Bombay High Court
Aadarsh Shikshan Prasarak Mandal, ... vs The State Of Maharashtra And Others on 21 February, 2019
Author: T.V. Nalawade
Bench: T.V. Nalawade
1 W.P. No. 563 of 2015 .odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 563 OF 2015
1. Aadarsh Shikshan Prasarak Mandal,
Osmanabad.
Through its Director,
Shri. Sudhir S/o Keshavrao Patil,
Age : 51 Years, Occ. Service,
R/o. Tambri Vibhag, Osmanabad,
Tq. & Dist. Osmanabad.
2. Shripatrao Bhosale Secondary and
Higher Secondary School at Osmanabad
Through its Headmaster. ..PETITIONERS
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
School Education Department,
Mantralya, Mumbai-32
2. The Director of Education,
Secondary and Higher Secondary,
Maharashtra State, Pune.
3. The Deputy Director of Education,
Latur Division, Latur.
4. The Education Officer (Secondary),
Zilla Parishad, Osmanabad. ..RESPONDENTS
....
Advocate for the Petitioners : Mr. R. N. Dhorde i/b Mr. V.R.Dhorde
Special Counsel appointed by the State : Mr. Deelip Bankar Patil
A.G.P. For the Respondent Nos. 1 to 4 State : Mr. A. B. Chate
...
CORAM : T.V. NALAWADE AND
SUNIL K. KOTWAL, JJ.
JUDGMENT RESERVED ON :08.02.2019
JUDGMENT PRONOUNCED ON :21.02.2019
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JUDGMENT( PER T.V. NALWADE, J] :-
1. Rule. Rule made returnable forthwith. By consent, heard both the
sides for final disposal.
2. The petition is filed to challenge the Government Resolution of
the State Government dated 30.04.2014, by which direction is given to
release the grant, in respect of the staff permissible for 37 additional
divisions sanctioned to the petitioner's School but with effect from the
academic year 2013-2014 and the grants would be 20% for that year.
The petitioner who is running secondary school is claiming the grant
from the year 2007-2008 and so relief is claimed for declaration that it
is entitled to get the grant-in-aid from that year and as per the scheme
of the Government declared in Government Resolution dated
14.07.2000. By making amendment a direction is sought against the
Government to release the arrears of the salary grant of Rs.
1,19,77,312/- (Rupees One Crore Nineteen Lakh Seventy Seven
Thousand Three Hundred and Twelve) as per Government Resolution
dated 30.04.2014.
3. The petitioners is a registered trust and it is running secondary-
School in Osmanabad since the year 1962. The State Government
started giving grant-in-aid to this Schools from the year 1965 and from
the beginning it had the classes of standard 5th to 10th.
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4. It is contention of the petitioners that under Government
Resolution dated 14.07.2000, the Government sanctioned few
additional divisions as strength of the students in respective standards
had increased. It is contended that as the grants were not released,the
first proceeding, Writ Petition No. 5742 of 2004 was filed by the
petitioners and in that proceeding the relief was claimed for giving
direction to sanction additional divisions from the year 1999-2000 to
2002-2003 and also release the grant-in-aid in respect of those divisions.
It is contended that direction was given by this Court in the said
proceeding to take decision on the proposal made by the institution, for
giving more divisions on the basis of strength of students. It is
contended that the Government then increased the divisions on
06.07.2005 with retrospective effect and subsequently on 20.12.2007,
the Government granted permission for three more additional divisions
for the year 2003-2004 to 2004-2005. It is contended that for the
increase of such divisions there was recommendation of the Education
Officer, (Secondary). It is contended that on 29.04.2009, the Education
Officer granted approval in respect of the appointment of teaching staff
made by the petitioners for the aforesaid additional divisions.
5. It is case of the petitioners that on 29.08.2009, the State
Government granted approval to further increase the divisions for
aforesaid standards due to natural growth. It is contended that in
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respect of those divisions also the Education Officer granted approval to
the appointments made of teaching staff.
6. It is the contention of the petitioners that on 10.07.2009,
petitioner made representation for releasing the grant as per the
Government Resolution dated 14.07.2000 in respect of the additional
divisions sanctioned from the year 2003-2004 and another
representation was made on 21.09.2010. It is contended that for the
additional divisions sanctioned in the year 2005-2006, 2006-2007,
2007-2008 also grants were claimed but they were not released and so
Writ Petition No. 834 of 2012 was filed by the petitioners for giving
direction to release the grant in respect of additional divisions
sanctioned from the year 2003-2004 till 2007-2008. It is the case of
the petitioners that in the said proceeding reply was filed by the State
Government that the proposal for sanction was forwarded to the
Director of Education and that was in respect of 22 additional divisions.
It is contended that in the reply filed by the Respondent-State dated
06.05.2013, it was contended that two proposals were received by the
Government and those were in respect of previous 22 additional
divisions and new 15 additional divisions and they were pending with
the Government. It is contended that in view of such reply, this Court
disposed of Writ Petition No. 834 of 2012 on 20.08.2013 with the
direction against the State Government to see that the proposals of
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release of grants in respect of 37 divisions are decided within six
months. It is the contention of the petitioners that the petitioners
supplied copy of the order to the Government and Dy. Director also
took steps to inform the Government about the decision.
7. It is the contention of the petitioners that on 08.10.2013, the
Education Officer submitted proposal to the Dy. Secretary for doing
needful as there was the order of High Court in Writ Petition No. 834 of
2012. It is contended that the Government issued Government
Resolution dated 30.04.2014 under which it was held that 37 divisions
were eligible for getting grants of 20% but from the year 2012-2013.
This decision was informed to the petitioners on 30.05.2014. It is
contended that the petitioners then made representation on 18.06.2014
to the Government with a request to release grant in accordance with
the Government Resolution dated 14.07.2000.
8. In short it is case of the petitioners that as per the Government
Resolution dated 14.07.2000, after completion of first four years the
petitioners were entitled to get 20% grant for the 5 th year and
accordingly grants needs to be given in respect of each additional
division and so the petitioners are entitled to get the grants in respect of
few divisions from the year 2007-2008 and accordingly grants needs to
be given in respect of other additional divisions also. It is the
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contention that there is denial of giving of grants in respect of those
divisions for the period between 2007-2008 to 2012-2013 and similarly
there is refusal to give grants in respect of subsequent divisions also for
that period. The learned special counsel appointed to represent the
State submitted that it is up to the Government to decide whether and
when grant can be given to any School, though as per the Scheme the
School can claim grants. The learned counsel submitted that there is no
vested right as such in the institution running the School to get the
grants-in-aid and it is given as per the policy decision taken by the State
which needs to be taken every year and many circumstances are
required to be considered for taking such decision. Learned special
counsel submitted that for consideration of giving of grants there are
two stages viz. Inquiry to ascertain as to whether the School has
infrastructure, the School has followed the proper procedure for
appointment of the teaching staff and whether the School is satisfying
the conditions for getting grants and then declare that the School is fit
to get the grants and after making the aforesaid declaration the
Government takes decision as to when and whether grant is be given to
aforesaid School and that is the second stage.
Such decision depends on various factors including the financial
conditions of the State at the relevant time.
9. There cannot be a dispute over the preposition made by the
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learned Special Counsel for the State that no vested right as such is
there in the institution which runs the School to get the grant-in-aid and
when the Government is in financial crises the Government may refuse
to give the grant-in-aid. However, if the State Government has taken a
policy decision to give grant-in-aid for a particular year and as per that
decision, grant-in-aid is given to some Schools, it become necessary for
the State to explain as to why similar benefit is not given to similarly
situated other Schools. If the Court finds that there is discrimination
and due to that the employees of such other Schools are deprived of the
benefit of the grant, the Court can step-in and give direction to the State
to do justice. In such a case, the Court can use the provisions of Articles
14, 16, 19(1)(g) of Constitution of India. This Court had asked to
make out case from the aforesaid angle. On one hand the learned
special counsel for the State submitted that no such discrimination was
done and for that he took this court through some Government
Resolutions issued in favour of some institutions. On the other hand the
learned senior counsel for the petitioners institution submitted that the
circumstances as to when there was entitlement also needs to be kept in
mind and if the decision was not taken by the State at the time when
there was entitlement, inference can be drawn that the decision was
withheld and on that basis also the discrimination can be inferred. The
learned senior counsel further submitted that the Government
Resolutions on which the special counsel is relying are not applicable to
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the additional divisions and those Government Resolutions are in
respect of the Schools which had become entitled to get benefit of the
grants in respect of the first divisions of the respective standards of the
School. It was also submitted that there is no specific denial of
discrimination and there are few Government Resolutions at present on
record to make out the case of discrimination. To ascertain the truth in
aforesaid contentions and submissions this Court has carefully gone
through the record referred by both the sides.
10. The petitioners are heavily relying on Government Resolution
dated 14.07.2000. This Government Resolution was issued by the
Education Department of the State Government. The background of the
Government Resolution is mentioned in the Government Resolution and
it shows that prior to the date of Government Resolution, by making
assessment of the strength of students as on 1 st August of that academic
year, the Education Officer and Dy. Director of Education were
ascertaining the necessity of the additional divisions. This was done on
the basis of information supplied by the School and to verify the things,
officers of the Education Department were visiting the School and were
verifying as to whether the strength given by the School was correct.
Only after that, the Education Officer was forming opinion about the
necessity of additional divisions for each standard in the particular
School and he was sending the report to the Dy. Director of Education.
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The Deputy Director was then preparing priority for sanction of
additional divisions on the basis of the strength of the students and that
was also being done on the basis of the Budget already made available
for such purpose. At that time the Dy. Director was also taking into
consideration the additional divisions from the other Schools which
were required to be closed due to decrease in the strength of the
students. The Director of Education was then preparing the list on the
basis of merits of the claim for sanction of additional divisions and along
with report he used to send the list to the Education Officer. The
Education Officer was then making allotment of the additional divisions
but first on the basis of the number of additional divisions which had
become available due to closer of additional divisions in other Schools.
The officers of the department were expected to wait for administrative
approval of Director of Education in respect of more additional divisions
and also for the budgetary provision by the State in respect of those
additional divisions. In this Government Resolution, the permissible
strength of the students of first division and for every additional division
is given. Thus, the power to the Director, Dy. Director and Education
Officer was limited for sanctioning additional divisions and only those
divisions of other Schools which were closed due to decrease in the
strength could have been allotted to other Schools prior to the
Government Resolution dated 14.07.2000.
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11. After mentioning the background of the Government Resolution,
the decision taken by the Government is there and the decision shows
that the Government wanted to see that the delay caused in sanction of
the additional divisions was removed or at least curtailed. There were
also complaints from the institution that there was favoritism as
sufficient number of divisions were not becoming available from the
Director of Education at the first stage and only few institutions were
getting additional divisions in the beginning. The decision in respect of
approval of additional divisions of the second stage was taken in the
past during October to December. Due to these circumstances new
schedule was given by the Government in this Government Resolution
which was as follows :-
(a) 1st July- for discussion of additional divisions the Headmaster, the
Block Development Officer and the Dy. Education Officer to hold a
meeting.
(b) 15th July- the Headmasters of the respective Schools to submit
information regarding strength of students for each standard. The
Head-masters to give undertaking that as on 14 th July the strength of
the students was in accordance with the information supplied to the
education officer and in case the information was found to be false he
can be held personally liable for giving such information and in the
result he can be hold responsible for the expenses incurred and that
amount can be deducted from his salary.
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(c) 16th July to 19th July. The Block Development Officer to inspect
the Schools of his block to verify the aforesaid information supplied by
the respective Schools. On the basis of inspection he was to prepare
report about the number of divisions which were already sanctioned in
the previous academic year and number of additional divisions if any,
permissible on the basis of strength of students as on 14 th July. This
inspection report was also to be signed by the Block Development
Officer- Deputy Education Officer and they were to be held responsible
if the information was found to be incorrect.
(d) 20th July to 31st July
On the basis of aforesaid information, supplied by the Block
Development Officer, the Education Officer to ascertain the number of
additional divisions permissible for each standard of each School. He
was expected to consider the infrastructure available for sanction of the
additional divisions he was to prepare merit list for sanction of
additional divisions.
(e) 1-August to 15th August During this period the Dy. Director of
the Education to give 2-3 days for each district and in the presence of
the Education Officer, to examine the report prepared by the Education
Officer. Then the Dy. Director of the Education was to ascertain number
of additional divisions permissible for each standard of each School and
he was expected to prepare his own merit list on the basis of
examination of the record made by him.
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(f) 16th August to 20th August During this period the Education
Officer to display the list of the Schools which were shown in the report
prepared by the Dy. Director of Education as entitled for additional
divisions and to publish that information through district information
officer in Newspapers.
(g) 21st August to 25th August
During this period the Department was to collect information in
respect of strength of the students, shown on record and number of
students actually attending the School.
(h) 26th August The Education Officer to give report of the
information collected between 21st August and 25th August to Dy.
Director of Education.
(I) 27th August to 12th September. During this period the Dy.
Director of Education to prepare merit list of the Schools district-wise
and to computerize the information for each School in respect of each
standard and about the additional divisions.
(J) 15th September The director of education to make proposal to
the Government.
(K) 30th September The secretary of the Department to take
decision on the proposal submitted by the Director of Education.
12. In the same Government Resolution the Government declared that
no grant-in-aid will be given in respect of additional divisions if the
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permission was given to the institutions to start the School on
permanent no grant basis. Thus giving of grant-in-aid was possible in
respect of additional divisions sanctioned to other Schools like the
present School. The scheme shows that for first four years, the
Government would not give grant to such additional divisions. In the
5th year the Government would give 20% grant and by increasing the
grant by 20% every year in the 9th year 100% grant would become
available to the additional divisions and after that for every year such
divisions will start getting 100% grant-in-aid. The Government
Resolution also shows that as per the aforesaid time schedule given, the
officers like Education Officer, Dy. Director were to supply their
proposal, report to Director of Education prior to 12 th September and
the Director was to submit his report to the Government before 15 th
September.
13. The aforesaid time schedule and the scheme prepared by the
Government shows that opening of the additional divisions, on the basis
of strength of students before permission of Education Officer as
mentioned above was not possible though admission of additional
students than the capacity of the previous divisions (70 students for first
division and second additional division for strength of students of 71 to
120 and so on) was permissible. The scheme also shows that the
entitlement of the School to open additional divisions was to be
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declared between 16th August and 20th August and the decision about
the sanction of the such additional divisions to the School was to be
taken by the Secretary on 30th September on the basis of the reports
prepared by the Block Development Officer, Education Officer, Dy.
Director of Education and Director of Education.
14. In the year 2004, the petitioner had come to this Court first time
by filing petition No. 5742 of 2004 for similar reliefs. The petitioner
had claimed that in view of the strength of the students, 11 additional
divisions ought to have been sanctioned for academic year 1999-2000,
14 additional divisions ought to have been sanctioned for 2000-2001, 14
additional divisions ought to have been sanctioned for the year 2001-
2002, and 17 additional divisions ought to have been sanctioned for the
year 2002-2003. After considering the reply of the present respondents
and the rival submissions made in the Court and after considering the
scheme of the State Government published in aforesaid Government
Resolution, dated 14.07.2000, regarding additional divisions and also
subsequent policy decision of the State Government published in
Government Resolution dated 24.11.2001, some directions were given
by this Court. In Government Resolution dated 24.11.2001 the State
Government had made it clear that future additional divisions will be
sanctioned only on permanent no grant basis. This Court observed that
the subsequent decision of the State Government mentioned in this
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Government Resolution of 2001, cannot affect the divisions which were
or could have been sanctioned prior to that Government Resolution.
This Court made distinction in additional divisions and expressed that
the additional divisions which become available due to natural growth
cannot fall in the restriction created by the Government Resolution on
24.11.2001 and in respect of those divisions the benefit of the scheme
mentioned in Government Resolutions of 14.07.2000 needs to be given.
This Court observed that if other additional divisions are sanctioned and
which were not available due to natural growth, to those divisions
additional divisions only the restrictions mentioned in the Government
Resolution of 24.11.2001 will be applicable. This Court has already
quoted entire portion of Government Resolution dated 14.07.2000 and
that also shows that restrictions of Government Resolution dated
14.07.2000 were not to apply against the divisions which become
available due to natural growth. After making these observations, this
Court gave direction to the respondent to take decision on the proposals
made by the School for sanction of additional divisions for the academic
year 1999-2000 and 2000-2001. The Court had given direction to take
decision on the subsequent proposals also as it was only matter of
creation of additional divisions. The Court formed opinion that School
had good reputation and that is why the strength of the students had
increased and it was increasing every year. The Court granted reliefs as
under :-
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'' (I) We direct the Principal Secretary in the School
Eduction Department ( Secretary referred in the last
column of time table as contained in Government
Resolution dated 14th July 2000), to consider the proposal
of the petitioner-institution for additional divisions for the
academic year 1999-2000, 2000-2001, 2001-2002 and
2002-2003 which are already submitted with the
recommendation of the Education Officer, on merits.
(ii) In view of the fact that the decisions of the
Government to allow additional divisions only on
permanent non-grant basis has come in the Cabinate
meeting dated 24th November, 2001, the Secretary shall
consider grant of additional divisions on grant-in-aid
basis, on merits, for academic years 1999-2000, 2000-
2001, 2001-2002. Additional divisions for the academic
years 2002-2003 and onwards may be on permanently
non-grant basis in the light of the decision of the Cabinet.
Additional divisions, now, sanctioned in the year 2003-
2004 will have to be reconsidered for merger on grant in
aid basis, if any additional divisions for earlier academic
years allowed on grant-in-aid basis, by natural growth
indicate no necessity of grant of additional divisions into
2003-2004.
(iii) In view of the fact that academic year 2004-2005 is
nearing and, we believe the Secretary to take a decision
on merits, in any case, by the end of May 2006 and
communicate the decision to the petitioner-institution.''
15. It appears that after the decision of Writ Petition No. 5742 of
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2004 dated 03.03.2005, some steps were taken by the respondents. The
correspondence of the Education Officer (Secondary) dated 03.03.2008
shows that the Government had sanctioned 13th division for standard
9th for the academic year 2003-2004, 11th division for standard 10th for
the academic year 2004-2005 and 12th additional division for the year
2004-2005 and these three divisions were sanctioned as they had
become available due to natural growth. This correspondence dated
03.03.2008 shows that 13th division for 10th standard for the academic
year 2006-2007 was sanctioned but it was sanctioned due to increase of
strength of students and this division was sanctioned on permanent no
grant basis. Thus, from the academic year 2003-2004 to 2004-2005,
three additional divisions were sanctioned by the Government due to
natural growth. It can be said that as the Government had sanctioned
13 divisions for the standard 9th for the academic year 2003-2004, 13th
division for standard 10th could have become available due to natural
growth for the standard 10th as already 11th and 12th additional
divisions were sanction for the standard 10th due to natural growth. It
can be said that 13th additional division was sanctioned on permanent
no grant basis for the year 2006-2007 could have been treated from
that year as 13th division which had become available for 10th standard
due to natural growth. The submissions made show that the strength of
the students was continuously increasing.
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16. The letter of Joint Secretary, Education dated 29.08.2009
addressed to the Divisional Deputy Director of Education, Latur gave
particulars of additional divisions sanctioned to the petitioner's
institution. The information in tabular form is as under :-
सन 2005&2006 2006&2007 2007&2008 ,dw.k
इयतता iqohZP;k ekU; ok<ho ok<ho ok<ho ok<ho
इयतता ५ वी 8 2 1 2 5
इयतता ६ वी 8 4 & 1 5
इयतता ७ वी 8 2 1 3 6
इयतता ८ वी 13 3 1 2 6
इयतता ९ वी 13 2 2 1 5
इयतता १० वी 13 & 1 3 4
17. The information given in the aforesaid tabular form about the
sanction of additional divisions shows that from the year 2005-2006 till
the year 2007-2008, 31 additional divisions were sanctioned by the
State Government. If the divisions which were in existence including
the additional divisions sanctioned prior to 2005-2006 are considered, it
can be said that 63 divisions for standard 5 th to stanard 10th were
sanctioned prior to the academic year 2005-2006. In addition to those
divisions, 31 more divisions were sanctioned by the State Government in
the manner mentioned in the communication dated 29.08.2009. In the
year 2005-2006, 13 additional divisions were sanctioned, in the year
2006-2007, six additional divisions were sanctioned and in the year
2007-2008, 12 additional divisions were sanctioned. This chart needs to
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be kept in mind as this information plays important role to ascertain as
to whether and as to how many additional divisions could have become
available to the petitioners institution due to natural growth after 2005-
2006.
18. If the communication of Education Officer dated 03.03.2008
already quoted is considered again and the scheme given in Government
Resolution dated 14.07.2000, is applied to ascertain the additional
divisions which had become available to the petitioners institution due
to natural growth, then it can be said that in respect of the additional
divisions sanctioned in the year 2003-2004 which were at least two in
numbers, grant-in-aid could have been paid of 20% from the year 2007-
2008. At the cost of repetition, it is mentioned that for the first four
years no grants are available and in the 5 th year 20% grants can be
released as per the Government Resolution of the year 2000. These
circumstances show that in the year 2007-2008 itself the petitioners had
become entitled to claim 20% grant in respect of the two divisions
shown to be sanctioned with effect from the year 2003-2004, in the
communication dated 03.03.2008. Similarly it can be said that the
petitioner institution became eligible to get 20% grant from the year
2008-2009 for the third division mentioned in the communication dated
03.03.2008 and in ordinary course, in respect of 4 th division also
mentioned in this letter the grant could have been claimed from the year
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2008-2009, though the year of sanction of division is mentioned as
2006-2007, for the reason already given. There is copy of letter of the
Headmaster of the School addressed to the Education officer bearing
endorsement as 'received' on 13.07.2009. This letter shows that the
School had demanded the release of grant in respect of the three
additional divisions mentioned by the Education Officer in his letter
dated 03.03.2008. Thus, it cannot be said that there was no demand of
grant made by the petitioners institution in respect of the additional
divisions which were sanctioned.
19. Writ Petition No. 834 of 2012 was filed by the petitioner
institution as no steps were taken by the respondents for release of the
grants. The order dated 20.08.2013 by which the petition came to be
disposed of shows that similar relief was claimed by the petitioners in
that proceeding. The reply affidavit was filed by the present
respondents in that proceeding. In the reply, present respondents had
informed to the Court that there were two proposals of the petitioners
pending for the approval and both were under consideration. The
relevant portion of reply was quoted and order was made as under :-
''3. I say and submit that, the Petitioner society has filed this
petition seeking directions to consider the claim of the
petitioner for release of salary grants for the academic
year 2003-2004 to 2007-2008 in view of additional
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divisions granted to the petitioner. Affidavit in reply is
already filed in this petition. The position of sanction of
posts under the institution is informed to the Hon'ble Court.
Vide communication dated 27.12.2011, the Dy. Director of
Education forwarded the proposal to the Director of
Education, Pune for necessary action in respect of 22
divisions. Thereafter, on 6th May, 2013, the office of the
deponent has forwarded additional proposal for 15
divisions of the petitioner school along with other
institutions. In view of this, there are two proposals
forwarded by the office of the deponent since
27.12.2012. The earlier proposals consists of 22 divisions
and subsequent proposal of 15 divisions that means proposal
of 37 divisions is pending with the higher authority. Copies
of relevant extract of the proposals submitted to the
Director of Education is annexed herewith and marked as
Exh.R-1.''
In view of the contentions raised in the affidavit-in-reply, the
grievance of the petitioner stands redressed. Respondent
No.1 State is directed to take decision in respect of the
proposals forwarded for release of salary grants, considering
number of divisions to be 37, as expeditiously as possible
and preferably, within a period of six months from today.
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In the event the State Government decides to hold
entitlement of the petitioner to claim salary grants, the
amount shall be released within the time stipulated above.
The Writ Petition stands disposed of. ''
20. The aforesaid order shows that as on 20.08.2013, the proposal
was pending with the Government for sanction of the staff in respect of
37 additional divisions and also for release of grant in respect of the
staff appointed for additional divisions. From the discussion made
above, it can be said that the proposals were in respect of the additional
divisions which were created right from the year 2003-2004 as the
grants in respect of all those additional divisions were not released.
Order made by this Court in Writ Petition No. 834 of 2012 was supplied
by the petitioners to the Government and copy was also sent to the Dy.
Director of Education. (Communication dated 07.09.2013.) It appears
that immediately after receiving copy of the order from the petitioners,
additional secretary of Education Department wrote to the Director of
Education on 03.09.2013 and directed him to scrutinize the matter and
give clear opinion about the matter.
21. The record produced and the submission made show that in
response to the direction given by the additional Secretary of the State
Government, the Education Officer submitted the report dated
08.10.2013 to Dy. Director. This correspondence shows that the
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Education Officer had already submitted the proposal with the letter
dated 06.05.2013, and that was for recommending the release of grant-
in-aid. The Education Officer made similar submissions again in the
letter dated 08.10.2013. Along with the letter there are particulars of
the proposals prepared by the Education Officer for giving grant-in-aid
in respect of each additional division of each standard year wise. This
report shows that not only in respect of 9 th standard and 10th standard
the decision was not taken by the respondents but the proposal in
respect of even 5th and 6th standard were also pending till that day. This
proposal shows that in respect of 8th additional division for standard 5th
which was sanctioned in the year 2002-2003, grants were not released
and there was entitlement to get the grant of 20% for these additional
divisions from the year 2006-2007. In respect of 8th additional division
of 6th standard which was created in the year 2003-2004, it was
proposed that 20% grant be released from the year 2007-2008. In
respect of 13th division of 9th standard which was sanctioned in the year
2003-2004, as per the record already mentioned, proposal was made to
sanction 20% grant from the year 2007-2008. Similar proposal was in
respect of 11th division which was sanctioned in the year 2003-2004.
All remaining proposals mentioned in the chart were as per the scheme
prepared by the State Government under aforesaid Government
Resolution of the year 2000.
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22. The proposal submitted by the Education Officer (Secondary)
along with covering letter dated 08.10.2013 further shows that the
School had appointed teaching staff of 57 approved teachers which
includes 38 graduate teachers and 19 under-graduate teachers. The
information was given that out of 57 approved teaching staff, 11 were
from Scheduled Caste, 4 were from Scheduled Tribe, 1 was from N.T.B,
1 was from N.T.C, 1 was from N.T.D, 9 were from Other Backward
Community and 29 were from open/general category. The proposal
shows that the roster point was approved by the Commissioner on
01.11.2010 and as per that roster of the academic year 2012-2013 there
was backlog of 22 posts. However, the Education Officer had written
that 25 posts of teachers were vacant and on those posts the candidates
from the reserve category can be appointed and so there was no hurdle
in releasing the grants.
23. The copy of letter dated 26.12.2013 of the Deputy Director of
Education shows that he approved the proposal made by the Education
Officer submitted with report dated 08.10.2013 and recommended the
matter to the Director of the Education. There is copy of
correspondence made by the Desk Officer of this Department with
Director of Education dated 05.02.2014. This correspondence shows
that the Desk Officer made queries and asked the Director to give
particulars about many things like strength of the students, total number
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of Secondary Schools available in Osmanabad city, the reasons for
increasing the strength of students in this particular School, permission,
if any, obtained by this School for admitting more students than the
capacity, the approval, if any, given to the additional divisions and the
record to shows that at what stage or who had given the approval, the
record of inspection made to verify the infrastructure, etc. and also
verify as to whether the Right of Children to the Education Act, 2009 the
provisions are complied with. It was also asked as to whether in the
assessment made in the past whether the school had become eligible for
receiving grants. In view of the voluminous record which is already
mentioned and other record which this Court is mentioning, it can be
said that all this record was already available with the Government and
for that the scheme prepared by the Government in the year 2000
needs to be kept in mind. After the letter of the Desk Officer, the
Director of Education by his letter dated 11.02.2014 asked the Dy.
Director to collect the information required by the Desk Officer. In
turn, the Dy. Director wrote to the Education Officer to collect that
information. In the letter dated 25.02.2014, the Education Officer gave
information in respect of all the Schools of Osmanabad city. He gave
reason for increase in strength of the students that the educational and
other activities of the Schools were better, its performance in the
examination and Scholarships was also better. The percentage of the
students who had passed from this School in 10 th standard was given
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and it was always above 84.36% . In the year 2013, this percentage had
reached to 92.79%. Out of the students who passed in the 10th standard
in the year 2013, 351 students passed in first class and 530 students
passed in first class with distinction. In the previous year, 359 students
had passed in first class and 411 students had passed in first class with
distinction. The particulars of the number of students who had passed
scholarship examination and the students who were receiving
Scholarship were also given by the Education Officer. The Education
Officer stuck with the recommendation already made by him in the
letter dated 08.10.2013. The report of the Education Officer shows that
this School was having all the necessary facilities and it was complying
all the conditions, requirement given for getting the grants-in-aid. In
the letter dated 02.04.2014, the Dy. Director also recommended the
Government to hold that aforesaid 37 additional divisions were entitled
to receive grant-in-aid.
24. The Government Resolution dated 30.04.2014, which is
impugned shows that the Government declared that from the academic
year 2012-2013 for 37 additional divisions in respect of 5 th to 10th
standards, 56 posts of teachers were sanctioned for receiving grant-in-
aid [18 posts of under-graduate trained teachers and 38 posts of
graduate trained teachers]. However, in this Government Resolution it is
made clear that there was no right to this School to get grant-in-aid only
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due to such declaration of eligibility. In the Government Resolution it is
mentioned that the grant-in-aid will not be made available with
retrospective effect. It is mentioned that as per the availability of the
funds the Government will give grants and the arrears of the grants will
not be payable. Other routine conditions for getting grants like proper
procedure followed for appointment of teachers etc. are also mentioned.
The learned special counsel appointed by the State stressed much on the
wording of this Government Resolution and submitted that even if the
Government Resolution was issued on 30.04.2014 and it was held that
37 additional divisions were eligible for getting grant-in-aid, no vested
right was created in the School to get grant-in-aid and so it was open to
the Government to take further decision and refuse to pay arrears of
grant-in-aid. Thus, on one hand, according to the special counsel
Government had held that 37 additional divisions had become eligible
for receiving grant-in-aid but on the other hand according to the learned
special counsel no vested right was created in the School to get the
grants even from the academic year 2012-2013 more particularly since
June 2012.
25. On 30.05.2014, the Education Officer (Secondary) of Osmanabad
wrote a letter to this School to inform that from June 2012, in respect
of 56 additional divisions 20% grants was made available and that
amount will be released only after verification of the things like strength
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of the students, the approval obtained for appointment of teachers etc.
On 18.06.2014, the School sent letter to the Secretary of the Education
Department to raise grievance that release of 20% grants in respect of
all the 37 divisions from the academic year 2012-2013 was not proper,
as many additional divisions were approved from the year 2003-2004
and the School was entitled to get the grants as per the scheme of the
Government declared in Government Resolution of the year 2000.
26. It appears that the Education Officer (secondary) of Osmanabad
in letter dated 18.06.2014 informed to the School that he was releasing
20% grants from June, 2012 in respect of 56 teachers whose
appointments were already approved. List of those 56 teachers was
given by the Education Officer in this letter. On 01.08.2014, some
amount in respect of these teachers which was Rs. 10,98,660/- was
released from the treasury. There are more similar authority letters of
the treasury showing that amount of Rs. 24,28,356/- was made
available on 16.08.2014. The amount of Rs.17,84,526/- was made
available on 26.08.2014, etc. There is correspondence made with the
Director of Education by the Education Officer dated 03.12.2014,
showing that total grant-in-aid payable to this institution till February
2015 was around Rs.2,09,73,668/-. (Rupees Two Crores, Nine Lakh
Seventy Three Thousand Six Hundred Sixty Eight). He had prayed for
making provision of such grants. Prior to that, some amount was
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29 W.P. No. 563 of 2015 .odt
already made available as per the aforesaid record.
27. Present petition came to be filed on 08.01.2015. On
01.09.2015 this Court asked the Government to make clear the stand in
view of the submissions made for the petitioners that to other Schools
like a School situated in Raigad district, when additional division for 6 th
standard was sanctioned in the year 2003-2004, the State Government
had released the grant of 80% in the year 2010-2011. It was asked as to
why the present School was not given similar treatment. The order
dated 17.10.2015 of this Court shows that submissions were made for
the petitioners that at least, as per the Government Resolution dated
30.04.2015, the Government needs to release the grants of 20% from
the year 2012-2013 and that amount for the period ending May, 2014
was around Rs. 1,19,77, 312/-. As no decision was taken by the
Government till then, this Court granted interim relief in terms of prayer
clause 'E' of the petition by which direction was given to the
Government to pay such amount for the period ending May, 2014.
28. After aforesaid order also adjournments were obtained for
the State to file reply. It appears that as per the interim order made by
this Court for the period ending April, 2015, from the academic year
starting from June, 2012 the grants were released but further grants
were not released and so amendment was made in the petition to seek
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direction in respect of the remaining period. As submissions were made
for the petitioners that to similarly placed Schools grants were released
in the year 2015 also, the learned Assistant Government Pleader was
asked to explain this circumstance. On 19.09.2018, the learned A.G.P
made submissions that in respect of 12 Schools including the present
School the payment of the salary was stopped by the Finance
Department.
29. It appears that in view of the interim relief granted by this Court
vide order dated 27.10.2015, the Education Officer had taken some
steps and he had made the disbursement of some part of the salary
grants for the period starting from June, 2012. It is case of the
respondent State that the Education Officer had no such authority and
the Government had not given permission to make such disbursement of
the amount. The correspondence in that regard made by the Director of
the Education with the Secretary dated 23.05.2016 is there. It shows
that at the district level the amount of Rs. 1,19,77,312/- was disbursed
to see that there is no contempt of Court committed by the respondents.
He had requested to Principal Secretary of the department to see that
provision is made in Budget under 'Non Plan Expenditure' to make the
payment of grants-in-aid to the School of the petitioners for complying
interim order made by this Court. Some part of the interim order is
complied by the respondents. Some notices issued by Mantralya in this
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regard are produced and they are of July, 2016. It was expressed that by
the officers of the Mantralya that the stand of the Government was not
properly and competently placed before the Court and that is why such
order was made. The Deputy Secretary informed to the Director and Dy.
Director and also to the Education Officer that the Education Officer
ought not to have made disbursement of the aforesaid amount from the
Budgetary provision made available for this district and it was
irregularity. Explanation of these officers was also called by the Dy.
Director in the correspondence dated 27.07.2016.
30. The Government Resolution dated 19.09.2016 of the State
Government shows that it took decision in respect of 1628 Schools and
2452 divisions which were declared as eligible for getting the
Government grants that 20% grant-in-aid was to be given to them. It
was submitted by the learned special counsel for the Government that
only as per this Government Resolution, 20% grants could have been
given to the School of the petitioners and that too subject to the
conditions mentioned in this Government Resolution. He submitted that
only after this Government Resolution the disbursement of the grants
and only to the extent 20% could have been made.
31. Some record is produced by the petitioners like Government
Resolution dated 04.03.2011 in which some Schools and their divisions
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32 W.P. No. 563 of 2015 .odt
were declared eligible for getting grant-in-aid. The attention of this
Court was drawn to record in respect of Sumati Pragati Shikshan
Mandal School from Tahsil Alibag. For 6th standard one division was
sanctioned in the year 2003-2004 but to this division 80% grants was
declared for academic year 2010-2011. However, for the first division of
7th standard which was sanctioned in the year 2004-2005, 60% grants
was declared from academic year 2010-2011. For the School of Aajmi
Charity Trust from Mankhurd Mumbai, for the first division of 5 th
standard which was sanctioned in the year 2001-2002 100% grants was
declared from the year 2010-2011, and for first division of 6 th standard
which was started in the year 2002-2003, 100% grants was declared for
the academic year 2010-2011. Thus, in this Government Resolution also
the declaration was not made in uniform way. For ascertaining the
possibility of discrimination, it is necessary for the Government to give
reason first for not declaring the division as eligible for Government
grants and then for not taking decision on releasing of the grants after
holding that the division had become eligible to get the grants. This
Court holds that only because the State Government has the power to
take such decision, it cannot be allowed to seat on the file and take
time in some cases to take the decision of the declaration and then take
time for actual release of the grants. When the decision of the
declaration is taken then it become more necessary for the Government
to say as to why after such declaration immediately the decision was not
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taken to release the grants. The circumstances like making some queries
by higher ups at the time of declaration of eligibility cannot be taken
lightly and those queries also need to be substantiated by the State
Government. When a specific procedure is given in the Government
Resolution of the year 2000 which is already quoted, it becomes
necessary for the State Government and its officers to expedite the
things and take the decision. It can be said that the institution needs to
admit additional students and then the sanction additional divisions is
given on the basis of necessity. It cannot be ignored that at the time of
admission of such students the institution is under belief that in future
as per the Government scheme it will start getting grant-in-aid. For the
period of first four years no grants is payable and the institution will
have to bear the expenses in respect of salary of the teachers for such
period, but after that if there is no hurdle in making declaration or in
actual release of grants, the Government cannot withhold such
decisions. In the present matter, the relevant facts are already
mentioned and they show that the School of the petitioners is reputed
institution and students of that region were attracted to this School due
to the result this School was giving. There was nothing adverse against
this School as per the record already discussed and such statements
were made in this Court by the officers of the Government.
32. In spite of the aforesaid necessity, the State Government
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first issued Government Resolution dated 19.11.2016 and then on
01.02.2017 and released the grants for the School of the petitioners for
the period starting from September, 2016 which is only 20%. The
learned special counsel submitted that when this decision was taken, the
School of the petitioners was not only the School which must have
suffered but there were many other Schools which are mentioned in the
various Government Resolutions which were issued in the past. As
many as 23 Government Resolutions are mentioned in Government
Resolution dated 01.02.2017 which includes the Government Resolution
dated 30.04.2014 in respect of the present institution. Thus, as per the
stand of the Government only 20% grants is payable to the School of the
petitioners in respect of aforesaid 37 additional divisions and that too
from September, 2016. There is Government Resolution dated
18.01.2014 of the State Government showing that a direction was given
to release the grants in respect of the standards and divisions from
January, 2104, as per the stages given in the Government scheme in
respect of the School covered by as many as 15 Government Resolutions
and those Government Resolutions were from 08.09.2011 to
25.06.2013. This Court had asked the learned senior counsel
representing the petitioners to see that copies of those 15 Government
Resolutions are made available to ascertain the year in which those
standards were started and those divisions were sanctioned but
unfortunately no such record came to be produced and submission was
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made that already some record was produced. The record is sufficient to
infer that for similarly situated Schools and divisions grant in aid was
not made available at the same time and there was no uniformity.
33. The Government Resolution dated 17.02.2003 shows that
the criteria is fixed by the Government for declaration that particular
school or particular division has become eligible for government grants.
For each criteria or condition particular marks are given and if the
School of category like not functioning in tribal area get 75% or more
marks the declaration can be given that it is eligible to get government
grants. In the present case, on the basis of record, it can be said that as
per the scheme of the year 2000 the present School was entitled to such
declaration after completion of the initial period of four years
mentioned in the Government Resolution of the year 2000. As per this
Government Resolution the processing of the matter was done and there
is record showing that recommendation was made by the Education
Officer, Dy. Director and Director of Education to the Government to
declare that the divisions had become eligible for getting government
grants. It is already observed that so called minor discrepancies which
can be found in the correspondence made by the Desk Officer of the
Government which is already mentioned cannot be given much weight
as such record was already available with the Government but only to
kill the time and protract the decision, such correspondence was made
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by the officers of Mantralya. When specific criteria are laid down by the
Government for the assessment and the officers make recommendation
after assessment of the School, in ordinary course the department of the
Education, the Government needs to accept that recommendation and
take further steps. If that is not done, inference of the discrimination is
easily available against the Government. This Court has already
mentioned the circumstances like Writ Petition filed by the petitioners
bearing Writ Petition No. 574 of 2004 and subsequent Writ Petitions for
seeking directions. The correspondence of Education Officer made
with the School dated 03.03.2008 shows that Government had
sanctioned the divisions, at least three divisions due to natural growth
from the year 2003-2004 to 2004-2005 and the letter dated 29.08.2009
shows that the Additional Secretary of the State Government of the
concerned department had informed that from the year 2005-2006,
2007-2008 as many as 31 additional divisions were sanctioned though
on no grant basis (not on permanent no grant basis) and this
circumstance needs to be kept in mind. As per those sanction orders, the
staff came to be appointed and the Education Officers had given
approval as already mentioned though on the year to year basis. Only
after the filing of the petition in the year 2012 steps were taken by the
Government to consider the matter as per its case that first eligibility
needs to be declared but for that also much time was taken.
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34. Government Resolution dated 07.04.2016 was issued by the State
Government to make correction in the Government Resolution dated
30.04.2014. This Government Resolution shows that for additional
divisions approved in the year 2003-2004, like 11th division of 10th
standard the State declared that this additional division was eligible for
getting 20% grants-in-aid from the year 2008-2009 i.e. 100% Grants
from the year 2012-2013. Thus, the scheme given by the State
Government in the Government Resolution of the year 2000 was applied
to show the eligibility in respect of various additional divisions in the
Government Resolution dated 07.04.2016. In respect of most of
additional divisions the eligibility was decided accordingly. However, in
this Government Resolution also it is mentioned that the declaration of
eligibility does not vest any right in the School to get grants from the
year for which eligibility is declared in the Government Resolution. It
was made clear by the Government that the grant-in-aid would be
payable as per the formula which the Government may fix in future for
releasing the grants and further the grants will be released as per the
availability of the money by the Government. It was also made clear
that grants will not be payable with retrospective effect and arrears of
the grants in respect of the period prior to the date of the availability of
the funds will not be paid.'
35. For the consideration of practical benefit which the
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petitioners may get, if the petitioners contention that it is entitled to get
grant-in-aid as per the scheme prepared by the Government in the year
2000 is accepted, it will become necessary to see as to how many posts
of teachers could have been sanctioned, as to how many teaching staff
was appointed after approval by the department etc. For that there is
some record like communication of the Education Officer made with the
Director of Education on 08.10.2013 which is already mentioned. As on
08.10.2013, 57 posts of teaching staff were approved but 56 posts were
found to be filled. This correspondence shows that roster for reservation
was got approved on 01.11.2010 from the Commissioner, Backward
class community. As per the said assessment, there was backlog of 22
reserved posts as on 2012-2013. The approval to all the previous
appointments made against the aforesaid posts were given by the
Education Officer (Secondary) on year to year basis and that can be
seen in the correspondence dated 29.04.2009, dated 01.01.2010 and
five other letters dated 01.01.2010 of the Education Officer.
36. The aforesaid correspondence shows that the record is
produced to the effect that there was approval in respect of 43
appointments which included approval to 24 open candidates
(containing two handicapped candidates) and approval to 19
appointments of reserved candidates. The other record in respect of
remaining posts viz. 13 posts showing the approval given from time to
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time separately is not produced and for that one has to go through the
letter dated 08.10.2013 only.
37. As per the record, prior to year 2003-2004, there were
many additional divisions of standard 5th to standard 10th classes. If
from the year 2003-2004, 56 posts of teachers had become available, it
needs to be first confirmed that while making appointment as against
the posts which had become available, the reservation policy was
followed. This is because the government will be required to pay grants
in respect of those teachers and only in accordance with the
reservation policy. In Letters Patent Appeal No. 149 of 2011 in Writ
Petition No. 1169 of 1003 (Mr. Shaikh Mohammad Abbas Vs. The
Divisional Controller Maharashtra State Road Transport
Corporation Ahmednagar) decided on January 14, 2019 this Court has
made it clear that appointment as against reserved post from the open
category candidate is not possible. So the appointments need to be
verified from that angle first.
38. A proposition was made by the learned special counsel for
the State Government that unless and until staff is sanctioned, the staff
does not become available even under the scheme prepared by the
Government Resolution of the year 2000. It is already observed that
due to natural growth, additional divisions become automatically
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available and the Government Resolution of the year 2000 shows that
after addition of the division, it was necessary to get sanctioned posts of
the teachers for said additional divisions. A question arises as to
whether the State Government is bound to reimburse the salary paid to
the teachers by institution appointed on additional divisions, even
before getting sanction of the posts as appointments were necessary for
making available teaching staff to the additional divisions. The answer
to this question lies in the procedure that prescribed appointment of
teaching staff. Procedure involves approved by the Education Officer
39. Government Resolution dated 14.7.2000 giving scheme for
sanction of grant in aid to additional divisions of the schools is not
changed till today. Thus, in ordinary course, every additional division
which has become available due to natural growth becomes eligible to
get 20% grant in aid after completion of initial period of four years from
its addition to the school. The factual aspect of this matter is already
discussed. Various G.Rs. including G.R. dated 3.3.2008 is quoted more
than once in this decision showing that the Education Officer, Deputy
Director and even Director of Education were satisfied about the
eligibility of the school of petitioner institution to get grant in aid as per
the scheme prepared by the Government in G.R. dated 14.7.2000. The
other record shows that only the officers from Mantralaya made query
that too when, when the dispute started, when the proceeding came to
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be filed in this Court. The files created subsequent to the year 2012
were shown and copies of noting are produced on the record. In any
case, in the Government Resolution dated 7.4.2016 the Government had
expressed that all the 37 divisions had become already eligible to get
grant in aid as per the aforesaid scheme. In spite of these circumstances
and when in previous Government Resolution the Government had
made grant-in-aid available from June 2012 (academic year 2012-13),
G.R. dated 6.2.2019 came to be produced before this Court when this
Court started hearing the matter. The Deputy Secretary of the
Government has filed the affidavit to give justification for this G.R. and
in this G.R. now the Government has expressed that 20% grant will be
paid with effect from 1.12.2018 in respect of 56 teaching staff. The
reason for this change of approach is given that the grant was illegally
disbursed by the Education Officer for the period from June 2012 to
February 2015. There are various orders made by this Court in the
present matter and it appears that the Court had keep questioning as to
why the Government was not releasing the grants. This Court does not
want to go into the powers of Education Officers or for that matter,
Director of Education to make order of disbursement of grants from the
budgetary amount made available for that year. Though the learned
Special Counsel has submitted that these officers had no power to make
order of disbursement, there are various G.Rs. on record in this regard,
but that dispute need not be decided in the present matter as apparently
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the power of disbursement was given to Director of Education and when
the budgetary provision is there which is shown after making
assessment of the requirements, in respect of additional divisions, it can
be said that the Director gets the power to make disbursement. Nothing
was produced on record to show that budgetary provision was for
particular institution. In any case, when the matter was pending since
many years, it was duty of the State Government to consider the claim
of the petitioner and make budgetary provision. Whether or if the State
Government takes action against the aforesaid officers is different
matter but this Court is taking decision on the duty which the State is
expected to discharge. The decision of this matter will automatically
take care of Government Resolution dated 06.02.2019 which is
apparently issued with revengeful attitude and to create complications.
40. The learned Special Counsel specifically harped on the
entitlement of the State Government to take policy decision in the
matter like present one. He submitted that the institution like petitioner
has no fundamental or Constitutional right and even the statutory right
or legal right is not there and so, this Court is not expected to interfere
in the matter. He placed reliance on the observations which were used
by this Court in the case reported as 2004 (2) Mh.L.J. 171 [Keraleeya
Samajam and Ors. Vs. State of Maharashtra and Ors.]. The matter
was with regard to the grant in aid claimed by the secondary school. The
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43 W.P. No. 563 of 2015 .odt
application was made for seeking grant in aid. This Court referred the
observations made by the Apex Court in the case reported as (2002) 8
SCC 481 [T.M.S. Pai Foundation and Ors. Vs. State of Karnataka] and
specifically para Nos. 140, 141 and 142 were considered by this Court
and they are as under :-
"140. We have now to address the question of
whether Article 30 gives a right to ask for a grant or
aid from the State, and secondly, if it does not get
aid, to examine to what extent its autonomy in
administration, specifically in the matter of admission
to the educational institution established by the
community, can be curtailed or regulated.
141. The grant of aid is not a constitutional
imperative. Article 337 only gives the right to
assistance by way of grant to the Anglo Indian
community for a specified period of time. If no aid is
granted to anyone, Article 30 (1) would not justify a
demand for aid, and it cannot be said that the
absence of aid makes the right under Article 30 (1)
illusory. The founding fathers have not incorporated
the right to grants in Article 30, whereas they have
done so under Article 337, what then, is the meaning,
scope and effect of Article 30 (2)? Article 30 (2) only
means what it states viz., that a minority institution
shall not be discriminated against where aid to
educational institutions is granted. In other words the
State cannot, when it chooses to grant aid to
educational institutions, deny aid to a religious or
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44 W.P. No. 563 of 2015 .odt
linguistic minority institution only on the around that
the management of that institution is with the
minority. We would, however, like to clarify that if an
abject surrender of the right to management is made
a condition of aid, the denial of aid would be
violative of Article 30(2). However, conditions of aid
that do not involve a surrender of the substantial
right of management would not be inconsistent with
constitutional guarantees, even if they indirectly
impinge upon some facet of administration. If,
however, aid were denied on the ground that the
educational institution is under the management of a
minority, then such a denial would be completely
invalid.
142. The implication of Article 30(2) is also that it
recognises that the minority nature of the institution
should continue, notwithstanding the grant of aid. In
other words, when a grant is given to all institutions
for imparting secular education, a minority
institution is also entitled to receive it, subject to the
fulfilment of the requisite criteria, and the State gives
the grant knowing that a linguistic or minority
educational institution will also receive the same. Of
course, the State cannot be compelled to grant aid,
but the receipt of aid cannot be a reason for altering
the nature or character of the recipient educational
institution."
41. Though the ratio of pai foundation case is in respect of
minority institution, it shows that discrimination cannot be allowed.
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There cannot be any dispute over the law laid down by the Apex Court
in aforesaid matter. In that case, State had come with the specific
defence that there was paucity of funds and it was also contended that
the State cannot be compelled to give grant in aid to each and every
school and there was circumstance that many schools had accepted
sanction on permanent no grant basis. This aspect of running institution
on permanent no grant basis is no more available as Government itself
has come with the policy that the schemes which were applicable in the
past like year 2000 will be applicable to the schools which were
sanctioned on permanent no grant basis and the word 'permanent' used
in previous policy is deleted. In any case, present school was receiving
grant in aid when additional divisions were sanctioned and when
additional divisions had become available due to natural growth.
42. The learned Special Counsel for respondents placed reliance on
the observations made by Madras High Court in the case reported as AIR
2007 MADRAS 52 [Maria Grace Rural School, Venkatarayapuram Vs.
Government of Tamil Nadu and Ors.]. At para 45 the observations are
as under :-
"45. With regard to the contention relating to
the violation of Articles 30 (1) and (2) of the
Constitution it is the definite case of the State that it
has in no way infringed the right of minorities to
establish and administer educational institutions of
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46 W.P. No. 563 of 2015 .odt
their choice under Article 30 (1). As rightly argued by
the learned Advocate General, it is not correct to say
that the right to establish and administer educational
institution of their choice includes the right to receive
grant-in-aid for such establishment and
administration as it would amount to reading too
much into the provision. Grant-in-aid is an economic
concept that would always depend upon the
subjective satisfaction, financial stability and
resources as well as the discretion of the State
Government. It is also a matter of policy decision
within the domain of the executive and not a matter
of principle to be laid down by the legislature."
43. There cannot be any dispute over aforesaid proposition also.
Reliance was placed on the observations made by the Apex Court in the
case reported as (2001) 3 SCC 635 [Ugar Sugar Works Ltd. Vs. Delhi
Administration and Ors.] and this Court was taken through some
portions of para Nos. 18, 19, 20, 24 and 25. The matter was regarding
the executive policy to regulate trade in liquor in Delhi. This single
circumstance is sufficient to presume that the policy was uniform and it
was applicable as against every trader and the policy was in the interest
of health welfare and morals for benefit of the citizens of Delhi and the
decision was not in favour of big industrial houses. This Court has
already observed that there cannot be any dispute that in the matters
like present one also, the State Government is entitled to have a
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47 W.P. No. 563 of 2015 .odt
particular policy and relevant factors about that are already quoted by
this Court. However, this Court has already mentioned that the State
Government cannot be allowed to discriminate while implementing the
policy. In the present matter, there is no specific case of the Government
that the funds were not available in any particular year starting from the
year 2008-09 which are relevant years. It is not the case of the State
Government that grant in aid was not given to any school during this
period to Schools which were started in the year 2003-04 and when the
additional divisions were sanctioned during the year 2003-04. Some
illustrations are already quoted to show that in respect of schools started
in the year 2003-04 and additional divisions sanctioned in the year
2003-04 and even in respect of schools which were started on
permanent no grant basis, the State Government had taken decision to
release the grant in aid and accordingly, the grant in aid was released.
The relevant G.Rs. are already quoted by this Court and in one such
G.R., the specific amount which was made available as grant in aid is
also mentioned which is G.R. dated 4.3.2011 and the schools were of
Raigad, Mumbai North, Nashik and Nandurbar. Along with this G.R.,
copy of the recommendation made by Education Officer Pune with
regard to these schools is produced and it is not the case of Government
that to these schools, grant in aid was not given as mentioned in this
Government Resolution. In G.R. dated 21.3.2013 which is in respect of
schools from Thane (for additional divisions), Nashik (for additional
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48 W.P. No. 563 of 2015 .odt
divisions), Dhule (for many additional divisions) and even Aurangabad
(for many additional divisions) and this G.R. shows that the Director of
Education was expected to issue orders with regard to the disbursement
of grant though that was to be done only after confirmation that the
school was satisfying the conditions and the appointments were made by
following the reservation policy. As usual, in this G.R. also, it was
mentioned that it was only a declaration about the eligibility of the
divisions and schools to get Government grant, but there is mention of
the power of the Director of Education with regard to disbursement of
grant in aid.
44. It can be said that more concrete instances could have been
made available by the petitioner. However, there is no specific denial of
the State Government with regard to the allegations that to other
similarly situated additional divisions and schools grants were released
from prior to year 2010-11. Due to these circumstances, this Court holds
that the inference that the school of the present petitioner has been
discriminated and the State Government has denied the benefit to the
petitioner institution improperly, when there was no justification for
denial of such benefit is possible. Though the decision is in view of the
facts of the present matter, on the basis of the aforesaid facts it needs to
be observed that everything cannot be left to the executive. When the
State takes policy decision, the executive needs to give justification for
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denying the benefits of the policy decision to institution like present one.
Ordinarily the Court is expected to go with the presumption that the
State Government has acted fairly and the same policy was used against
all similarly situated persons, institutions. When there are circumstances
leading to inference of discrimination, the Court needs to step in. In the
past, such institutions were started by social workers and in those days,
they were not relying on the Government for aid. They had kept
themselves away from politics. That is not the situation at present. It is
practical experience that in most of the cases the management of the
institution has inclination towards a particular political party. The
management cannot remain away from such party politics and it has to
go to at least one side, to one political party. Due to such change in the
working of the Government executive, discrimination has crept in. Such
institutions help the political parties during elections and that is why
such approach get developed and the powers are misused by the
executive. If in such cases the Court does not interfere, the sufferers are
not those persons in management, but the employees of the school and
also the students receiving education in that school. Due to these
circumstances, this Court holds that interference is necessary in such
matters. It is also necessary to observe that in such cases satisfaction of
the officers working on the field like Education Officer, Deputy Director
and Director is important and due weight needs to be given to the
opinion formed by them. Unless that is done, the discrimination cannot
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be rulled out. In such cases, it will be necessary for the State
Government to show to the Court that particular officer had formed
such opinion for ulterior motive and there was no justification for such
opinion. There is no such case of the State in the present matter. Due to
the policy of reservation and the possibility that the policy was not
strictly followed, this Court is giving some directions to the State
Government to see that grants are released only after confirming that
the reservation policy was followed in letter and spirit by this institution.
The decision given by this Court on that point is already quoted. It is
never open to the institution to say that it will fill the reserved posts in
future. The backlog increases due to this conduct of the management
and many a times the officers join hands with the management for
making such illegal appointments. The circumstance that there is
backlog of 22 posts is itself indicative that the reservation policy was not
followed in letter and spirit. In the result, following order.
ORDER
(I) The petition is allowed. (II) As per the proposal made by the Education Officer in his
letter dated 08.10.2013 the Government is to give the grant in aid to the school of petitioner in respect of the additional divisions sanctioned from the academic year 2003-04.
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(IV) It is to be ascertained that no appointment was given to open category candidate as against the post which was available to reserved category candidate and if that is done by the institution, grants in respect of that post are not to be given.
(V) Amount already given is to be adjusted accordingly and for the remaining amount the management will be responsible to the staff. (VI) The process of ascertaining that proper procedure was followed, is to be completed within six months.
Civil Application is disposed of.
Rule is made absolute in those terms.
[SUNIL K. KOTWAL] [T.V. NALAWADE]
JUDGE JUDGE
YSK/
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