Bombay High Court
Sambhaji Devram Rohakale vs The State Of Maharashtra Through ... on 15 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:2198-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8202 OF 2023
Dhanwantary Medical and Educational
Foundation, Datrange Mala, Baug
Rouza Hudco, Near Delhi Gate,
At and Post-Ahmednagar, District-Ahmednagar,
Through it's Secretary, Rehan Shafi Ahmed Kazi,
Age-43 years, Occu:Social Worker,
R/o- At and Post-Ahmednagar,
District-Ahmednagar.
...PETITIONER
VERSUS
1) The State of Maharashtra,
(Through Secretary, for Social
Welfare Department, Mantralaya,
Bombay-32,
2) The Director,
V.J.N.T., O.B.C. and Special Backward
Class, Social Welfare Directorate,
Maharashtra State, Pune,
3) The Regional Dy. Director,
Pune Region, V.J.N.T., O.B.C. and
Special Backward Class, Social
Welfare Directorate, Maharashtra State,
Pune,
4) The Assistant Commissioner,
Social Welfare, Ahmednagar
(Erstwhile Special District Social
Welfare Officer, Ahmednagar),
Datrange Mala, Nalegaon,
Ahmednagar, District-Ahmednagar.
...RESPONDENTS
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...
Mr. A.B. Gatne Advocate for Petitioner.
Mr. S.K. Shirse, A.G.P. for Respondent Nos.1 to 4.
...
WITH
CIVIL APPLICATION NO.14518 OF 2023
IN
WRIT PETITION NO.8202 OF 2023
Sambhaji Devram Rohakale,
Age-60 years, Occu:Retired,
R/o-Dharmavir Nagar,
Kalyan Road Bypass, Bhalawani,
Parner, Ahmednagar.
...APPLICANT
VERSUS
1) The State of Maharashtra,
(Through Secretary, for Social
Welfare Department, Mantralaya,
Bombay-32,
2) The Director,
V.J.N.T., O.B.C. and Special Backward
Class, Social Welfare Directorate,
Maharashtra State, Pune,
3) The Regional Dy. Director,
Pune Region, V.J.N.T., O.B.C. and
Special Backward Class, Social Welfare
Directorate, Maharashtra State, Pune,
4) The Assistant Commissioner,
Social Welfare, Ahmednagar
(Erstwhile Special District Social
Welfare Officer, Ahmednagar),
Datrange Mala, Nalegaon, Ahmednagar,
District-Ahmednagar.
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5) Dhanwantary Medical and Educational
Foundation, Datrange Mala, Baug
Rouza Hudco, Near Delhi Gate,
At and Post-Ahmednagar, District-Ahmednagar,
Through it's Secretary, Rehan Shafi Ahmed Kazi,
Age-43 years, Occu:Social Worker,
R/o- At and Post-Ahmednagar,
District-Ahmednagar.
...RESPONDENTS
...
Mr. Manoj A. Dond Advocate for the Applicant - Intervenor.
Mr. S.K. Shirse, A.G.P. for Respondent Nos.1 to 4.
Mr. A.B. Gatne Advocate for Respondent No.5.
...
CORAM: SMT. VIBHA KANKANWADI AND
S.G. CHAPALGAONKAR, JJ.
DATE : 15th JANUARY, 2024
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Rule. Rule made returnable forthwith. Heard learned
counsel appearing for the respective parties finally, by consent.
2. Present Petition has been filed to challenge the order
passed by the respondents appointing administrator over the
institutions run by the petitioner trust established and run by
minority community.
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3. The facts leading to the Petition are that the petitioner is a
public trust registered under the Bombay Public Trust Act. The
petitioner is a minority institution run by minority community.
Petitioner is running a primary ashram school, secondary school
and higher secondary school at village Dhawalpuri, Taluka-
Parner, District-Ahmednagar. The said ashram schools are in
remote and tribal area. Along with other facilities, there is huge
hostel having separate residential facility for girls and boys. The
State Government had sanctioned primary ashram school at
Dhawalpuri by Government Resolution dated 18 th September
1996. Thereafter the State Government has sanctioned
secondary ashram school at Dhawalpuri by Government
Resolution dated 27th January 2004. Thereafter higher secondary
ashram school was sanctioned at Dhawalpuri by the State vide
Government Resolution dated 26 th June 2008. Everything was
running smoothly, however, one politician made complaint with
the Government alleging irregularities in conducting the
petitioner institution, with the request to appoint administrator
over the management of the petitioner institution. It appears
that the inquiries were made and then respondent No.2 had
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passed an order on 15th July 2022 recommending the State
Government to appoint administrator over the management of
the petitioner institution. In the meantime, the show-cause
notice was issued and say was called. The petitioner was not
satisfied with the order dated 15th July 2022 and therefore, filed
an appeal before respondent No.1. Petitioner submitted reply on
20th October 2022. The inquiry committee had refused to
recommend the approval of the said ashram schools. Respondent
No.1, by order dated 18 th January 2023, confirmed the order
passed by respondent No.2, partly, confirming the appointment
of the administrator and further imposed fine of Rs.2,00,000/-
(Rupees Two Lakhs) for shifting the ashram school from
Dhawalpuri (Sutarwadi) to village Dhawalpuri without previous
sanction from the Government.
4. Heard learned Advocate Mr. Gatne appearing for the
petitioner, learned AGP Mr. Shirse appearing for respondent
Nos.1 to 4 and learned Advocate Mr. Dond appearing for the
intervenor, applicant in Civil Application No.14518 of 2023.
5. Learned Advocate for the petitioner has submitted that the
entire matter has been wrongly handled by respondent No.2.
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The petitioner is a minority institution run by the minority
muslim community. The Government itself has accorded the
status of minority community to the petitioner institution.
Section 4 and other provisions of the Maharashtra Education
Institutions (Management) Act, 1976, enabling the State
Government to take over the management of the education
institutions / schools are not applicable to the minority
institutions or the institutions run by the minority community.
The State Minority Commission had intervened in the matter and
appraised respondent Nos.1 and 2 that they cannot appoint an
administrator, yet the further order of confirming the order of
respondent No.2 and then imposing the fine has been passed.
Further, in the year 1996, the Government sanctioned primary
ashram school at Dhawalpuri (Sutarwadi), Taluka-Parner,
District-Ahmednagar. However, after considering the fact that the
area of Sutarwadi comes within the firing range of military
exercise (known as K.K. Range), in the interest of safety of the
students, the said primary ashram school was shifted to village
Dhawalpuri in the year 1999. In fact it is in the same area or
part of the village. The another objection was in respect of a gift
deed issued in favour of Alfa Education Society. However, the
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State failed to consider that the said gift deed was never acted
upon. It was cancelled by the petitioner. Even as per the
Judgment and decree passed by the learned Civil Judge Junior
Division, Parner, which had declared it as cancelled, the State
Government should not have taken cognizance of the said gift
deed. Learned Advocate has taken us through the ' Ashram Shala
Sanhita' (Code of Conduct for Ashram Schools) i.e. ^^foeqDr tkrh]
HkVD;k tekrh] brj ekxkloxZ o fo'ks"k ekxkl izoxkZP;k izkFkfed] ek/;fed o mPp
ek/;fed vkJe'kkGk] fon;kfudsru o ÅlrksM dkexkjkaP;k eqyk&eqyhaP;k
'kkGkadfjrk vkJe'kkGk lafgrk^^ (i.e. Code of Conduct for Ashram
Schools, for De-notified Tribes, Nomadic Tribes, Other Backward
Class and Special Backward Class Primary, Secondary and Higher
Secondary Ashram Schools, Vidyaniketan and Schools for sons
and daughters of sugar-cane cutting workers). (Herein after
referred to as "Code of Conduct for Ashram Schools"). The
learned Advocate has also taken us through various Government
Resolutions to support his contention.
6. Per contra, the learned AGP for respondent Nos.1 to 4 and
learned Advocate Mr. Dond for intervenor supported the orders
passed by the respondent authorities. It was pointed out that
there are many irregularities and illegalities in the management
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of the ashram schools by the petitioner institution. All those
points for complaint or grievance were specifically mentioned in
the complaint by the intervenor, on which the State Government
has taken cognizance. They both submitted that it cannot
happen that the minority institution will not be under the control
of anybody. If the management is doing some illegal activity or
there are irregularities in conduct of the management of the
petitioner institution, then the State has every right to interfere
and appoint administrator. The State Government could find out
that the petitioner institution has illegally shifted the primary
ashram school from one place to another. The inquiry reports
show the illegalities and irregularities those were committed and
therefore, the action is justified. Learned AGP, in support of his
contentions, relies on the affidavit-in-reply of Khushal Bhikanrao
Gaikwad, Regional Deputy Director, Other Backward Bahujan
Welfare (Regional) Division, Pune, Class-I, filed on behalf of the
respondents.
7. At the outset, crux of the matter is, as to whether the
provisions of the Maharashtra Educational Institutions
(Management) Act, 1976 are applicable to the minority
institutions or not, because it is absolutely not in dispute that the
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petitioner institution is run by the minority community and such
status has been accorded to the petitioner by respondent No.1.
In his affidavit-in-reply, Mr. Keshav Gaikwad has stated that the
petitioner institution being minority institution though have
special rights but there are reasonable restrictions on their rights
being 100% grant-in-aid institution. The provisions of Section
2(f) of the Maharashtra Educational Institutions (Management)
Act, 1976 defines that "educational institution" or "institution"
means a school, a college or any institution by whatever name
called the Management of which carries on (either exclusively or
among other activities) the activity of imparting education
therein.
8. It can be seen from the communication by the Secretary,
Maharashtra State Minority Commission, dated 16 th March 2023
stating that the administrator cannot be appointed on the
minority institution. It was then stated in the said
communication itself that the cognizance of any irregularity can
be taken by the concerned Commission only. But it appears that
by letter dated 22nd May 2023 addressed to Maharashtra State
Minority Commission, the Government tried to justify as to how
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the action of appointing administrator was necessary. We are of
the considered opinion that unless the Act or authority under the
provisions of law permits the same, the administrator cannot be
appointed. It appears that the reliance on behalf of the
respondents on the decision in T.M.A. Pai Foundation and others vs.
State of Karnataka and others, (2002) 8 SCC 481 , is misconceived.
The question of grant-in-aid is different and the appointment of
administrator is on different footing. No doubt the State will have
the ultimate authority to control the mismanagement or
irregularities, but not by appointment of administrator. The Code
of Conduct for Ashram Schools, referred above, which is dealing
with ashram schools, is not applicable to the institutions which
are run by the minority community.
9. It appears further that even fine of Rs.2,00,000/- (Rupees
Two Lakhs) has been imposed for allegedly shifting the ashram
school. But if we consider the original permission accorded on
18th September 1996, it is for Dhawalpuri (Sutarwadi), Taluka-
Parner, District-Ahmednagar. It is specifically stated that
Sutarwadi and Dhawalpuri are within the same village limits. If
those would have been different villages then in the year 1996
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itself there would have been a clarification. Under the said
circumstance, if the shifting is within the village limits, then it
cannot be said that there is illegal shifting of the ashram school.
Another fact ought to have been considered that periodically
further permissions have been accorded by the State
Government itself. After 18th September 1996, there was up-
gradation to the secondary ashram school and vide Government
Resolution dated 27th January 2004 that secondary ashram
school was also sanctioned. Further by Government Resolution
dated 26th June 2008, higher secondary ashram school was also
sanctioned. Now the said politician appears to have made
complaint on 4th December 2021 and on the basis of his
complaint, the inquiry has been made.
10. Thought the respondent - State is admitting the minority
status of the petitioner institution which runs the ashram
schools, yet want to assume its power under Rule 3.2 of the
Code of Conduct for Ashram Schools, for appointment of an
administrator, but failed to consider that said Code of Conduct
for Ashram Schools itself is not applicable to the schools run by
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the minority institutions and therefore, the Petition deserves to
be allowed. Hence the following order:-
ORDER
(I) The Writ Petition stands allowed in terms of prayer clauses "B", "C" and "D".
(II) Rule is made absolute in above terms. (III) In view of the disposal of the Writ Petition, the Civil Application also stands disposed of.
[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/JAN24