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Judgment
Hon''ble Rajiv Sharma, J.—Heard Sri A.R. Khan, learned Counsel for the petitioner and Sri Sanjay Sarin, learned Standing Counsel and Sri R.P. Verma, learned Counsel for the opposite party No. 3.
Through the instant writ petition under Article 226 of the Constitution of India, the petitioner has assailed the office memo/order dated 15.4.2009 passed by the opposite party No. 1 as contained in Annexure No. 1 to the writ petition, whereby petitioner''s institution was refused to be taken up on grant-in-aid list.
Brief facts, giving rise to the instant writ petition, are that Jai Ambe Purva Madhyamik Vidyalaya, Ramgarh, Faizabad was established on 6.7.1977 and is imparting education upto Junior High School. The institution was granted temporary recognition on 24.2.1978. Thereafter, temporary affiliation of petitioner''s institution was renewed from time to time. Ultimately, permanent recognition was granted to the petitioner''s institution on 26.6.1981.
The Government of U.P. has framed a policy and issued Government Orders providing therein for sanction of grant-in-aid to the institution, which are running and imparting education upto Junior High School and has laid certain conditions. As per the terms and conditions of the Government Orders, the petitioner applied for granting grant-in-aid and placing the petitioner''s institution in the list of grant-in-aid by moving an application accompanying with all relevant documents including the list of Teachers, Staff, who were selected and appointed on creation of the post by holding selection with the prior approval of the Basic Shiksha Adhikari. But despite that, petitioner''s institution was not included in the list of grant-in-aid and as such, the petitioner''s institution had earlier approached this Court by filing writ petition No. 620 (M/S) of 1991. This Court, vide order dated 28.4.1994, as an interim measure, directed the opposite parties to consider the sanction of grant-in-aid to the petitioner''s institution and payment of the salary to the teachers and staff of the petitioner''s institution in accordance with the provisions of U.P. Junior High Schools (Payment of Salaries of Teacher and other Employees) Act, 1978, which is applicable to the petitioner''s institution by virtue of recognition in the year 1991.
Despite the orders dated 28.4.1994, 8.5.1996, 11.2.1998 passed by this Court in writ petition No. 620 (M/S) of 1991, the opposite parties did not consider the petitioner''s claim for taking his institution in the list of grant-in-aid. Thereafter, the petitioner filed an application under Article 215 of the Constitution of India, which was numbered as C.M. Application No. 778 (w) of 1998 on 13.2.1998, to which notices was issued to the opposite parties. During the pendency of the said writ petition, the State of U.P. preferred a special appeal, bearing No. 96 of 1998 against the order dated 28.4.1994, in which, stay order was passed initially by a Division Bench of this Court. However, the said special appeal was dismissed by the order dated 6.11.2003.
On 19.11.2008, writ petition No. 620 (M/S) of 1991 was disposed of finally with a direction to the opposite parties to consider the case of the petitioner''s institution for taking on the list of grant-in-aid. In pursuance to the order dated 19.11.2008, the State Government considered the petitioner''s application for taking the institution on the grant-in-aid list and rejected the same by the order dated 15.4.2009. Feeling aggrieved, the petitioner has preferred the instant writ petition inter alia on the grounds that each and every teacher, staff and even Class IV employees of the Institution were appointed, having requisite qualification, being selected in the selection conducted with the prior approval of the District Basic Education Officer, thus, there was no justification for the opposite parties to refuse the inclusion of the institution on the list of grant-in-aid.
Learned Counsel for the petitioner submits that impugned order dated 15.4.2009 has been passed by the opposite parties on the ground that condition No. 8 provided in the Government Order, has not been fulfilled, but the fact is that condition No. 8 provided in the Government Order was fulfilled. He further submits that the institution was established on 6.7.1977 and temporary recognition was granted vide order dated 24.12.1979, 1.2.1979 and 25.1.1980 and finally permanent recognition was granted vide order dated 26.6.1983 and the said institution is being run as per the norms provided by the Government Orders issued from time to time by the Education Department and also inconformity with the provisions of Basic Education Act, 1972, the Rules framed thereunder. Thus, there was no justification for the opposite parties to refuse to sanction the grant-in-aid for including the institution in the list of grant-in-aid.
Learned Counsel for the petitioner submits that in the counter affidavit filed in writ petition No. 620 (M/S) of 1991, opposite parties did not dispute and deny about the selection of the teachers, staff and Class IV employees and the approval granted by the District Basic Education Officer but later on when this Court proceeded to take action, they with the oblique motive disputed and denied the approval and pleaded that the said approvals are the fake orders containing fake signature of the authority/Basic Education Officer and First Information Report was also lodged but on investigation, it was found that the said approvals containing genuine signatures of each and every authority and a final report was submitted and the same was also accepted and the criminal proceedings were dropped.
Learned Counsel for the petitioner submits that plea of the opposite parties that there has been no budget, has no substance insofar as more than thousands of institutions, who have been established upto 1999, have already been sanctioned grant-in-aid and included in the list of grant-in-aid by excluding the petitioner''s institution, which was established on 6.7.1977. He submits that this is not a case for bringing the institution in the present proposal, if any, but in fact the mistake was committed by the opposite parties in excluding the petitioner''s institution. He submits that it is incorrect to say that petitioner''s institution does not possess own building as per the terms of the Government Order dated 7.9.2006. In support of his submission, he relied upon the judgment of the Hon''ble Apex Court in the case of Maharishi Dayanad Vidyalaya Samiti, Manuri and others Versus State of U.P. and others [ (1992) 2 UPLBEC 1223].
On the other hand, learned Standing Counsel submits that Government Order dated 7.9.2006 prescribed cut off date and terms and condition for taking the institution in the grant-in-aid list and accordingly, those institutions, which fulfill the terms and conditions of the said Government Order were taken on the list of grant-in-aid. He submits that 800 boys schools which had got permanent recognition by 23.4.1988 and 200 girls school, which had got permanent recognition by 23.4.1999, were taken in the list of grant-in-aid. He submits that as reported by the Director of Basic Education vide letter No. 37269/2008-09 dated 24.3.2009, since the petitioner''s institution did not fulfill condition No. 8 of the Government Order dated 7.9.2006, which provides that the school must have its own building, as such, the petitioner''s institution was not recommended by the Directorate Level Committee for being taken on grant-in-aid. Therefore, petitioner''s institution was not taken into the list of grant-in-aid list
Before going into the merits of the case, it is pertinent to mention here that during the course of arguments, learned Counsel for the petitioner has produced a Khatauni of the land in question upon which petitioner''s institution was constructed and the learned Standing Counsel does not dispute the Khatauni.
I have heard learned Counsel for the parties and perused the records.
Condition No. 8 of the Government Order dated 7.9.2006 is that school must be having its own building (bhawan). Under the said G.O., there is no requirement that the school or the society running the school must be the owner of the land over which building of school is constructed. For the purposes of the aforesaid G.O. and almost for every other purpose an allottee of non-agricultural land like abadi site by gaon sabha is owner of the land. Moreover, the Government Order of September, 2006 does not insist on ownership of the land by the school or the society running the school. In the impugned order, no other reason has been given for denying the benefit. Furthermore, learned Counsel for the petitioner vehemently argued that the institution was established over the land, which he owns and the construction was carried out in the year 1977 and on considering the entire facts, initially temporary recognition was granted and thereafter, permanent affiliation was granted to the petitioner''s institution on 26th June, 1981.
Accordingly, writ petition is allowed. Impugned order is set aside. Authority concerned is directed to pass necessary order within three months from today treating the school to have complied with condition No. 8 of G.O. Dated 7.9.2006.
At this juncture, it is pain to note that this Court, vide order dated 28.4.1994 in earlier writ petition No. 620 (M/S) of 1991, directed the opposite parties to consider the sanction of grant-in-aid to the petitioner institution and pay the salary of the teachers and staff the petitioner''s institution in accordance with the provisions of U.P. Junior High Schools (Payment of Salaries of Teacher and other Employees) Act, 1978, which is applicable to the petitioner''s institution by virtue of recognition in the year 1991. Thereafter, on 8.5.1996, this Court in above writ petition, granted time to learned Standing Counsel to file counter affidavit with a cost of Rs. 2500/- but despite that opposite parties neither considered the petitioner''s prayer nor included the said institution in the list of grant-in-aid and on the other, opposite parties filed a special appeal and that too was dismissed. Subsequently, the above writ petition was disposed of with a direction to the opposite parties to consider the claim of the petitioner for taking his institution into the list of grant-in-aid list but showing the callous attitude, the opposite parties have rejected the petitioner''s claim for taking the institution on the grant-in-aid list on flimsy ground that petitioner''s institution did not fulfill condition No. 8 of the aforesaid Government Order, though it is well knowledge to the opposite parties that after considering the entire facts including the petitioner''s institution was its own land or not, permanent recognition was granted to the petitioner''s institution. The series of events described above shows the lackadaisical and callous attitude of the authorities, which caused serious harassment to the petitioner, which is litigating for bona fide claim continuously since two decades.
Looking into the callous attitude of the authorities concerned and looking into the mental agony of the petitioner and future of the students, who pursued their studies in petitioner''s institution, I impose a cost of Rs. 1,00,000/-, which shall be recovered from the officers, who did not consider the petitioner''s claim in accordance with law, after issuing show cause notice against them. The entire exercise shall be done within three months. The above cost shall be deposited in the Registry of this Court. Out of cost of Rs. 1,00,000/-, 50% of the amount shall be transmitted to the account of Mediation and Conciliation Centre, High Court, Lucknow Bench, Lucknow and 50% to the petitioner forthwith.