Adarsh Kelavani Mandal vs State Of Gujarat
2021 Latest Caselaw 14640 Guj

     C/SCA/7583/2020                             JUDGMENT DATED: 21/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7583 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1     Whether Reporters of Local Papers may be allowed                NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                         NO

3     Whether their Lordships wish to see the fair copy               NO
      of the judgment ?

4     Whether this case involves a substantial question               NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        ADARSH KELAVANI MANDAL
                                 Versus
                           STATE OF GUJARAT
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Appearance:
SUDHANSHU A JHA(8345) for the Petitioner(s) No. 1
MR MEET SHAH FOR MR AD OZA(515) for the Respondent(s) No. 4
MR ISHAN JOSHI for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 21/09/2021

                            ORAL JUDGMENT

1. Heard learned advocate Mr. Sudhanshu A. Jha for the petitioner, learned advocate Mr. Meet Shah for learned advocate Mr. A.D. Oza and learned Assistant Government Pleader Mr.

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Ishan Joshi for respondent-State.

2. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 29.2.2020 passed by the Additional Secretary (Secondary Education) (In-charge), Education department of the State of Gujarat in the appeal preferred by the petitioner.

3. The petitioner is a registered trust under the Bombay Public Trust Act, 1950 and is engaged in educational and social activities. The petitioner was running a school by name "Uttar Buniyadi Shala" in Karanpur village, Taluka Balashinor, District Mahisagar. The petitioner was receiving grant for running the school and according to the petitioner, there was only one school in Karanpur village wherein the students from schedule tribe community and other communities were studying in the said village.

4. According to the petitioner, due to disputes among the trustees, an application was made before the District Education Officer, District Mahisagar to close down the school. On coming to know about such application, objection was raised by other trustees before respondent no.2 District Education Officer on 20.08.2015. However, respondent no.2 without

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considering such objection passed order dated 18.9.2015 to close down the school.

5. Being aggrieved by the order passed by the District Education Officer to close down the school, the petitioner preferred an appeal before the Gujarat Secondary and Higher Secondary Education Board challenging such order which was confirmed by respondent no.4- Board vide order dated 20.5.2016.

6. The petitioner therefore preferred an appeal before the respondent no.1 Secretary, Education department on 17.6.2016. After giving an opportunity of hearing to the petitioner, vide order dated 31.10.2016, the matter was remanded back to respondent no.4 to reconsider the same.

7. Upon remand, respondent no.4 by order dated 21.7.2017 after considering all the relevant aspects granted permission to the petitioner to continue the school from June 2017.

8. The petitioner thereafter pursuant to such order passed by respondent no.4 continued the school for academic years 2017-2018 and 2018- 2019. It appears that thereafter on 10.01.2019, the Commissioner of Schools respondent no.3 without giving any opportunity of hearing directed respondent

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no.2 - District Education Officer to close down the school run by the petitioner on the ground that as per Government Resolution dated 28.04.1994, there is no provision to re-grant the permission to a closed school.

9. The petitioner being aggrieved by order passed by respondent no.3-Commissioner of Schools preferred an appeal before respondent no.1 on 5.3.2019. As such appeal was not decided, the petitioner approached this Court by preferring Special Civil Application No.15102/2019 and on a statement being made by learned Assistant Government Pleader before the Court, that appeal would be heard within six weeks, said petition was disposed of as withdrawn.

10. Pursuant to the statement made before this Court, respondent no.1 heard the appeal and passed an order on 29.2.2020 dismissing the appeal relying upon the Government Resolution dated 28.4.1994. Being aggrieved by the impugned order dated 29.02.2020, the petitioner has preferred this petition.

11. Learned advocate Mr. Sudhanshu Jha submitted that Government Resolution dated 28.4.1994 is not applicable in the facts of the case because the said resolution is passed so as to curb unscrupulous persons who

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after getting permission to start school, close down the school within two to three years and thereafter, shift the school to some other place by taking handsome amount for handing over the management to other persons in other areas and in such circumstances, Government was constrained to pass resolution in 1994.

12. It was pointed out that in facts of the case due to internal disputes between the trustees, the application was made before the District Education Officer in the year 2015 to close down the school though there was a need for secondary school in the village. It was pointed out that the District Education Officer without giving an opportunity of hearing passed the order to close down the school. It was submitted that respondent no.4 after remand of the matter passed an order dated 21.7.2017 holding that there is no school in the area and if the school of the petitioner is permitted to continue, it would benefit the village people. It was also pointed out that such order was passed after local inspection and taking into consideration the infrastructure facilities available with the petitioner-trust for the school. It was therefore, submitted that the petitioner-trust cannot be categorised as one of the trust which wants to take advantage of

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the permission granted for running the school and thereafter closing down the school for ulterior motive.

13. It was further submitted by learned advocate Mr. Jha that the petitioner had to close down the school pursuant to order passed by the Commissioner of Schools on 10.1.2019 which was confirmed by respondent no.1 by impugned order dated 29.2.2020 relying upon Government Resolution dated 28.4.1994.

14. It was therefore, submitted that without application of the Government Resolution dated 28.4.1994, respondent no.3 is required to consider as to permit the petitioner to run the school as grant-in-aid school or not as per the order passed by respondent no.4 on 21.7.2017.

15. On the other hand, learned Assistant Government Pleader Mr. Ishan Joshi submitted that as per the Government Resolution dated 28.4.1994, a bar has been imposed on those schools that have been shut down at the earlier point of time and were seeking to reopen itself and in view of such resolution, the authorities have rightly passed the order to close down the school run by the petitioner after the remand order dated

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21.7.2017 passed by respondent no.4. It was also pointed out that respondent no.4 while passing the remand order dated 21.7.2017 stipulated a condition that the petitioner trust to run the school after getting permission from the Commissioner of Schools, as such school was getting grant from the Government. It was pointed out that inspite of such condition, the petitioner-trust did not obtain any permission from the Commissioner of Schools and without permission continued the school for academic year 2017-2018 and academic year 2018-2019 and therefore, in the year 2019 when the Commissioner of Schools passed the order to close down the school relying upon Government Resolution dated 28.4.1994, the students of the school run by the petitioner were to be shifted to other school as well as staff of the school was declared as surplus.

16. Learned Assistant Government Pleader Mr. Joshi relied upon the following averments made in the affidavit in reply filed on behalf of the respondent no.3-Commissioner of Schools :

"7. It is stated that the class 9 and 10 of the Petitioner school was initially ordered to be shut down by Respondent No.2 vide its order dated 18.9.2015, as there were no students found to be studying in the

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aforesaid classes with the school. The aforesaid action was challenged by the Petitioner school resulting into many proceedings and ultimately, Respondent No.4 Board permitted the Petitioner school to reopen vide its order dated 24.10.2017 from academic year 2017, subject to condition of approval being granted by the answering Respondent for the same to the Petitioner school. The copy of the order dated 24.10.2017 is already annexed and marked as " Annexure F" with the Memo of the Petition.

8. It is stated that even after issuance of the aforesaid order passed by Respondent No.4 Board, the Petitioner school had not started its functioning, no students were admitted for the reason that the staff and the students of the Petitioner school was declared surplus and the same were transferred to other school, along with stationery, books of accounts, furniture, etc. The aforesaid facts are evident vide communications dated 14.3.2019, the copies of which are annexed and marked as "Annexure R/1 (Colly.)'.

9. It is stated that it came to the knowledge of the answering Respondent that the petitioner school was desirous to reopen and therefore, considering the Government Resolution dated 28.4.1994 issued by the Education Department, whereby a bar has been imposed on those schools that had been shut down at earlier point of time and were seeking to reopen

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itself, the answering Respondent intimated Respondent No.2 about the same, vide its impugned Order dated 10.1.2019 and the said was further intimated to Petitioner School by Respondent No.3 vide communication dated 27.2.2019. The copies of the aforesaid communications are already annexed and marked as "Annexure G (Colly.)" with the Memo of the Petition. A copy of the Government Resolution dated 28.4.1994 issued by the Education Department is annexed herewith and marked as "Annexure R/2". It is further stated that the impugned order dated 10.1.2019 passed by answering Respondent has been upheld by Respondent No.1 vide its impugned Order dated 29.2.2020, a copy of which is marked as "Annexure A" with the Memo of the Petition.

10.It is stated that the orders passed by the Respondent authorities are in consonance with the Government Resolution dated 28.4.1994 and the said Government Resolution is in force till date."

17. Relying upon the aforesaid averments, it was submitted that in view of Government Resolution dated 28.4.1994, the petitioner cannot be permitted to restart the school as no permission can be given for grant-in-aid school which is shut down for any reason.

18. Learned advocate Mr. Meet Shah appearing for learned advocate Mr. A.D. Oza submitted

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that respondent no.4 has passed the remand order dated 21.7.2017 on condition that the petitioner gets permission from the Commissioner of Schools to start the school and therefore, if the Commissioner of Schools is of the opinion that in view of Government Resolution dated 28.4.1994 no permission can be granted, the petitioner trust cannot run the school and therefore, it is rightly ordered to be closed down by respondent no.3 Commissioner of Schools.

19. Having heard the learned advocates for the respective parties and having gone through the material on record, it emerges that the petitioner school was closed down pursuant to the order passed by respondent no.2 District Education Officer in the year 2015 in view of application made by one of the trustees of the petitioner trust due to internal disputes between the trustees as stated in the petition. It also emerges from the record that respondent no.4 - Gujarat Secondary and Higher Secondary Education Board after remand of the matter passed the order dated 21.7.2017 granted the permission to the petitioner trust to run the school subject to the permission being granted by the Commissioner of Schools as it was a grant-in-aid school. It is true that the petitioner did not get the permission from

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the Commissioner of Schools as per the condition stipulated by the respondent no.4 Board in the year 2017 and continued the school for academic years 2017-2018 and 2018- 2019.

20. Be that as it may, in the year 2019, the Commissioner of Schools could not have invoked Government Resolution dated 28.4.1994 which in the opinion of this Court is not applicable to the facts of the petitioner's case for the following reasons :

(i) Government Resolution dated 28.4.1994 is applicable to the schools which are closed down within two to three years from the date of permission being granted as a new school. Whereas the petitioner trust was running the school for many years and there is no allegation that after getting the permission, the petitioner school was closed down within two to three years.

(ii) The said Government Resolution would not apply, as facts of the present case are totally different. The petitioner school was closed down pursuant to an application made before the District Education Officer and without giving an opportunity of hearing to the petitioner, the District Education Officer passed the order in the year 2015 to

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close down the school without verification that there was no school in the village and the students of the village were deprived of education on closing down of the school. There is no allegation against the petitioner school that the school was closed down so as to earn money by transferring the management to some other trust.

(iii) Therefore, in facts of the case though the petitioner's school was closed down, it cannot be said that no permission can be given to restart the school. It is also pertinent to note that respondent no.4 Board has granted permission to restart the school and therefore, Government Resolution dated 28.4.1994 cannot be made applicable to the school run by the petitioner trust in facts of the case.

21. As the respondents no.1 and 3 have passed the impugned order solely relying upon Government Resolution dated 28.4.1994 which is not applicable in facts of the case. Therefore, in the interest of justice both the orders passed by the respondent no.1 and 3 dated 29.2.2020 and 10.1.2019 are hereby quashed and set aside and the matter is remanded back to respondent no.3 Commissioner of Schools to reconsider the case of the petitioner without application of the

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Government Resolution dated 28.4.1994 as the same would not be applicable in facts of the case as held here in above. Such exercise shall be completed within 12 weeks from the date of receipt of this order after giving an opportunity of hearing to the petitioner and the petitioner shall be at liberty to raise all the contentions before the Commissioner of Schools in accordance with law.

22. Rule is made absolute to the aforesaid extent with no order as to costs.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR