High Court
Facts
wp-2235-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.2235 OF 20241.Nalanda Vidyarjan Shikshan SansthaNanded, Tq. And Dist. NandedThrough its Secretary - Yashwant s/o Kishanrao Biradar,Age: 42 years, Occu.: Service,R/o. Yenki, Tq. Udgir,District Latur.2.The Headmaster,Mukundraj Primary School,Ardhapur, Tq. Ardhapur,District Nanded... PETITIONERSVERSUS1.The State of MaharashtraThrough its Secretary,School Education Department,Mantralaya, Mumbai-32.2.The Under Secretary,School Education & Sports Department,Mantralaya, Mumbai-32.3.The Commissioner of Education,Maharashtra State, Pune.4.The Director of Education (Primary),Maharashtra State, Pune.5.The Deputy Director of Education,Latur Region, Latur.6.The Chief Executive Officer,Zilla Parishad, Nanded,District Nanded.7.The Education Officer (Primary)Zilla Parishad, Nanded,District Nanded. .. RESPONDENTS[1]
Legal Reasoning
wp-2235-2024.odtde-recognized school, but we are surprised to note the inspectionreport dated 14.02.2001 on which the petitioners want to rely, whereinit has been stated that for 1st to 4th standard, there were 127 studentspresent out of 161 students. If 10 years prior to the said report dated14.02.2001 the school was de-recognized, how there could have beenpresensee of 127 students in the school. There is absolutely noexplanation in the petition to that effect as to how the school wasbeing still run after its de-recognition. At the cost of repetition,therefore, we say that neither there could have been students, nor theHeadmaster to a de-recognized school.5.The petitioner with other schools had approached this Court inWrit Petition No.2095 of 1991, which came to be decided on27.02.1992. It appears that settlement was arrived at and one mancommittee was appointed to find out whether the schools have beenguilty of various irregularities and malpractices as alleged in the show-cause notices, however, we find that in the settlement itself, which isrecorded by this Court, in Clause No.12 (ii) it was stated that, “theschools whose recognition is withdrawn by the impugned orders shallnot run the primary schools till they obtain recognitions in accordancewith law.” This was the settlement and petitioners ought to have actedin view of the said settlement, but as aforesaid, there is still a post ofHeadmaster and when the concerned officer visited the school in 2001,[5] wp-2235-2024.odtthere were 127 students of the primary school. Therefore, thepetitioners themselves have acted in derogation to the settlementbefore recognition could be accorded to it as per the law.6.Another fact to be noted is that there appears to be delay andlaches on the part of the petitioners to approach this Court for theaforesaid reliefs. The report of the one man committee was given on09.07.1992, but petitioners made the application in the year 2000 i.e.after eight years. No doubt, we are taking note of the fact that thepetitioners had approached this Court by filing Writ Petition No.13169of 2021 as respondent No.1 was not taking decision. This Court byorder dated 30.11.2021 had then asked respondent No.1 to considerthe proposal for grant of re-recognition to petitioner No.2 within aperiod of six months. Present petition then came to be filed on10.03.2022, but it appears that it came to be dismissed in default andthere was delay of 462 days in restoration of the writ petition. Byorder dated 24.01.2024, the said application came to be allowed bycondoning the delay. Thus, when the report was submitted in the year1992, the first application was filed by the petitioner in the year 2000,merely by giving applications after applications, the time will not runafresh. The petitioner ultimately approached this Court in the year2021. The lethargy on the part of the petitioners is required to beconsidered.[6] wp-2235-2024.odt7.Another fact to be noted is that the re-recognition cannot be asof right. The petitioners appear to be running the school withoutrecognition and it is evident from the inspection report, which thepetitioners want to rely. Therefore, the petition deserves to bedismissed at the threshold, when in the settlement which wasrecorded by this Court in the earlier writ petition in the year 1992 it isstated that they will not run the primary school till the recognition isaccorded as per procedure.8.Learned Advocate for the petitioners relied on the decisions inBir Bajrang Kumar Vs. State of Bihar and others, [AIR 1987 SC 1345]and Pharmacy Council of India Vs. Rajeev College of Pharmacy andothers, [(2023) 3 SCC 502]. We are mentioning these authorities, asthey have been given, but certainly the facts are different and the lawlaid down is not applicable to the facts before this Court. To run aschool cannot be considered as absolute right to the petitioners underArticle 19(1)(g) of the Constitution of India, which gives right topractise any profession or to carry on any occupation, trade orbusiness. In Pharmacy Council of India (Supra) and other catena ofjudgments also, it has been so held that the said Article 19(1)(g) ofConstitution of India is subject to restrictions and as aforesaid in thesettlement before this Court, the petitioners had restricted their socalled right that they will not run the school, but they are running the[7] wp-2235-2024.odtschool.9.We can also take further note that respondent No.2 had givencommunication to the Secretary, Education Department on 12.06.2020that the Education Officer has not inspected the school for givinggrants and the school has not received grants, because of which theteachers and employees working in the school are starved. Hetherefore prays that the grants should be released. This letter is totallyin violation of the settlement/order passed by this Court on27.02.1992 in Writ Petition No.2095 of 1991. Therefore, at thethreshold the writ petition deserves to be dismissed by imposing heavycost. Further, from this letter as well as the designation petitionerNo.2 is carrying, we are of the opinion that though the school is de-recognized, yet it is still run and, therefore, steps are required to betaken to close it down completely so that it should not damage thefuture of the students or the prospective students. We, therefore,direct the Education Officer (Primary), Zilla Parishad, Nanded, to seethat the petitioner No.2 School is not operational in all respects,however, while doing so, he may note that if there are students whoare taking education in petitioner No.2 School, then they should notget disturbed during this academic year, but at any cost he should seethat there are no admissions and no functioning of petitioner No.2School from the next academic year.[8] wp-2235-2024.odt10.The Writ Petition therefore stands dismissed with cost ofRs.50,000/- to be deposited in this Court by petitioner No.1 within aperiod of three weeks from today.11.The Education Officer (Primary), Zilla Parishad, Nanded, in viewof the directions given in paragraph No.9, should file his first reportwithin a period of four weeks to this Court.12.Rule is discharged.[ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[9]
Arguments
wp-2235-2024.odt…Mr. D. S. Mali, Advocate for the petitioners.Mr. N. S. Tekale, AGP for respondent Nos.1 to 3 and 5.Mr. S. B. Pulkundwar, Advocate for respondent Nos.6 and 7.… CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.DATE : 12th MARCH, 2024.JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :- .Rule. Rule made returnable forthwith. Heard learned Advocatefor the appearing parties finally by consent.2.Present petition has been filed by the petitioners for followingreliefs :-“B]By issuing writ of mandamus or any other writ,order or direction, this Hon’ble Court may be pleasedquashed and set aside the order passed by Desk Officer,School Education Sports Department Mantralaya, Mumbaidated 17.11.2021 thereby refused permission to re-recognition/re-grant to petitioner No.2 School.C]By issuing writ of mandamus or any other writ,order or direction, this Hon’ble Court may be pleased todirect the respondent authority i.e. respondent No.1 and 2to re-grant or re-recognized the petitioner No.2 School assoon as possible prior to academic year 2022-2023.D]By issuing writ of mandamus or any other writ,order or direction, direct to State Government to issueremaining grant-in-aid to the school of petitioner No.2with re-recognition from the academic year 2022-2023.”[2] wp-2235-2024.odt2.Heard learned Advocate Mr. D. S. Mali for the petitioners,learned AGP Mr. N. S. Tekale for respondent Nos.1 to 3 and 5 andlearned Advocate Mr. S. B. Pulkundwar for respondent Nos.6 and 7.3.The facts which are on record, pleaded by the petitioner are thatpetitioner No.2 School was run by petitioner No.1. Petitioner No.2School was for the 1st standard to 5th standard at Ardhapur, DistrictNanded. The school was recognized by respondent No.1 from the year1987-1988 by order dated 27.07.1987. The grant-in-aid that wasaccorded was 25% from the month of March, 1991. Respondent No.7had carried out inspection in the year 1990-1991 in respect ofpetitioner No.2 School and thereafter issued show-cause notice.Petitioner No.2 had given explanation, however, for the irregularities inthe school, the Chief Executive Officer of the Zilla Parishad withdrawnthe recognition of various primary schools from Nanded district in theyear 1991. About 35 primary schools were de-recognized. Thepetitioners had then approached this Court by filing Writ PetitionNo.2095 of 1991, which came to be disposed of on 27.02.1992 bygiving directions. Enquiry committee of single member was appointedto make enquiry and submit report. After the report was submitted on09.07.2022 and it was opined that on conditions the order of de-recognition can be withdrawn, the petitioners state that respondentNos.6 and 7 have never issued any specific notice for recovery of[3] wp-2235-2024.odtmoney against petitioner No.2. Respondent No.1 has granted re-recognition to some of those schools between 2014 to 2016 and evenrecently as those schools had approached respondent No.1 for re-recognition, the petitioners had then approached for re-recognition byfiling application on 12.06.2020 and the reminders thereafter.Respondent No.7 had then directed Block Education Officer to carryout the inspection. Accordingly, the said authority had inspectedpetitioner No.2 School on 14.02.2001. Positive report was submitted.The petitioners were ready to fulfill the terms and conditions asimposed by the one man committee. Respondent No.4 had forwardedthe report, however, respondent Nos.1 to 3 are not taking cognizanceand, therefore, the present petition has been filed.4.The first and the foremost fact which the petitioners wanted tocontend is that as they were ready and willing to abide by the terms orfollow the terms imposed by one man committee and there arepositive recommendations, the State ought to have re-recognized theschool. Here, the petitioner No.2 has given his designation as theHeadmaster of a de-recognized school. The de-recognition was of theyear 1991. Under the said circumstance, there could not have beenthe post as stated in the title of the petition. No person can be allowedto hold the post of a de-recognized school. It is absolutely not possiblethat any activity would have been carried out after 1991 in the said[4]