Bombay High Court
Jeevanjyoti Krida And Shikshan vs State Of Maharashtra And Others on 11 September, 2012
Author: D.Y.Chandrachud
Bench: D.Y.Chandrachud, A.A.Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.949 OF 2012
Jeevanjyoti Krida and Shikshan
Prasarak Mandal,
Through its President, N.S. Survase ..Petitioner.
versus
State of Maharashtra and others ..Respondents.
WITH
WRIT PETITION NO.8386 OF 2011
Rajendra Shankarappa Bodhale and others ..Petitioners.
versus
State of Maharashtra and others ..Respondents.
ig .....
Mr.Anil Anturkar with Mr. Sugandh B. Deshmukh for the Petitioner.
Ms. S.S. Bhende, AGP for Respondents 1 to 3.
Mr. Narendra V. Bandiwadekar for Respondent No.4.
......
CORAM : DR. D.Y.CHANDRACHUD, and
A.A.SAYED, JJ.
10/11 September 2012.
ORAL JUDGMENT (PER DR. D.Y.CHANDRACHUD, J.) :
Rule, by consent made returnable forthwith. The learned counsel appearing on behalf of the Respondents waive service on behalf of the respective Respondents. By consent, the Petitions are taken up for hearing and final disposal.
2. The Petitioner (in Writ Petition 949 of 2012) is registered under the provisions of the Bombay Public Trust Act 1950 and conducts a secondary school and a D.Ed. College, its activities being mainly confined to the district of Solapur. The Petitioner has challenged a Government Resolution dated 30 August 2011 by which the Social Justice Department of the State Government allowed the application of the Fourth Respondent for the transfer of a primary Ashram School from Deggewadi in the district of Solapur to the district of Yavatmal.
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3. In 2003 the Petitioner had submitted a proposal to the Special District Welfare Officer, Solapur for opening a new primary Ashram School in the taluka of Akkalkot of the district of Solapur. No decision was communicated on that application. A trust by the name of Shri Swami Samarth Shikshan Sanstha, Akkalkot was conducting a primary Ashram School at Deggewadi. The Ashram School was closed on 18 October 2010 by the orders of the State Government on the ground that the school suffered from several deficiencies. Initially, in 2003 the State Government had issued an advertisement calling for applications from managements for conducting primary Ashram Schools in the State and it was in response to that advertisement that the Petitioner had applied in 2003. On 31 May 2006 the State Government took a policy decision to reject all applications received in pursuance of the advertisement issued in 2003 and a decision was State of Maharashtra.
taken not to grant new permissions for setting up primary Ashram Schools in the The policy of the State Government has been to provide educational facilities through Ashram Schools for the upliftment of the educational, social and economic status of students belonging to Vimukta Jatis and Nomadic Tribes. There are approximately 973 aided Ashram Schools in the State of Maharashtra which are run by NGOs. The buildings in which the residential aided Ashram Schools are conducted are not owned by the State Government. In some cases the buildings are taken on a rental basis by the NGOs, while in other cases, they are owned by the NGO concerned. The State Government provides financial assistance for the payment of rent to those NGOs whose primary Ashram Schools are conducted in rented buildings and 75% of the rent is contributed by the government after certification by Public Works Department. Out of 973 Ashram Schools in the State, 97 are in the district of Solapur. Out of 97 Ashram Schools in the district of Solapur, 44 are primary schools imparting education from standards 1 to 7, 33 are high schools which provide for education from standards 8 to 10 while 20 are junior colleges to whom the 11th and 12th standards are attached.
4. As noted earlier, the erstwhile primary Ashram School at Deegewadi was derecognized and closed following the decision of the State Government taken on 18 October 2010. It is not in dispute before the Court that this decision was challenged by the management unsuccessfully. The policy of the State ::: Downloaded on - 09/06/2013 19:06:03 ::: PNP 3/10 WP949-10.9.sxw Government is that if an NGO is not conducting an Ashram School in accordance with the norms which are prescribed, an opportunity is granted to improve the working condition. If despite that an NGO fails to improve the management, the recognition is withdrawn. The management of the Ashram School is transferred to another eligible NGO which undertakes to run the school in accordance with the norms prescribed. The State Government provides several educational facilities through the Ashram Schools including accommodation, food, educational material, school uniforms and beddings.
5. In the present case, following the closure and derecognition of the school which was conducted by the erstwhile management at Deegewadi on 18 October 2010, the State Government issued a Government Resolution on 30 August 2011. By this Government Resolution the closed Ashram School was sought to be transferred to the management of the Fourth Respondent at Yatvatmal subject to the conditions inter alia that (i) all the recognized and approved teaching staff would be absorbed; (ii) the existing students shall be absorbed; and (iii) the directions issued by the State Government from time to time would be observed.
6. The grievance of the Petitioner is that there is no transparency in the policy of the State Government for effecting transfers of the management of the Ashram Schools. For instance, it has been stated that the Petitioner has applied first in 2003 and thereafter again on 4 October 2011 and though the Petitioner conducts its activity in the district of Solapur, the State Government through the Social Justice Department chose to transfer the management to the Fourth Respondent which is situated in Yavatmal, nearly 600 kms. away.
7. On 3 June 1999 the State Government issued a Government Resolution in supersession of the earlier instructions on the subject so as to bring about some uniformity in the administration of the Ashram Schools. The Government Resolution provided in Clause 16 for the transfer of an Ashram School from one NGO to another without any change in location. Similarly, under Clause 17 it was stipulated that in very exceptional circumstances shifting of an Ashram School may be contemplated within a distance of 10 kms. This was followed by ::: Downloaded on - 09/06/2013 19:06:03 ::: PNP 4/10 WP949-10.9.sxw a Government Resolution dated 1 August 2007. The Government Resolution is in two parts, the first dealing with the shifting of an Ashram School, while the second deals with the transfer of Ashram Schools. The first part contemplates a shifting within a distance of 10 kms. where this is necessitated out of exceptional reasons of a nature that are spelt out in the Government Resolution.
8. Neither the Government Resolution dated 3 June 1999 nor the Government Resolution dated 1 August 2007 spell out or lay down a transparent procedure on the basis of which the transfer of an Ashram school should be considered. The policy of the government after 2006 has been not to permit new Ashram schools. The resultant situation is that since the number of Ashram schools cannot increase, an effort is made by institutions with an access to the inner workings of the government to seize upon opportunities for obtaining transfers of managements either of existing schools or, as in the present case, where a school has been closed down. This virtually results in a back door entry without a proper application of mind by the State Government through the Social Justice Department on the merits of the proposal. Such a back door entry is, in our view, contrary to the rule of law and results in a completely arbitrary state of affairs. Unless such proposals receive wide publicity, eligible institutions may not know about the fact that the management of an Ashram school which is required to be derecognized is available for transfer to another NGO. The State Government must lay down transparent norms that would govern the procedure for effecting such transfers. Both the existing GRs on the subject to which a reference has been made earlier are completely silent on this aspect. Counsel appearing on behalf of the Petitioner has placed reliance on the directions which were issued by a Division Bench of this Court in Nagpur, though in another context in Jeejau Shikshan Sanstha v. State of Maharashtra 1. In the context of schools governed by the Secondary School Code, since no modalities were prescribed regarding the procedure for transfers of schools and in a matter of change of managements, the Division Bench directed that until the State Government framed the rules and regulations, the following procedure would be followed :
"(1) A public notice shall be published and displayed at appropriate 1 (2011) 4 Mh.L.J.352.::: Downloaded on - 09/06/2013 19:06:03 :::
PNP 5/10 WP949-10.9.sxw and prominent newspapers in the concerned area at the cost of transferor or transferee society about the proposed change in the management of a grant-in-aid school and objections should be invited from all the interested persons including students, their parents, teaching and non-teaching staff, the citizens of the area and the other school, if it is going to adversely affect, may be because of transfer of one area to another.
(2) Enquiry shall be held about the reasons etc. for proposed change of management. The enquiry shall include independent report from Education Officer and Vigilance Section, to find out bona fides behind the proposal.
(3) All objections shall be heard by the Deputy Director of Education who shall then pass a reasoned order which fact shall be made known by publication/display as stated in (1) above.
(4) Actual transfer/change of management shall not be allowed to take place for a period of thirty days from the date of publication about fact of passing of order and it should be preferably from the commencement of the new academic session subject to prior permission of the Charity Commissioner under section 36 of the BPT
9. Act."
The facts of the present case highlight that in the absence of any procedure being laid down by the State Government for considering requests for transfer of Ashram Schools, the process is ad-hoc and arbitrary. Basically, there are two distinct concepts which have to be borne in mind. The first concept involves a change in the location of the school where the management does not undergo any change. For that category, the Government Resolution dated 1 August 2007 specifies a distance of 10 kms. within which a change in location is permitted for exceptional reasons such as the prevailing situation in the area where the school is located or where adequate facilities are not available in the original location. The second concept is where the management of an existing school is sought to be transferred and which may or may not involve a change in location. As the present case would show the recognition of the existing Ashram School at Deegewadi was withdrawn on 18 October 2010 (the date on which the appellate authority dismissed the appeal against the withdrawal of recognition.). Upon the derecognition of the existing Ashram School, the school was closed. The affidavit of the Secretary to the State Government in the Social Justice and Special Assistance Department notes that after an Ashram School is derecognized, the recognition is given to another NGO for running the same school and if necessary permission is given to shift the Ashram School from one place to another in the State of Maharashtra. This affidavit was filed in pursuance of a prima facie view taken by a Division ::: Downloaded on - 09/06/2013 19:06:03 ::: PNP 6/10 WP949-10.9.sxw Bench of this Court in an interim direction dated 25 April 2012. The Division Bench presided over by Hon'ble Mr. Justice A.M. Khanwilkar observed thus in the order dated 25 April 2012 :
"The fact remains that the impugned order purports to transfer the school. Admittedly, the said school was already closed in terms of the order passed in the year 2010 and which order has been confirmed right upto the Supreme Court. In that case, the school was not a running school but a closed school in the year 2010. We fail to understand as to how such a school can be transferred in August, 2011 when the students of the closed school have already been absorbed in the nearby schools. The concept of transfer of school essentially presupposes that it must be a running and existing school. There can be no transfer of a closed school. Moreover, there can be no transfer in respect of approval granted to a school which in due course is required to be closed because of several deficiencies. It is not a case of licence to run a school but of approval to be granted to a school as such. Even for this reason, the concept of transfer of closed school does not stand to reason."
10. The affidavit which has been filed by the State Government in response to the directions issued by the Court on 25 April 2012 purports to state that where an Ashram School is derecognized, recognition is given to another NGO for running the school and thereafter if necessary permission is granted to shift the Ashram School from one school to another. In our view, the entire exercise that has been carried out by the State Government would only result in allowing a back door entry. In this case, the school was derecognized and ceased to function at Deegewadi. If the State Government was concerned about the fate of the students and the teachers, an option could well have been explored to find out if any other suitable institution in or around the same area of operation was willing to conduct the school and to absorb the existing body of teachers. The State Government has in its affidavit noted that due to the non-availability of a sufficient number of Vimukta Jatis and Nomadic Tribes students in some Ashram Schools in Solapur district, 188 permanent teaching and non-teaching staff has become surplus. For that reason and also due to the inefficient running of Ashram Schools by NGOs in Solapur district, the government did not transfer the derecognized Ashram School within the same district, but purported to do so in some other district in the State of Maharashtra. It was undoubtedly open to the State Government to decide as to whether there was a sufficient number of Vimukta Jatis and Nomadic Tribes students available in the district of Solapur and ::: Downloaded on - 09/06/2013 19:06:03 ::: PNP 7/10 WP949-10.9.sxw whether the services of the teaching staff would be adequately protected by considering the transfer of the existing school to another management. The government was of the view that due to an inadequate number of students and having regard to the fact that 188 permanent teaching and non-teaching staff had become surplus, it was not feasible to transfer the management to some other NGO in the same district. Such a policy decision would undoubtedly be within the decision making authority of the State Government. After all the State is required to deploy its fund and resources in providing aid to such schools. But what the government has done in the present case is to allow as it were a shifting of the recognition of a closed Ashram School to a completely new institution both physically and in terms of management. This is completely arbitrary. Evidently since a policy decision has been taken by the government in 2006 not to allow new Ashram Schools, this was an attempt to get around that decision ostensibly by handing over the recognition of a derecognized school to another NGO. Once an existing Ashram School was derecognized, there would be no occasion to handover that recognition to another Ashram School. If as a result of the derecognition of an Ashram School the government is in a position to fund some other institution elsewhere in the State of Maharashtra, that is a completely separate and independent decision, in arriving at which a transparent decision making process must be followed. Recognition is not like a licence to enter on a business which can be transferred. Once recognition granted to a school is withdrawn, that original recognition ceases to exist in law and in fact.
There is no occasion then to 'transfer' the erstwhile recognition to another institution.
11. This batch of petitions has also brought focus on the plight of the teachers who were engaged in the Ashram School. In the derecognized Ashram School at Deegewadi, there were 23 permanent employees including 17 teaching and 6 non-teaching staff. The Government Resolution dated 30 August 2011 by which the recognition of the erstwhile school was 'transferred' to the Fourth Respondent stipulated among other things that all the approved teaching staff would be absorbed by the Fourth Respondent and that the resident students would be transferred to the new institution. How a batch of students receiving their education in a primary Ashram School could be absorbed in a school run by ::: Downloaded on - 09/06/2013 19:06:03 ::: PNP 8/10 WP949-10.9.sxw the Fourth Respondent at Yavatmal nearly 600 kms. away would defy reason. As regards the teaching staff, the Court has been informed on affidavit by the Fourth Respondent that the sanctioned intake capacity of the Fourth Respondent is 120 students for which the sanctioned staff is of five teachers (Shikshan Sevaks). The Fourth Respondent for the year 2010-11 had only 53 students between standards 1 to 7. The Fourth Respondent has not been able to absorb the entirety of the teaching and non-teaching staff for want of sanctioned posts since the intake capacity is confined to 120 students. An order has been passed on 14 December 2011 by the Assistant Commissioner, Social Welfare, Yavatmal by which 13 teachers have been declared to be surplus and are sought to be allocated on a temporary basis in other government Ashram Schools. The service conditions of the teaching staff have thus been left in a state of uncertainty.
12. Ordinarily, we would have been inclined to set aside the Government Resolution dated 30 August 2011 at this stage, having regard to the illegality in purportedly transferring the recognition of a derecognized primary Ashram School to the Fourth Respondent and the absence of a transparent procedure, even assuming that this was permissible. However, the Court cannot now be unmindful of the factual position on the ground which is that 120 students have been admitted during the current academic year to the Fourth Respondent which is a residential primary Ashram School. These students who belong to the reserved category would now be left in a state of uncertainty if the Government Resolution dated 30 August 2011 is set aside and their education would be liable to suffer. In this view of the matter, we are not taking recourse to the step of quashing and setting aside the Government Resolution dated 30 August 2011, particularly having regard to the fair attitude shown by Counsel appearing on behalf of the Petitioner that even the Petitioner would not seek such an extreme direction at this stage having regard to the aforesaid circumstances. We are, however, of the view that henceforth the State Government must frame appropriate guidelines, procedures or, as the case may be, rules and regulations laying down the procedure for considering requests for transfers of managements of Ashram Schools falling within the jurisdiction both of Tribal Development Department and the Social Justice Department. Until the State ::: Downloaded on - 09/06/2013 19:06:03 ::: PNP 9/10 WP949-10.9.sxw Government does so, we are of the view that directions should be issued by the Court to obviate an arbitrary exercise of power. The directions which we issue would be as follows :
(i) When a change in the management of an aided Ashram School is contemplated, the State Government shall issue and publish a notice in two prominent newspapers in the concerned area and on the website of the Department inviting applications from interested organisations including NGOs for conducting the Ashram School. The government shall simultaneously invite suggestions from all stakeholders including parents, citizens and the teaching and non-teaching staff who may be affected by the transfer of a management;
(ii) The Director (VJNT) or, as the case may be, the Director (Tribal Development) shall hold an enquiry in regard to the reasons for a proposed change in management. The concerned District Social Welfare Officer shall submit a report to the Director (VJNT) or, as the case may be, the Director (Tribal Development) before a final decision is taken. The track record and credentials of the proposed transferee management(s) shall be duly considered;
(iii) After objections are heard, the Director (VJNT) or, as the case may be, the Director (Tribal Development) shall pass a reasoned order. The actual transfer or change in management shall be given effect to thirty days after the publication of the passing of the order in the same mode of publication as indicated earlier and it should preferably be from the commencement of the new academic session, unless for exceptional reasons it becomes necessary to exercise the power during the academic year to prevent a disruption of the education of the children.
13. As regards the Fourth Respondent, we clarify that though we are not disturbing the permission which has been granted for the current academic year 2012-13, the State Government shall take a fresh decision following the directions which have been issued in these proceedings well in advance of the commencement of the next academic year. Since for the next academic year, the procedure which has been prescribed would have to be followed, the ::: Downloaded on - 09/06/2013 19:06:03 ::: PNP 10/10 WP949-10.9.sxw Petitioner in Writ Petition 949 of 2012 and all other interested persons including the Fourth Respondent would be at liberty to make applications for consideration afresh.
14. In Writ Petition 8386 of 2011, out of 16 teachers, 13 are members of the teaching staff, while three are part of the non-teaching staff of the erstwhile school at Deegewadi. The 13 teachers were initially allotted to the school run by the Fourth Respondent, but since the sanctioned strength of the Fourth Respondent was based on an intake capacity of 120 students, all the teachers could not be absorbed. Hence, 13 of the Petitioners have been declared surplus and have been temporarily absorbed in government run Ashram Schools by an order dated 14 December 2011 of the Assistant Commissioner, Social Welfare, Yavatmal.
teaching staff, it is Out of the remaining three Petitioners, who belong to the non-
common ground that they have been either absorbed with the Fourth Respondent or have been temporarily absorbed in other schools. We direct that the claim of the Petitioners for absorption in the Pune division to which they originally belong should be considered as of the date on which they have been declared surplus and that consequently their names should also be borne on the list of surplus teachers in the Pune division. No further directions are necessary.
The arrears of salary, if any, shall be released to the Petitioners in accordance with law.
The Petitions are accordingly disposed of. No order as to costs.
(Dr. D.Y. Chandrachud, J.) (A.A.Sayed, J.) ::: Downloaded on - 09/06/2013 19:06:03 :::