High Court
Facts
WP 7214 24 8145 24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 7214 OF 2024WITHCIVIL APPLICATION NO. 7991/2024 IN WP/7214/20241)Dnyansagar Education Society Latur,Through its Secretary,Mr. Shaikh Javed Hamidsaab,Age 44 years, Occ. Service,R/o. Ausa, Dist. Latur.2)Rajeev Gandhi Vidyalaya Borgaon (kh)Tq. Kalamb, Dist.Osmanabad,Now Azad Madhyamik Vidyalaya at Jaynagar,Malwati Road, Latur.Through its HeadmasterMr. Sasane Bhagwat Dhindiba,Age 56 years, Occ. Service,R/o. Shivajinagar, Murud, Tq. & Dist. Latur.… Petitioners VERSUS1)The State of Maharashtra,Through the Secretary,Department of School Education and Sports, M.S. Mantralaya, Mumbai.2)The Director of Education, Pune.3)The Regional Deputy Director of Education,Latur.4)The Education Officer Secondary,Zilla Parishad, Latur.5)The Education Officer Secondary,Zilla Parishad, Osmanabad.…Respondents…WITHWRIT PETITION NO. 8145 OF 2024WITH CA/8439/2024 IN WP/8145/20241)Shraddha d/o Yashwant Samudare,Age Minor, Occ. Education,1/11 WP 7214 24 8145 24.odtThrough legal guardianManisha h/o Yashwant Samudare,Age 34 years, Occ. Agriculture,R/o. Borgaoh (kh) Tq. Kallam, Dist.Osmanabad.2)Sneha d/o Narayan Samudare,age Minor Occ. Education,Through legal guardianNarayan s/o Nagnath Samudare,Age 42 years, Occ. Agriculture,R/o. Borgaoh (kh) Tq. KallamDist. Osmanabad.3)Vidya d/o Mahaling Hadade,Age Minor, Occ. Educaiton,Through legal guardianMahaling s/o Suhadev HadadeAge 41 years, Occ. Agriculture,R/o. Borgaoh (kh) Tq. KallamDist. Osmanabad.4)Diksha d/o Chandrakant Samudare,Age Minor, Occ. Education,Through legal guardianChandrakant s/o Baburao Samudare,Age 43 years, Occ. Agriculture,R/o. Borgaon (kh) Tq. Kallam, Dist.Osmanabad.5)Grampanchayat Office, Borgaon (kh)Tq. Kallam, Dist. Osmanabad,Through its SarpanchAjay s/o Shahuraj Samudare,Age 50 years, Occ. Sarpanch,R/o. Borgaon (kh) Tq. Kallam, Dist.Osmanabad.…Petitioners VERSUS1)The State of Maharashtra,Through its Secretary,School Education and Sport DepartmentMantralaya, Mumbai-32.2)The Dy. Director of EducationLatur, Tq. & Dist. Latur.2/11 WP 7214 24 8145 24.odt3)The Education Officer (Secondary)Zilla Parishad, Osmanabad,Tq. & Dist. Osmanabad.4)Dyansagar Education Society Latur,Through its SecretaryShaikh Javed Hamidsaab,Age 44 years, Occ. Service,R/o. Ausa, Tq. Ausa, Dist. Latur.5)Rajiv Gandhi Vidyalaya Borgaon(kh)Tq. Kallam, Dist. Osamanabad,Now Azad Madhyamik Vidylaya,At Jaynagar, Malwati Road, Latur,Tq. & Dist. Latur,Through its Head Master…Respondents…Advocate for Petitioners in WP No. 8145/2024 : Mr. Ameya Sabnis h/f Mr.E.S. Murge.A.G.P. for Respondent nos. 1 to 3 in WP No. 8145/2024 & Respondent nos. 1to 5 in WP 7214/2024 : Mr. R.S. WaniAdvocate for Petitioners in WP No. 7214/2024 : Mr. R.N. Dhorde, SeniorAdvocate i/b Mr. Shaikh Tarek Mobin.Advocate for Respondent Nos. 4 & 5 in WP No. 8145/2024 : Mr. R.N.Dhorde, Senior Advocate i/b Mr. Shaikh Tarek Mobin.Advocate for Applicant in CA No. 8439/2024 : Mr. Sayyed Tousif YasinCORAM: MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON PRONOUNCED ON :: 24.09.2024 30.09.2024COMMON JUDGMENT : ( MANGESH S. PATIL, J.) Heard. Rue in both the matters. It is made returnable forthwith. Thelearned A.G.P. and the learned advocates for the respective respondentswaive service. At the joint request of the parties, as the facts leading tofiling of the petitions are the same, we are disposing of these petitions bythis common judgment and order. 2.The first writ petition is filed by a Trust/education society. It is a3/11 WP 7214 24 8145 24.odtminority institute and was running the petitioner no. 2 school at locationBorgaon (kh.) Tq. Kalamb, Dist. Dharashiv. As per the request of thepetitioners, respondent no. 5-Education Officer, Zilla Parishad, Dharashiv,submitted a proposal to respondent no. 3-Regional Deputy Director ofEducation, Latur, for transfer of the school from the original place to a placeat Jaynagar, Malwati road, Latur, by referring to the policy of theGovernment declared by government resolution dated 28.07.2021.Respondent no. 3 in turn forwarded the proposal vide communication dated14.07.2023 to respondent no. 1-Secretary of Department of SchoolEducation and Sports. By the government resolution dated 05.03.2024, thegovernment granted permission for shifting of the school, subject to certainconditions inter alia of strict obedience to the requisite Governmentdecisions/circulars/orders, issued from time to time pertaining to the school,teaching and non teaching staff, salaries, students etc. 3.The order was communicated through respondent no. 3-RegionalDeputy Director of Education, Latur, and respondent no. 5-EducationOfficer (Secondary), Zilla Parishad, Dharashiv, to the management.Accordingly the school was shifted to Jaynagar, Malwati Road, Latur. 24students, which were taking education with respondent no. 2-school wereadmitted in Hanuman Vidyalaya, Ghargaon, Tq. Kalamb, District Dharashiv,01 student was admitted in Swami Vivekanand Vidya Mandir Padoli, Tq.Kalamb, Dist. Dharashiv, 05 students were shifted to Ravindranath Tagore,International School, Shirala, Tq. & Dist. Latur, 05 other students wereaccommodated in Sunrise Child World Kond, Tq. & Dist. Dharashiv, 08students were accommodated in Janta Vidya Mandir, Murud, Tq. & Dist.Latur, one student was admitted in Samaj Jagruti Prathamik Vidyalaya,Murud, Tq. & Dist. Latur, and one student was accommodated in ZillaParishad, Prathamik Shala, Parunagar, Tq. & Dist. Latur.4.However, by a communication dated 04.07.2024, respondent no. 5-Education Officer (Secondary), Zilla Parishad, Dharashiv informed petitioner4/11 WP 7214 24 8145 24.odtno. 2-headmaster of the school, observing that since it was reported thatsuch shifting of the school was being objected by some students and theirparents, and pursuant to the communication received from one M.L.A. ofDharashiv-Kalamb. Precisely referring to the stipulation while grantingpermission for transfer of school that it would be recalled/withdrawn, ifsome objection was received and the State Government reserved the right torecall the order of transfer. It was directed to resume the school at theoriginal location and to submit the report by 05.07.2024. It is thiscommunication, which is challenged by the management in Writ Petition No.7214/2024.5.By filing Civil Application No. 7991/2024 in that very petition, thepetitioner-management and the school solicited direction to stay the effectand operation of the order under challenge.6.The second writ petition bearing No. 8145/2024, is preferred by fourstudents, through their respective guardians, who were studying with theschool at the original location and the Grampanchayat of village Borgaon(Khurd), through its Sarpanch. By this petition, they are challenging thegovernment resolution dated 05.03.2024, permitting transfer of the schoolfrom Borgaon (Khurd) to Jaynagar, Malwati road, Latur. They are alsoseeking a writ of mandamus directing to resume the functioning of theschool from the original place.7.In both these petitions, the respondent-Deputy Director of Education,Latur Region, Latur, has filed separate affidavits in reply taking the samestand. He has not disputed the facts but has taken a stand that the decisionfor granting permission for shifting of the school would not result in causingany hardship to any student. He has named couple of schools, which arelocated within 3 km from the original place of the school, wherein thepetitioner-students can be accommodated. He has further stated thatalready academic year has begun and 159 students have already been5/11 WP 7214 24 8145 24.odtadmitted in the school at Latur. The Education Officer having tried toconvince the Sarpanch and the parents of the students to admit their wardsin the nearby schools. He has also admitted about the Education Officerhaving forwarded a proposal for cancellation of permission in the wake ofobjections being raised by these petitioners, students and the Sarpanch, andhe himself having submitted further proposal to the State Government on08.07.2024.8.The students and the Sarpanch, who have filed a separate petitionhave not been arrayed as respondents in the petition of the managementand the school.9.The management and the headmaster of the school have opposed thepetition of the students and Sarpanch by filling an affidavit. They allegethat the Sarpanch is puppet in the hands of the local M.L.A. and has beeninstrumental in obstructing functioning of the school being run at theoriginal place. The petition of the students together with Sarpanch beingpolitically motivated, it may not be entertained. It is also their stand thatdue to the problems being created in smooth operation of the school, itadversely affected in reduction in students strength thereby rendering ateacher surplus in the year 2013. Being a minority institute, it was findingdifficult to run the school at the original place and had requested forpermission for shifting it. It is further stand that the government resolutiondated 31.07.2013, is not applicable to the institute being a minority instituteand is not regulated by that government resolution. Reference is made tothe decision of a division bench at Nagpur in Writ Petition No. 2395/2014,decided on 05.05.2015. There can be no restriction much less with referenceto the distance between the original location and the location to which theschool is sought to be shifted. There are several schools in the vicinity of theoriginal place of the school at Borgaon (Kh). Except 20 students, all otherstudents, who were taking education at the original location, have takenadmissions/ accommodated suitably in the nearby schools, and causing any6/11
Legal Reasoning
WP 7214 24 8145 24.odtobstruction at this stage would result in complications. These remaining 20students can conveniently be accommodated and the issue can be sorted outwithout hindrance to anybody.10.We have considered the rival submissions and perused the papersincluding the affidavits in reply, rejoinder filed by the petitioner, studentsand Sarpanch and the surrejoinder filed by the management and the school.11.There is no dispute about the fact that the management was grantedpermission to run the school at Borgaon (Kh), Tq. Kalamb, DistrictDharashiv. If the stand of the management and even the submission of thelearned A.G.P. by pointing out that the management being a minorityinstitute would not be bound by the government resolution dated31.07.2013, whereby modalities and parameters have been laid down whileconsidering the requests of the management for shifting of the location ofthe schools and even though that government resolution has been held by adivision bench at Nagpur to be not applicable to the minority institute, eventhe subsequent government resolution dated 28.07.2021, touching the sameaspects and precisely issued in supersession inter alia of governmentresolution dated 31.07.2013, would rather make the case of the petitioner-management vulnerable. Being a minority institute, if these governmentresolutions are held to be not applicable to it, then it would be imperativefor the management to demonstrate as to how and under which regulationor law it is seeking permission for shifting of the school from one location tothe other.12.The issue before us is as to if, being a minority institute, themanagement running a school can shift the location of the school from oneplace to other as per its wish and undeterred by any regulation andmonitoring. We are of the considered view that such a stand of themanagement would be self-contradictory to its right to seek transfer/shiftingof the school. Saying that it is not regulated by the government regulation7/11 WP 7214 24 8145 24.odtbeing a minority institute would be antithesis to its claim for grant ofpermission to such shifting.13.Obviously, we cannot go into the practical difficulties for themanagement in running the school at the original location. There may begenuine reasons as well, for making a request for grant of permission forshifting the school. However, the issue would be, if at all, as is beingrequested, permission is to be granted can that happen in an unbridledmanner. Even if the government resolutions dated 31.07.2013 and28.07.2021 are held to be not applicable, still, the petitioner-management isnot taking exception to the permission granted to it subject to the conditionsimposed in the government resolution dated 05.03.2024. This permission isgranted subject to certain conditions including that the management wouldfollow all the rules, regulations and orders issued by the State Governmentinter alia in respect of teaching and non teaching staff and even thestudents. By not taking exception to such conditional permission, it hassubjected itself to the regulation including the one dated 28.07.2021, whichinter alia prescribes various conditions in respect of permissions to begranted for shifting of location of the schools. Therefore, indirectly, bysuffering the order granting permission conditionally, the managementcannot seek to take exception from the stipulations contained in governmentresolution dated 28.07.2021.14.Once having reached such a conclusion, when the impugned ordergranting permission does not even whisper about the circumstances whichprompted the State Government to grant permission, except with a baldstatement mentioning that due to non availability of infrastructure facilities,the permission was being granted would be clearly arbitrary and capricious.The decision clearly suffers from the vice of being a lopsided one wherebythe State Government has, for the reasons best known to it, clearlyoverlooked the parameters under which the permission is to be granted forshifting of the location.8/11 WP 7214 24 8145 24.odt15.The impugned order does not indicate and does not even giveparticulars as to how it was satisfied that the infrastructural facilities at theoriginal location were not sufficient, when admittedly the school was beingrun at the same location for years together, and was imparting education upto 10th standard. There is no reference to any care having been taken by thegovernment to ascertain or solicit information as to how the students weresought to be accommodated, whether any other granted school wasavailable in the proximity of the original location etc., which are some of theparameters contained in government resolution dated 28.07.2021.16.In view of such state of affairs, when, admittedly, at least there are 20students who have even now been not accommodated elsewhere, the standof the respondents that they can be accommodated now would be clearly anafter thought.17.Even if it is being pointed out as to how cancelling the permission atthis stage would create complications, in our considered view, that cannot bea reason to justify the illegality. Though by a communication of theEducation Officer (Secondary) being impugned by the management dated04.07.2024, calling upon the headmaster to resume the school at theoriginal location was sought to be objected by the management and by theorder dated 12.07.2024, the operation of the communication dated04.07.2024, was stayed till the next date i.e. 07.08.2024, the interim reliefwas never extended. Meaning thereby that the management and theheadmaster were under obligation and the Education Officer was bound toenforce his direction to the management of resuming the school at theoriginal location. It would not lie in the mouth of the management now todemonstrate as to how recalling the permission granted for shifting of theschool would result in complications. It is nobody’s case that any of thestudents, who were taking education in the school at the original locationhas been willingly admitted to the school at the new location.9/11
Decision
WP 7214 24 8145 24.odt18.As is the stand of the management and even the Deputy Director ofEducation that many students have taken admission in some other schools,resumption of the school at the original location, will not result in causingany inconvenience to those students. We, therefore, are of the firm viewthat this Court cannot be a part of an illegality on the specious plea ofinconvenience and complications.19.In the light of above, the permission granted to the management forshifting of the school being arbitrary and illegal and having been passedwithout following any regulation and without even considering the welfareof the students, who were actually taking education at the original location,would not be sustainable in law. Simultaneously, even the managementcannot object the communication dated 04.07.2024, issued by the EducationOfficer, directing the headmaster to resume the school at the originallocation.20.The Writ Petition No. 7214/2024 is dismissed.21.The Writ Petition No. 8145/2024 is allowed.22.The Government decision granting permission dated 05.03.2024, isquashed and set aside. The respondents, State and its officer of theEducation Department and the management and the headmaster shall takesuitable steps immediately for resuming the operation of the school at theoriginal location.23.Rule in Writ Petition No. 7214/2024 is discharged.24.Rule in Writ petition No. 8145/2024 is made absolute in above terms.25.Pending Civil Application is disposed of. ( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)10/11 WP 7214 24 8145 24.odt26.After pronouncement of the judgment the learned advocate for theManagement seeks stay to the operation of the judgment and order toenable it to approach the Supreme Court.27.For the reasons, which we have already spelt out in anticipation ofsuch a request, as is discussed in paragraph Nos. 16 to 19, the request isrejected.28.By way of Civil Application No.7991/2024 in Writ PetitionNo.7214/2024, the Management has prayed that since pursuant to thepermission granted for shifting of the location, necessary directions be givento respondent No.5 – Education Officer in the light of the communicationdated 04.07.2024, issued by respondent No.4, not to pay salaries to theteaching and none teaching staff of the school till the further order. The CivilApplication is disposed of keeping open the issue. ( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)mkd/-11/11