Bombay High Court
Alhuda Multipurpose Education vs State Of Maharashtra on 10 June, 2011
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, P.D. Kode
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 5548 OF 2010
Alhuda Multipurpose Education
Society, Akot, registered No.
F/5466/Akola, Taluka, Akot,
District - Akola, through its
Secretary : Mirza Ashoor Baig,
s/o Harun Baig, aged - Major,
r/o Akot, District - Akola. .... PETITIONER
ig VERSUS
1. State of Maharashtra,
through the Secretary of
Education and Sports Department,
Mantralaya, Mumbai 400 032.
2. Director of Education (Secondary
& Higher Secondary), Maharashtra
State, Pune.
3. Regional Deputy Director of
Education, Amravati Region,
Amravati.
4. Education Officer (Secondary),
Zilla Parishad, Akola.
5. State Level Committee,
through its Chairman viz.
Director of Secondary & Higher
Secondary Education Department,
Maharashtra State, Pune.
6. The District Level Committee,
through the Education Officer
(Secondary), Zilla Parishad, Akola.
::: Downloaded on - 09/06/2013 17:20:05 :::
2
7. The Block Development Officer,
Panchayat Samiti, Akot,
District - Akola. .... RESPONDENTS
Shri S.U. Nemade, Advocate for the petitioner.
Shri N.W. Sambre, Government Pleader for Respondents No. 1 to
6.
Shri D.K. Dubey, Advocate for respondent No. 7.
.......
CORAM : B.P. DHARMADHIKARI &
P.D. KODE, JJ.
JUNE 10, 2011.
ORAL JUDGEMENT : (PER B.P. DHARMADHIKARI, J.) Rule. Rule is made returnable forthwith and heard finally with the consent of Shri Nemade, learned counsel for the petitioner, Shri Sambre, learned Government Pleader for respondents No. 1 to 6 and Shri Dubey, learned counsel for respondent No. 7.
2. Shri Nemade, learned counsel contends that rejection of permission to open a Secondary School in Urdu Medium submitted for the year 2008-09 on 04.03.2010 is questioned in this petition. He contends that proposal was recommended by District Level Committee and the said recommendation was maintained by Respondent No. 7 during re-verification. The ::: Downloaded on - 09/06/2013 17:20:05 ::: 3 rejection by Respondent No. 1 on the ground that information about other Middle Schools in radius of 3 kms. was not furnished is perverse and erroneous. Attention is invited to application as submitted, particularly information given against columns No. 8 & 11 to demonstrate that there was no Middle or Secondary School functioning in the radius of 5 kms. and nearest School is at Akot, which is at about 9 kms. away. Attention is also invited to a chart accompanying it (as alleged). The said application is at page 40 of writ petition to point out that three Primary Schools in vicinity of 3 kms. were specifically pointed out. The learned counsel contends that as rejection itself is arbitrary and erroneous, the permission needs to be granted and the fact that Academic year 2008-09 is already over, cannot operate as bar in such situation.
He is relying upon the Division Bench order dated 23.02.2010 passed in Writ Petition No. 215 of 2010 at Aurangabad Bench for said purpose.
3. Shri Dubey, learned counsel for respondent No. 7 states that Respondent No. 7 has, when matter came to him for verification, after due re-verification, recommended the proposal of the petitioner. He invites attention to said recommendation ::: Downloaded on - 09/06/2013 17:20:05 ::: 4 dated 27.08.2009.
4. Shri Sambre, learned Government Pleader for respondents No. 1 to 6 invites attention to application at page 28, particularly information furnished against column No. 8 to urge that by using word no (Marathi word "Nahi") against said column, the petitioner has communicated that said information about availability of Schools in the radius of 5 kms. or then number of students therein was not available. The attention is also invited to information furnished against column No. 11 in this light to urge that said clause which seeks information about natural obstacle in reaching the school again does not contain a specific disclosure that School at Akot disclosed therein was the only School available. According to him, in this view of the matter, the application of mind by Respondent No. 1 cannot be faulted with and rejection of proposal for not furnishing relevant information, as disclosed in impugned order is, therefore, in accordance with law.
5. In the alternative and without prejudice, reliance is being placed upon the provisions of Clause 2.12 in Chapter II of Secondary ::: Downloaded on - 09/06/2013 17:20:05 ::: 5 School Code to urge that Academic Session 2008-09 is already over, therefore, that application cannot now be considered and the petitioner can at the most apply afresh.
6. Shri Nemade, learned counsel in reply states that after Academic year 2008-09, there is no fresh invitation for opening of Schools and nobody has submitted fresh proposals as there is no such requirement noticed/ worked out.
7. Here, while submitting the application and giving information against column No. 8, the petitioner has specifically stated that there are no Schools within the vicinity of 5 kms. of the place at which they propose to start their School. The word no "Nahi" used by them against that column cannot be construed to mean that they had no information. It also cannot be accepted that a established educational institution, which is seeking permission to start a new School, will not furnish such information or will then avoid to furnish the information. Even information furnished in Clause 11 shows that the nearest School available is at a distance of about 9 kms. This distance of 9 kms. has been specifically mentioned against column No. 11 and that column again required disclosure of obstacle in reaching School within the radius of 5 kms. In any case respondent no.1 could ::: Downloaded on - 09/06/2013 17:20:05 ::: 6 have secured such information from respondent no.7 in re-verification process. It could not have overlooked the need and positive recommendation by District Level Committee in favour of petitioner.
We, therefore, do not find any merit in the contention of the respondents that the petitioner has not furnished the necessary information. It cannot be forgotten that District Level Committee had recommended the proposal of the petitioner and during re-verification, Respondent No. 7 had also recommended the same on 27.08.2009.
Said reason assigned by respondent no.1 is therefore, arbitrary.
8. The facts at hand clearly show that the application for starting a Secondary School in Urdu Medium in 2008-09 was submitted by the petitioner sometime in May 2008. That application has been rejected vide communication dated 04.03.2010 i.e. long after the commencement of Academic year 2008-09. The re-verification report obtained by respondent no.1 is itself after expiry of academic year 2008-09 and said report is in the academic year 2009-10. The petition thereafter has been filed before this Court on 01.10.2010. Rejection is not on the ground of expiry of academic year and respondents have processed the request of petitioner even after said enquiry. It is obvious that they could have also granted necessary permission on 04.03.2010. It is not the case of respondents before us that need for ::: Downloaded on - 09/06/2013 17:20:05 ::: 7 school noticed in 2008-09 which continued in 2009-10, vanished thereafter. No subsequent developments relevant for arriving at such conclusion are demonstrated on record. It is, therefore, obvious that said time limit as such cannot be pressed into service by Respondent No. 1 to the prejudice of present petitioner. It is to be noted that application in present facts has been rejected on erroneous grounds and if such rejection is to be maintained and challenge thereto is to be dismissed only on the ground of expiry of stipulated time as per Clause 2.12, it may lead to abuse of power.
9. Insofar as the order dated 23.02.2010 delivered at Aurangabad Bench of this Court is concerned, it is not a judgment which contains relevant discussion and it is also not clear when the petitioner therein had applied for permission. Discussion in para 3 reveals that the School was to commence from June 2010 onwards and the order is passed by Division Bench on 23.02.2010. The said order, therefore, is of no assistance in present matter to the petitioner.
10. In view of the discussion above, we are not in a position to uphold the rejection of proposal of the petitioner by impugned communication dated 04.03.2010. The said communication and rejection is, therefore, quashed and set aside. The proposal of the ::: Downloaded on - 09/06/2013 17:20:05 ::: 8 petitioner is restored back for consideration by Respondent No. 1 in accordance with law. The appropriate decision in this respect shall be taken at the earliest and in any case within a period of nine weeks from the date of communication of this order to it. Writ Petition is disposed of. Rule is made absolute accordingly. However, there shall be no order as to costs.
Certified copy expedited.
JUDGE JUDGE
*******
*GS.
::: Downloaded on - 09/06/2013 17:20:05 :::