Bombay High Court
Shri. Bhairavnath Shikshan Mandal, ... vs The State Of Maharashtra Through The ... on 7 June, 2017
Author: B. R. Gavai
Bench: B. R. Gavai, Riyaz I. Chagla
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition NO. 8961 OF 2015
1 Shri. Bhairavnath Shikshan Mandal, Khed
2 Madhyamik Vidyalaya, Ubhade ...Petitioner(s)
Versus
1 The State Of Maharashtra,
Through The Secretary,
Dept. Of Education And Sports
2 The Director of Education (Secondary),
State of Maharashtra, Pune.
3 The Deputy Director of Education (Secondary)
Nashik Division, Nashik
4 The Education Officer (Secondary)
Zilla Parishad, Nashik, Dist. Nashik\
5 The Deputy Director of Education,(Primary),
Nashik Division, Nashik
6 The Education Officer (Primary),
Zilla Parishad, Nashik, Dist. Nashik ....Respondent(s)
WITH
Writ Petition NO. 992 OF 2016
Shri. Sant Dnyaneshwar Shikshan Prasarak
Mandal, Pimpalgaon And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through
The Secretary And Ors ...Respondent(s)
WITH
Writ Petition NO. 993 OF 2016
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Gavkari Parivartan And Sanshodhan Pratishthan
Through Trustee, Smt. Kavita Nagare And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through
The Secretary And Ors ...Respondent(s)
WITH
Writ Petition NO. 994 OF 2016
Jagdamba Education Society And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through
The Secretary, Dept. Of Edu. And Sports And Ors. ...Respondent(s)
WITH
Writ Petition NO. 995 OF 2016
Jagdamba Education Society And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through
The Secretary, Dept. Of Edu. And Sports And Ors. ...Respondent(s)
WITH
Writ Petition NO. 1567 OF 2017
Phule Education Society And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through
The Secretary, Dept. Of Education And Sports And Ors. ...Respondent(s)
WITH
Writ Petition (ST) NO. 3253 OF 2016
Adarsha Mahila Vikas Sanstha Maldad Rd.
(sangamner) And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through Secretary And Ors ...Respondent(s)
WITH
Writ Petition (ST) NO. 3254 OF 2016
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Shri. Sant Dnyaneshwar Shikshan Prasarak
Mandal And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through Secretary
And Ors ...Respondent(s)
WITH
Writ Petition (ST) NO. 3310 OF 2016
Adarsha Mahila Vikas Sanstha Maldad Rd.
(sangamner) And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through Secretary
And Ors ...Respondent(s)
WITH
Writ Petition (ST) NO. 3314 OF 2016
Adarsha Mahila Vikas Sanstha Maldad Rd.
(sangamner) And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through
Secretary And Ors ...Respondent(s)
WITH
Writ Petition NO. 6212 OF 2016
Kai. Bhausaheb Hire Smaranika Samiti Trust
And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary,
Dept. Of Education And Sports And Ors. ...Respondent(s)
WITH
Writ Petition NO. 6213 OF 2016
Kai. Bhausaheb Hire Smaranika Samiti Trust
And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary,
Dept. Of Edu. And Sports And Ors. ...Respondent(s)
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WITH
Writ Petition NO. 8960 OF 2015
Azad Shikshan Mandal Through Its Vice Chairman
Smt. Nirmala Patil And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary
And Ors. ...Respondent(s)
WITH
Writ Petition NO. 8962 OF 2015
Shri. Yashwant Gramseva Pratishthan Through Its
Vice-chairman, Shri. Annasaheb Nakade And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary
And Ors. ...Respondent(s)
WITH
Writ Petition NO. 8963 OF 2015
Dnyandeep Gramin Vikas Shikshan Sanstha, Kashti,
Shrigonda And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary
And Ors ...Respondent(s)
WITH
Writ Petition NO. 8964 OF 2015
Jijamata Samajik Vikas Sanstha, Bhadgaon And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary,
Dept. Of Education And Sports And Ors. ...Respondent(s)
WITH
Writ Petition NO. 9093 OF 2015
Shri. Sant Sawata Mali Shaikshanik Va
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Samajik Sanstha And Anr ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary
And Ors ...Respondent(s)
WITH
Writ Petition NO. 9327 OF 2015
Ahemadnagar Zilla Vadar Samaj Sanghatana And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary,
Dept. Of Education And Sports And Ors. ...Respondent(s)
WITH
Writ Petition NO. 9489 OF 2015
Viashwatmak Jangli Maharaj Ashram Trust And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary,
Dept. Of Education And Sports And Ors. ...Respondent(s)
WITH
Writ Petition NO. 13579 OF 2016
Phule Education Society And Anr. ...Petitioner(s)
Versus
The State Of Maharashtra Through The Secretary,
Dept. Of Edu. And Sports And Ors. ...Respondent(s)
Mr. Suresh S. Pakale i/by Mr. S.M. Katkar for the Petitioners in all the writ
petitions.
Mr. R.S. Apte, Senior Advocate & Special Counsel with Mr. C.P. Yadav, AGP
for Respondent Nos. 1 to 5 in all the writ petitions.
CORAM: B. R. GAVAI &
RIYAZ I. CHAGLA, JJ.
DATE : June 07, 2017
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ORAL JUDGMENT (Per B. R. Gavai, J.):
1 Leave to amend is granted. Amendment to be carried out forthwith.
2 Initially Mr. Pakale, learned counsel for the Petitioners, stated that the factual as well as legal issues involved in these Petitions are common and, therefore, at his request, we have heard all these Petitions together and are disposing of by this common judgment and order.
3 The present Petitions apart from various legal issues, also raise a serious issue regarding judicial propriety. The Petitioners in the present Petitions have challenged the validity of Clause (2) of the Government Resolution dated 15th November 2011. The Petitioners are principally aggrieved by sub-clause (b) of Clause (2) of the said Government Resolution. The Government Resolution has been issued by the State Government for bringing the permanent non-grant in aid primary and secondary schools on grant in aid basis. Certain conditions have been imposed by the State Government for making the said schools eligible for being admitted to grant in aid schools. 6/18 ::: Uploaded on - 17/06/2017 ::: Downloaded on - 28/08/2017 05:12:37 ::: dgm 7 22-wp-8961-2016 with group-judgment.sxw One of the conditions which is imposed and and with which the Petitioners are aggrieved is thus:
"(b) While making an application for assessment, the policy of the State Government regarding reservation in employment should be followed by the school. (This should not be applicable to minority schools)."
4 Mr. Pakale, learned counsel appearing for the Petitioners, submits that insistence of the Government on the said clause is totally arbitrary, irrational and illegal. It is submitted that in view of the judgments of the Apex Court in the case of T.M.A. Pai Foundation v. State of Karnataka1, P. A. Inamdar v. State of Maharashtra2 and Pramati Educational and Cultural Trust (Registered) v. Union of India 3, the un- aided schools cannot be imposed to have a reservation policy. It is submitted that in any case when the Petitioners have undertaken to follow the reservation after the grand in aid is made applicable to such schools, there is no reason in the Government denying the grant in aid to the said schools. The learned counsel heavily relied on the order passed by the Division Bench of this Court (Mohit S. Shah, CJ & B. P. Colabawalla, J.) dated 7th January 2015 in Civil Application No.2367 of 2014 in Writ Petition No. 8478/2013, in support of the submission 1 (2002) 8 SCC 481 2 (2005) 6 SCC 537 3 (2014) 8 SCC 1 7/18 ::: Uploaded on - 17/06/2017 ::: Downloaded on - 28/08/2017 05:12:37 ::: dgm 8 22-wp-8961-2016 with group-judgment.sxw that the Government cannot insist upon the reservation policy in view of the judgment of the Constitution Bench in Ashoka Kumar Thakur v. Union of India4.
5 Mr. Pakale further submits that after Article 21-A has been brought in the Constitution, it is a mandate on the State Government to reimburse the schools like the Petitioners who are discharging the duties of the State as its agents to provide free and compulsory education to the students. It is submitted that the State cannot run away from its responsibility merely on the ground that the reservation is not provided. The learned counsel further submits that insofar as the observations made by Their Lordships of the Apex Court in SLP No.11639-11640/2016-The State of Maharashtra v. Trimurti Shikshan Sanstha dated 9th December 2016 are concerned, the said would be applicable only insofar as the Trimurti Shikshan Sanstha is concerned and would not be applicable to other Petitioners.
6 The learned counsel relied on the judgment of the Apex 4 (2008) 6 SCC 1 8/18 ::: Uploaded on - 17/06/2017 ::: Downloaded on - 28/08/2017 05:12:37 ::: dgm 9 22-wp-8961-2016 with group-judgment.sxw Court in the case of The Regional Manager v. Pawan Kumar Dubey5, to point out to this Court as to what would amount to ratio decidendi and submits that the observation of the apex Court which is relied upon by the learned counsel for the Respondents, in the aforesaid order of the Apex Court would not amount to ratio decidendi. 7 Mr. Apte, learned senior counsel appearing on behalf of the State, on the contrary, submits that the order passed by the Division Bench in Writ Petition.8478 of 2013 dated 7 th January 2015 is per incurium inasmuch as the judgment of the Apex Court on which the Division Bench has relied i.e. in the case of Ashoka Kumar (supra) has been expressly overruled by the Apex Court in the case of Pramati Educational and Cultural Trust (Registered) (supra). He further submits that earlier Division Bench judgment of this Court in identical cases delivered by a Division Bench of this Court (Coram:
A.S. Oka and Revati Mohite Dere, JJ.) in Writ Petition No.7333/2013- Bormalnath Shikshan Sanstha v. The State of Maharashtra dated 17 th September 2013 has also not been brought to the notice of the subsequent Division Bench which delivered order dated 7 th January 5 AIR 1976 SC 1766 9/18 ::: Uploaded on - 17/06/2017 ::: Downloaded on - 28/08/2017 05:12:37 ::: dgm 10 22-wp-8961-2016 with group-judgment.sxw 2015.
8 As already stated by us hereinabove, the present Petitions raised a serious issue with regard to the judicial propriety. The perusal of the order passed by the Division Bench of this Court presided over by A. S. Oka, J. dated 17th September 2013 in Writ Petition No.7333 of 2013 would clearly reveal that Clause (2) of the Government Resolution dated 15th November 2011 which has been considered by a subsequent Division Bench presided over by the then Hon'ble Chief Justice in its order dated 7 th January 2015 and which is also challenged before us, also fell for consideration before the Division Bench in the said Petition. The learned Judges of the Division Bench have observed thus:
"5. There are two parts of the G.R. Clause (2) of the G.R lays down eligibility criteria. Sub-clause (b) of Clause (2) specifically provides that only those schools which comply with policy of reservation will be eligible under the policy. The second part of the G.R is as regards the assessment to be made by a Committee constituted for that purpose. Even if the Committee finds a School to be eligible to receive grant-in-aid, a School becomes eligible for the benefits under the G.R, provided eligibility criteria prescribed by clause (2) of the G.R is satisfied. Therefore, there is no merit in the submission of the learned Counsel appearing for the petitioners that a School cannot be held ineligible after the assessment of the school by the Committee.10/18 ::: Uploaded on - 17/06/2017 ::: Downloaded on - 28/08/2017 05:12:37 :::
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6. Without even making an attempt to take benefit of communication dated 23rd May, 2013 (Exhibit `N') by going before the concerned Authorities for satisfying the Authorities that there was no backlog, the petitioners have chosen to approach this Court under Article 226 of the Constitution of India.
7. At this stage, the learned Counsel appearing for the petitioners reiterates that for denying grant-in-aid, the compliance with the policy of reservation is no criteria.
8. Admittedly, the second petitioner school was permitted to be opened on permanent no-grant basis. By the G.R, considering the demand of such schools, subject to compliance with the conditions imposed in the said G.R, the Government decided to convert such schools into aided schools. If the petitioners want to take benefit of the G.R, the petitioners will have to satisfy the eligibility criteria provided in clause (2) thereof. Therefore, the said contention deserves to be rejected.
9. The learned Counsel appearing for the petitioners relies upon Article 21-A of the Constitution of India. His submission is that to enable the schools to comply with Article 21-A, the Primary Schools must be given Government aid.
10. We make it clear that even according to the case of the petitioners, a permission was granted to the second petitioner on "permanent no-grant basis". The petitioners never challenged the permission. They started running the school on permanent no-grant basis. We do not see any inherent right in the petitioners to get Government aid. It is only because of the benevolent policy of the State Government under the G.R, that certain Primary Schools which satisfy the criteria laid down in the G.R can be granted grant-in- aid. Therefore, we do not agree with the said 11/18 ::: Uploaded on - 17/06/2017 ::: Downloaded on - 28/08/2017 05:12:37 ::: dgm 12 22-wp-8961-2016 with group-judgment.sxw submission."
It could thus be seen that the contention of the Petitioners therein that they cannot be denied grant in aid, if the reservation is not followed by them is specifically rejected by this Court. Not only that but an argument with regard to Article 21-A has also been specifically advanced and rejected by the Division Bench of this Court. It appears that identical Petitions were listed before another Bench presided over by the then Hon'ble Chief Justice. It appears that the Division Bench did not notice the earlier order passed by the Bench presided over by A.S. Oka, J. in Writ Petition No.7333/2013 (supra). 9 It appears that the Division Bench, therefore, observed thus:
"7. Having carefully considered the aforesaid clauses of the Government Resolution dated 15 November 2011 and having gone through the judgment of the Constitution Bench in Ashok Kumar Thakur vs. Union of India (supra), we are of the view that when the Government is not going to grant aid with retrospective effect, the Government cannot apply its reservation policy with retrospective effect. In other words, the Government cannot insist that the reservation policy should have been followed with retrospective effect prior to the date of application of the school management under the Government Resolution dated 15 November 2011. The law on the 12/18 ::: Uploaded on - 17/06/2017 ::: Downloaded on - 28/08/2017 05:12:37 ::: dgm 13 22-wp-8961-2016 with group-judgment.sxw subject having been laid down in the judgment of Justice Dalveer Bhandari in the Constitution Bench decision in Ashok Kumar Thakur vs. Union of India (supra), the State Government cannot act contrary to the principles laid down in the said judgment."
(emphasis supplied) 10 It could thus be seen that the observations made by the subsequent Division Bench are in ignorance of the earlier order made by the coordinate Court of this Court. In any case, the reliance placed by the Division Bench in Ashoka Kumar Thakur (supra) by the Division Bench was not merited. The judgment of the Division Bench is delivered on 7th January 2015. In the meantime, the view taken by the Apex Court in the case of Ashoka Kumar Thakur was already overruled by the Apex Court in the case of Pramati Eductional and Cultural Trust on 6th May 2014. It will be relevant to refer to the observations of Their Lordships in the case of Pramati Educational and Cultural Trust which read thus:
"38 We accordingly hold that none of the rights under Articles 14, 19(1)(g) and 21 of the Constitution have been abrogated by clause (5) of Article 15 of the Constitution and the view taken by Bhandari,J. In Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, that the imposition of reservation on unaided institutions by the Ninety-third Amendment has abrogated Article 19(1)(g), a basic feature of the Constitution is not correct. Instead, we hold that the Constitution (Ninety-third Amendment) Act, 2005 13/18 ::: Uploaded on - 17/06/2017 ::: Downloaded on - 28/08/2017 05:12:37 ::: dgm 14 22-wp-8961-2016 with group-judgment.sxw inserting clause (5) of Article 15 of the Constitution is valid."
11 It could thus clearly be seen that the Constitution Bench of the Apex Court in Pramati Educational & Cultural Trust (supra) in an unequivocal terms overruled the view taken in Ashoka Kumar Thakur (supra) which has been relied upon by the Division Bench in its order dated 7th January 2015. With due respect to the Division Bench, we will have to hold that the view taken by the Division Bench in its order dated 7th January 2015 is per incurium being contrary to the judgment of the Constitution Bench of the Apex Court in the case of Pramati Educational & Cultural Trust (supra).
12 In any case, when the order dated 7 th January 2015 was challenged before Their Lordships of the Hon'ble Supreme Court, Their Lordships have specifically observed as under:
"We have heard learned counsel for the parties.
We are not inclined to interfere with the order passed by the High Court.
The special leave petitions are dismissed. However, we make it clear that the respondent will be entitled to grant-in-aid from the date on which it fulfills the requirements of the Government Resolution dated 15.11.2011 to the satisfaction of the petitioner."14/18 ::: Uploaded on - 17/06/2017 ::: Downloaded on - 28/08/2017 05:12:37 :::
dgm 15 22-wp-8961-2016 with group-judgment.sxw (emphasis supplied) 13 It could thus be clearly seen that the Hon'ble Supreme Court has clearly held that the schools should be entitled to grant in aid only from the date on which such schools fulfill the requirement of the Government Resolution dated 15 th November 2011 to the satisfaction of the State Government. As already pointed out hereinabove, Government Resolution dated 15th November 2011 specifically prescribes that for being eligible to apply for assessment for being admitted to grant in aid, education institute must follow the policy of the reservation as framed by the State Government. It could thus be seen that following the policy of reservation is a basic requirement even for making an application for assessment to be admitted to the grant in aid. Not only this, but a subsequent application had been made by the Respondents therein before the Hon'ble Supreme Court for clarification of the order dated 9 th December 2016. It will be relevant to refer to paragraph 12 and prayer (a) of the Civil application moved by the Respondents in the said SLP.
"12 It is, therefore, necessary to clarify that the observation in the order dated 9th December 2016 passed by this Hon'ble Court does 15/18 ::: Uploaded on - 17/06/2017 ::: Downloaded on - 28/08/2017 05:12:37 ::: dgm 16 22-wp-8961-2016 with group-judgment.sxw not take in its compass the right of the Petitioners to reject the salary grant on the ground that the reservation policy was not followed prior to the date of making Application for salary grant under Government Resolution dated 15th November 2011. The findings in this respect from the Hon'ble Bombay High Court are final and as confirmed by this Hon'ble Court. The purported backlog on the date of the Application is obviously related to the period prior to the date of the Application. Thus, the contention of the Respondent is mischievous.
However, due to the observations of this Hon'ble Court, the absolute authority is claimed by the Petitioners."
Prayer (a) In the interest of justice, clarify/modify the order dated 09.12.2016 in terms of paragraph No.12 of the Application."
14 The Application was dismissed by the Hon'ble Supreme Court vide its order dated 10.03.2017. It would, thus, be clear that the Supreme Court in unequivocal terms held that the satisfaction of the Authorities with regard to the compliance of the conditions specified in Government Resolution dated 15 th November 2011, is a condition precedent being eligible to get grant in aid. 16/18 ::: Uploaded on - 17/06/2017 ::: Downloaded on - 28/08/2017 05:12:37 ::: dgm 17 22-wp-8961-2016 with group-judgment.sxw 15 In that view of the matter, we find no merit in the Petitions.
16 In view of the orders of the Supreme Court, it is held and declared that unless the schools conform to the policy of reservation as laid down by the State Government, the schools would not be entitled to grant in aid as per the Government Resolution dated 15 th November 2011.
17 At this stage, it is sought to be urged by Mr. Pakale that in most of the schools the requirement regarding reservation is substantially complied with. We find that it will not be appropriate for us to undertake the exercise of scrutinizing the cases individually. The Petitioners would be at liberty to place the entire data before the respective Competent Authorities and satisfy them with regard to the fulfillment of the reservation policy. If the Petitioners are in a position to satisfy the Competent Authority regarding the fulfillment of the requirement of reservation policy, the Respondents-Competent Authorities would certainly be required to take into consideration the claim of the Petitioners for admitting them to the grant in aid, in 17/18 ::: Uploaded on - 17/06/2017 ::: Downloaded on - 28/08/2017 05:12:37 ::: dgm 18 22-wp-8961-2016 with group-judgment.sxw accordance with law.
18 The Writ Petitions are, therefore, rejected, save as observed hereinabove.
19 No costs.
(RIYAZ I. CHAGLA J.) (B. R. GAVAI J.) 18/18 ::: Uploaded on - 17/06/2017 ::: Downloaded on - 28/08/2017 05:12:37 :::