High Court · 2024
Legal Reasoning
(6) wp-5349-2018.odtorder, in this petition. She would, therefore, urge to pass theappropriate order.8.Upon hearing the learned Advocates appearing for therespective parties, the controversy that needs consideration is asregards to the jurisdiction of the Hon’ble Minster vis-a-vis thelearned Secretary of the Department to hear and decide matterspertaining to transfer of the management of Ashram schools. Thepetitioner while assailing the impugned order passed by theHon’ble Minister contends that the Hon’ble Minister was notcompetent to interfere or review order passed by the Secretary,whereas respondent no.6 assails very competence of the Secretaryto take decision as regards to the transfer of the Ashram School,which is not regulated by the Statutory scheme and depends onprocedure laid down under Government Resolutions issued time totime. 9.Since there were no modalities or procedure prescribedregulating transfer of schools from one management to another,the Division Bench of this Court in case of Jeejau ShikshanSanstha V. State of Maharashtra1 prescribed certain modalitiesuntil Government frames the Rules and Regulations. So far as thepowers of the Hon’ble Ministers and officers in Secretariat areconcerned, they are regulated by Maharashtra Government Rulesof Business with instructions of 7th May 1964 (As amended time totime) issued under Rule 15 of the aforesaid Rules and standingorders dated 10.01.2000. Rules 5, 7 and 10 of the MaharashtraGovernment Rules of Business reads as under:“5.The Governor shall on the advice of the Chief Ministerallot among the Ministers the business of the Government byassigning one or more Departments or part of Departments tothe charge of a Minister. 1(2011) 4 Mh.L.J. 352.
Arguments
(1) wp-5349-2018.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.5349 OF 2018Ravisoot Vyayam And Shikshan Prabodhan Sanstha, Indira Smriti, Bhoiwada, Mill Corner, Aurangabad, Through its President, Mr. Bhimcharan S/o Anandrao More, Age: 53 yrs, Occup. Business and Social Worker, R/o: Aurangabad, Ta. and Dist. Aurangabad...PetitionerVersus1.The State of Maharashtra, Through its Secretary, VJNT, OBC and Special Backward Class Welfare Department, Mantralaya,Mumbai-32.2.The Director VJNT, OBC and Special Backward, State of Maharashtra, Pune.3.The Divisional Commissioner,Social Welfare Office, Aurangabad Division,Aurangabad.4.The Assistant Commissioner,Social Welfare Office, Aurangabad.5.Shivam Bahuudedeshiya Sevabhavi Mandal, Ghusurtanda, Tal. Kannad, District Aurangabad, through its President Mr. Namdeo Soma Chavan, Age: Major, Occu: Government service. R/o: "Matoshree Niwas" Near Shivaji College Gate, Kannad, Ta. Kannad, District Aurangabad...Respondents …Mr. V. D. Sapkal, Senior Advocate i/by S. R. Sapkal, Advocate forthe Petitioner.Ms. R. P. Gour, AGP for Respondent Nos.1, 3 and 5.Mr. V. J. Dixit, Senior Advocate i/by Mr. V. B. Garud, Advocate forRespondent No.6 through (V.C.) (2) wp-5349-2018.odt … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.JUDGMENT RESERVED ON :- 15th APRIL 2024.JUDGMENT PRONOUNCED ON :- 28th JUNE 2024.JUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With the consent ofthe parties, matter is taken up for final hearing at the stage ofadmission.2.The petitioner approaches this Court under Article 226 of theConstitution of India, thereby impugning order dated 03.05.2018passed by the Hon’ble Minister, VJNT, OBC and Special BackwardClass Welfare Department, thereby setting aside the order dated18.11.2017 passed by the Secretary of the same department tocontinue the management of the Ashram School with the petitionerand withdraw the order dated 01.03.2009 regarding its transfer infavour of respondent no.6.3.The facts giving rise to present Writ Petition can besummarized as under:-a.On 12.03.1980 respondent no.1 granted permission to runAshram School at village Ghusurtanda, Taluka Kannad, DistrictAurangabad in favour of the petitioner. However, since June 1993the school was shifted to village Chapaner, Taluka Kannad,District Aurangabad. Later on grant-in-aid was conferred to runthe Ashram School in favour of the petitioner-Society.b.On 01.12.2005, on account of certain difficulties faced,petitioner society passed a resolution to transfer the school infavour of respondent no.6. Consequently, a proposal dated (3) wp-5349-2018.odt13.02.2006 had been submitted to Social Welfare Officer seekingapproval for transfer of the school management to respondent no.6.c.While said proposal was pending for consideration, thepetitioner alleged to have passed Resolution dated 01.03.2006 insuppression of its earlier Resolution dated 01.12.2005. Accordingto the petitioner, subsequent decision dated 01.03.2006 was dulycommunicated to respondent-Authorities as well as respondentno.6. However, ignoring same, respondent no.1 permitted transferof School management in favour of respondent no.6 relying onearlier Resolution dated 01.12.2005, without hearing petitioner orother stake-holders. The employees working on the establishmentof the Ashram School were also adversely affected since grant-in-aid was withhold in pursuance of the policy decision of theGovernment dated 01.08.2007 which stipulates that no grant-in-aidshall be made available for the period of three years, in case oftransfer of management of Ashram School.d.The decision dated 01.03.2009 permitting transfer of AshramSchool in favour of respondent no.6 was assailed by the petitionerin Writ Petition No.4346/2009 before this Court. Similarly, theemployees of the school had independently assailed the aforesaiddecision by filing Writ Petition No.2871/2009. This Court afterhearing the parties, allowed both the Writ Petitions vide orderdated 31.03.2017 and quashed and set aside the GovernmentResolution dated 01.03.2009 with further direction that therespondent-Authorities shall take fresh decision as regards to thetransfer of the Ashram School after hearing the concerned partiesin accordance with law. e.In deference to the aforesaid order of this Court, theSecretary, VJNT, OBC and Special Backward Class WelfareDepartment heard the respective parties and passed the order (4) wp-5349-2018.odtdated 11.11.2017 and continued management of the school withpetitioner, holding that transfer of management cannot bepermitted. f.The respondent no.6 assailed the order dated 18.11.2017passed by the Secretary, before the Hon’ble Minister, VJNT, OBCand Special Backward Class Welfare Department by filing ReviewApplication No.03/2018, contending that the Secretary of theDepartment has no jurisdiction to take final decision in the matterof transfer of the schools. No authorization has been given by theHon’ble Minister in favour of the Secretary. Consequently, theorder passed by the Secretary is illegal. Similarly, it is contendedthat the transfer of the school in favour of respondent no.6 isinconsistent with the procedure. The Hon’ble Minister allowed theReview Application vide his order 0dated 03.05.2018 and therebyquashed and set aside the order dated 18.11.2017 passed by theSecondary, VJNT, OBC and Special Backward Class WelfareDepartment and restored the order permitting transfer of theschool in favour of respondent no.6 and issued consequentialdirection against the petitioner to transfer the management infavour of respondent no.6.4.Mr. Sapkal, learned Senior Advocate i/by Mr. S. R. Sapkal,learned Advocate appearing for the petitioner while assailing theimpugned order vehemently submits that the Hon’ble Minister donot possess power akin to review of the orders passed by theSecretary of his own Department. The learned Secretary of theDepartment had issued notices to all concerned in pursuance of thedirection of this Court in Writ Petition No.4346/2009 and afterhearing all the stake-holders found that transfer of school wasinconsistent with the policy of the Government and also principlesof nature justice. Consequently, declared earlier decision (5) wp-5349-2018.odtpermitting transfer of the school as invalid. The Resolution dated01.12.2005 passed by the petitioner for transfer of the school wascanceled on 01.03.2006. Therefore, decision relying upon theResolution dated 01.12.2005 is not sustainable. 5.Mr. Sapkal would further submit that there was no policy ofthe Government enabling transfer of the Ashram School in the year2005. He would further submit that no transfer of managementfrom minority to non-minority can be permitted.6.Per contra, Mr. Dixit, learned Senior Advocate i/by Mr.Garud, learned Advocate appearing for respondent no.6 wouldsubmit that the Secretary had no jurisdiction to take final decisionas regards to the transfer of the Ashram Schools. He would submitthat Maharashtra Government Rules of Business framed underClause Nos.(2) and (3) of the Article 166 of the Constitution ofIndia provides for “competence of the Minister to pass the order”.There is nothing to demonstrate that the Minister had delegatedhis powers to the Secretary in any manner. No standing order ordirection issued by the Minister-in-charge empowering Secretary ofthe Department for disposal of cases in the Department isavailable. Therefore, the order passed by the Secretary is non-est.He would, therefore, submit that Hon’ble Minister has rightly setaside the order passed by the Secretary and issued consequentialdirections.7.Ms. Gaur, learned A.G.P. appearing for respondent nos.1, 3and 5 relying upon the affidavit-in-reply filed by Mr. JagdishPrasad Gupta, Principal Secretary submits that in pursuance ofdirection given by this Court vide order dated 31.03.2017 passed inWrit Petition No.4346/2009, Secretary of the Department heardrespective parties and passed order dated 18.11.2017, which hasbeen quashed and set aside by the Hon’ble Minister by impugned
Decision
(7) wp-5349-2018.odtProvided that, nothing in this rule shall prevent theassigning of one Department to the charge of more than oneMinister. 7.Each Department of the Secretariat shall consist of theSecretary to the Government, who shall be the official head ofthat Department and of such other officers and servantssubordinate to him as the State Government may determine:Provided that-(a) More than one Department may be placed in chargeof the same Secretary;(b) the work of a Department may be divided betweentwo or more Secretaries.10.(1) Without prejudice to the provision of rule 7, theMinister-in- charge of a Department shall beprimarily responsible for the disposal of the businessappertaining that Department or part of theDepartment.(2) Every Minister, every Minister of State, everyDeputy Minister and every Secretary shall transmit to theChief Minister all such information with respect to thebusiness of the Government as the Chief Minister may fromtime to time require to be transmitted to him.”10.The cumulative reading of aforesaid provisions would showsthat the Minister-in-charge of the Department shall be primarilyresponsible for the business of his Department. In pursuance ofRule 15, the instructions regarding the business of the Governmenthave been issued. Clause 4 of the instructions reads as under:“4.Except as otherwise provided In theseInstructions, cases shall ordinarily be disposed of by,or under the authority, of the Minister-in-charge, whomay by means of standing orders give such directionas he thinks fit for the disposal of cases in theDepartment. Copies of such standing orders shall besent to the Governor and the Chief Minister. ”11.Apparently, the cases are required to be disposed of by, orunder Authority, of the Minister-in-charge, although he may issuesuch standing orders in his discretion for disposal of the cases in (8) wp-5349-2018.odthis Department. Copies of such standing orders are required to besent to the Governor and the Chief Minister. At this stagereference can be given to observation of Supreme Court of India incase of A. Sanjeevi Naidu, etc V. State of Madras2 in paragraph9 and 10, which reads as under:“Under our Constitution, the Governor is essentially aconstitutional head; the administration of State is run by theCouncil of Ministers. But in the very nature of things, it isimpossible for the Council of Ministers to deal with each andevery matter that comes before the Government. In order toobviate that difficulty the Constitution has authorised theGovernor under sub-Art. (3) of Art. 166 to make rules. for themore convenient transaction of business of the government ofthe State and for the allocation amongst its Ministers, thebusiness of the government. All matters excepting those inwhich Governor is required to act in his discretion have to beallocated to one or the other of the Ministers on the advice ofthe Chief Minister. Apart from allocating business among theMinisters, the Governor can also make rules on the advice ofhis Council of Ministers for more convenient transaction ofbusiness. He can, not only allocate the various subjectsamongst the Ministers but may go further anddesignate a particular official to discharge anyparticular function. But this again he can do only onthe advice of the Council of Ministers.The cabinet is responsible, to the legislature for every act iontaken in any of the ministries. That is the essence of jointresponsibility. That does not mean that each and everydecision must be taken by the cabinet. The politicalresponsibility of the Council of Ministers does not and cannotpredicate the personal responsibility of the Ministers todischarge all or any of the governmental functions. Similarlyan individual Minister is responsible to the legislature forevery action taken or omitted to be taken in his ministry.This again is a political responsibility and not personalresponsibility. Even the most hard working minister cannotattend to every business in his department. If he attempts todo it, he is bound to make a mess of his department. In everywell planned administration, most of the decisions are takenby the civil servants who are likely to be experts and notsubject to political pressure. The Minister is not expected toburden himself with the day to day administration. His21970 (1) SCC 443. (9) wp-5349-2018.odtprimary function is to. lay down the policies and programmesof his ministry while the Council of Ministers settle the majorpolicies and programmes of the 'government. When a civilservant takes a decision, he does not do it as a delegateof his Minister. He does it -on behalf of the government.It is always open to a Minister to call for any file in hisministry and pass orders. He may also issue directionsto the officers in his ministry regarding the disposal ofgovernment business generally or as regards anyspecific case. Subject to that over all power, the officersdesignated by the 'Rules' or the standing orders, cantake decisions on behalf of the government. Theseofficers are the limbs of the government and not itsdelegates.” 12.The survey of provisions contained in business rules andinstructions issued thereunder coupled with observations ofHonorable Supreme Court in case of A. Sanjeevi Naidu (Supra)clarify that in absence of the standing orders, the Secretary of theDepartment would not get authority to decide any matter, which isotherwise within competence of the Minister-in-charge. Perusal ofthe affidavit-in-reply filed by Mr. Jagdish Prasad Gupta, PrincipalSecretary of the Department nowhere states that the Minister-in-charge had authorized him under standing orders for disposal ofthe cases in the Department. It was expected of him to clarify asregards to his authority to pass the order dated 18.11.2017. Inabsence of such clarification, particularly in light of the provisionsunder Rules of Business and instructions, we are inclined to holdthat the Secretary had no authority under law to deal with thematter as regards to the transfer of management of Ashram schooland take any final decision in this regard. The decision renderedby Secretary in any subject that requires to be dealt with byconcern Minister, can never be treated as decision of Government.As such, the order dated 18.11.2017 appears to be non-est orinvalid for want of authorization by concern Minister ofDepartment. In this backdrop, if respondent no.6 had approached (10) wp-5349-2018.odtthe Hon’ble Minister seeking review / recall of the order, no faultcan be found in such action. Even, we have no hesitation to holdthat in such circumstances the Hon’ble Minister is justified inexercising his powers and consider subject matter afresh, ignoringinvalid / unauthorized order passed by secretory. When subjectmatter is not regulated by statutory provisions and administrativeorders are passed in discretion of government, we can notcountenance submission that Minister was not empowered to recallor review order passed by secretory in absence of specific provision.13.In fact when this Court remitted the matter back to theGovernment under order dated 31.03.2017 passed in Writ PetitionNo.4346/2009 alongwith companion matters, it was expected to beheard by the Hon’ble Minister himself. However, the Secretaryappears to have wrongly assumed jurisdiction to take decision andpassed the order dated 18.11.2017. Such decision can never berecognized as decision by Government.14.It appears that there is serious dispute whether Resolutiondated 01.12.2005 passed by respondent no.6 was subsisting as on01.03.2009 when proposal for transfer of management is favorablyconsidered by Government. It is the contention of the petitionerthat such Resolution was canceled through subsequent resolutionof petitioner trust passed during the meeting dated 01.03.2006,accordingly, communication was made to respondents. Thepetitioner placed on record the postal receipts to indicate thatcommunications were made under the certificate of posting to therespondents-authorities as well as respondent no.6-Trust.However, the impugned order observes that there is nothing onrecord to show that subsequent decision of the petitioner had everreached to the respondents-authorities. Therefore, it would not beappropriate for this Court to delve into disputed questions of facts. (11) wp-5349-2018.odt15.The moot question that requires consideration is thatwhether based on mutual agreement between two institutions, thetransfer of school which is conferred with grant-in-aid from statecan be permitted. It is not in dispute that no specific guidelineswere framed by the State Authorities governing the transfer of themanagement of Ashram School. Pertinently, in the year 2006 thedecision was taken by the Government to not to allow new AshramSchools. This Court in Writ Petition No.949/2012, whileconsidering the a matter pertaining to the transfer of themanagement of Ashram Schools between Jeevanjyoti Krida andShikshan Prasarak Mandal Vs. State of Maharashtra andOthers vide order dated 10/11.09.2012 laid down certainguidelines to obviate arbitrary exercise of the powers whileexpecting State Government to come with the appropriateguidelines/procedure or Rules and Regulations laying downprocedure for considering the request for transfer of themanagement of the Ashram School falling within the jurisdiction ofthe Tribal Development Department or the Social JusticeDepartment. In short, it is expected that when a change in themanagement of an aided Ashram School is contemplated, the StateGovernment shall issue and publish a notice in two prominentnewspapers as well as on the website of the Department invitingapplications from interested organisations/NGOs for conductingthe Ashram School and also invite suggestions from otherstakeholders including parents and the teaching staff. It wasexpected that the Director shall hold an enquiry as regards to thereasons for a proposed change in management and also check trackrecord and credentials of the proposed transferee management.The actual transfer or change in management can be effected afterpublication order through widely circulated newspaper andpreferably at the commencement of the new academic session, so as (12) wp-5349-2018.odtto prevent disruption of the education of the children. Pertinentlythe State Government issued Government Resolution dated01.08.2007 laying down certain guidelines. The introductory partof the said Government Resolution states that the transfer of themanagement of the Ashram School from one Institution to anotherInstitution is not consistent with the policy of the grant of AshramSchools and such proposal shall be dealt with in the manner tocurb such practices. However, in exceptional cases, such proposalsare expected to be entertained subject to conditions as laid down.16.In the present case, the Resolution dated 01.12.2005 passedby the petitioner simply states that the decision is taken to transferthe School alongwith its assets in favour of respondent no.6. Nospecific reason is mentioned therein. The Resolution nowherestates that the petitioner was incapable to run the school either onaccount of financial crisis or otherwise. Perusal of the Governmentdecision dated 01.03.2009 permitting transfer of the School infavour of respondent no.6, nowhere suggests any specific reason asto why such transfer was found essential and permitted by theGovernment. The documentary evidence available on recordsuggests that the proposal received in the year 2005 for transfer ofthe School was kept in dormant condition. However, after thepolitical interference, that has been moved leading to the orderdated 01.03.2009. Apparently, the order permitting transfer hasbeen made pursuant to the so called mutual agreement betweenthe petitioner and respondent no.6. Permitting transfers ofGovernment aided schools in such a manner can never beapproved, since it would be unhealthy practice and detrimental tothe basic object of the establishment of the Schools. It is not in theinterest of the Government, as grant-in-aid is given after satisfyingconditions and transferring it to unaided school will financiallyprejudicial to Government. It will also open a flood gate or the (13) wp-5349-2018.odtback door for getting finance to such schools which are otherwisenot entitled. It will also amount to injustice to other schools. 17.It is pertinent to note that the order permitting transfer wasnever implemented and the School is continued to run by thepetitioner. The reports of inspection during recent past indicatesthat the School is functional and smoothly running as on today.Consequently, the impugned order passed by the Hon’ble Ministerdated 03.05.2018 cannot be sustained in law. Though we hold thatHon’ble Minister was justified in entertaining review, we hold thathis order is illegal. 18Hence, the following order:ORDERa.Writ Petition is allowed in terms of prayer Clause (B). b.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/June-2024