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Judgment
Surya Prakash Kesarwani, J.—Both the above noted writ petitions involved similar controversy and similar set of facts and as such with the consent of the parties, both are being heard together. The Writ Petition No. 31802 of 2010 is taken as a leading writ petition and the facts as mentioned in this writ petition are being noted. In Writ Petition No. 31802 of 2010, the petitioners have challenged the order dated 13.4.2010 (Annexure 7) passed by respondent No. 1 whereby the claim of the petitioners for taking the institution on grant-in-aid was rejected on the ground that the petitioner institution does not fulfil the criteria laid down in the Government Order dated 7.9.2006 and accordingly, the representation of the petitioners was rejected. In Writ Petition No. 19482 of 2010, the petitioners have prayed for a writ order or direction in the nature of certiorari to quash the order dated 31.12.2009 (Annexure 6) passed by respondent No. 1 rejecting the claim of the petitioner to take it on grant-in-aid list. The reason for rejection was that in the M.R. much higher number of teachers and employees have been shown as working in the institution against the much lower sanctioned strength and their appointments were made without following the statutory provisions and thus the statutory provisions were violated.
Briefly stated the facts of the leading Writ Petition No. 31802 of 2010 are that the petitioner institution is a junior high school and was granted the recognition certificate by the Deputy Director, Education, 7th Mandal, Gorakhpur vide letter dated 31.5.1985 subject to the following conditions:
Government Order No. 2010/79-6-06-7(2)/2006 dated 7.9.2006 was issued which provides the procedure and condition for bringing an institution on grant-in-aid. The aforesaid Government order dated 7.9.2006 is reproduced below:
It is alleged in paragraph-4 of the writ petition that vide order dated 2.12.2006 (Annexure-3) 800 junior high schools for boys having permanent recognition up to 30.4.1988 and 204 girls schools of the level of junior high schools having recognition certificate up to 23.4.1999 were brought on grant-in-aid list of the State Government. But the petitioner institution was not included in this order. The aforesaid order dated 2.12.2006 granted the approval of grant-in-aid to the aforesaid junior high school institution subject to certain conditions mentioned therein. The condition No. 2 of the aforesaid order dated 2.12.2006 as referred and relied by the petitioners is reproduced below:
It is alleged in paragraphs No. 5, 6 and 7 of the writ petition that although the permanent recognition was granted to the petitioners'' institution on 31.5.1985 and the application for bringing on grant-in-aid was made well in time yet the respondents have not issued the order for grant-in-aid and as such the petitioners filed the Civil Misc. Writ Petition No. 69251 of 2006 seeking direction in the nature of mandamus to the respondents to include the petitioners'' institution in the list of the institutions receiving grant-in-aid from the State Government with effect from 1.12.2006 and to modify the aforesaid Government order accordingly. During the pendency of the said writ petition, the petitioners received a letter dated 4.1.2007 (Annexure-4) from the Assistant Director of Education (Basic) VII, region Gorakhpur whereby the reasons for not including the petitioners'' institution in the list of grant-in-aid were assigned. The letter of the Assistant Director of Education (Basic) VII, region Gorakhpur filed as Annexure-4 to the writ petition is reproduced below:
It is alleged in paragraph-8 of the writ petition that a reply dated 20.1.2007 (Annexure-5) was submitted annexing therewith the copy of khatauni as proof of ownership of land. With regard to other objections, it was submitted by the petitioners under the aforesaid reply dated 20.1.2007. There are five approved teachers, one clerk and two peons and the approval is not doubtful. The aforesaid writ petition No. 69251 of 2006 was decided by this Court vide judgment and order dated 4.11.2009 (Annexure-6) whereby the writ petition was disposed of finally in terms of the judgment and order dated 6.10.2009 passed in writ petition No. 1096 of 2007, C/M Bapu Poorva Uchchatar Madhyamik Vidyalaya and an-other v. State of U.P. and others. The order dated 6.10.2009 passed in writ petition No. 1096 of 2007 and filed alongwith Annexure-6 to the writ petition is reproduced below:
It is stated that vide Government order dated 2.12.2006 contained in Annexure-6 of the writ petition Boys Junior High Schools which have been permanently recognised by 30.4.1988 and Girls Junior High Schools recognised by 23.4.1999 have been taken into grant-in-aid list of the State Government but the petitioner''s institution which is Boys Junior High School has been permanently recognised on 31.5.1985, despite thereof has not been taken into grant-in-aid list of the State Government merely on account of the fact that there was some discrepancy in Khatauni in respect of land belonging to the said institution. The petitioner has approached the authorities concerned coming to know about the aforesaid discrepancy on 19.1.2007 after being intimated by the authority on 4.1.2007. But the matter is still lying pending before District Basic Education Officer, Deoria.
In case the petitioner furnishes the proof of requisite land belonging to the institution, the authorities are directed to consider the claim of the petitioner within a period of two months from the date of production of certified copy of the order passed by this Court and District Basic Education Officer, Deoria shall also recommend the petitioner''s institution for taking into grant-in-aid list of the State Government in view of the aforesaid Government order dated 2.12.2006. Thereafter the State Government is directed to extend the aforesaid benefit to the institution of the petitioner within another period of two months as given to the other institutions contemplated by Government order dated 2nd December, 2006.
Pursuant to the order dated 4.11.2009 of this Court passed in Writ Petition No. 69251 of 2006 filed by the petitioner, the Secretary Basic Education, Government of U.P., Lucknow considered the case of the petitioner and disposed of the same vide impugned order dated 13.4.2010 (Annexure-7) after obtaining the report of the District Basic Education Officer, Kushinagar and Director Education, Basic. The State Government held that the petitioners'' institution does not fulfil the conditions for taking it on grant-in-aid. The aforesaid impugned order dated 13.4.2010 records the findings as under:
Aggrieved with the afore quoted order dated 13.4.2010, the petitioners have filed the present writ petition.
I have heard Sri A.K. Singh, learned counsel for the petitioners and Sri K.K. Chand, learned Standing Counsel appearing for the respondents and perused the record.
Sri A.K. Singh, learned counsel for the petitioners submits that after the order of this Court passed in writ petition No. 69251 of 2006 dated 4.11.2009 disposing of the writ petition in terms of judgment and order dated 6.10.2009 passed in writ petition No. 1096 of 2007, the scope of consideration by the respondents was limited only to the proof of ownership of land belonging to the institution.
He submits that if there are excess number of teachers and employees then the grant-in-aid cannot be denied on this ground rather the benefit of granting aid may be restricted only to the teachers whose appointment has been approved as has been provided vide paragraph-2 of the Government order dated 2.12.2006 (quoted above). He further submits that the petitioners'' institution fulfils all the conditions of the Government order dated 7.9.2006 (Annexure-2) and as such the impugned order is illegal, arbitrary and violative of Article 14 of the Constitution of India.
Sri K.K. Chand, learned Standing Counsel reiterates the averments made in the counter-affidavit. He submits that the petitioners'' institution cannot be included in the list of grant-in-aid since it does not fulfil the necessary conditions as provided under the Government order dated 7.9.2006. Referring to paragraph-8 of the counter-affidavit, he submits that the petitioners have concealed the material facts of the case including the fact that an order dated 26.5.2009 (Annexure CA-2) was passed by the Assistant Education Director (Basic) region Gorakhpur after following the principles of natural justice and their application for grant-in-aid was rejected. The petitioners'' institution has not challenged this order and as such it has attained the finality. He draws the attention of this Court to paragraphs-8 and 11 of the counter-affidavit and submits that under the facts and circumstances of the case, the impugned order is fully justified and correct. Paragraphs-8 and 11 of the counter-affidavit are reproduced below:
That the contents of paragraphs 8, 9 and 10 of the writ petition are not admitted as stated. It is stated that the Additional Director of Education (Basic) Gorakhpur Mandal, Gorakhpur through letter dated 4.1.2007 asked a reply from the Manager/Principal of the college and in reply thereto the Manager/Principal of the college produced/submitted the concocted document which found to be contradiction of the letter dated 4.1.2007. It is further stated that the District Basic Education Officer, Kushinagar sent a report on 26th May, 2009 indicating that the college is not completing the basic requirements and this information was also sent by the Additional Director of Education (Basic) Gorakhpur Mandal, Gorakhpur through letter dated 26.5.2009 to the effect that the application for grant in aid of the petitioner''s college has been rejected. It is further made clear that against the order dated 26.5.2009 the petitioner do not file any petition before the competent authority for the cancellation of the order dated 26.5.2009 so the order is finality is attach to the order dated 26.5.2009. A copy of the letter dated 26.5.2009 is being filed herewith as Annexure CA-2 to this counter.
That in reply to the contents of paragraphs 13 to 17 of the writ petition, it is stated that according to the report given by District Basic Education Officer, Kushinagar and Director of Education (Basic) in that college the name of one Principal and four teachers was given, whereas the Manager of the college has given the name of one Principal and 25 Assistant Teachers, 01 clerk and 03 peons in their MR. which is very much according to the prescribed norms. It is further stated that neither the Manager nor the Principal of the college produced any documents which indicates that any post of the teachers has been sanctioned which is also a basic criteria to the grant in aid of the college. It is further made clear that the Manager of the college do not obtained any approval as well as do not indicate that any post has been sanctioned in the college and making appointment of the teachers without any sanctioned or approval which is totally against the Government Order for the grant in aid and the appointment of Sri Ram Chandra Singh without any sanction post is totally illegal as well as against the rules regarding the appointment of the teachers, 1978. It is further stated that the Manager as well as Principal of the college were not produced any documents regarding the sanction of the post of the teachers in the college and the appointment made by the manager of the college without any approval from the competent authority therefore, the competent authority has rightly refused to provide grant in aid. It is made clear that there is no provisions to regularize the service of the teachers in the college, so all the appointments made in the petitioner''s college is illegal and without any jurisdiction and hence, there was no provisions to provide grant in aid to the petitioner''s college and all the appointment made in the college of the petitioner contrary to rules.
Findings
Having considered the submissions of the parties and perused the records including the relevant Government Order and the impugned orders, I find that the recognition certificate dated 31.5.1985 was granted to the petitioner institution subject to certain conditions including the condition that only such teachers who possess the minimum prescribed qualification by the department shall be appointed in accordance with the statutory provisions. The recognition certificate itself provides that in the event of breach of the conditions of the recognition certificate or any of the statutory provisions or departmental orders, the recognition certificate may be cancelled. Clause-2 of the Government Order dated 7.9.2006 provides to take on grant-in-aid only one thousand recognised unaided junior high schools. Condition No. 6 in clause -2 provides that on the date of submission of application for grant-in-aid, approved regular teachers/employees on the sanctioned posts should be working. The order dated 2.12.2006 (Annexure-3) takes on grant-in-aid to 1,000 institutions as provided under the Government Order dated 7.9.2006. Clause -2 of the order of grant-in-aid which has been heavily relied by the learned counsel for the petitioners, does not relax the condition as provided in clause-2(6) of the Government Order dated 7.9.2006. The notice dated 4.1.2007 (Annexure-4) issued by the Assistant Director, Education (Basic) also specifically mentions that the petitioner institution could not be included in the list of institutions for grant-in-aid for four reasons. The reasons No. 2, 3 and 4 specifically mention the excess engagement of teachers contrary to the standards prescribed, non creation of post and approval to be doubtful. In the impugned order dated 1.4.2010 (Annexure-7), the State Government has recorded the findings of fact with regard to highly excessive number of teachers, appointed without following the standards/norms and without creation of post and non observance of the prescribed selection procedure in the appointments. The petitioners have completely failed to bring on record any evidence so as to rebut the finding of facts recorded in the impugned order. This also violates conditions of recognition certificate. Thus petitioner institution does not fulfil the condition No. 2(6) of the Government Order dated 7.9.2006 and as such it cannot be included the grant-in-aid list.
The object of grant-in-aid scheme is generally to provide grant-in-aid to recognise unaided educational institution with the view to ensure smooth running of such institutions and to maintain standard of teaching. But an institution which does not have the teachers appointed according to norms/standards and violates the conditions of the recognition certificate, cannot be said to be eligible for being included in the list of grant-in-aid. The Government Order dated 7.9.2006 is the policy decision of the State Government. This Court, in exercise of power under Article 226 of the Constitution of India can neither widen the scope of the aforesaid policy decision nor can amend its conditions so as to include those who do not fulfil the conditions or the criteria laid down in the said Government Order. This Court has already held in para 14 above that the petitioner''s institution does not fulfil the conditions of Government Order dated 7.9.2006. Thus the petitioner has no legal right for being included in the grant-in-aid list.
In the case of Vidya Devi Laghu Madhyamik Vidyalaya Parasdeeh Vs. State of U.P. and Others, , a Division Bench of this Court while considering the same Government Order has observed in paragraph-5 as under:
In our view, there was no need for the learned Single Judge to go into any of these aspects. The State Government had come out with a policy of giving grants to some 1000 schools and the question was whether the appellant was fulfilling the requirements as given in such policy. If the appellant fulfilled those requirements, the appellant ought to have been considered. The Government has to follow its own policy and cannot be permitted to pick and choose at their own whims. We cannot ignore that the State has the responsibility to make effective provision for securing the right to education under Article 41, which is a directive principle of the State policy, and Article 21-A of the Constitution of India has also been introduced laying down that the State shall provide free and compulsory education to children of the age of 6 to 14 years in such manner as the State may by law determine.
The facts of the present cases clearly shows that the petitioners have not fulfilled the criteria laid down in the Government Order dated 7.9.2006.
The learned counsel for the petitioners has heavily relied on the judgment of this Court in the case of Committee of Management, Mata Tapeshwari Saraswati Vidya Mandir Uchchttar Madhyamik Vidyalaya and Others Vs. State of U.P. and Others, and the judgment of Hon''ble Supreme Court in the case of State of U.P. and Others Vs. Committee of Management, Mata Tapeshwari Saraswati Vidya Mandir and Others, . Perusal of the aforesaid judgments would show that the Hon''ble Supreme Court was considering entirely different controversy and held in paragraph 26 as under:
If it was the intention of the State Government to extend the benefit of the grant-in-aid scheme to 1000 unaided permanently recognised (A class) junior high schools by its advertisement dated 9.9.2006, then it would not be fair, as has been rightly held by the High Court, to exclude such unaided institutions which besides imparting education, either at the primary or the higher secondary level, from the grant-in-aid scheme, inasmuch as, they too continued to have junior high schools imparting education for Classes 6 to 8.
Thus the judgment of Hon''ble Supreme Court in the case of Mata Tapeshwari Saraswati Vidya Mandir (supra) is wholly distinguishable and does not support the case of the petitioners.
In view of the discussions made above, I find no merit in both the writ petitions. Both the writ petitions fail and are hereby dismissed. There shall be no order as to cost.