Uttam Mariba Sonkamble vs The State Of Maharashtra & Ors.

(PER: ABASAHEB D. SHINDE, J.) :

. Rule. Rule is made returnable forthwith. With consent of the parties, the Writ Petition is heard finally at the stage of admission.

By this Writ Petition filed under Article 226 of the Constitution of India, the Petitioner has put forth the following substantive prayers:

This Writ Petition has a chequered history. Chandramuni Shikshan Prasarak Mandal, Parbhani, is an Educational Trust registered under the provisions of the Maharashtra Public Trusts Act, 1950. The said Trust runs Samrat Ashok Primary School, Parbhani (hereinafter called as ‘the said School’). Initially, the said School was being run on no grant basis. Thereafter, it started receiving 100% grant-in-aid from 1995. On 16.08.2013 Respondent No.1 withdrew the recognition of the said School for want of physical amenities and basic infrastructure.

The Petitioner assailed the said order before this Court by filing Writ Petition No.7184 of 2013. This Court by order dated 03.11.2014 set aside the said order holding that, though it was sought to be contended on behalf of the State authorities that the decision of withdrawing recognition is based on the Inspection Report, however no such inspection appears to be conducted. This Court, therefore, remanded the matter back for carrying out fresh inspection and passing appropriate order.

After the remand, Respondent No.4 - Education Officer after carrying out inspection of the said School, favourably recommended the proposal for ‘re-recognition’ of the said School to Respondent No.3 -Deputy Director of Education on 20.12.2016. As Respondent No.3 did not take any steps for forwarding the said proposal to Respondent No.1, the Petitioner approached this Court by filing Writ Petition No.1906 of 2017. This Court by order dated 09.02.2017 directed Respondent No.3 to take appropriate steps for forwarding the proposal dated 20.12.2016 to Respondent No.1 with regard to grant of ‘re-recognition’ of the said School.

Respondent No.1 by order dated 01.11.2017 addressed to Respondent No.2 - Director of Education (Primary) rejected the proposal for ‘re-recognition’ of the said School on the ground that no students are available in the said School. The copy of said order was marked to the Petitioner.

The Petitioner questioned the order dated 01.11.2017 passed by Respondent No.1 before this Court in Writ Petition No.14591 of 2017. This Court by order dated 23.02.2018 set aside the same holding that, while considering the application for ‘re-recognition’, Respondent No.1 was required to consider whether the Petitioner has all infrastructure amenities and requirements. This Court further held that, Respondent No.2 ought to have taken into consideration the fresh inspection and the report to that effect forwarded by Respondent No.4. It was further observed that, the Respondents could not have expected the students to remain present, when for four years the school was closed. This Court, therefore, remanded the matter back to Respondent No.1 for deciding the proposal for ‘re-recognition’ afresh after considering the Inspection Report submitted by Respondent No.4, by end of May 2018.

Since the order dated 23.02.2018 of this Court was not acted upon within stipulated period, the Petitioner filed Contempt Petition No.467 of 2018. During the course of hearing of the Contempt Petition, the Respondents pointed out that, Respondent No.1 has taken a decision to grant permission to the Petitioner institution to run a primary school on a self-finance basis. This Court, therefore, purged the Contempt Petition by recording the said statement.

Respondent No.1 by impugned order dated 25.09.2018 granted permission to the Petitioner to run the said School on self-finance basis by resorting to the provisions of Section 9 of the Maharashtra Self-financed Schools (Establishment and Regulation) Act, 2012 (hereinafter called as the ‘Act of 2012’). The Petitioner, therefore, has approached this Court by challenging the impugned order.

Learned Counsel for the Petitioner strenuously submits that, the impugned order is contrary to the orders passed by this Court from time to time. Though this Court had remanded the matter for fresh consideration regarding ‘re-recognition’ of the said School, Respondent No.1 decided the proposal as if the same is for fresh recognition. He would submit that, as far as Section 9 of the Act of 2012 is concerned, the same cannot be made applicable to the Petitioner. He, therefore, urged that, the impugned order is liable to be quashed and set aside.

Per contra, the learned AGP relying on the Affidavit-in-reply filed by Respondent Nos.1 to 3 would submit that, pursuant to the directions issued by this Court from time to time, the Respondents have considered the proposal of the Petitioner on the basis of the Inspection Report submitted by Respondent No.4 and have arrived at a conclusion that, since the provisions of the Act of 2012 are in vogue, in view of Section 9 of the Act of 2012, the schools running prior to five years of commencement of the said Act of 2012, can be given permission only on self-finance basis. He, therefore, urged that, there is no illegality or irregularity committed by Respondent No.1 while passing the impugned order.

We have heard the learned Counsel for the Petitioner, learned AGP for Respondent Nos.1 to 3, learned Counsel for Respondent No.4 at length and perused the record.

There is no serious dispute about the factual matrix. Admittedly, the said School was running since 1989. It started receiving 100% grant-in-aid from the year 1995. The recognition of the said School was withdrawn for want of physical amenities and basic infrastructure. In earlier round of litigation, under the orders of this Court, the inspection was carried out by Respondent No.4 and favourably recommended the proposal of the said School for ‘re-recognition’. Respondent Nos.1 to 3, however, under a misconception, instead of considering the said proposal for ‘re-recognition’, treated it for fresh recognition.

The provisions of Section 9 of the Act of 2012 relied upon by the Respondents read thus:

Bare perusal of the aforesaid provision demonstrates that, Respondent No.1 has power to grant permission under the Act of 2012 to those schools running for a period of five years immediately before the date of commencement of the Act of 2012 on self-finance basis. At the cost of repeatation, in the present case the said School was running since 1989, in view thereof the reliance placed by Respondents on provisions of Section 9 of the Act of 2012 is wholly misplaced.

Last but not the least, though it is sought to be contended by the Respondents that merely by complying with the physical amenities and other requirements, the said School cannot be granted ‘re-recognition’ since there are no students available, however it is pertinent to note that once the School was closed due to withdrawal of its recognition, one cannot expect that the students would be present in the school.

In view of aforesaid discussion, we find that, the impugned order passed by Respondent No.1 thereby granting permission to the said School run by the Petitioner on self-finance basis instead of granting ‘re-recognition’ is de hors the directions issued by this Court from time to time as well as arbitrary and unreasonable, therefore, the same cannot be sustained. The Writ Petition, therefore, deserves to be allowed. Hence, the following order.