Bombay High Court
Dynansagar Education Society Latur ... vs The State Of Maharashtra Through The ... on 30 September, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:23088-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7214 OF 2024
WITH
CIVIL APPLICATION NO. 7991/2024 IN WP/7214/2024
1) Dnyansagar Education Society Latur,
Through its Secretary,
Mr. Shaikh Javed Hamidsaab,
Age 44 years, Occ. Service,
R/o. Ausa, Dist. Latur.
2) Rajeev Gandhi Vidyalaya Borgaon (kh)
Tq. Kalamb, Dist.Osmanabad,
Now Azad Madhyamik Vidyalaya at Jaynagar,
Malwati Road, Latur.
Through its Headmaster
Mr. Sasane Bhagwat Dhindiba,
Age 56 years, Occ. Service,
R/o. Shivajinagar, Murud,
Tq. & Dist. Latur. ... Petitioners
VERSUS
1) The State of Maharashtra,
Through the Secretary,
Department of School Education and
Sports, M.S. Mantralaya, Mumbai.
2) The Director of Education, Pune.
3) The Regional Deputy Director of Education,
Latur.
4) The Education Officer Secondary,
Zilla Parishad, Latur.
5) The Education Officer Secondary,
Zilla Parishad, Osmanabad. ... Respondents
...
WITH
WRIT PETITION NO. 8145 OF 2024
WITH CA/8439/2024 IN WP/8145/2024
1) Shraddha d/o Yashwant Samudare,
Age Minor, Occ. Education,
1/11
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Through legal guardian
Manisha h/o Yashwant Samudare,
Age 34 years, Occ. Agriculture,
R/o. Borgaoh (kh) Tq. Kallam, Dist.Osmanabad.
2) Sneha d/o Narayan Samudare,
age Minor Occ. Education,
Through legal guardian
Narayan s/o Nagnath Samudare,
Age 42 years, Occ. Agriculture,
R/o. Borgaoh (kh) Tq. Kallam
Dist. Osmanabad.
3) Vidya d/o Mahaling Hadade,
Age Minor, Occ. Educaiton,
Through legal guardian
Mahaling s/o Suhadev Hadade
Age 41 years, Occ. Agriculture,
R/o. Borgaoh (kh) Tq. Kallam
Dist. Osmanabad.
4) Diksha d/o Chandrakant Samudare,
Age Minor, Occ. Education,
Through legal guardian
Chandrakant s/o Baburao Samudare,
Age 43 years, Occ. Agriculture,
R/o. Borgaon (kh) Tq. Kallam, Dist.
Osmanabad.
5) Grampanchayat Office, Borgaon (kh)
Tq. Kallam, Dist. Osmanabad,
Through its Sarpanch
Ajay s/o Shahuraj Samudare,
Age 50 years, Occ. Sarpanch,
R/o. Borgaon (kh) Tq. Kallam, Dist.
Osmanabad. ... Petitioners
VERSUS
1) The State of Maharashtra,
Through its Secretary,
School Education and Sport Department
Mantralaya, Mumbai-32.
2) The Dy. Director of Education
Latur, Tq. & Dist. Latur.
2/11
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3) The Education Officer (Secondary)
Zilla Parishad, Osmanabad,
Tq. & Dist. Osmanabad.
4) Dyansagar Education Society Latur,
Through its Secretary
Shaikh Javed Hamidsaab,
Age 44 years, Occ. Service,
R/o. Ausa, Tq. Ausa, Dist. Latur.
5) Rajiv Gandhi Vidyalaya Borgaon(kh)
Tq. Kallam, Dist. Osamanabad,
Now Azad Madhyamik Vidylaya,
At Jaynagar, Malwati Road, Latur,
Tq. & Dist. Latur,
Through its Head Master ... Respondents
...
Advocate for Petitioners in WP No. 8145/2024 : Mr. Ameya Sabnis h/f Mr.
E.S. Murge.
A.G.P. for Respondent nos. 1 to 3 in WP No. 8145/2024 & Respondent nos. 1
to 5 in WP 7214/2024 : Mr. R.S. Wani
Advocate for Petitioners in WP No. 7214/2024 : Mr. R.N. Dhorde, Senior
Advocate i/b Mr. Shaikh Tarek Mobin.
Advocate for Respondent Nos. 4 & 5 in WP No. 8145/2024 : Mr. R.N.
Dhorde, Senior Advocate i/b Mr. Shaikh Tarek Mobin.
Advocate for Applicant in CA No. 8439/2024 : Mr. Sayyed Tousif Yasin
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 24.09.2024
PRONOUNCED ON : 30.09.2024
COMMON JUDGMENT :
( MANGESH S. PATIL, J.)
Heard. Rue in both the matters. It is made returnable forthwith. The
learned A.G.P. and the learned advocates for the respective respondents
waive service. At the joint request of the parties, as the facts leading to
filing of the petitions are the same, we are disposing of these petitions by
this common judgment and order.
2. The first writ petition is filed by a Trust/education society. It is a
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minority institute and was running the petitioner no. 2 school at location
Borgaon (kh.) Tq. Kalamb, Dist. Dharashiv. As per the request of the
petitioners, respondent no. 5-Education Officer, Zilla Parishad, Dharashiv,
submitted a proposal to respondent no. 3-Regional Deputy Director of
Education, Latur, for transfer of the school from the original place to a place
at Jaynagar, Malwati road, Latur, by referring to the policy of the
Government declared by government resolution dated 28.07.2021.
Respondent no. 3 in turn forwarded the proposal vide communication dated
14.07.2023 to respondent no. 1-Secretary of Department of School
Education and Sports. By the government resolution dated 05.03.2024, the
government granted permission for shifting of the school, subject to certain
conditions inter alia of strict obedience to the requisite Government
decisions/circulars/orders, issued from time to time pertaining to the school,
teaching and non teaching staff, salaries, students etc.
3. The order was communicated through respondent no. 3-Regional
Deputy Director of Education, Latur, and respondent no. 5-Education
Officer (Secondary), Zilla Parishad, Dharashiv, to the management.
Accordingly the school was shifted to Jaynagar, Malwati Road, Latur. 24
students, which were taking education with respondent no. 2-school were
admitted in Hanuman Vidyalaya, Ghargaon, Tq. Kalamb, District Dharashiv,
01 student was admitted in Swami Vivekanand Vidya Mandir Padoli, Tq.
Kalamb, Dist. Dharashiv, 05 students were shifted to Ravindranath Tagore,
International School, Shirala, Tq. & Dist. Latur, 05 other students were
accommodated in Sunrise Child World Kond, Tq. & Dist. Dharashiv, 08
students were accommodated in Janta Vidya Mandir, Murud, Tq. & Dist.
Latur, one student was admitted in Samaj Jagruti Prathamik Vidyalaya,
Murud, Tq. & Dist. Latur, and one student was accommodated in Zilla
Parishad, Prathamik Shala, Parunagar, Tq. & Dist. Latur.
4. However, by a communication dated 04.07.2024, respondent no. 5-
Education Officer (Secondary), Zilla Parishad, Dharashiv informed petitioner
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no. 2-headmaster of the school, observing that since it was reported that
such shifting of the school was being objected by some students and their
parents, and pursuant to the communication received from one M.L.A. of
Dharashiv-Kalamb. Precisely referring to the stipulation while granting
permission for transfer of school that it would be recalled/withdrawn, if
some objection was received and the State Government reserved the right to
recall the order of transfer. It was directed to resume the school at the
original location and to submit the report by 05.07.2024. It is this
communication, which is challenged by the management in Writ Petition No.
7214/2024.
5. By filing Civil Application No. 7991/2024 in that very petition, the
petitioner-management and the school solicited direction to stay the effect
and operation of the order under challenge.
6. The second writ petition bearing No. 8145/2024, is preferred by four
students, through their respective guardians, who were studying with the
school at the original location and the Grampanchayat of village Borgaon
(Khurd), through its Sarpanch. By this petition, they are challenging the
government resolution dated 05.03.2024, permitting transfer of the school
from Borgaon (Khurd) to Jaynagar, Malwati road, Latur. They are also
seeking a writ of mandamus directing to resume the functioning of the
school from the original place.
7. In both these petitions, the respondent-Deputy Director of Education,
Latur Region, Latur, has filed separate affidavits in reply taking the same
stand. He has not disputed the facts but has taken a stand that the decision
for granting permission for shifting of the school would not result in causing
any hardship to any student. He has named couple of schools, which are
located within 3 km from the original place of the school, wherein the
petitioner-students can be accommodated. He has further stated that
already academic year has begun and 159 students have already been
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admitted in the school at Latur. The Education Officer having tried to
convince the Sarpanch and the parents of the students to admit their wards
in the nearby schools. He has also admitted about the Education Officer
having forwarded a proposal for cancellation of permission in the wake of
objections being raised by these petitioners, students and the Sarpanch, and
he himself having submitted further proposal to the State Government on
08.07.2024.
8. The students and the Sarpanch, who have filed a separate petition
have not been arrayed as respondents in the petition of the management
and the school.
9. The management and the headmaster of the school have opposed the
petition of the students and Sarpanch by filling an affidavit. They allege
that the Sarpanch is puppet in the hands of the local M.L.A. and has been
instrumental in obstructing functioning of the school being run at the
original place. The petition of the students together with Sarpanch being
politically motivated, it may not be entertained. It is also their stand that
due to the problems being created in smooth operation of the school, it
adversely affected in reduction in students strength thereby rendering a
teacher surplus in the year 2013. Being a minority institute, it was finding
difficult to run the school at the original place and had requested for
permission for shifting it. It is further stand that the government resolution
dated 31.07.2013, is not applicable to the institute being a minority institute
and is not regulated by that government resolution. Reference is made to
the decision of a division bench at Nagpur in Writ Petition No. 2395/2014,
decided on 05.05.2015. There can be no restriction much less with reference
to the distance between the original location and the location to which the
school is sought to be shifted. There are several schools in the vicinity of the
original place of the school at Borgaon (Kh). Except 20 students, all other
students, who were taking education at the original location, have taken
admissions/ accommodated suitably in the nearby schools, and causing any
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obstruction at this stage would result in complications. These remaining 20
students can conveniently be accommodated and the issue can be sorted out
without hindrance to anybody.
10. We have considered the rival submissions and perused the papers
including the affidavits in reply, rejoinder filed by the petitioner, students
and Sarpanch and the surrejoinder filed by the management and the school.
11. There is no dispute about the fact that the management was granted
permission to run the school at Borgaon (Kh), Tq. Kalamb, District
Dharashiv. If the stand of the management and even the submission of the
learned A.G.P. by pointing out that the management being a minority
institute would not be bound by the government resolution dated
31.07.2013, whereby modalities and parameters have been laid down while
considering the requests of the management for shifting of the location of
the schools and even though that government resolution has been held by a
division bench at Nagpur to be not applicable to the minority institute, even
the subsequent government resolution dated 28.07.2021, touching the same
aspects and precisely issued in supersession inter alia of government
resolution dated 31.07.2013, would rather make the case of the petitioner-
management vulnerable. Being a minority institute, if these government
resolutions are held to be not applicable to it, then it would be imperative
for the management to demonstrate as to how and under which regulation
or law it is seeking permission for shifting of the school from one location to
the other.
12. The issue before us is as to if, being a minority institute, the
management running a school can shift the location of the school from one
place to other as per its wish and undeterred by any regulation and
monitoring. We are of the considered view that such a stand of the
management would be self-contradictory to its right to seek transfer/shifting
of the school. Saying that it is not regulated by the government regulation
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being a minority institute would be antithesis to its claim for grant of
permission to such shifting.
13. Obviously, we cannot go into the practical difficulties for the
management in running the school at the original location. There may be
genuine reasons as well, for making a request for grant of permission for
shifting the school. However, the issue would be, if at all, as is being
requested, permission is to be granted can that happen in an unbridled
manner. Even if the government resolutions dated 31.07.2013 and
28.07.2021 are held to be not applicable, still, the petitioner-management is
not taking exception to the permission granted to it subject to the conditions
imposed in the government resolution dated 05.03.2024. This permission is
granted subject to certain conditions including that the management would
follow all the rules, regulations and orders issued by the State Government
inter alia in respect of teaching and non teaching staff and even the
students. By not taking exception to such conditional permission, it has
subjected itself to the regulation including the one dated 28.07.2021, which
inter alia prescribes various conditions in respect of permissions to be
granted for shifting of location of the schools. Therefore, indirectly, by
suffering the order granting permission conditionally, the management
cannot seek to take exception from the stipulations contained in government
resolution dated 28.07.2021.
14. Once having reached such a conclusion, when the impugned order
granting permission does not even whisper about the circumstances which
prompted the State Government to grant permission, except with a bald
statement mentioning that due to non availability of infrastructure facilities,
the permission was being granted would be clearly arbitrary and capricious.
The decision clearly suffers from the vice of being a lopsided one whereby
the State Government has, for the reasons best known to it, clearly
overlooked the parameters under which the permission is to be granted for
shifting of the location.
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15. The impugned order does not indicate and does not even give
particulars as to how it was satisfied that the infrastructural facilities at the
original location were not sufficient, when admittedly the school was being
run at the same location for years together, and was imparting education up
to 10th standard. There is no reference to any care having been taken by the
government to ascertain or solicit information as to how the students were
sought to be accommodated, whether any other granted school was
available in the proximity of the original location etc., which are some of the
parameters contained in government resolution dated 28.07.2021.
16. In view of such state of affairs, when, admittedly, at least there are 20
students who have even now been not accommodated elsewhere, the stand
of the respondents that they can be accommodated now would be clearly an
after thought.
17. Even if it is being pointed out as to how cancelling the permission at
this stage would create complications, in our considered view, that cannot be
a reason to justify the illegality. Though by a communication of the
Education Officer (Secondary) being impugned by the management dated
04.07.2024, calling upon the headmaster to resume the school at the
original location was sought to be objected by the management and by the
order dated 12.07.2024, the operation of the communication dated
04.07.2024, was stayed till the next date i.e. 07.08.2024, the interim relief
was never extended. Meaning thereby that the management and the
headmaster were under obligation and the Education Officer was bound to
enforce his direction to the management of resuming the school at the
original location. It would not lie in the mouth of the management now to
demonstrate as to how recalling the permission granted for shifting of the
school would result in complications. It is nobody's case that any of the
students, who were taking education in the school at the original location
has been willingly admitted to the school at the new location.
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18. As is the stand of the management and even the Deputy Director of
Education that many students have taken admission in some other schools,
resumption of the school at the original location, will not result in causing
any inconvenience to those students. We, therefore, are of the firm view
that this Court cannot be a part of an illegality on the specious plea of
inconvenience and complications.
19. In the light of above, the permission granted to the management for
shifting of the school being arbitrary and illegal and having been passed
without following any regulation and without even considering the welfare
of the students, who were actually taking education at the original location,
would not be sustainable in law. Simultaneously, even the management
cannot object the communication dated 04.07.2024, issued by the Education
Officer, directing the headmaster to resume the school at the original
location.
20. The Writ Petition No. 7214/2024 is dismissed.
21. The Writ Petition No. 8145/2024 is allowed.
22. The Government decision granting permission dated 05.03.2024, is
quashed and set aside. The respondents, State and its officer of the
Education Department and the management and the headmaster shall take
suitable steps immediately for resuming the operation of the school at the
original location.
23. Rule in Writ Petition No. 7214/2024 is discharged.
24. Rule in Writ petition No. 8145/2024 is made absolute in above terms.
25. Pending Civil Application is disposed of.
( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)
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26. After pronouncement of the judgment the learned advocate for the
Management seeks stay to the operation of the judgment and order to
enable it to approach the Supreme Court.
27. For the reasons, which we have already spelt out in anticipation of
such a request, as is discussed in paragraph Nos. 16 to 19, the request is
rejected.
28. By way of Civil Application No.7991/2024 in Writ Petition
No.7214/2024, the Management has prayed that since pursuant to the
permission granted for shifting of the location, necessary directions be given
to respondent No.5 - Education Officer in the light of the communication
dated 04.07.2024, issued by respondent No.4, not to pay salaries to the
teaching and none teaching staff of the school till the further order. The Civil
Application is disposed of keeping open the issue.
( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)
mkd/-
