Bombay High Court
Manju Ramesh Jaiswal vs State Of Maharashtra And 7 Ors on 28 January, 2020
Author: R.I. Chagla
Bench: S.C. Dharmadhikari, R.I. Chagla
905NMW235.19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 2331 OF 2019
Manju Ramesh Jaiswal ... Petitioner
Vs
1 State of Maharashtra & Ors. ... Respondents
Mr. A.Y. Sakhare, senior advocate with Mr. Chirag Shah, Rushil
Mehta i/b Jayesh Patel for the Petitioner in WPL 2331 of 2019.
Ms. Geeta Shastri, Addl. GP, for the Respondent Nos.1 to 3.
Ms. Devangi Gandhi i/b Adhitya Hegde for the Respondent No.5.
Dr. Ramdas P. Sabban for the Respondent No.7.
Mr. G.S. Tungar, Joint Secretary, present.
Mrs. S.M. Nanal, Depputy Secretary, present.
WITH
NOTICE OF MOTION NO. 235 OF 2019
IN
WRIT PETITION NO. 2871 OF 1999
1 Forum for Fairness in Education & Ors. ... Applicants
Vs
1 State of Maharashtra & Ors. ... Respondents
Applicant in person - Absent.
Ms. G.R. Shastri, Addl. GP, for the Respondent No.1-State.
Mr. Sanjiv A. Sawant for the Respondent Nos.6 & 10.
SRP 1/9
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905NMW235.19.doc
CORAM : S.C. DHARMADHIKARI &
R.I. CHAGLA, JJ.
TUESDAY, 28TH JANUARY, 2020 P.C. :
1 After the order passed by this Court on 14 th October, 2019, the petition has been listed before us for interim reliefs. 2 However, there was a further affidavit filed and the contents of which failed to satisfy us. In that affidavit which has been filed as an affidavit-in-sur-rejoinder dated 8 th January, 2020, the Deputy Secretary, School Education and Sports, Government of Maharashtra says that the Government directed the Deputy Director of Education, Mumbai Division, Mumbai, to inspect all the schools mentioned in the writ petition and the schools mentioned in the list furnished by the petitioner alongwith the affidavit-in-rejoinder and submit a detailed report. The Deputy Director set up a team to inspect the said schools and the concerned team visited 54 schools mentioned in the list. A table has been set out in paragraph 2 of this affidavit in which it is stated that when the details of 28 schools were supplied, the team, on inspection, found that there is no school at the place SRP 2/9 ::: Uploaded on - 30/01/2020 ::: Downloaded on - 30/01/2020 20:52:49 ::: 905NMW235.19.doc mentioned in the list for which permission has been granted.
However, there was a coaching class.
3 At today's hearing as also on the previous occasions, we had impressed upon the State and particularly the Department of School Education and Sports that such nomenclatures are provided by parties for convenience. It is not necessarily that because a party says that he or she is running coaching class, it is indeed a coaching class. That could be a junior college in the garb of a coaching class. A coaching class is expected to coach students, over and above his school attendance, as per the fixed hours in specified subjects. In other words, if the child is weak in some subjects and which, if not cleared with good marks at the qualifying (X and XII Standards) examination, may result in the child's academic career being affected permanently, extra effort is taken by the parents by admitting children in coaching classes, but we find on occasions and it is not disputed that this coaching class is a regular teaching institution. It is conducted not for specified hours in some rented premises or from residence of eminent teachers. It is a regular establishment employing teachers of eminence in that subject so SRP 3/9 ::: Uploaded on - 30/01/2020 ::: Downloaded on - 30/01/2020 20:52:49 ::: 905NMW235.19.doc as to draw and attract students and batches of students are taking education on a continuous basis from morning to evening. This is akin or parallel to a junior college. On occasions one finds that reputed coaching classes and tutorials are in a way affiliated to the recognised Education Boards and students do not attend regular junior college or school, but admit themselves to such coaching classes or tutorials whereafter their examination forms are accepted by the statutory Education Boards and they take examinations. In the circumstances, the nomenclature is not decisive at all. A thorough and deeper investigation is warranted in such cases. In cases of four institutions, the criteria prescribed by the law is not fulfilled at all. Even in the case of eight other institutions, according to this table, the standards and norms prescribed by the law are not fulfilled. In the case of three institutions, conditional permission has been granted. There are some pending applications as well.
4 The deponent of the affidavit says that this table denotes that the law is not, prima facie, complied with in all cases and necessary action is called for.
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905NMW235.19.doc 5 However, on hearing both sides we find that the Government machinery is not fully functional so as to implement The Maharashtra Self Finance Schools (Establishment and Regulation) Act, 2002, as amended from time to time. It has been found that there are several institutions which are also prohibited in terms of a prohibitory statute which finds no reference in the present case. We are told and informed that there is a comprehensive legislation titled as Maharashtra Unauthorised Institutions and Unauthorised Courses of Study in Agriculture, Animal and Fisheries Sciences, Health Sciences, Higher, Technical and Vocational Education (Prohibition) Act, 2013. When all this was noticed by us, we called upon Ms. Shastri, learned Additional Government Pleader as to why the law is not being enforced and implemented and the stringent measures contemplated thereby have not been taken even after nearly eight years of the enactment. She conceded that the State level and Field level authorities are not set up and, therefore, periodical inspection and scrutiny has not been undertaken. 6 At her request, we allowed her to take instructions from the state Government officials and particularly Ms. Swati M. SRP 5/9 ::: Uploaded on - 30/01/2020 ::: Downloaded on - 30/01/2020 20:52:49 ::: 905NMW235.19.doc Nanal, Deputy Secretary, School, Education and Sports Department, Mantralaya, Mumbai. After taking instructions from her it is stated that the Maharashtra Government will notify the rules under the 2012 Act. The necessary steps would be taken as expeditiously as possible and within eight weeks from today.
7 We are of the firm opinion that the expressions "State Level Authority" and "Field Level Authority" have to be defined and the authority, power and jurisdiction clearly demarcated in the Rules. Unless and until the State clarifies what these words and expressions mean, on some general and vague understanding the action of some officials in the Department would not be compliant with the law. This will encourage the institutions which are inspected by the officers to approach a Court of law and challenge their actions as unauthorised and illegal. Nobody, without authority, power and jurisdiction can walk into private premises and seek inspection of the papers and documents, scrutinize and verify records and satisfy himself or herself as to whether minimal facilities and basic infrastructure is available or not. None can call for production of the relevant and germane SRP 6/9 ::: Uploaded on - 30/01/2020 ::: Downloaded on - 30/01/2020 20:52:49 ::: 905NMW235.19.doc documents, particularly the building permissions and approvals, sanctioned plans, details of issuance of an (IOD) intimation of disapproval or (CC) commencement certificate, completion certificate and occupation certificate in respect of the building, whether all measures particularly to prevent fire and safety in case of fire and other emergencies are in place etc. Even if the officer is from the Education Department, that does not mean that he can call for production of Registers and seek any explanation whether the institution is accepting the fees in cash or necessarily by cheque, the Fee Register, the accounts and whether the same are audited by an auditor appointed by the Management or otherwise. Such queries and questions can be put to the Management only by the competent officials and everybody and anybody from the Education Department may not be assisted by the Management. In cases of unscrupulous Managements, they will get a handle to challenge the orders or actions only on the ground of lack of competence and jurisdiction. 8 In such circumstances, we do not think that the State can be permitted to grant permissions and approvals for setting up new Institutions under the law, namely, Self Finance Schools SRP 7/9 ::: Uploaded on - 30/01/2020 ::: Downloaded on - 30/01/2020 20:52:49 ::: 905NMW235.19.doc (Establishment and Regulation) Act, 2012, until further orders of this Court. We restrain the State Government and particularly the Department of School Education and Sports from issuing the approvals and permissions to the applicants in pending applications or who may have applied, but in whose cases, the scrutiny and verification process is underway and incomplete. No approvals, therefore, be granted unless permitted by this Court. 9 We also expect the State Government not to renew the existing approvals or permissions unless a full-fledged inspection and scrutiny is undertaken by the authority at the State or Field level as may be notified by the Rules. All applications seeking renewal of the existing permissions, therefore, be kept on hold untill such scrutiny and verification in terms of law and the notified Rules is undertaken. Thereafter, the necessary process in terms of the applicable law and rules shall be concluded. 10 We would expect a complete machinery to be provided including issuing the necessary Government Resolutions and Circulars covering all aspects, including delegation of powers. This would be vital for the proper, smooth implementation and SRP 8/9 ::: Uploaded on - 30/01/2020 ::: Downloaded on - 30/01/2020 20:52:49 ::: 905NMW235.19.doc enforcement of the law.
11 At the request of Ms. Shastri, we place the matter on 12th March, 2020. To be listed on the Supplementary Board.
R.I. CHAGLA, J. S.C. DHARMADHIKARI, J. SRP 9/9 ::: Uploaded on - 30/01/2020 ::: Downloaded on - 30/01/2020 20:52:49 :::