High Court
Legal Reasoning
wp-8202.231 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.8202 OF 2023Dhanwantary Medical and EducationalFoundation, Datrange Mala, BaugRouza Hudco, Near Delhi Gate,At and Post-Ahmednagar, District-Ahmednagar,Through it’s Secretary, Rehan Shafi Ahmed Kazi,Age-43 years, Occu:Social Worker,R/o- At and Post-Ahmednagar,District-Ahmednagar. ...PETITIONER VERSUS 1) The State of Maharashtra, (Through Secretary, for Social Welfare Department, Mantralaya, Bombay-32,2) The Director, V.J.N.T., O.B.C. and Special Backward Class, Social Welfare Directorate, Maharashtra State, Pune,3) The Regional Dy. Director, Pune Region, V.J.N.T., O.B.C. and Special Backward Class, Social Welfare Directorate, Maharashtra State, Pune,4) The Assistant Commissioner, Social Welfare, Ahmednagar (Erstwhile Special District Social Welfare Officer, Ahmednagar), Datrange Mala, Nalegaon, Ahmednagar, District-Ahmednagar. ...RESPONDENTS
Legal Reasoning
wp-8202.232 ... Mr. A.B. Gatne Advocate for Petitioner. Mr. S.K. Shirse, A.G.P. for Respondent Nos.1 to 4. … WITH CIVIL APPLICATION NO.14518 OF 2023 IN WRIT PETITION NO.8202 OF 2023Sambhaji Devram Rohakale,Age-60 years, Occu:Retired,R/o-Dharmavir Nagar,Kalyan Road Bypass, Bhalawani,Parner, Ahmednagar. ...APPLICANT VERSUS 1) The State of Maharashtra, (Through Secretary, for Social Welfare Department, Mantralaya, Bombay-32,2) The Director, V.J.N.T., O.B.C. and Special Backward Class, Social Welfare Directorate, Maharashtra State, Pune,3) The Regional Dy. Director, Pune Region, V.J.N.T., O.B.C. and Special Backward Class, Social Welfare Directorate, Maharashtra State, Pune,4) The Assistant Commissioner, Social Welfare, Ahmednagar (Erstwhile Special District Social Welfare Officer, Ahmednagar), Datrange Mala, Nalegaon, Ahmednagar, District-Ahmednagar. wp-8202.2335) Dhanwantary Medical and Educational Foundation, Datrange Mala, Baug Rouza Hudco, Near Delhi Gate, At and Post-Ahmednagar, District-Ahmednagar, Through it’s Secretary, Rehan Shafi Ahmed Kazi, Age-43 years, Occu:Social Worker, R/o- At and Post-Ahmednagar, District-Ahmednagar. ...RESPONDENTS … Mr. Manoj A. Dond Advocate for the Applicant – Intervenor. Mr. S.K. Shirse, A.G.P. for Respondent Nos.1 to 4. Mr. A.B. Gatne Advocate for Respondent No.5. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ. DATE : 15th JANUARY, 2024 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Rule. Rule made returnable forthwith. Heard learnedcounsel appearing for the respective parties finally, by consent. 2.Present Petition has been filed to challenge the orderpassed by the respondents appointing administrator over theinstitutions run by the petitioner trust established and run byminority community. wp-8202.2343.The facts leading to the Petition are that the petitioner is apublic trust registered under the Bombay Public Trust Act. Thepetitioner is a minority institution run by minority community.Petitioner is running a primary ashram school, secondary schooland higher secondary school at village Dhawalpuri, Taluka-Parner, District-Ahmednagar. The said ashram schools are inremote and tribal area. Along with other facilities, there is hugehostel having separate residential facility for girls and boys. TheState Government had sanctioned primary ashram school atDhawalpuri by Government Resolution dated 18th September1996. Thereafter the State Government has sanctionedsecondary ashram school at Dhawalpuri by GovernmentResolution dated 27th January 2004. Thereafter higher secondaryashram school was sanctioned at Dhawalpuri by the State videGovernment Resolution dated 26th June 2008. Everything wasrunning smoothly, however, one politician made complaint withthe Government alleging irregularities in conducting thepetitioner institution, with the request to appoint administratorover the management of the petitioner institution. It appearsthat the inquiries were made and then respondent No.2 had wp-8202.235passed an order on 15th July 2022 recommending the StateGovernment to appoint administrator over the management ofthe petitioner institution. In the meantime, the show-causenotice was issued and say was called. The petitioner was notsatisfied with the order dated 15th July 2022 and therefore, filedan appeal before respondent No.1. Petitioner submitted reply on20th October 2022. The inquiry committee had refused torecommend the approval of the said ashram schools. RespondentNo.1, by order dated 18th January 2023, confirmed the orderpassed by respondent No.2, partly, confirming the appointmentof the administrator and further imposed fine of Rs.2,00,000/-(Rupees Two Lakhs) for shifting the ashram school fromDhawalpuri (Sutarwadi) to village Dhawalpuri without previoussanction from the Government. 4.Heard learned Advocate Mr. Gatne appearing for thepetitioner, learned AGP Mr. Shirse appearing for respondentNos.1 to 4 and learned Advocate Mr. Dond appearing for theintervenor, applicant in Civil Application No.14518 of 2023.5.Learned Advocate for the petitioner has submitted that theentire matter has been wrongly handled by respondent No.2. wp-8202.236The petitioner is a minority institution run by the minoritymuslim community. The Government itself has accorded thestatus of minority community to the petitioner institution.Section 4 and other provisions of the Maharashtra EducationInstitutions (Management) Act, 1976, enabling the StateGovernment to take over the management of the educationinstitutions / schools are not applicable to the minorityinstitutions or the institutions run by the minority community.The State Minority Commission had intervened in the matter andappraised respondent Nos.1 and 2 that they cannot appoint anadministrator, yet the further order of confirming the order ofrespondent No.2 and then imposing the fine has been passed.Further, in the year 1996, the Government sanctioned primaryashram school at Dhawalpuri (Sutarwadi), Taluka-Parner,District-Ahmednagar. However, after considering the fact that thearea of Sutarwadi comes within the firing range of militaryexercise (known as K.K. Range), in the interest of safety of thestudents, the said primary ashram school was shifted to villageDhawalpuri in the year 1999. In fact it is in the same area orpart of the village. The another objection was in respect of a giftdeed issued in favour of Alfa Education Society. However, the wp-8202.237State failed to consider that the said gift deed was never actedupon. It was cancelled by the petitioner. Even as per theJudgment and decree passed by the learned Civil Judge JuniorDivision, Parner, which had declared it as cancelled, the StateGovernment should not have taken cognizance of the said giftdeed. Learned Advocate has taken us through the ‘Ashram ShalaSanhita’ (Code of Conduct for Ashram Schools) i.e. ^^foeqDr tkrh]HkVD;k tekrh] brj ekxkloxZ o fo’ks"k ekxkl izoxkZP;k izkFkfed] ek/;fed o mPpek/;fed vkJe’kkGk] fon;kfudsru o ÅlrksM dkexkjkaP;k eqyk&eqyhaP;k'kkGkadfjrk vkJe’kkGk lafgrk^^ (i.e. Code of Conduct for AshramSchools, for De-notified Tribes, Nomadic Tribes, Other BackwardClass and Special Backward Class Primary, Secondary and HigherSecondary Ashram Schools, Vidyaniketan and Schools for sonsand daughters of sugar-cane cutting workers). (Herein afterreferred to as “Code of Conduct for Ashram Schools”). Thelearned Advocate has also taken us through various GovernmentResolutions to support his contention. 6.Per contra, the learned AGP for respondent Nos.1 to 4 andlearned Advocate Mr. Dond for intervenor supported the orderspassed by the respondent authorities. It was pointed out thatthere are many irregularities and illegalities in the management wp-8202.238of the ashram schools by the petitioner institution. All thosepoints for complaint or grievance were specifically mentioned inthe complaint by the intervenor, on which the State Governmenthas taken cognizance. They both submitted that it cannothappen that the minority institution will not be under the controlof anybody. If the management is doing some illegal activity orthere are irregularities in conduct of the management of thepetitioner institution, then the State has every right to interfereand appoint administrator. The State Government could find outthat the petitioner institution has illegally shifted the primaryashram school from one place to another. The inquiry reportsshow the illegalities and irregularities those were committed andtherefore, the action is justified. Learned AGP, in support of hiscontentions, relies on the affidavit-in-reply of Khushal BhikanraoGaikwad, Regional Deputy Director, Other Backward BahujanWelfare (Regional) Division, Pune, Class-I, filed on behalf of therespondents.7.At the outset, crux of the matter is, as to whether theprovisions of the Maharashtra Educational Institutions(Management) Act, 1976 are applicable to the minorityinstitutions or not, because it is absolutely not in dispute that the wp-8202.239petitioner institution is run by the minority community and suchstatus has been accorded to the petitioner by respondent No.1.In his affidavit-in-reply, Mr. Keshav Gaikwad has stated that thepetitioner institution being minority institution though havespecial rights but there are reasonable restrictions on their rightsbeing 100% grant-in-aid institution. The provisions of Section2(f) of the Maharashtra Educational Institutions (Management)Act, 1976 defines that “educational institution” or “institution”means a school, a college or any institution by whatever namecalled the Management of which carries on (either exclusively oramong other activities) the activity of imparting educationtherein.8.It can be seen from the communication by the Secretary,Maharashtra State Minority Commission, dated 16th March 2023stating that the administrator cannot be appointed on theminority institution. It was then stated in the saidcommunication itself that the cognizance of any irregularity canbe taken by the concerned Commission only. But it appears thatby letter dated 22nd May 2023 addressed to Maharashtra StateMinority Commission, the Government tried to justify as to how wp-8202.2310the action of appointing administrator was necessary. We are ofthe considered opinion that unless the Act or authority under theprovisions of law permits the same, the administrator cannot beappointed. It appears that the reliance on behalf of therespondents on the decision in T.M.A. Pai Foundation and others vs.State of Karnataka and others, (2002) 8 SCC 481, is misconceived.The question of grant-in-aid is different and the appointment ofadministrator is on different footing. No doubt the State will havethe ultimate authority to control the mismanagement orirregularities, but not by appointment of administrator. The Codeof Conduct for Ashram Schools, referred above, which is dealingwith ashram schools, is not applicable to the institutions whichare run by the minority community. 9.It appears further that even fine of Rs.2,00,000/- (RupeesTwo Lakhs) has been imposed for allegedly shifting the ashramschool. But if we consider the original permission accorded on18th September 1996, it is for Dhawalpuri (Sutarwadi), Taluka-Parner, District-Ahmednagar. It is specifically stated thatSutarwadi and Dhawalpuri are within the same village limits. Ifthose would have been different villages then in the year 1996 wp-8202.2311itself there would have been a clarification. Under the saidcircumstance, if the shifting is within the village limits, then itcannot be said that there is illegal shifting of the ashram school.Another fact ought to have been considered that periodicallyfurther permissions have been accorded by the StateGovernment itself. After 18th September 1996, there was up-gradation to the secondary ashram school and vide GovernmentResolution dated 27th January 2004 that secondary ashramschool was also sanctioned. Further by Government Resolutiondated 26th June 2008, higher secondary ashram school was alsosanctioned. Now the said politician appears to have madecomplaint on 4th December 2021 and on the basis of hiscomplaint, the inquiry has been made.10.Thought the respondent - State is admitting the minoritystatus of the petitioner institution which runs the ashramschools, yet want to assume its power under Rule 3.2 of theCode of Conduct for Ashram Schools, for appointment of anadministrator, but failed to consider that said Code of Conductfor Ashram Schools itself is not applicable to the schools run by wp-8202.2312the minority institutions and therefore, the Petition deserves tobe allowed. Hence the following order:- O R D E R(I)The Writ Petition stands allowed in terms ofprayer clauses “B”, “C” and “D”.(II)Rule is made absolute in above terms.(III)In view of the disposal of the Writ Petition, theCivil Application also stands disposed of.[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/JAN24