Bombay High Court
Jyotirling Education Society & Ors vs Jai Hanuman Shikshan Sanstha & Ors on 13 June, 2012
Author: D.Y.Chandrachud
Bench: D.Y. Chandrachud, R.D. Dhanuka
VBC 1/10 wp10231.10-13.6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO.10231 OF 2010
Jyotirling Education Society & Ors. ...Petitioners.
Vs.
Jai Hanuman Shikshan Sanstha & Ors. ...Respondents.
....
Mr.Venkatesh A. Shastry for the Petitioners.
Mr.S.S.Patwardhan with Mr.Ajay D.Magadum for Respondent
No.1.
Mr.I.M.Khairdi for Respondent Nos.2 & 4.
Mr.S.R.Sonawane, AGP for Respondent Nos.5 to 7.
.....
CORAM : DR.D.Y.CHANDRACHUD AND
R.D.DHANUKA, JJ.
June 13, 2012.
ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :
Rule; with the consent of Counsel for the parties returnable forthwith. With the consent of Counsel and at their request the Petition is taken up for hearing and final disposal.
The challenge in these proceedings is to an order dated 25 October 2010 passed by the Deputy Director of Education, Kolhapur Division, Kolhapur, by which the management of a Secondary School has been transferred from the Jyotirling Education Society (represented by the First Petitioner) to the Jai Hanuman Shikshan Sanstha (the First Respondent). The ::: Downloaded on - 09/06/2013 18:39:55 ::: VBC 2/10 wp10231.10-13.6 contention of the Petitioners is that the transfer has taken place in a manner contrary to the provisions of Clause 12 of the Secondary School Code. Petitioner Nos.2 to 4 are trustees of the First Petitioner. The Second Respondent and the Third Respondent are respectively, the President and the Vice President of the First Petitioner Trust. According to the Petitioners, the First Petitioner applied on 10 September 2007 for an increase in the number of divisions of the School. On 17 September 2007, the Deputy Director of Education sanctioned additional divisions for the 9th and 10th Standards subject to certain conditions stated in his order.
Respondent Nos.2 to 4 are stated to have filed a proposal seeking permission for the transfer of the management of the School conducted by the First Petitioner to the First Respondent. The Fifth Respondent initially raised as many as 15 objections/requisitions and called for an enquiry on the part of the Education Officer (Secondary). The Education Officer (Secondary), Zilla Parishad, Kolhapur recommended the transfer of the management of the School on 2 November 2008. On receipt of the report, the Deputy Director of Education, issued a letter on 16 December 2008 adverting to certain deficiencies in the proposal. On 21 July 2009, ::: Downloaded on - 09/06/2013 18:39:55 ::: VBC 3/10 wp10231.10-13.6 the First Petitioner filed a complaint to the Deputy Director of Education, seeking an enquiry in regard to the proposal of the transfer of management. On 22 July 2009, the Deputy Director of Education communicated certain deficiencies in the proposal. The Petitioners also filed a complaint with the Charity Commissioner on 2 December 2009 and objected before the Deputy Director of Education against sanctioning of the proposal for transfer. On 18 December 2009, the Deputy Director of Education, in response to the complaint filed by the Petitioners called upon the Education Officer (Secondary) to hold an enquiry into the complaint. The impugned order was passed by the Deputy Director of Education on 25 October 2010, providing for the transfer of the management of the School.
2. Counsel appearing on behalf of the Petitioners submitted that in a judgment of a Division Bench of this Court delivered on 17 February 2011, (Jeejau Shikshan Sanstha vs. State of Maharashtra, Writ Petition 1261 of 2010 decided by the Division Bench at Nagpur) guidelines have been laid down in order to regulate the grant of permissions for transfer of management of Secondary Schools. Counsel submitted that the Deputy Education ::: Downloaded on - 09/06/2013 18:39:55 ::: VBC 4/10 wp10231.10-13.6 Inspector in the office of the Deputy Director of Education has filed an affidavit dated 8 November 2011 expressly acknowledging that the guidelines laid down by this Court have not been followed by the office of the Deputy Director of Education while issuing the impugned order dated 25 October 2010. Counsel appearing on behalf of the Petitioners submitted that though the judgment of this Court has been rendered after the impugned order was passed, the judgment only makes explicit what is inherent in the power conferred by Clause 12 of the Secondary School Code. It has been urged that the Petitioners were not afforded an opportunity of being heard before the impugned order was passed, though at various stages the Petitioners have lodged complaints before the Deputy Director of Education and in fact, in pursuance of those complaints, the Education Officer was called upon to enquire into the matter. Counsel submitted that the office of the Charity Commissioner has, in response to a query under the Right to Information Act, 2005, recorded that no permission has been granted for the transfer of the School under Section 36 of the Bombay Public Trust Act, 1950. Moreover, it has been submitted that there was no basis in the contention of Respondent Nos.2 to 4 ::: Downloaded on - 09/06/2013 18:39:55 ::: VBC 5/10 wp10231.10-13.6 that the school faced financial stringency. According to the Petitioners, the signatures of Petitioner Nos.1 and 3 on the resolution, authorising the transfer, are fabricated and this has been drawn to the attention of the authorities. According to the Petitioners, there was no financial stringency faced by the School and the alleged financial difficulties are belied by the circumstance that the proposal for sanctioning additional divisions for Standards 9 and 10 was allowed by the Deputy Director of Education .
Moreover, it has been submitted that before the Education Officer recommended the proposal for transfer, the financial position of the School ought to have been considered. Neither has the Education Officer, nor the Deputy Director of Education applied his mind to the financial position of the School.
3. On the other hand, Counsel appearing on behalf of the transferee management has submitted that a proper hearing was afforded by the Deputy Director of Education. The Petitioners have no locus to challenge the order authorising the transfer and that the transfer of the management would have been already implemented.
4. The power to sanction a transfer of the management of a ::: Downloaded on - 09/06/2013 18:39:55 ::: VBC 6/10 wp10231.10-13.6 Secondary School is regulated by the provisions of Clauses 12.1 to 12.5 of the Secondary School Code. This power is a power which is conferred in the public interest. The power has to be exercised having regard to the welfare of the students and the public interest in the proper conduct and management of schools. The power which has been conferred is not an aid to enable a rival management to obtain control over a School. The exercise of the power must be in the interests of education and having regard to the welfare of all stake holders, including parents, students and the wider community. The basis on which a transfer of management is proposed must be carefully evaluated. If the existing management is unable to carry on the management for reasons of financial stringency that must be evaluated. The financial worth and track record of the proposed new management must also be taken into account. Whether the proposed new management has an adequate and a proven record of running a similar educational institution is a relevant consideration. The interests of the employees - the teaching and non-teaching staff -
must also be considered. These are some of the factors but are not exhaustive. They are all illustrations of the broad notion of public ::: Downloaded on - 09/06/2013 18:39:55 ::: VBC 7/10 wp10231.10-13.6 interest. A consideration of all the relevant factors must be indicated in the order of the competent authority. The order has to be a reasoned order showing an application of mind to all relevant aspects having a bearing on public interest.
5. The judgment of the Division Bench of this Court at Nagpur in Jeejau Shikshan Sanstha (supra) has laid down guidelines for the exercise of the powers. Undoubtedly, the judgment of the Nagpur Bench was delivered after the impugned order was passed. However, the judgment makes explicit, what is already the basis and foundation of the provisions contained in Clause 12 of the Secondary School Code.
6. The Deputy Director of Education has, in an affidavit filed in these proceedings, fairly conceded that the guidelines laid down in the judgment in Jeejau Shikshan Sanstha (supra) have not been followed. Apart from that, we find considerable force in the contention of the Petitioners that a reasonable opportunity of being heard ought to have been afforded to them. The record before the Court would indicate that the Petitioners were seriously ::: Downloaded on - 09/06/2013 18:39:55 ::: VBC 8/10 wp10231.10-13.6 disputing the basis of the proposal for the transfer of the management of the School to the First Respondent. In fact, the Deputy Director of Education called for an enquiry by the Education Officer specifically on the complaint made on behalf of the Petitioners. Having regard to this position, there was no reason or justification for the Deputy Director of Education to pass an order without hearing the Petitioners. The impugned order of the Deputy Director of Education dated 25 October 2010 contains virtually no reasons apart from merely adverting inter alia to the report of the Education Officer (Secondary), the resolution passed and the No Objection Certificate of the Charity Commissioner.
Even as regards the No Objection Certificate of the Charity Commissioner, it is urged on behalf of the Petitioners that as a matter of fact, no such certificate was obtained. Be that as it may, the impugned order has been passed without a due and proper application of mind to several facets which have a bearing on the need for the alleged transfer of the management of the School to the First Respondent.
7. In these circumstances, we are of the view that it would ::: Downloaded on - 09/06/2013 18:39:55 ::: VBC 9/10 wp10231.10-13.6 be necessary to set aside the impugned order and to direct a fresh consideration by the Deputy Director of Education, Kolhapur.
However, since the record before the Court would indicate that the new management is in conduct of the management of the School, we are not inclined to disturb that arrangement until a fresh consideration is carried out by the Deputy Director of Education.
This would also ensure that the education of the children is not disturbed in the meantime.
8. For these reasons, we set aside the impugned order dated 25 October 2010 and direct that the Deputy Director of Education, shall reconsider the matter afresh after furnishing an opportunity of being heard to the Petitioners and to all concerned and affected persons consistent with the law laid down by the Division Bench in Jeejau Shikshan Sanstha (supra). In the meantime, until the Deputy Director of Education passes fresh orders, the existing arrangement for the management of the School shall not be disturbed. The Deputy Director of Education shall pass fresh orders in accordance with law, within a period of three months from the date on which a certified copy of this order is placed on record.
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9. Rule is made absolute in these terms. There shall be no order as to costs.
( Dr.D.Y.Chandrachud, J.) ( R.D. Dhanuka, J. ) ::: Downloaded on - 09/06/2013 18:39:55 :::