Adiwasi Vikas Mahila Mandal ... vs State Of Gujarat
2021 Latest Caselaw 13464 Guj

     C/SCA/2427/2019                              JUDGMENT DATED: 06/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2427 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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     ADIWASI VIKAS MAHILA MANDAL THROUGH MANTRI KANTABEN
                        SAKJIBHAI KATARA
                              Versus
                        STATE OF GUJARAT
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Appearance:
MR MA PAREKH(1088) for the Petitioner(s) No. 1
MS ASMITA V PATEL, AGP for the Respondent(s) No. 1
MR AD OZA(515) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 3,4
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 06/09/2021

                            ORAL JUDGMENT

1.Heard learned advocate Mr. M.A. Parekh for the petitioner, learned advocate Mr. A.D. Oza for respondent no.2 and learned Assistant

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Government Pleader Ms. Asmita V. Patel for the respondent-State.

2.By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :

"(A) Admit/allow the present writ petition, in the interest of justice;

(B) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction and be ordered to Quash & Set aside the Impugned Order (as per Ann. E) passed by the Resp. No. 1 In Appeal U/s 31(10)F of the Gujarat Higher Secondary Act, forthwith, in the interest of justice;

(C) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction and be ordered to Quash & Set aside the Impugned Order (as per Ann. D) regarding De-Recognized of Grant dt. 29.9.2018, forthwith & further be declared as it is null & void, in the interest of justice;

(D) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction and directing the Respondents, herein, to make a Fresh Personal Visit to the petitioner's High School Viz. Saraswati High School on Working Days and then a make unbiased Report, in context of, Students' future, forthwith, in the interest of justice;

(E) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction and directing the Resp. No. 3 to submit their Fresh Report about the management of the petitioner's High School, Saraswati High School,

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forthwith, in the interest of justice;

(F) Pending, admission and final disposal of the present petition be pleased to direct Resp. No. 1 the Secretary of Secondary & Higher Secondary Education that NOT to Operate or Implement or Start Any Proceeding against the petitioner's High School Viz. Saraswati High School, Gadia over the Impugned orders At Ann. E & Ann. D, forthwith, in the interest of justice:

(G) Pending, admission and final disposal of the present petition be pleased to direct Resp. No. 1 the Secretary of Secondary & Higher Secondary Education that to Release & Allocate 100% Grant to the petitioner's Trust, forthwith, so that the petitioner's trust can maintain the said School properly in all respect, in the interest of justice;

(H) Any other and further relief/s may kindly be granted in the interest of justice:"

3.Brief facts of the case are that the petitioner is a public charitable trust registered under the provisions of the Bombay Public Trust Act, 1950.

3.1) The petitioner-trust applied for registration to open the high school in the tribal area with Respondent no.2 Gujarat Secondary & Higher Secondary Education Board and such permission was granted vide order dated 18th July, 1995 under the provisions of Gujarat Secondary and Higher Secondary Education Act, 1972 (For short "Act, 1972") read with the Gujarat Secondary Education

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Rules, 1973 (For short "Rules 1973") framed thereunder.

3.2) Respondent no.4 District Education Officer vide letter dated 4th August, 2018 recommended to close down the high school of the petitioner-trust on the basis of various irregularities stated therein.

3.3) The petitioner-trust was suppose to take action against the Principal of the school with regard to the complaint of sexual harassment made by one Smt. Kailashben Ambalal Prajapati in the year 2016. The petitioner-trust accordingly issued notice to the Principal to initiate action under Rule 36(1) of Rules 1973. This fact is also disclosed by the petitioner in the affidavit in reply filed by the petitioner-trust in Special Civil Application No. 7334/2016 filed by Smt. Kailashben A. Prajapati.

3.4) The petitioner-trust also filed reply giving explanation to various irregularities mentioned in in communication dated 4th August, 2018 whereby recommendation was made by respondent no.2 Board to respondent no.1 to close down Saraswati High School run by the petitioner-trust.

3.5) The petitioner challenged the

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communication dated 4th August, 2018 by filing Special Civil Application No.14029/2018 before this Court. However, the said Special Civil Application was withdrawn by the petitioner on 11th September, 2018 with liberty to approach before the appropriate authority.

3.6) Meanwhile, it appears that respondent no.3 Director of Schools passed an order to deduct 25% of the grant of the petitioner-trust to run the school by rejecting the appeal preferred by the petitioner-trust against the order of District Education Officer passed on 11th November, 2016 to deduct grant of 75% for the year 2016-2017.

3.7) The petitioner thereafter again challenged the order dated 25th September, 2018 passed by the Director of Schools deducting the grant of 25% for the year 2016- 2017 and 2017-2018 before this Court by preferring Special Civil Application No.15882/2018 which was also withdrawn by the petitioner to challenge the said order before the Appellate Authority.

3.8) It appears from the record that show cause notice was issued by respondent no.2- Board on 31st August, 2018 calling upon the

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petitioner-trust to give explanation for the irregularities mentioned in the communication dated 4th August, 2018 of the District Education Officer.

3.9) In response to the show cause notice, the petitioner-trust by letter dated 29th September, 2018 provided explanation in detail by filing the reply during personal hearing conducted by respondent no.2-Board.

3.10) Respondent no.2-Board by order dated 29th September, 2018 ordered to cancel the registration of the school run by the petitioner-trust after considering the reply filed by the petitioner.

3.11) The petitioner being aggrieved by order dated 29th September, 2018 preferred an appeal before the Secretary, Education department, State of Gujarat, respondent no.1 herein.

3.12) Respondent no.1 vide order dated 9th January, 2019, after giving an opportunity of hearing to the petitioner and after considering the reports dated 2nd January, 2019 and 4th January, 2019 of respondent no.2- Board confirmed the order dated 29th September, 2018 passed by respondent no.2 Board whereby registration of the school run

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by the petitioner-trust is cancelled.

3.13) Being aggrieved by the order dated 9th January, 2019, the petitioner has preferred this petition.

4.Learned advocate Mr. M.A. Parekh for the petitioner referred to the further affidavit of the petitioner to point out that the proceedings for cancellation of the registration of the school run by the petitioner-trust were conducted without providing the copies of inquiry reports dated 2nd January, 2019 and 4th January, 2019. It was submitted that no charge-sheet was submitted or served upon the petitioner and ex-parte inquiry was conducted on the basis of the communication dated 4th August, 2018 issued by the District Education Officer and only after issuing the show cause notice without considering the reply of the petitioner, the impugned order to de- recognise the registration of the school was passed. It was submitted that Regulation No.9A of the Gujarat Secondary & Higher Secondary Regulations, 1974 (For short "Regulations, 1974") is also not complied with as no copies of the reports or charge- sheet have been served upon the petitioner- trust for cancellation of the registration of the school. Learned advocate Mr. Parekh

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therefore, submitted that there is a gross violation of the principles of natural justice as the cancellation of the registration of the school is contrary to the Regulations, 1974.

4.1) Learned advocate Mr. Parekh relied upon the decision of this Court in case of Panchmahals District Sarvoday Education Trust v. State of Gujarat1 to submit that this Court held that the respondent-Board was obliged to follow the procedure under Regulation 9A at every stage and therefore, the impugned orders passed by the authority in breach of Regulation 9A(2) of the Regulations, 1974, are required to be quashed and set aside.

4.2) Learned advocate Mr. Parekh further submitted that in communication dated 4th August, 2018 issued by the District Education Officer, six irregularities were mentioned which are explained by the petitioner in detail pointing out that all the basic and physical facilities for the students are available with the school run by the petitioner. It was further submitted that school of the petitioner-trust is not having adequate number of teachers and there is no nexus between the sexual harassment charges

1 2016 (4) GLR 2753

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levelled against the then Principal of the school and the closing down of the school on alleged irregularities which would affect the students.

5.On the other hand, learned Assistant Government Pleader Ms. Asmita Patel for respondent-State as well as learned advocate Mr. A.D. Oza appearing for respondent no.2 submitted that the order passed by respondent no.2 is a reasoned order which is upheld by the Appellate Authority of the State Government by rejecting the appeal preferred by the petitioner vide impugned order dated 9th January, 2019. It was submitted that adequate opportunity of hearing was provided to the representative of the petitioner and after considering the evidence produced on record, the Appellate Authority considered the inquiry reports dated 2nd January, 2019 and 4th January, 2019 submitted by the Board.

   5.1)                  It     was         submitted               that           the
   petitioner            is     trying          to       gain         misplaced

sympathy before this Court inasmuch as the inspection reports submitted by the officers clearly show various irregularities which are enumerated in the affidavit in reply filed on behalf of respondent no.2 as under :

"I say and submit that the respondent

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authority/ties have conducted the surprise inspection of the school in question for three times and found certain deficiencies. Following are the details of the inspection reports submitted by the Officers who have carried out the Inspection:

The officers J S Patel-Education Inspector & V B Mahiwad, AEI of the respondent authority i.e. DEO office had carried out the surprise visit/inspection of the school of the petitioner on 06.09.2017 and submitted report dated 11.10.2017 to the DEO i.e. Respondent No.4. A copy of the report dated 11.10.2017 is annexed herewith and marked as Annexure -- R/2. Following deficiencies were pointed out/found during the said inspection:

> In std. 10th Boys 4 + Girls 5 = 9 and Std. 9th Boy 1 + Girls 4 = 5 students were present.

> Name of the students are not registered in the Register till 06.09.2017.

> Attendance Register of Teachers for the year of 2013-14, 2014-15, 2015-16 were not produced, though asked by officer to produce and I/c. Principal Mr. Pujabhai Baria had informed the officer that same are with Trust.

> Electricity connection has been discontinued as school has not paid the electricity bill and electricity meter is also removed by the Board.

> The electronic fittings were found only in two rooms and no electronic fittings and light fittings were found in rest of the rooms. Now electronic connection is discontinued by the Electricity Board as stated herein above.

> Daily muster roll is not maintained.

> Computer lab is there but not used for the students.

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The officer J K Parmar, AEI, of the respondent authority i.e. DEO office had again carried out the surprise visit/inspection of the school of the petitioner on 10.08.2017 and submitted report dated 21.11.2017 to the DEO i.e. Respondent No.4. A copy of the report dated 21.11.2017 along with enclosures are annexed herewith and marked as Annexure - R/3. Following opinion was made in the Inspection Report by the officer:

1. Though the school is been granted permission of two classes, only 10 students were present on the day when inspection was carried out. It seems that educational work is not provided regularly in the school.

2.It was found that false attendance of the students has been marked as inconsistency was found in the numbers of students present at the time of inspection and numbers of students marked as present in the Attendance Register.

3.The electricity connection in the school was discontinued since last six months, which affects the educational work and subject like computer. It seems that computers allotted under the ITC scheme by the Government to the school are not being used.

Furthermore, looking the enclosures enclosed with the above referred inspection report, it is evident that the conclusion/opinion formed by the Inspection officer is supported with the enough documentary evidences.

The officer Smt. K.G. Parghi, AEI, of the District Education Officer had carried out the surprise visit/inspection of the school of the petitioner for third time on 04.08.2018. A copy of the Inspection Report dated 04.08.2018 is annexed herewith and marked as Annexure -R/

4. Thereafter, the DEO i.e. Respondent no. 4 vide communication dated 04.08.2018 has made recommendation to the Board i.e. Respondent No.2 to deregister the school of the

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petitioner trust. A copy of the communication dated 04.08.2018 is annexed herewith and marked as Annexure - R/5. I crave leave to refer and produce the enclosers enclosed with the said communication at the time of hearing or/and as and when need of so arises. Following deficiencies were pointed out/found during the said inspection:

1.Number of students are not maintained in the school

2.The school is allotted 11 computers under ITC Scheme, but computers are not being used for the educational purpose

3. Insufficient Physical Facilities in the school

4.The names of the students are not being regularly registered in the General Register

5.Daily Notebooks with respect to teaching work are also not maintained

6.CA Audit, DEO Audit and Departmental Audit are not done

Further, in-spite of instructions of the DEO i.e. Respondent no.4 to conduct the departmental inquiry against I/C. Principal Mr. Pujabhai Baria, the petitioner management has failed to comply with the instructions of DEO and failed to conduct the departmental inquiry with respect to complaint of sexual harassment filed by one lady teacher of the petitioner's school before police station against I/C. Principal. Further, the petitioner did not remain present before the Respondent no. 4 i.e Education Officer and not remained present in the proceedings before the High Court with respect to the complaint of the lady teacher as recorded in the communication of DEO. Such action of the petitioner clearly amounts to dis-obeyance and non-compliance of the order/ instructions of

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the respondent authority.

6.Thereafter, upon the recommendation of the DEO i.e. respondent no. 4 and after issuance of the show cause notice and further after providing the opportunity of hearing to the petitioner and considering the deficiencies and lacunas in the school as stated herein above (including the 0% result of std. 10% in last year), the Board has passed an order dated 29.09.2018 deregistering the school of the petitioner. It is further submitted that the said order dated 29.09.2018 is passed in consonance with the procedure of deregistration of school envisaged in the Gujarat Secondary and Higher Secondary Education Act and Regulation thereto.

7.I say and submit that the petitioner has preferred an appeal before the State Government against the Order passed by the Board. The State Government vide order dated 09.01.2019 has rejected the appeal of the petitioner and upheld the order passed by the Board.

8. I say and submit that though the school of the petitioner is deregistered, the petitioner has not transferred the students of Std. 9th and running the school. Such action of running deregistered school and thereby playing with the future of innocent students is punishable under the Gujarat Secondary and Higher Secondary Education Act,1972 and criminal law.

9.I further say and submit that the answers/explanation to certain deficiencies have given by the petitioner in the grounds. I say that the petitioner had also given/submitted the said explanation before the State Government in appeal proceedings. However, after verifying and considering all the records produced before the State Government in appeal proceedings, the State Government was pleased to reject the appeal

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preferred by the petitioner.

10. Under Such circumstance, I say and submit that it is well settled position of law that proceedings under Article 226 of the Constitution of India, the High Court cannot sit as a Court of Appeal over the findings recorded by a competent administrative authority, nor re-appreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. In view of, such settled law, the present petition deserves to be dismissed in limine."

5.2) Relying upon the aforesaid averments, it was submitted on behalf of the respondents that the impugned order passed by respondent no.2 and confirmed by the Appellate Authority may not be interfered while exercising extraordinary jurisdiction under Article 227 of the Constitution of India. Respondent no.2 has also filed affidavit-in-sur-rejoinder to the affidavit in rejoinder filed by the petitioner, placing on record the statements given by the students and in-charge Principal of the school to point out that false statements are made by the petitioner in paragraph no. 4 and 5 of the affidavit in rejoinder with respect to the number of students present on the day of visit/inspection on 6th September, 2017. It was also submitted that the petitioner-trust has failed to take any action against the Principal by not conducting any inquiry with regard to the charges levelled against the Principal by the lady teacher for sexual

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harassment. It was submitted that there are disputed questions of facts arising in the petition and therefore, the same is not required to be entertained in view of decision of the Supreme Court in case of Sanjay Sitaram Khemka v. State of Maharashtra and others2.

5.3) Learned Assistant Government Pleader also relied upon the averments made in the affidavit in reply filed on behalf of respondent no.1 - Joint Secretary and In- Charge Deputy Secretary (Appeal Branch) of Education Department of the State Government to submit that the Appellate Authority has considered the inspection reports wherein various irregularities are pointed out and after giving an opportunity of hearing, the impugned order is passed rejecting the appeal of the petitioner-trust. It was further pointed out that since 2016, various inspections are carried out resulting into recommendation of the District Education Officer to close down the school run by the petitioner by cancelling the registration. It was therefore, submitted that as the petitioner did not challenge the inspection reports, the observations made by respondent no.1 in the impugned order dated 9th January, 2019 are well founded. It was also pointed

2 (2006) 5 SCC 255

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out that respondent no.4 - District Education Officer has also directed for 25% cut in grant of the petitioner school for the year 2016-2017 and 2017-2018 as the petitioner has not taken any action against the Principal against whom charges of sexual harassment were levelled by the lady teacher.

6.Having heard the learned advocates for the respective parties and having gone through the material on record, it appears that the show cause notice was issued by respondent no.2 for initiating the proceedings for cancellation of registration of the school run by the petitioner-trust as per the provisions of Regulation No. 9A(1) of the Regulations, 1974. But thereafter, without issuance of the charge-sheet as provided in Regulation No. 9A(2), order dated 29th September, 2018 was passed by respondent no.2-Board. Regulation 9A of the Regulations, 1974 reads as under :

"9A: (1) If it appears to the Board that a person incharge of the management of the registered school (hereinafter referred to in this regulation as "the Manager") has committed defaults in carrying out any obligation imposed on him under the Act, or the regulations or any instructions issued to him by the Board and there is a primafacie case for holding the enquiry in such matter under subsection (9) of Section 31, the Board may

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direct the Secretary of the Board or any other officer of the Board not below the rank of Secretary of the Board to conduct inquiry.

                       (2) The      Inquiry      Officer     shall
                       serve    on    the    Manager a     charge-
                       sheet containing     the    statement    of
                       alleged   defaults     committed   by   the

management and the evidence in support of such defaults and call upon the Manager to give his explanation in respect of each of the allegations stated in the chargesheet within ten days from the date of receipt of such charge- sheet......"

7.From the above regulation, it is clear that the procedure is prescribed for the manner in which inquiry is to be conducted by respondent no.2-Board at every stage before the Board passes the order for removal of the name of the concerned school from the register of Secondary school. Regulation No. 9A(1) contemplates holding of inquiry by respondent no.2 Board by Secretary or any other officer not below the rank of Secretary of the Board. Whereas 9A(2) provides that the charge-sheet is required to be issued by the inquiry officer on the Manager of the school or trust containing the statements of alleged defaults committed by the management and the evidence in support of such defaults and to call upon the Manager to give his explanation in respect of each of the allegations stated in the chargesheet. In the facts of

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the case, no charge-sheet was issued by respondent no.2 nor any evidence in the shape of documents in support of the alleged defaults were supplied to the petitioner. It is pertinent to note that the facts stated in the further affidavit filed on behalf of the petitioner are not denied to the effect that no charge-sheet or any evidence in form of reports were supplied to the petitioner at any point of time. Hence it was not possible for the petitioner to meet with the allegations levelled against the petitioner.

8. On perusal of the impugned order dated 9 th January, 2019 passed by the Appellate Authority, it appears that the Appellate Authority after referring to reports dated 2nd January, 2019 and 4th January, 2019, has rejected the appeal without assigning any reasons by observing that the petitioner has failed to give any satisfactory explanation.

9.With regard to the breach of Regulation 9A of the Regulations, 1974, this Court in case of Panchmahals District Sarvoday Education Trust (supra), has held as under :

"22 It may be true that in the process, the Board has heard the petitioner Trust twice.

However, such a hearing, without any definite charges being framed or communicated, cannot be considered to be effective as the petitioner would be oblivious of the specific allegations against it The manner and method followed by the Board is absolutely de hors the

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procedure laid down in Regulation 9A. The Board is bound by the Regulations and has to compulsorily follow them strictly. The submission advanced by learned counsel for the Board that the regulations contemplate an opportunity of hearing which has been granted, cannot be accepted. The Board cannot be permitted to take liberties with the Regulations as it pleases. It cannot be permitted to devise its own procedure contrary to the regulations, on its own whims and fancies. The deregistration of a school is a serious matter having far reaching consequences. When the implications are serious in nature, it is all the more necessary to follow the prescribed procedure strictly, stage by stage, as laid down in Regulation 9A.

23 When it is clear that the Board has acted in flagrant breach of the procedure prescribed in Regulation 9A, it is immaterial whether it has called the petitioner twice for a hearing or granted twenty days to produce documents. This Court is unable to agree with the submissions advanced by learned advocate for the Board that the Board has granted full opportunity to the petitioner and satisfied the principles of natural justice. Opportunity has to be granted as prescribed in Regulation 9A and not as the Board deems fit. The Board cannot supersede the Regulations as it pleases. When no Inquiry Officer has been appointed, no chargesheet issued, no evidence in support of the allegations supplied, it is evident that at every stage the procedure under Regulation 9A has been flouted by the Board. Due to the flagrant disregard of the provisions of Regulation 9A, the petitioner has been placed in a disadvantageous position and the principles of natural justice, as contemplated by Regulation 9A, have been violated.

24 Learned counsel for the petitioner has

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relied upon a judgment of the Supreme Court in the case of J & K Housing Board and Another Vs. Kunwar Sanjay Krishan Kaul and others (supra), to buttress his submission that when a statute prescribes the manner of doing a thing, it must be done accordingly. The relevant extract of the judgment is reproduced hereinbelow.

"32. It is settled law that when any statutory provision provides a particular manner for doing a particular act, the said thing or act must be done in accordance with the manner prescribed therefor in the Act. Merely because the parties concerned were aware of the acquisition proceedings or served with individual notices does not make the position alter when the statute makes it very clear that all the procedures/ modes have to be strictly complied with in the manner provided therein. Merely because the landowners failed to submit their objections within 15 days after the publication of notification under Section 4(1) of the State Act, the authorities cannot be permitted to claim that it need not be strictly resorted to."

This judgment fortifies the view taken by this Court. The respondent Board cannot devise its own method contrary to the Regulations.

25. Insofar as the first respondent State Government is concerned, it has failed to examine the specific ground taken by the petitioner in the appeal, regarding the breach of Regulation 9A by the Board. Without doing so, it has mechanically upheld the order of the Board."

10. In view of above, the impugned order dated 9th January, 2019 is passed by

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respondent no.1 rejecting the appeal of the petitioner-trust without considering the provisions of Regulation 9A of the Regulations, 1974. Moreover, Respondent no.1 has failed to assign any reason for accepting the reports dated 2nd January, 2019 and 4th January, 2019 and copies of such reports were never provided to the petitioner resulting into breach of principles of natural justice. Thus, the petitioners are not given an opportunity to provide explanation with regard to the reports dated 2nd January, 2019 and 4th January, 2019. The respondent no.1 has therefore, erred in observing that the petitioner has failed to provide an explanation with regard to the cancellation of registration of the school run by the petitioner-trust.

11. In view of the foregoing reasons, the petition is partly allowed. The impugned order dated 9th January, 2019 is hereby quashed and set aside and the matter is remanded back to the Appellate Authority and after giving an opportunity of hearing to the petitioner as well as after providing the copies of the reports dated 2nd January, 2019 and 4th January, 2019 to the petitioner, the Appellate Authority shall decide the appeal of the petitioner afresh de-novo. Respondent no.1 shall decide the appeal within four weeks from the date of receipt of this order

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following the aforesaid directions.

12. The Petition is disposed of with aforesaid directions. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR