Bombay High Court
Sadnath Bahu Uddeshiya Shikshan Mandal ... vs The State Of Maharashtra And Others on 15 January, 2025
2025:BHC-AUG:1067-DB
1 WP.9966-19+1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9966 OF 2019
Matoshree Pannai Sevabhavi
Shikshan Sanstha, Naik Nagar,
Udgir, Tq. Udgir, District Latur,
Through its President,
Anilkumar Veerbhan Pawar. ... Petitioner.
Versus
1. The State of Maharashtra,
Through its Secretary,
Social Justice and Special
Assistance Department,
Mantralaya, Mumbai-400032.
2. The Commissioner for Welfare
of Handicapped,
Maharashtra State, Pune-411001.
3. The District Social Welfare officer,
Zilla Parishad, Latur,
4. The Secretary,
Sayali Bahuuddeshiya Shikshan
Sanstha, Nagpur. ... Respondents.
WITH
WRIT PETITION NO.13400 OF 2019
Sadnath Bahu Uddeshiya
Shikshan Mandal, Nitur,
Tq. Nilanga, District Latur,
Through its Secretary,
Kalidas S/o Vasantrao Patil,
Age 44 years, Occu. Secretary,
R/o Nitur, Tq. Nilanga, District Latur. ... Petitioner.
Versus
1. The State of Maharashtra,
2 WP.9966-19+1.odt
Through its Secretary,
Social Justice and Special
Assistance Department,
Mantralaya, Mumbai-32.
2. The Commissioner for Welfare
of Handicapped,
Maharashtra State, Pune-411001.
3. The District Social Welfare officer,
Zilla Parishad, Latur,
4. The Secretary,
Sayali Bahu Uddeshiya Shikshan
Sanstha, Nagpur. ... Respondents.
...
Advocate for Petitioner in WP/9966/2019 : Mr. V. D. Hon
(Senior Counsel) i/b Mr. K. P. Rodge and Mr. P. G. Rodge.
Advocate for Petitioner in WP/13400/2019 : Mr. S. P. Urgunde.
AGP for Respondent/s-Staten in Both WP : Mr. P. S. Patil.
Advocate for Respondent No.3 in Both WP : Mr. S. S. Manale.
Advocate for Respondent No.4 in WP/9966/19 : Mr. V. D.
Salunke.
...
CORAM : S. G. MEHARE, AND
SHAILESH P. BRAHME, JJ.
RESERVED ON : 19.12.2024
PRONOUNCED ON : 15.01.2025
JUDGMENT :
-
1. Rule. Rule made returnable forthwith and heard finally
by the consent of the parties.
2. Both petitioners have impugned the order dated
15.06.2019 of respondent No.1 transferring and shifting the
school which was closed, to respondent No.4.
3 WP.9966-19+1.odt
3. The brief facts of the case were that Marathwada Apang
Sanghatna, Latur was running residential school for girls by
name "Maher Asthi Vyang School, Latur". However, the
management failed to run the school. Therefore, respondent
No.2 cancelled its registration. An application from the
interested social institutions were invited from throughout the
State of Maharashtra, for allotting the registration of
transferring said school. Both petitioners had also applied.
After scrutiny, the Government granted the registration and
transferred the said school to respondent No.4 which was
registered at Nagpur. Though, respondent No.4/society has
been registered at Nagpur the school was shifted in Gadchiroli
district.
4. Petitioner in writ petition No.9966 of 2019 has
impugned the order of respondent No.1 on the ground that the
Government did not follow the norms correctly. The school
transferred to respondent No.4 is around 523 k.m. away from
the place where it was earlier running. Respondent No.4 had
not submitted the application to the District Social Welfare,
Zilla Parishad, Latur. They have the institution in the same
District where the closed school was running. The students
4 WP.9966-19+1.odt
from Latur District have been suffering the loss. They were to
be preferred.
5. In Writ Petition No.13400 of 2019, the grounds of
objections are identical to the grounds raised in Writ Petition
No.9966 of 2019. In addition thereto, they have the contention
that as per the Government Resolution, such a school should
be allotted to the institution which is nearly to the earlier
place. Their institution runs the school within the periphery of
30 k.m. Therefore, they had the priority right over the
distribution.
6. Heard the respective learned counsels at length.
7. Learned senior counsel Mr. Hon for petitioner in writ
petition No.9966 of 2019 has referred to various documents
and vehemently argued that in the absence of any application
to the office of respondent No.3 it cannot be said that it was an
appropriate application. There is no other school in the Latur
district of the similar nature. There was no specific guidelines
for determining the place where it was to be transferred. He
relied on the case of Jeevan Jyoti Krida and Shikshan Prasarak
Mandal, through its President, N. S. Survase Vs. State of
Maharashtra and others, in Writ Petition No.949 of 2012 with
5 WP.9966-19+1.odt
connected writ petition of Bombay High Court, decided on
10/11 September 2012. It was a case of transfer of the Ashram
school. The facts of the case were that there were no procedure
laid down by the State Government for considering the request
for transfer of Ashram Schools. He further argued that the
information supplied by respondent No.3 under Right to
Information Act supports the contention of the petitioner that
respondent No.4 had submitted no application for allotment of
registration of the closed school to respondent No.3. Therefore,
there was no application and recommendation for respondent
No.4. He would submit that since the school was closed in
Latur district, the District Welfare Officer, Latur is the Authority
to whom the applications should be submitted and on his
recommendation only the school is to be allotted/shifted.
However, the Government/respondent No.1 did not consider
the concept of transferring the school for the welfare of the
physically disabled children in the Latur district. The interest
of the students should have been protected. Therefore, shifting
the school at such far away is against the principle of equity
and it is a discrimination with the students who were already
admitted to the school which was closed. The transfer rules
have prima facie been violated and respondent No.1 has
favoured respondent No.4.
6 WP.9966-19+1.odt
8. Learned counsel Mr. Urgunde for petitioner in writ
petition No.13400 of 2019 adopted the arguments of learned
senior counsel Mr. Hon and in addition thereto has vehemently
argued that the petitioner's institution was about 30 k.m. away
from the earlier school which was closed. The petitioner runs
the same type of school. The petitioner was recommended by
respondent No.3. He referred to the Government Resolution
dated 23.07.2019 and argued that as per this resolution, if the
Ashram school is to be transferred or shifted to another place it
should not be transferred or shifted more than 10 k.m. He
would submit that the Government Resolutions are not
properly considered.
9. Learned counsel Mr. Salunke for contesting respondent
No.4 has vehemently argued that the applications were invited
from throughout the State. He has referred to the Government
Resolution dated 16.09.2017 and argued that Sub Clause 5 of
Clause (1) of the said resolutions states that the registered
institutions in the State may apply to the District Social Welfare
Office. The clause was specific that their society registered
within a peculiar district should pray to the District Welfare
Officer of the said district. Referring to Sub Clause 14 of the
said Government Resolution he would argue that the
7 WP.9966-19+1.odt
employees of the schools were to be absolved. Again he
referred to Sub Clause 3 of Clause 2 of the said Government
Resolution and argued that the aspirant institutions shall apply
for transferring such school to the concerned District Social
Welfare Officer Zilla Parishad of entire State. Clause 3
provides that after receiving such proposals, the concerned
District Social Welfare Officer should scrutinize and verify the
proposals and submit the proposal with candid opinion to the
Commissioner of Social Welfare. He further referred to the
Government Resolution dated 15.02.2019. It is also about the
transfer of the closed schools for physically disabled students.
He again referred to Sub Clause 5 of Clause 1 which was
identical to the resolution dated 15.06.2019. He would submit
that the same course was adopted by the Government. Even in
a resolution dated 15.06.2019 no material changes are made.
However, some additions were been made in Clause 15 of the
Government Resolution dated 15.02.2019. He again referred to
the Government Resolution dated 23.07.2019, it was pertinent
to the transfer of the Ashram school. He would submit that the
case law relied upon by learned senior counsel Mr. Hon was
about the Ashram school for which there were a separate
guidelines. Therefore, that case law would not assist the
petitioners. He would argue that the transfer or shifting of the
8 WP.9966-19+1.odt
Ashram schools were based on the area and distance.
Therefore, the said case law would not apply. He further
referred to the advertisement and submit that the terms and
conditions of transfer were clinching, clear and unambiguous.
The intention of the Government was free from doubt to
shift/transfer the closed school to any of the institution
throughout the State. Therefore, it cannot be said that there
was a distance and area restrictions while shifting/transferring
such closed school for the physically disabled children.
Undoubtedly, the society of the respondent No.4 was registered
at Nagpur. Hence, they have correctly applied to the District
Welfare Officer, Zilla Parishad, Nagpur. He properly verified the
submissions and recommended in their favour to the
Commissioner. Since there was no condition to file an
application with respondent No.3, the arguments are without
foundation.
10. He referred to the impugned order and vehemently
argued that the terms and conditions and the policies of the
Government have been correctly applied. It is not a mechanical
order. It reflects the complete application of mind and it is a
conscious decision of respondent No.1 for shifting the school in
9 WP.9966-19+1.odt
question to be run in the Gadchiroli district by respondent
No.4. He also objects that the petitioners have no locus.
11. The affidavit-in-reply of respondent Nos.1 to 3 is
supporting the petitioners. The Government policy has not
been challenged. Therefore, the writ petitions deserve to be
dismissed.
12. Learned AGP has vehemently argued that no
Government policy has been violated and no discrimination
has been made while passing the impugned orders. The
proposal of respondent No.4 was received from District Welfare
Officer, Zilla Parishad, Nagpur. He referred to the reply and
argued that the staff was correctly absolved and they are not
the parties to the proceeding. The students were also
accommodated before the impugned order was passed in the
nearly school. He further adopted the argument of the learned
counsel Mr. Salunke and also prayed to dismiss the writ
petitions.
13. In reply, learned senior counsel Mr. Hon again argued
that the Public Information Officer of Zilla Parishad, Gadchiroli
also informed under RTI that no application was filed to the
District Welfare Officer, Gadchiroli by respondent No.4 in
10 WP.9966-19+1.odt
pursuance of the advertisement. He would reply that the
Government Resolution dated 16.09.2017 would apply because
the process was started, when that Government Resolution was
in existence. The Government Resolution dated 15.02.2019
would not apply. He further argued that the office of the Public
Information Officer of Divyang Kalyan Ayuktalay, Pune also
supports the contention of the petitioners that no approval was
granted to the society run by respondent No.4 till that date.
However, the approval granted to respondent No.4 in the
month of June/July 2019. That was against the information
supplied by the Commissioner Office under RTI dated
22.10.2019. It is a colourable favouritism to respondent No.4.
The proposal of the petitioners was not considered though it
was eligible. The case relied on by respondent No.4 does not
apply as well as the Government Resolution dated 15.02.2019
would also not apply. He prayed to allow the petitions.
14. After hearing the respective learned counsels, the core
questions are to be decided are as follows :
(i) Was there any location, distance, restrictions,
while shifting or transferring the closed schools
for physically disabled children ?
11 WP.9966-19+1.odt
(ii) Whether the applications in pursuance of the
advertisement were to be filed only with the
District Welfare Officer where such schools are
closed or whether such an application should be
filed to the office of the District Social Welfare
Officer, Zilla Parishad where such schools are
proposed to be shifted ?
(iii) Whether the guidelines of Government
Resolution dated 16.09.2017 would only
apply ?
15. There are no serious dispute on facts. The Government
had issued two Government Resolutions dated 16.09.2017 and
23.07.2019. The advertisement was issued inviting a proposal
for transferring and shifting the closed schools for physically
disables. Condition No.3 of the advertisement was specific that
the proposals for transfer should be made to the Assistant
Commissioner Social Welfare, Mumbai City and Sub Urbans
and District Social Welfare Officer of Zilla Parishad and they
have to submit their proposals to the Commissioner for welfare
of handicapped on 18.03.2019. The petitioners have referred
to the Government Resolution dated 16.09.2017 which is
particularly about transfer of the closed schools run for the
12 WP.9966-19+1.odt
handicapped. It was a transparent policy decision of the
Government for shifting and transferring such closed schools.
Clause 1 of the said Government Resolution is about the
procedure to be followed for such process. Sub Clauses 2, 3
and 5 are relevant which reads thus :
"(२) अस्थिव्यंग विद्यार्थ्यांच्या उपस्थिती अभावी बंद पडलेल्या
अस्थिव्यंग शाळांचे हस्तांतरण व स्थलांतरण अस्थिव्यंग प्रवर्गाऐवजी
आवश्यकता तपासून बहुविकलांग, सेरब्र
े ल पाल्सी किंवा
आवश्यकतेनुसार इतर प्रवर्गासाठीची शाळा/ कर्मशाळा असा प्रवर्ग
बदलून हस्तांतरीत करण्याचा अधिकार शासनास राहील. त्यानुसार
आवश्यक पद मान्यता देण्याची कार्यवाही नियमानुसार शासन
स्तरावरुन करण्यात येईल. प्रवर्ग बदलामुळे नव्याने अनुज्ञेय पदावर
प्राधान्याने अतिरिक्त कर्मचा-यांचे समायोजन करण्यात येईल. प्रतिक्षा
यादीवर उमेदवार उपलब्ध नसल्यास विहित मार्गाने आयुक्त, अपंग
कल्याण, पुणे यांचे ना-हरकत प्रमाणपत्र घेऊन पात्र कर्मचा-यांची
नियुक्ती करण्याचे अधिकार संस्थेस राहतील.
(3) व्यवस्थापनाच्या चुकीमुळे जी अपंगांची शाळा/कर्मशाळा बंद
पडली आहे अथवा मान्यता रद्द झालेली आहे , अथवा नोदणी प्रमाणपत्र
रद्द झालेले आहे, अशा अपंगांच्या विशेष शाळा/कर्मशाळा त्याच
संस्थेस हस्तांतरित करण्यात येणार नाहीत. सदर विद्यार्थी लगतच्या
अपंगांच्या विशेष शाळा/कर्मशाळे त वर्ग करण्यात येतील व त्या
संस्थेचा समावेश काळया यादीत (Black List) करण्यात येईल.
(५) राज्यातील नोंदणीकृत इच्छुक स्वयंसेवी संस्था जाहिरातीस
अनुसरुन विहीत नमून्यात संबंधीत जिल्हयाचे समाजकल्याण
अधिकारी, सहाय्यक आयुक्त, समाज कल्याण, मुंबई शहर/ मुंबई
उपनगर यांच्याकडे अर्ज करु शकेल."
13 WP.9966-19+1.odt
16. The word "concerned District Social Welfare Officer has
been seriously assailed. The petitioners have assailed that
respondent No.4 did not apply to the District Social Welfare
Officer of Latur or the Gadchiroli. They had applied to the
District Social Welfare Officer, Nagpur. The papers reveals that
the District Social Welfare Officer, Zilla Parishad, Nagpur had
sent the recommendation to the Commissioner in favour of
respondent No.4. The words used in Sub Clause No.5 of
Clause 5 and Sub Clause 2 and 3 are clear that the societies
interested to get the closed institution transferred or shifted
should apply to the concerned District Social Welfare Officer.
The society of respondent No.4 was registered at Nagpur.
Therefore, they have correctly submitted the proposal to the
District Social Welfare Officer, Zilla Parishad, Nagpur. In view
thereof, the information received by the petitioners from the
District Social Welfare Officer, Latur as well as Gadchiroli that
respondent No.4 did not submit the proposal through them is
correct but not affecting the right of respondent No.4. The
Government Resolution dated 23.07.2019 is about Ashram
Schools and the rule for transferring Ashram Schools appears
quite different from the rules for transferring the schools for
handicap children. Another Government Resolution dated
15.02.2019 is on the same subject. The condition inviting the
14 WP.9966-19+1.odt
application from the institution throughout the States for
transfer and shifting such handicap closed schools are the
replica of the Government Resolution dated 16.09.2017. When
the process was started, the institutions from throughout the
States were eligible to apply through the District Social Welfare
Officer of the societies registered in the said district. The
Government Resolution dated 23.07.2019 is about Ashram
schools. The process for transferring the Ashram schools and
the closed schools for handicapped are apparently different.
17. The case of Jeevanjyoti (supra) was about the Ashram
School. That time, there were no policy decision of the
Government. Since the issue of Ashram School has been dealt
with the other criteria that would not help the petitioners. The
case of Radhabai w/o Vitthal Sawant and others Vs. State of
Maharashtra and others ; 2016(1) Mh.L.J. 850 was on the fact
that the school for handicap was run at Dharur, District Beed.
However, it was closed and then it was transferred to Jalna.
The school was allowed to run at village Badnapur with the
capacity of 80 students. The parents of the students in the
school at Badnapur were the petitioners. However, respondent
No.4/society informed the parents that they were going to shift
the school in Beed District and assured that all students would
15 WP.9966-19+1.odt
be shifted at that place. The said proposal was objected. The
permission granted by the State Government to shift the school
from Badnapur to Warvanti, Taluka and District Beed was
challenged. Subsequently, the State Government by impugned
orders had directed respondent No.4 to shift the residential
school of Badnapur, District Jalna to village Ghoti, Taluka
Kinwat, District Nanded. Under this premise, this Court held
that no reasons were mentioned in the Government Resolution
dated 23.01.2013 why the Government has taken the decision
to transfer the school from Badnapur to Warvanti Taluka and
District Beed. When Government takes a decision to transfer a
school from one place to another, certainly there should be
some reasons for such transfer from one place to another.
There was no provision made about the students who were
studying at Badnapur. The Government Resolution dated
23.01.2013 shifting the school from Badpur to Warvanti is
silent and without reason. It was not the case that the
institution was closed for want of the students. The school
having full strength of students and it was abruptly shifted
without any reason. Hence, the petitions were allowed.
18. The facts of this case are different. The school which was
at Latur was closed for various reasons including no students
16 WP.9966-19+1.odt
and hence, the conscious decision was taken by the Authority
to shift the same. For shifting such closed schools, the
Government Resolutions were put into service and those
appears to be correctly considered. The Government Resolution
does not restrict the area nor the particular locality. However,
in the impugned order, the Authority has specified the reasons
that where the granted school comparing with the other
districts are less or where such schools are not available, the
transfer of such schools were given first preference to such
places. The impugned order is well reasoned and in
consonance with the Government policies and procedure laid
down in the Government Resolutions dated 16.09.2017 and
15.02.2019.
19. After having gone through the facts of the cases and the
reply of respondent Nos.1 to 3, we do not find any illegality in
the impugned decision. It is a conscious decision considering
the facts of the requirement of such schools in Gadchiroli
district and those are in consonance with the guidelines and
procedure laid down in the above Government Resolutions.
20. For the reasons mentioned above, the writ petitions
stand dismissed.
17 WP.9966-19+1.odt
21. Rule made discharged. No order as to costs.
(SHAILESH P. BRAHME, J.) (S. G. MEHARE, J.)
...
vmk/-
