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Judgment
Samapti Chatterjee, J.—The petitioners filed the present writ petition for direction upon the respondent authorities for granting sponsorship in favour of Narendra Nath School for Visually Handicapped and Mentally Retarded students organised by Ikshupatrika Social Welfare Organisation.
In the present writ petition the petitioner also prayed for quashing of the impugned order dated 28th November, 2011 passed by the Director of Mass Education Extension and Ex Officio Joint Secretary, MEE & LS Department, Government of West Bengal whereby the petitioners prayer for granting sponsorship to run the institution was rejected on the ground that government order dated 24th November, 2010 does not allow the petitioners'' institution to enjoy sponsorship.
It is revealed from the records that detailed inspection of the said school was held by the respondent authorities. The extract of which is quoted below:-
"05. Sine students of Pre-Vocational Class have been changed to Primary section according to the decision of the special educators as they have been found somewhat advanced in mental retardation are than before when they were not at all adapted with the school atmosphere and therefore admitted to the Pre-Vocational Class in the bid to leave them into mental exercise toward some desired achievement.
As per query about especially 5 students Viz. Asha, Anima, Arati, Sonamoni, Asit that they did not appear to have mental retardation it is found that Arati & Sonamoni were present on the day of inspection, and regarding disability certificate the school authority approached to the CMOH, Tamluk, Purba Medinipur but in vain. So presently they have approached to the District Hospital at Tamluk to appear their students before Medical Board for issuance of that certificate.
The special educators are following FACP method of assessment of MR students. They are maintaining goal setting for individual students and individual files have been updated.
The Asst. Teachers have attained CRE Programmes and also visited to various institution like Moni Vikash Kendra at Kolkata, Shelter at Hooghly, Moyna at Purba Medinipur and applying their experience in various aspects of their institution.
Regarding pointed out anomalies in staff pattern the school authority have come up with explanation that they revised their staff pattern for the interest of the school through the procedure of notice publication and engagement through selection committee for which the self-explanatory letter of the Secretary of the institution and supporting documents are being enclosed.
Remarks:-
After six months inspection dated 21.06.10, 03.08.10, 13.11.10, 06.01.11, 14.03.11 to the school it is observed that the school authority and special educators are taking positive steps as per guidelines towards updating themselves and also fruitful achievement for developing teaching method and over all aspects of the institutions. It is to be stated that most of the deficiencies have been rectified and they are trying to rectify the rest ones."
Mr. Arabindo Chatterjee, learned senior Counsel appearing for the petitioners submitted that impugned order dated 09.12.2012 has failed to appreciate that practically there is no deficiency in the school in question for receiving sponsorship and the deficiencies indicated in the report of the respondents No. 5 are minor in nature and have no relevance in the notification No. 833 dated 13.09.1996 issued by the Mass Education Extension Department, State Government, accordingly rejection made is totally non-est in the eye of law and is liable to be quashed.
Mr. Chatterjee further submitted that the respondent No. 5 has failed to appreciate that the Government Order No. 1104/MMEE/SECTT dated 24.11.2010 is not applicable in the present facts and circumstances of this case because the said memo has categorically indicated that the application filed for sponsorship after that date cannot be considered as the concept of sponsorship has been withdrawn but in this case the application was filed on 1.01.2008, thus the finding of the authority that the school is fit for sponsorship provided such recommendation is in line with the Government Order No. 1104/MMEE/SECTT dated 24.11.2010 is totally perverse and have no legs to stand upon and this is liable to be quashed.
Mr. Chatterjee also submitted that the Respondent No. 3 in rejecting the sponsorship of the school in question on the basis of the report of the respondent No. 5 by indicating that there are certain deficiencies at the initial state for which the sponsorship of the school cannot be taken into consideration because in the very same report the said authority being the respondent No. 5 has indicated that the defects are negligible in nature, but unfortunately even then the said authority rejected the prayer for sponsorship on the said negligible deficiencies which is not only bad in law but also arbitrary in nature.
Per contra, Mr. Tapan Kumar Mukherjee, learned senior Additional Government Pleader submitted that since the petitioners'' institution failed to remove existing deficits as mentioned in the report of District Mass Extension Officer, Purba Medinipur therefore a fresh inspection is very much required in respect of the said institution to decide the matter. As a result thereof this Court on 27th July, 2015 directed the respondent No. 3. The Director of Mass Education Extension and Ex Officio Joint Secretary Government of West Bengal to hold a fresh inspection in respect of the petitioners'' institution within four weeks and file a comprehensive report in respect of the said inspection on next date of hearing. Thereafter on the next date of hearing the respondent authority submitted a further report pursuant to Court order through Mr. Mukherjee in the Court. Some extract of the report is quoted below:-
L. Whether standard curriculum is being followed-(If so, details): Yes [syllabus of School Education for VI & FACP for MR]
M. Cash Book: Double entry cash book, Cash Book entries are made regularly & duly authenticated. Last transaction on 01.08.15.
N. Cheque Register: Properly Maintained.
O. Stock Register: Dead stock, Stationary stock & Hostel stock Register maintained separately ad properly.
P. Donation: Duplicate carbon receipts used. Register for donation slip maintained by the organizing NGO.
Q. There is a Purchase Committee for the Special School formed by the NGO Committee.
R. Leave A/C of the staff not maintained.
S. Savings Bank A/C of the school: A/C No. -836571418 at Indian Bank, Udbadal Branch, Last Balance-Rs. 1174/-.
T. Toilet condition on the average good & some are under construction.
U. Kitchen is on the average good. Total building under construction.
V. Quality of food is good.
W. No of cot for hosteller students is insufficient. Out of 60 hostellers only 14 cots are usable and other 16 are damaged.
X. Standard of teaching-learning process satisfactory considering the standard and ability of the students.
Y. Individual case record and FACP for MR students maintained. There are Braille Books arranged vertically on the book-shelf.
Z. Disability certificate-The certificate is found of 81 students; for the rest of the students it is reported that some students have the certificate but not submitted and for others it is under process."
Mr. Mukherjee further submitted that the Director of Mass Education Extension Officer and Ex Officio Additional Secretary wrote to the Government of West Bengal vide his letter dated 14th August, 2015 which revealed as follows:-
"It may kindly be taken note of the fact that the school, in question was not fit for according sponsorship till the date on which the Government has taken the policy decision of not granting sponsorship to any institution any further. Even on the present date, the school, in question, could not make good all the deficiencies, as is reflected from the inspection report. The glaring issue is that 58 students of the school do not have certificates of disability. It is written in the report that they are in the process of making. The obvious question that arises is whether they are, at all, persons with disability. It transpires that the authorities do not bother about whether the student, in question, is actually a person with disability or not.
Thus all the exercises on the school and by the school after notification of that policy decision appear to be futile. There is no scope of granting sponsorship to the petitioner now even it is/was found that the petitioner has made good their defects.
Yours faithfully
Director of Mass Education Extension, W.B. & Ex-Officio Addl. Secretary to the
Mr. Mukherjee, learned Senior Additional Government Pleader vehemently submitted that though the petitioners'' case was earlier considered and thereafter the petitioners were directed by the authority to remove some deficits for obtaining sponsorship, but due to the notification dated 24th November, 2010 the petitioners'' institution is not entitled to be granted sponsorship as the Government has taken a policy decision by the order dated 24th November, 2010. The said notification dated 24th November, 2010 issued by the Secretary to the Government of West Bengal, Mass Education Extension and Library Services is quoted below:-
GOVERNMENT OF WEST BENGAL DEPARTMENT OF MASS EDUCATION EXTENSION AND LIBRARY SERVICES BIKASH BHAWAN, SALT LAKE, KOLKATA-700091.
No. 1104-MEE/Sectt.
EM/0/3''s''-79/10
Dated, Kolkata 24th November, 2010
Notification
For sometime past the Government in the Mass Education Extension and Library Services Department has been considering to reframe the policy as regards for setting up of "Special Schools" for physically challenged children to make the policy more responsive to the needs of such category of children. The existing circulars regarding extending sponsorship to Special Schools were framed way back in 1996. A few drawbacks like concentration of such schools in Kolkata and its adjoining districts have been noticed in the existing policy. The urgency to spread the network of such schools to remote areas and that at the primary level so as to bring the children into the mainstream at the earliest are felt needs of the hour.
Now, after careful consideration of the matter and in supersession of G.O. No. 833-Edn (MEE) dated 13.09.1996 of this department the Governor is pleased to frame a Revised Policy on Administration of Special Schools and necessary guidelines for granting sponsorship of Special School for disabled under the Department of Mass Education Extension and Library Services as detailed below:-
No further grant of sponsorship shall be entertained from the date of issue of this Notification of the revised policy.
The Department will continue to give academic recognition to such Institutions upto Class V that may come up in future, after detailed inspection to ascertain that they satisfy requisite standards as regards physical and academic infrastructure. While giving such recognition, it shall be made clear that no sponsorship shall be given.
The Institutions, which will get academic recognition, may be given an annual grant in aid by the Department if the functioning of the Institutions is found to be satisfactory in the periodic inspections conducted by the Department of Mass Education Extension and Library Services. The quantum of such grant-in-aid shall be decided by the Department from time to time and will have no co-relation with total recurring/non-recurring expenses of the Institutions.
In case of felt necessity, the Government may set up such special schools in the districts in future.
This order issues with the concurrence of Finance Department vide their U.O. No. 2016-Gr-P (Service) dt. 09.06.2010 and with the approval of the Cabinet held on 27.10.2010 communicated vide No. 2110 dt. 28.10.2010.
Sd/-
Secretary to the Government of West Bengal Dated, Kolkata 24th November, 2010"
Mr. Mukherjee further contended that as per the notification dated 24th November, 2010 the state has taken a policy decision to reframe the policy as regards setting up of Special Schools for physically challenged children to make the policy more responsive to the needs of such category of children, the existing circulars regarding extending sponsorship to Special Schools were framed way back in 1996. A few drawback like concentration of such schools in Kolkata and its adjoining districts have been noticed in the existing policy. Therefore, the government has taken the new policy by the notification dated 24th November, 2010 to set up Special Schools without granting sponsorship to the private institutions.
Mr. Mukherjee further contended that the sponsorship cannot be extended in favour of the petitioners'' institution. In support of his contention Mr. Mukherjee relied on a decision reported in Union of India and others Vs. Tejram Parashramji Bombhate and others, Paragraph 4 which is quoted below:-
"Para-4-The Tribunal, however, has directed the Central Government immediately to take up an assessment of the needs of the School to carry on its activities at the present level and to create a sufficient number of posts to be filled up on a regular basis. The Tribunal has further directed the Central Government to take steps to fill up the newly created posts in accordance with the recruitment rules to be framed for the purpose. These directions are indeed amazing. It has compelled the Government to sanction the Secondary School, create adequate number of posts and fill up the posts after framing the recruitment rules for the purpose. There is no law requiring the Central Government to sanction the Secondary School. The Central Government has taken a decision that it will not involve itself in sanctioning or running classes beyond the Primary School level. It is a policy matter involving financial burden. No Court or the Tribunal could compel the Government to change its policy involving expenditure. The Tribunal, therefore, could not have, issued the directions as it did to compel the Central Government to assess the needs of the school and create the necessary posts without support of law."
Therefore, Mr. Mukherjee in conclusion contended that the petitioners'' institution is not entitled to get any sponsorship as the policy decision has already been adopted by the state vide its order dated 24th November, 2010.
Considering the submissions advanced by the learned counsels appearing for the respective parties and after perusing the records I find that it is admitted from records that the school was already granted recognition on 25th May, 2001 by the Government of West Bengal Mass Education Extension Department. Approximately at present there are 139 students regularly taking studies in the said institution.
It is also evident on record that detailed inspection was taken by the respondent authorities in respect of the petitioners'' institution and after taking the inspection the report was prepared and forwarded to the institution by directing them to remove some deficits for granting sponsorship. As a result thereof the said institution has already taken step for removing of some deficits as indicated in the said report. Thereafter again pursuant to the Court order dated 22nd July, 2015 a report of inspection dated 11th August, 2015 was submitted by Mr. Mukherjee before the Court wherefrom it is revealed that almost all the conditions have been fulfilled by the said school authority but in spite of that the sponsorship was negated by the state authorities on the ground of policy decision taken by the state authority vide its order dated 24th November, 2010.
Without considering the report and particularly the remarks made by the District Mass Education Extension Officer Purba Medinipur it was not considered by the authority that the petitioners'' institution has already removed all deficits as indicated in the impugned order.
Now the sponsorship was rejected by the authority with a new plea that state has already taken a policy decision on 24th November, 2010. In my considered view the order dated 24th November, 2010 has no manner of application in respect of the grant of sponsorship in favour of the petitioners'' institution as it is evident from the records that time to time inspection was held and on the basis of the inspection report the petitioners'' institution has removed almost all the deficits as directed by the state authority.
It is also cannot be ignored by the Court that the petitioners'' prayer for sponsorship was made on 8th January, 2008 which is much prior to the notification dated 24th November, 2010. Therefore the petitioners'' case should be governed by the notification prevailing at that point of time i.e. on 8th January, 2008 as a result thereof, there is no scope to consider the petitioners'' prayer for grant of sponsorship by a subsequent notification dated 24th November, 2010 which was admittedly not in existence at the time when the petitioners submitted the said application before the concerned authority for grant of sponsorship.
That being the scenario in my considered view the decision relied on by Mr. Mukherjee (Union of India & Ors.) (Supra) has no manner of application in the case in hand.
Considering the submissions and after perusing the records and the decision cited above I am of the view that the impugned order dated 28th November, 2011 cannot be sustained in the eye of law.
Accordingly the impugned order dated 28th November, 2011 is hereby set aside and quashed.
I direct the Deputy Director of Mass Education Extension West Bengal to take step for granting sponsorship in favour of the petitioners'' institution on the basis of the law prevailing at the point of time when the petitioners'' institution made representation for grant of sponsorship i.e. on 8th January, 2008 within ten (10) weeks from the date of communication of this order.
With this direction this writ petition is allowed without any order as to costs.
Urgent photostat certified copy of this Judgment, if applied for, be supplied to the parties after fulfilling all the formalities.