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7. Full Bench of this Court in Shikshan Mandal, through the Secretary Dr.R.G.Prabhune & ors. Vs. State of Maharashtra & Ors.

has noted the stand of State Government in affidavit that:--

"2. With regard to the Question No.(i), I say that the judgment of the Hon'ble Court Apex Court in the case M.G.Pandke Vs. Municipal Council, Hinganghat, the provisions of Secondary Schools Code have statutory status in view of the provisions of Maharashtra Secondary Education Board Regulations, 1966 (Maharashtra Regulations) framed under Section 37 of the said Act. This position in law is binding on everybody. In the light of this Judgment, I submit that the provisions of Secondary Schools Code have statutory status. The State Government is actively considering to constitute a Committee to update the provisions of Secondary Schools Code. At that time, providing express statutory status to the Code shall be considered."

& concluded that even according to Government of Maharashtra the Secondary Schools Code has statutory status. Question No.(i) whether the Secondary Schools Code has acquired statutory force because of reference made to the provisions of the Secondary Schools Code in the Regulations framed under the Maharashtra Secondary and Higher Secondary Education (10) W.P.Nos.6136, 6153, 6186 & 6155 of 2010 Boards Regulations, the M.E.P.S. Act referred to it has thus been answered accordingly. It also notes that the State Government does not differentiate between the Marathi Medium School and other language Schools, be it a Primary School or a Secondary School, in so far as making of application for establishing a school is concerned. Question No.(ii) is answered accordingly by the Full Bench. Full Bench in para 10 observes that statements in the above said affidavit made it clear that in the application which is to be made for permission to start a school, the Applicant is not required to indicate whether the school will seek grant-in-

12. So far as Question No.(vi) is concerned, it is common ground before us that now establishment and recognition of Secondary School will be governed by the provisions of the Secondary Schools Code, which we have held to be binding on all recognised schools, and therefore, recognition to the schools will be governed by that Code and it is clear from the provisions of the Secondary Schools Code that it is only those schools which have been permitted by the Government to establish can apply for recognition. Therefore, it is necessary for the person who wants to establish a Secondary School to apply to the Department for permission to establish a school."

9. This Full Bench therefore expressly negates the contention that petitioner is free to start a secondary school at any place he chooses & permission of the State Government is not necessary for it. Law as laid down in M.G. Pandke vs. Municipal Council Hinganghat 1993 Supp(1) SCC 708 has been relied upon to gather that provisions of the Secondary School Code have a statutory force. This finding is not even urged to be (13) W.P.Nos.6136, 6153, 6186 & 6155 of 2010 wrong before us. The alternate submission that this finding of Full Bench can not be extended to a primary school (in WP No. 1631/2010) as there is no legislation like Secondary School Code in force to govern grant of permission to open the primary school is equally misconceived. Full Bench itself has noted that in such a situation, it is 2009 Act & Rules framed thereunder which apply. Petitioner before us has only one primary school & other three schools with which we are concerned are the secondary schools. Petitioner has never moved under 2009 Act & all his proposals which have been rejected are prior to coming into force of said Act. He did not even wait for permission of State but his 4 schools have already started functioning. But in the light of arguments advanced, we have to consider whether the petitioner has any such fundamental right to open such schools anywhere he pleases without prior permission of the State Government.