Judgment:
R.M. Prasad, J.
1. Petitioner No. 1 is Sanskrit High School, Rampur, Muzaffarpur, petitioner No. 2 claims to be the Secretary and petitioner No. 3 claims to be the Headmaster of the said School (petitioner No. 1). Petitioner No. 4 claims that he donated valuable lands over which school building was constructed and established in the year 1980. According to the case of the petitioners, the respondent-Bihar Sanskrit Shiksha Board authorised the Chairman to take steps for recognition of the School on the basis of inspection report, whereupon the Chairman of the Board recommended for approval of the School in question on 18-9-1984, The State Government considering the report of the Chairman accorded recognition to the School without financial aid, vide order dated 29-1-1987 (Annexure-5). It is stated that some other similarly situated Sanskrit Vidyalayas, including respondents No. 4 to 7, were also accorded recognition without financial aid on 22-12-1987, vide Annexure-6, and subsequently they filed C.W.J.C. No. 3742 of 1987, which was finally disposed of vide order dated 17-2-1988 (Annexure-8) with the direction to the respondent-State to conform to the rule of equality and withdraw the condition as to non-payment of any financial aid to the petitioners' School unless it has got any special reason to impose the said condition. This Court further directed that in case aid is not extended, the reason for the same must be communicated to the petitioners. Thereafter, the State Government reconsidered the cases of respondents Nos. 4 to 7 and accorded recognition with financial aid to respondent Nos. 5 to 8 on 24-10-1989.
2. The petitioners also filed writ petition, bearing C.W.J.C. No. 9414 of 1989, with similar grievance which was finally disposed of vide order dated 7-8-1990 (Annexure-2). As no provision was brought to the notice of the Division Bench under which when a Sanskrit School was recognised, financial aid has to be given to such school by the State Government and it was simply pointed out that the State Government has been giving aid to recognised Sanskrit Schools, but without any rational basis and by adopting pick and choose method, the Division Bench disposed of the said writ petition, vide said order dated 7-8-1990, directing that it is not possible for the Court while exercising jurisdiction under Article 226 of the Constitution to examine as to how different Sanskrit Schools are being discriminated in the matters of getting aids. The petitioners were accordingly given liberty to file representation before the Special Director, Secondary School (Sanskrit), Government of Bihar, who were directed to look into the grievance.
3. The claim of the petitioners was again rejected, vide order dated 18th February, 1991 (Annexure-3), and they filed another writ petition, bearing C.W.J.C. No. 3139 of 1991, in this Court, which was disposed of vide order dated 30th October, 1991, contained in Annexure-4. The Division Bench while declining to record any finding directed the Joint Secretary, Department of Human Resources to examine the matter afresh and pass a speaking order as the order impugned itself was without any valid reason. It was also observed that it would be open to the petitioners to point out any legal provision, which is available to them in support of their contention. Again the claim of the petitioners was rejected by the impugned order, contained in Annex-ure-1, on the ground that as per the Government Resolution No. 2001 dated 2-12-1982, the State Government took decision that it will bear the financial liability of such institutions which had been recognised before the said resolution and all institutions which are granted recognition thereafter will have to bear their own expenses. The grievance of the petitioners is that recognition with financial aid has been granted to respondents No. 4 to 7 whereas they have been arbitrarily refused recognition with financial aid, though their case also stands on similar footing.
4. Separate counter-affidavits have been filed on behalf of he Special Director (respondent No. 3) and on behalf of the State. A supplementary counter-affidavit has also been filed on behalf of the State. Reply has been filed on behalf of the petitioners to the counter-affidavit filed on behalf of respondent No. 3. Respondent No. 6 has also filed a counter-affidavit.
5. In the counter-affidavit filed on behalf of respondent No. 3, details relating to grant of recognition have been mentioned and according to it, a list of 647 Schools was separately prepared which were aided by Kameshwar Singh Sanskrit University. Out of 647 schools, 442 schools were considered for recognition and financial aid, of which 429 schools were taken over by the Bihar Non-Government Sanskrit Schools (Takingover of Management and Control) Ordinance, 1982 and the matter with respect to them has more or less been settled by the judgment of this Court. Claim regarding rest 13 schools were disputed as there were parallel schools running with respect to them. The next batch of Sanskrit Schools, which were claiming recognition and financial aid from the Government comprising 205 in number, were selected by Damodar Thakur Commission. The said 13 disputed schools were added to, 205 schools and respondents No. 4, 5, 6 and 7 filed writ petition in this Court and as a result of the orders passed in their writ petition their schools were also included within the categories of 222 Sanskrit schools. Thus, according to the respondents, their case stands on different footing and the petitioner's school does not come within the categories described above.
6. It is further stated that the State Government, vide Resolution No. 2001, dated 8-12-1982, decided that the Government will give financial aid to those schools, which have been recognised before 1982. A photo-copy of the said resolution has been annexed as Annexure-A. In answer to the main thrust of the petitioners' claim that other Schools were given financial aid, it is stated that they come under one or the other categories described above. The petitioners' school was recognised on the recommendation dated 18-9-1984 in the year 1987 without financial aid and, as such, according to the respondents, they are not entitled for any financial aid from the State Government. .
7. In reply to the category of schools pleaded in the counter-affidavit filed on behalf of respondent No. 3, the petitioners have stated that the facts have been distorted and misrepresented to mislead this Hon'ble Court. It is stated that the recognised Non-Government Schools were receiving salary and dearness allowance according to the Bihar State Sanskrit Education Board Act, 1981 and that till 31-3-1987, there were 647 schools (442 plus 205) recognised by the Government. In support of this, the petitioners have referred to Memo No. 545, dated 2-12-1987. The petitioners' school was recognised on 29-1-1987, itself and thus if it was not considered in the said memo, the discrimination is against law and facts of the present case. It is further stated that the petitioners' institution was given recognition after all formalities and scrutiny individually made and it does not suffer from any disqualification for grant of financial aid. Their further case is that even according to the resolution dated 8-12-1982, Sanskrit Schools established for personal gains and not in the public interest are disqualified for financial aid. According to the petitioners, the said resolution is only to prevent institutions engaged in personal benefits whereas the petitioners' institution holds valuable immovable property worth lakh and has got his own building, furniture, teaching and non-teaching staff and its students have been appearing in Board Examination with commendable success. It is, further contended that even the said resolution, if it is contrary to the provisions of Section 14 of 1981 Act, cannot have the force of law and the pretext of acting according to the resolution is unfounded in law and, therefore, is not tenable. According to the case of the petitioners, no rule has been produced or cited to justify the action of the respondents.
8. A supplementary counter-affidavit has also been filed in which it is stated that the basis of rejection of the claim of the petitioners is that the name was not included in Damodar Thakur report. The file would reveal that respondent No. 4 is at item No. 4 at page 59 amongst the list of schools, respondent No. 5 is at item No. 7 and respondent No. 6 is at item No. 7 in the list prepared by Damodar Thakur and admitted that the name of respondent No. 8 did not appear in the list prepared by Damodar Thakur. According to the respondents, under the orders of this Court, after inspection, the file moved through the Special Director, Special Secretary and Secretary, Education, who allowed prayer of respondent No. 8 (which, in fact, should be respondent No. 7 as respondent No. 8 is the Board), for recognition on 5-8-1994. Since the matter of recognition of respondent No. 7 (wrongly typed as '8') came to the knowledge, the entire matter is being examined afresh as to whether it is legally possible to cancel the order of recognition of respondent No. 7.
9. In the counter-affidavit, respondent No. 6 has stated that the petitioners' institution was established in 1980, whereas institution of respondent No. 6 was established on 1-1-1976. First inspection of the school was done on 27-9-1978 and next inspection was done in 1981 by the District Education Officer. It is stated that in the report of Damodar Thakur Commission dated 25-1-1984, showing 337 schools only fit for approval, the school of respondent No. 6 was figured at serial No. 7, whereas petitioners' school did not figure in the list. The case of respondent No. 6 was considered and finally approval was given by the then Secretary, Education with effect from 22-12-1987, without finance and on 24th October, 1989 with finance along with four other schools.
10. In the present case, the real issue involved is as to whether the case of the petitioners stand on identical footing to that of respondents Nos. 4 to 7, who were granted recognition with financial aid later. Annexure-B shows that the recognition was granted to the said respondents because the said schools were recommended for recognition by Dr. Damodar Thakur Commission and petitioner No. 1, was not so recommended by the Commission.
11. From the facts stated above, one thing is at least clear that before 18th December, 1982, the State Government used to grant recognition to new Madarsa and Sanskrit School on the recommendation of the Board concerned and according to declared policy, the entire financial liabilities of such schools used to be borne by the State Government. However, it came to the notice of the State Government that said liberal policy was being misused and new Schools and Madarsa were being established for personal gains and not in public interest and accordingly, the State Government, vide said resolution No. 2001, dated 18th December, 1982, decided that it will bear the expenses of teaching and non-teaching staff of only those schools with respect to which recognition had already been granted before the said decision but if after the said decision, recognition is granted to any school, the expenses will have to be borne out by the school concerned and the State Government shall bring such schools in the category of aided schools with the approval of the Finance Department only where it will find fit and proper.
12. Learned Counsel for the petitioners has failed to show that there is any statutory liability fastened upon the State Government to grant recognition only with financial aid. Admittedly, the petitioners were granted recognition without financial aid about which the order granting recognition itself was made clear. Earlier also, after noticing that no provision had been brought to the notice under which a Sanskrit school is recognised, financial aid has to be given to such school by the State Government, this Court declined to give any relief to the petitioners, vide Annexure-2. However, as it was pleaded that the State Government was not following rational basis and was adopting pick and choose method for grant of recognition with financial aid, the Court while declining to examine the same in the exercise of jurisdiction under Article 226 of the Constitution, directed that if the petitioner so advised may file representation before the Special Director which shall be disposed of.
13. In support of his contention that it is the liability of the State to bear the expenditure over teaching and non-teaching staff of Sanskrit High Schools recognised by the State Government, learned Counsel for the petitioners has tried to place reliance on the provision quoted in paragraph 8 of the reply affidavit, which reads as follows:
Section 14 reads, inter alia, as follows:
Bihar Education Sanskrit Fund shall be applicable to the following objects:
(a) Payment of salary and allowances to teaching and non-teaching staff of recognised Sanskrit Schools according to rules, and this object is subject to no other condition.
14. This Court fails to appreciate as to how the said provision is at all relevant when no suph rule has been brought to the notice of this Court creating any responsibility/liability for payment of salary and allowances to teaching and non-teaching staff of recognised Sanskrit Schools much less to those recognised without financial aid. The said provision only provides the object of the Bihar Education Sanskrit Fund and its applicability. But in the absence of any rule creating any liability/responsibility for payment of salary and allowances to teaching and non-teaching staff of all Sanskrit Schools irrespective of the fact that the grant of recognition is without financial aid, this Court finds it difficult to accept that the State Government is under any obligation much less statutory obligation to grant financial aid to the petitioning institution for which the petitioners are entitled for any relief from this Court under Article 226 of the Constitution of India.
15. This Court is unable to accept the argument of the learned Counsel for the petitioners regarding discrimination. This Court without going into the controversy as to whether the said respondent Nos. 4 to 7 are included in the report of Damodar Thakur Commission or that whether they were entitled in terms of provision, contained in Annexure-B, finds it difficult to accept the contention advanced on behalf of the petitioners that the petitioners will be entitled for any relief from this Court on the basis of such discrimination, as alleged, even though they have failed to show any right much less statutory right to claim financial aid.
16. By now it is well settled that guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. In other words, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court that the same irregularity or illegality be committed by the State or authority which can be held to be a State within the meaning of Article 12 of the Constitution. In the case of Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors. : [1996]1SCR1154 (para 9), the apex Court held that the claim for grant of same benefits which are not sanctioned by law in their favour on the principle of equality before law is not permissible.
17. This Court has found that there is no right much less statutory right of the petitioners to claim financial aid merely on account of grant of recognition which was granted with clear understanding that the grant is without financial aid, and as such, in my opinion, in view of the law settled in the case of Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors. (supra), the petitioners cannot assail the validity of the impugned order (Annexure-1) on the ground that others like them including respondent Nos. 4 to 7 were granted the benefit of financial aid though not admissible to them and for issuance of a writ of mandamus to the official respondents to grant them also financial aid.
18. In the result, the writ application is dismissed. However, in the facts and circumstances, there shall be no order as to costs.