High Court
Legal Reasoning
1 WP.9966-19+1.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.9966 OF 2019Matoshree Pannai SevabhaviShikshan Sanstha, Naik Nagar, Udgir, Tq. Udgir, District Latur,Through its President, Anilkumar Veerbhan Pawar. … Petitioner.Versus1.The State of Maharashtra,Through its Secretary,Social Justice and Special Assistance Department,Mantralaya, Mumbai-400032.2.The Commissioner for Welfareof Handicapped,Maharashtra State, Pune-411001.3.The District Social Welfare officer,Zilla Parishad, Latur,4.The Secretary,Sayali Bahuuddeshiya Shikshan Sanstha, Nagpur.… Respondents.WITHWRIT PETITION NO.13400 OF 2019Sadnath Bahu UddeshiyaShikshan Mandal, Nitur, Tq. Nilanga, District Latur,Through its Secretary, Kalidas S/o Vasantrao Patil,Age 44 years, Occu. Secretary,R/o Nitur, Tq. Nilanga, District Latur.… Petitioner.Versus1.The State of Maharashtra, 2 WP.9966-19+1.odtThrough its Secretary,Social Justice and Special Assistance Department,Mantralaya, Mumbai-32.2.The Commissioner for Welfareof Handicapped,Maharashtra State, Pune-411001.3.The District Social Welfare officer,Zilla Parishad, Latur,4.The Secretary,Sayali Bahu Uddeshiya Shikshan Sanstha, Nagpur.… Respondents....Advocate for Petitioner in WP/9966/2019 : Mr. V. D. Hon(Senior Counsel) i/b Mr. K. P. Rodge and Mr. P. G. Rodge.Advocate for Petitioner in WP/13400/2019 : Mr. S. P. Urgunde.AGP for Respondent/s-Staten in Both WP : Mr. P. S. Patil.Advocate for Respondent No.3 in Both WP : Mr. S. S. Manale.Advocate for Respondent No.4 in WP/9966/19 : Mr. V. D.Salunke.…CORAM : S. G. MEHARE, AND SHAILESH P. BRAHME, JJ.RESERVED ON : 19.12.2024PRONOUNCED ON : 15.01.2025JUDGMENT :- 1.Rule. Rule made returnable forthwith and heard finallyby the consent of the parties.2.Both petitioners have impugned the order dated15.06.2019 of respondent No.1 transferring and shifting theschool which was closed, to respondent No.4. 3 WP.9966-19+1.odt3.The brief facts of the case were that Marathwada ApangSanghatna, Latur was running residential school for girls byname “Maher Asthi Vyang School, Latur”. However, themanagement failed to run the school. Therefore, respondentNo.2 cancelled its registration. An application from theinterested social institutions were invited from throughout theState of Maharashtra, for allotting the registration oftransferring said school. Both petitioners had also applied.After scrutiny, the Government granted the registration andtransferred the said school to respondent No.4 which wasregistered at Nagpur. Though, respondent No.4/society hasbeen registered at Nagpur the school was shifted in Gadchirolidistrict.4.Petitioner in writ petition No.9966 of 2019 hasimpugned the order of respondent No.1 on the ground that theGovernment did not follow the norms correctly. The schooltransferred to respondent No.4 is around 523 k.m. away fromthe place where it was earlier running. Respondent No.4 hadnot submitted the application to the District Social Welfare,Zilla Parishad, Latur. They have the institution in the sameDistrict where the closed school was running. The students
Legal Reasoning
4 WP.9966-19+1.odtfrom Latur District have been suffering the loss. They were tobe preferred. 5.In Writ Petition No.13400 of 2019, the grounds ofobjections are identical to the grounds raised in Writ PetitionNo.9966 of 2019. In addition thereto, they have the contentionthat as per the Government Resolution, such a school shouldbe allotted to the institution which is nearly to the earlierplace. Their institution runs the school within the periphery of30 k.m. Therefore, they had the priority right over thedistribution. 6.Heard the respective learned counsels at length. 7.Learned senior counsel Mr. Hon for petitioner in writpetition No.9966 of 2019 has referred to various documentsand vehemently argued that in the absence of any applicationto the office of respondent No.3 it cannot be said that it was anappropriate application. There is no other school in the Laturdistrict of the similar nature. There was no specific guidelinesfor determining the place where it was to be transferred. Herelied on the case of Jeevan Jyoti Krida and Shikshan PrasarakMandal, through its President, N. S. Survase Vs. State ofMaharashtra and others, in Writ Petition No.949 of 2012 with 5 WP.9966-19+1.odtconnected writ petition of Bombay High Court, decided on10/11 September 2012. It was a case of transfer of the Ashramschool. The facts of the case were that there were no procedurelaid down by the State Government for considering the requestfor transfer of Ashram Schools. He further argued that theinformation supplied by respondent No.3 under Right toInformation Act supports the contention of the petitioner thatrespondent No.4 had submitted no application for allotment ofregistration of the closed school to respondent No.3. Therefore,there was no application and recommendation for respondentNo.4. He would submit that since the school was closed inLatur district, the District Welfare Officer, Latur is the Authorityto whom the applications should be submitted and on hisrecommendation only the school is to be allotted/shifted.However, the Government/respondent No.1 did not considerthe concept of transferring the school for the welfare of thephysically disabled children in the Latur district. The interestof the students should have been protected. Therefore, shiftingthe school at such far away is against the principle of equityand it is a discrimination with the students who were alreadyadmitted to the school which was closed. The transfer ruleshave prima facie been violated and respondent No.1 hasfavoured respondent No.4. 6 WP.9966-19+1.odt8.Learned counsel Mr. Urgunde for petitioner in writpetition No.13400 of 2019 adopted the arguments of learnedsenior counsel Mr. Hon and in addition thereto has vehementlyargued that the petitioner’s institution was about 30 k.m. awayfrom the earlier school which was closed. The petitioner runsthe same type of school. The petitioner was recommended byrespondent No.3. He referred to the Government Resolutiondated 23.07.2019 and argued that as per this resolution, if theAshram school is to be transferred or shifted to another place itshould not be transferred or shifted more than 10 k.m. Hewould submit that the Government Resolutions are notproperly considered. 9.Learned counsel Mr. Salunke for contesting respondentNo.4 has vehemently argued that the applications were invitedfrom throughout the State. He has referred to the GovernmentResolution dated 16.09.2017 and argued that Sub Clause 5 ofClause (1) of the said resolutions states that the registeredinstitutions in the State may apply to the District Social WelfareOffice. The clause was specific that their society registeredwithin a peculiar district should pray to the District WelfareOfficer of the said district. Referring to Sub Clause 14 of thesaid Government Resolution he would argue that the 7 WP.9966-19+1.odtemployees of the schools were to be absolved. Again hereferred to Sub Clause 3 of Clause 2 of the said GovernmentResolution and argued that the aspirant institutions shall applyfor transferring such school to the concerned District SocialWelfare Officer Zilla Parishad of entire State. Clause 3provides that after receiving such proposals, the concernedDistrict Social Welfare Officer should scrutinize and verify theproposals and submit the proposal with candid opinion to theCommissioner of Social Welfare. He further referred to theGovernment Resolution dated 15.02.2019. It is also about thetransfer of the closed schools for physically disabled students.He again referred to Sub Clause 5 of Clause 1 which wasidentical to the resolution dated 15.06.2019. He would submitthat the same course was adopted by the Government. Even ina resolution dated 15.06.2019 no material changes are made.However, some additions were been made in Clause 15 of theGovernment Resolution dated 15.02.2019. He again referred tothe Government Resolution dated 23.07.2019, it was pertinentto the transfer of the Ashram school. He would submit that thecase law relied upon by learned senior counsel Mr. Hon wasabout the Ashram school for which there were a separateguidelines. Therefore, that case law would not assist thepetitioners. He would argue that the transfer or shifting of the 8 WP.9966-19+1.odtAshram schools were based on the area and distance.Therefore, the said case law would not apply. He furtherreferred to the advertisement and submit that the terms andconditions of transfer were clinching, clear and unambiguous.The intention of the Government was free from doubt toshift/transfer the closed school to any of the institutionthroughout the State. Therefore, it cannot be said that therewas a distance and area restrictions while shifting/transferringsuch closed school for the physically disabled children.Undoubtedly, the society of the respondent No.4 was registeredat Nagpur. Hence, they have correctly applied to the DistrictWelfare Officer, Zilla Parishad, Nagpur. He properly verified thesubmissions and recommended in their favour to theCommissioner. Since there was no condition to file anapplication with respondent No.3, the arguments are withoutfoundation.10.He referred to the impugned order and vehementlyargued that the terms and conditions and the policies of theGovernment have been correctly applied. It is not a mechanicalorder. It reflects the complete application of mind and it is aconscious decision of respondent No.1 for shifting the school in 9 WP.9966-19+1.odtquestion to be run in the Gadchiroli district by respondentNo.4. He also objects that the petitioners have no locus. 11.The affidavit-in-reply of respondent Nos.1 to 3 issupporting the petitioners. The Government policy has notbeen challenged. Therefore, the writ petitions deserve to bedismissed. 12.Learned AGP has vehemently argued that noGovernment policy has been violated and no discriminationhas been made while passing the impugned orders. Theproposal of respondent No.4 was received from District WelfareOfficer, Zilla Parishad, Nagpur. He referred to the reply andargued that the staff was correctly absolved and they are notthe parties to the proceeding. The students were alsoaccommodated before the impugned order was passed in thenearly school. He further adopted the argument of the learnedcounsel Mr. Salunke and also prayed to dismiss the writpetitions. 13.In reply, learned senior counsel Mr. Hon again arguedthat the Public Information Officer of Zilla Parishad, Gadchirolialso informed under RTI that no application was filed to theDistrict Welfare Officer, Gadchiroli by respondent No.4 in 10 WP.9966-19+1.odtpursuance of the advertisement. He would reply that theGovernment Resolution dated 16.09.2017 would apply becausethe process was started, when that Government Resolution wasin existence. The Government Resolution dated 15.02.2019would not apply. He further argued that the office of the PublicInformation Officer of Divyang Kalyan Ayuktalay, Pune alsosupports the contention of the petitioners that no approval wasgranted to the society run by respondent No.4 till that date.However, the approval granted to respondent No.4 in themonth of June/July 2019. That was against the informationsupplied by the Commissioner Office under RTI dated22.10.2019. It is a colourable favouritism to respondent No.4.The proposal of the petitioners was not considered though itwas eligible. The case relied on by respondent No.4 does notapply as well as the Government Resolution dated 15.02.2019would also not apply. He prayed to allow the petitions. 14.After hearing the respective learned counsels, the corequestions are to be decided are as follows :(i)Was there any location, distance, restrictions,while shifting or transferring the closed schoolsfor physically disabled children ? 11 WP.9966-19+1.odt(ii)Whether the applications in pursuance of theadvertisement were to be filed only with theDistrict Welfare Officer where such schools areclosed or whether such an application should befiled to the office of the District Social WelfareOfficer, Zilla Parishad where such schools areproposed to be shifted ?(iii)Whether the guidelines of GovernmentResolution dated 16.09.2017 would onlyapply ?15.There are no serious dispute on facts. The Governmenthad issued two Government Resolutions dated 16.09.2017 and23.07.2019. The advertisement was issued inviting a proposalfor transferring and shifting the closed schools for physicallydisables. Condition No.3 of the advertisement was specific thatthe proposals for transfer should be made to the AssistantCommissioner Social Welfare, Mumbai City and Sub Urbansand District Social Welfare Officer of Zilla Parishad and theyhave to submit their proposals to the Commissioner for welfareof handicapped on 18.03.2019. The petitioners have referredto the Government Resolution dated 16.09.2017 which isparticularly about transfer of the closed schools run for the 12 WP.9966-19+1.odthandicapped. It was a transparent policy decision of theGovernment for shifting and transferring such closed schools.Clause 1 of the said Government Resolution is about theprocedure to be followed for such process. Sub Clauses 2, 3and 5 are relevant which reads thus :“(२) अस्थि(cid:4)(cid:5)व्यंगवि(cid:11)द्यार्थ्यांया(cid:15)च्याउपस्थि(cid:4)(cid:5)तीअभा(cid:11)ीबंदपडलेल्या अस्थि(cid:4)(cid:5)व्यंगशाळांचेह(cid:4)तांतरण(cid:11)(cid:4)(cid:5)लांतरणअस्थि(cid:4)(cid:5)व्यंगप्र(cid:11)गा#ऐ(cid:11)जी आ(cid:11)श्यकतातपासूनबहुवि(cid:11)कलांग, सेरेब्रलपाल्सीकिंक(cid:11)ा आ(cid:11)श्यकतेनुसारइतरप्र(cid:11)गा#साठीचीशाळा/ कर्म#शाळाअसाप्र(cid:11)ग# बदलूनह(cid:4)तांतरीतकरण्याचाअधि4कारशासनासराहील. त्यानुसार आ(cid:11)श्यकपदर्मान्यतादेण्याचीकाय#(cid:11)ाहीविनयर्मानुसारशासन (cid:4)तरा(cid:11)रुनकरण्यातयेईल. प्र(cid:11)ग#बदलार्मुळेनव्यानेअनुज्ञेयपदा(cid:11)र प्रा4ान्यानेअधितरिरक्तकर्म#चा- यांचेसर्मायोजनकरण्यातयेईल. प्रधितक्षा यादी(cid:11)रउर्मेद(cid:11)ारउपलब्4नसल्यासवि(cid:11)विहतर्मागा#नेआयुक्त, अपंगकल्याण, पुणेयांचेना- हरकतप्रर्माणपत्रघेऊनपात्रकर्म#चा-यांची विनयुक्तीकरण्याचेअधि4कारसं(cid:4)(cid:5)ेसराहतील.(3) व्य(cid:11)(cid:4)(cid:5)ापनाच्याचुकीर्मुळेजीअपंगांचीशाळा/ कर्म#शाळाबंद पडलीआहेअ(cid:5)(cid:11)ार्मान्यतारद्दझालेलीआहे, अ(cid:5)(cid:11)ानोदणीप्रर्माणपत्र रद्दझालेलेआहे, अशाअपंगांच्यावि(cid:11)शेषशाळा/ कर्म#शाळात्याच सं(cid:4)(cid:5)ेसह(cid:4)तांतरिरतकरण्यातयेणारनाहीत. सदरवि(cid:11)द्या(cid:5)Fलगतच्या अपंगांच्यावि(cid:11)शेषशाळा/ कर्म#शाळेत(cid:11)ग#करण्यातयेतील(cid:11)त्या सं(cid:4)(cid:5)ेचासर्मा(cid:11)ेशकाळयायादीत(Black List) करण्यातयेईल.(५) राज्यातीलनोंदणीकृतइच्छुक(cid:4)(cid:11)यंसे(cid:11)ीसं(cid:4)(cid:5)ाजाविहरातीस अनुसरुनवि(cid:11)हीतनर्मून्यातसंबं4ीतजिजल्हयाचेसर्माजकल्याणअधि4कारी, सहाय्यकआयुक्त, सर्माजकल्याण, र्मुंबईशहर/ र्मुंबई उपनगरयांच्याकडेअज#करुशकेल.” 13 WP.9966-19+1.odt16.The word “concerned District Social Welfare Officer hasbeen seriously assailed. The petitioners have assailed thatrespondent No.4 did not apply to the District Social WelfareOfficer of Latur or the Gadchiroli. They had applied to theDistrict Social Welfare Officer, Nagpur. The papers reveals thatthe District Social Welfare Officer, Zilla Parishad, Nagpur hadsent the recommendation to the Commissioner in favour ofrespondent No.4. The words used in Sub Clause No.5 ofClause 5 and Sub Clause 2 and 3 are clear that the societiesinterested to get the closed institution transferred or shiftedshould apply to the concerned District Social Welfare Officer.The society of respondent No.4 was registered at Nagpur.Therefore, they have correctly submitted the proposal to theDistrict Social Welfare Officer, Zilla Parishad, Nagpur. In viewthereof, the information received by the petitioners from theDistrict Social Welfare Officer, Latur as well as Gadchiroli thatrespondent No.4 did not submit the proposal through them iscorrect but not affecting the right of respondent No.4. TheGovernment Resolution dated 23.07.2019 is about AshramSchools and the rule for transferring Ashram Schools appearsquite different from the rules for transferring the schools forhandicap children. Another Government Resolution dated15.02.2019 is on the same subject. The condition inviting the 14 WP.9966-19+1.odtapplication from the institution throughout the States fortransfer and shifting such handicap closed schools are thereplica of the Government Resolution dated 16.09.2017. Whenthe process was started, the institutions from throughout theStates were eligible to apply through the District Social WelfareOfficer of the societies registered in the said district. TheGovernment Resolution dated 23.07.2019 is about Ashramschools. The process for transferring the Ashram schools andthe closed schools for handicapped are apparently different. 17.The case of Jeevanjyoti (supra) was about the AshramSchool. That time, there were no policy decision of theGovernment. Since the issue of Ashram School has been dealtwith the other criteria that would not help the petitioners. Thecase of Radhabai w/o Vitthal Sawant and others Vs. State ofMaharashtra and others ; 2016(1) Mh.L.J. 850 was on the factthat the school for handicap was run at Dharur, District Beed.However, it was closed and then it was transferred to Jalna.The school was allowed to run at village Badnapur with thecapacity of 80 students. The parents of the students in theschool at Badnapur were the petitioners. However, respondentNo.4/society informed the parents that they were going to shiftthe school in Beed District and assured that all students would 15 WP.9966-19+1.odtbe shifted at that place. The said proposal was objected. Thepermission granted by the State Government to shift the schoolfrom Badnapur to Warvanti, Taluka and District Beed waschallenged. Subsequently, the State Government by impugnedorders had directed respondent No.4 to shift the residentialschool of Badnapur, District Jalna to village Ghoti, TalukaKinwat, District Nanded. Under this premise, this Court heldthat no reasons were mentioned in the Government Resolutiondated 23.01.2013 why the Government has taken the decisionto transfer the school from Badnapur to Warvanti Taluka andDistrict Beed. When Government takes a decision to transfer aschool from one place to another, certainly there should besome reasons for such transfer from one place to another.There was no provision made about the students who werestudying at Badnapur. The Government Resolution dated23.01.2013 shifting the school from Badpur to Warvanti issilent and without reason. It was not the case that theinstitution was closed for want of the students. The schoolhaving full strength of students and it was abruptly shiftedwithout any reason. Hence, the petitions were allowed. 18.The facts of this case are different. The school which wasat Latur was closed for various reasons including no students 16 WP.9966-19+1.odtand hence, the conscious decision was taken by the Authorityto shift the same. For shifting such closed schools, theGovernment Resolutions were put into service and thoseappears to be correctly considered. The Government Resolutiondoes not restrict the area nor the particular locality. However,in the impugned order, the Authority has specified the reasonsthat where the granted school comparing with the otherdistricts are less or where such schools are not available, thetransfer of such schools were given first preference to suchplaces. The impugned order is well reasoned and inconsonance with the Government policies and procedure laiddown in the Government Resolutions dated 16.09.2017 and15.02.2019.19.After having gone through the facts of the cases and thereply of respondent Nos.1 to 3, we do not find any illegality inthe impugned decision. It is a conscious decision consideringthe facts of the requirement of such schools in Gadchirolidistrict and those are in consonance with the guidelines andprocedure laid down in the above Government Resolutions. 20.For the reasons mentioned above, the writ petitionsstand dismissed.
Decision
17 WP.9966-19+1.odt21.Rule made discharged. No order as to costs.(SHAILESH P. BRAHME, J.) (S. G. MEHARE, J.)...vmk/-