, land

admeasuring 1 Hectare 5 R at Khasra No.112, Mouza Pendhari, Deoli had

been gifted to the society where the Ashram School was being run.

Similarly an inspection had been carried out by the Social Welfare

Department in the months of August and November-2019 which indicated

that the Ashram School was being run in a smooth manner after

absorbing the services of the existing employees.

11. We are however afraid as to whether these events that have

occurred after the impugned allotment of the Ashram School would be

sufficient to withstand the challenge as raised to such allotment. Once

the manner of allotment is under challenge it would be necessary for the

respondent no.3 to satisfactorily justify such allotment in its favour to be

in accordance with the Government Resolution dated 24.04.2018 and the

same having been made in a transparent manner after comparative

assessment of all applications. As stated above there is no material WP 6781-19 15 Judgment

whatsoever on record to indicate the basis for preferring the respondent

no.3 over the other applicants for allotment of the Ashram School

especially when the respondent no.3 proposed to start the Ashram School

at a distance of about one hundred and fifty kilometers from the existing

Ashram School and that it did not own any land as required thereunder.

If such relaxation could be considered for the respondent no.3 other

applicants would also be justified in urging that their applications could

also have been considered for similar relaxation. In that view of the

matter, we find that the allotment of the Ashram School to the respondent

no.3 is unsustainable. Though it was urged by the learned Senior

Advocate for the respondent no.3 that the State Government while

allotting such Ashram School was exercising legislative powers and thus

was not required to assign any reasons in support of its decision, said

contention cannot be accepted. The allotment of an Ashram School

pursuant to an applicant possessing requisite requirements and choosing

one such applicant from amongst various applicants after assessing the

material on record cannot be said to be a process in exercise of any

legislative power. It would be an administrative decision that is required

to be supported by the material available on record and subject to being

examined on the touchstone of fairness. It has been emphasized on

various occasions that such allotment has to be done in a transparent

manner and in accordance with the guidelines laid down therein. As

observed by the Hon'ble Supreme Court in Sant Dnyaneshwar Shikshan WP 6781-19 16 Judgment

Sanstha & Another (supra) the transfer of an Ashram School cannot be

viewed as a transfer of a business license which could be utilized at any

place. It has to be done in accordance with the prescribed norms and

when the norms prescribe a maximum distance of about fifty kilometers,

the allotment of an Ashram School at a distance of one hundred and fifty

kilometers without any justification can hardly be supported. Incidentally,

it may be noted that on 23.07.2019 the State Government has itself

reduced the distance criteria from fifty kilometers to ten kilometers. This

is in the light of the decision of the Hon'ble Supreme Court in Sant

Dnyaneshwar Shikshan Sanstha & Another (supra). However, this

Government Resolution has been issued after the allotment of the Ashram

School to the respondent no.3-Society.

12. Hence for aforesaid reasons we find that the challenge as raised by

the petitioners to the allotment of the Ashram School in favour of the

respondent no.3-Society pursuant to Government Resolution dated

07.03.2019 is liable to be upheld. At the same time it cannot be ignored

that presently the Academic Session 2022-23 is almost half way through

and displacing the students taking education at the said Ashram School as

well as the staff members in mid-session would cause inconvenience to

them. In this factual backdrop therefore while setting aside the allotment

of the said Ashram School to the respondent no.3-Society it would have to

be directed that the effect thereof would take place at the end of

Academic Session 2022-23.

WP 6781-19 17 Judgment

13. As a sequel to the aforesaid discussion, the following order is

passed:-

I. The Government Resolution dated 07.03.2019 issued by the respondent no.1 allotting the Ashram School to the respondent no.3-Society is quashed and set aside.

II. The State Government is directed to reconsider the matter of allotment of said Ashram School in accordance with the prevailing policy and preferably by issuing a fresh advertisement in that regard.

III. Since the Academic Session 2022-23 is in progress the effect of setting aside the order of allotment in favour of the respondent no.3-Society would be from the end of Academic Session 2022-23.

14. The writ petition is allowed in aforesaid terms. Rule accordingly.

No costs.

       (URMILA JOSHI-PHALKE, J.)        (A.S. CHANDURKAR, J.)

APTE




                                                      Signed By: Digitally signed
                                                      byROHIT DATTATRAYA
                                                      APTE
                                                      Signing Date:10.11.2022 17:50