K.K. Tated, J>
.
1. Rule. Rule made returnable forthwith. With the consent of learned Counsel for the parties, this petition is heard finally at the stage of admission.
2. The petitioner filed the present petition under Article 226 and 14 of the Constitution of India challenging the order passed by the Secretary, State of Maharashtra dated 23-08-2004 by which respondent State of Maharashtra allowed respondent No. 4 to start primary school for 1stStandard for the academic year 2004-2005. It is the case of the petitioner that the petitioner is a Public Trust registered under Bombay Public Trust Act, 1950 and running Secondary School at village Chinchwan, Tq. Wadwani, District Beed. Initially the permission was granted to the petitioner to start Class Vth on 13-12-1962 and in course of time the recognition of the school was continued and it was granted permission to run Class from VIth to IXth Standard by order dated 12-03-1966. The petitioner further submitted that by order dated 22-06-2004 State Government allowed certain Schools on permanent non grant basis and thereby respondent No. 4 Education Society was allowed to run Ist Standard Class for the academic year 2004-2005. It is the case of the petitioner that though respondent No. 4 Society was allowed to start Ist Standard, that too at the place named and recognized as Badevasti which is almost 2kms., in the North from village Chinchwan, respondent No. 4 started Classes from Standard Ist to VIIth in the village Chinchwan and not at Badevasti. The petitioner submitted that by order 23-08-2004 respondent State Government granted permission to run Class VIIIth on permanent non grant basis to respondent No. 4 Education Society without following due process of law. The petitioner submitted that village Chinchwan was not included in Master Plan and as there is no scope for opening new school considering population of the village, respondent State granted permission to respondent No. 4 to start school without considering the need of the area. Because of granting of permission to respondent No.4 to start new school in Chinchwan area, unhealthy competition started and because of that petitioner's school which is in existence since1962 was adversely affected and therefore, the petitioner made complaint to the Education Officer i.e. respondent No. 3 stating that respondent No. 4 was running un authorised Classes from IInd to VIIth Standard and Classes of IXth and Xth. Simultaneously, the petitioner also approached police authorities by its letter dated 09-09-2004complaining about unauthorised Classes and as both the authorities failed and neglected to take any action against respondent No.4, the petitioner was constrained to prefer present writ petition under Article 226 of the Constitution of India for seeking direction of any nature directing the State respondent authorities to take action against respondent Nos. 4 and 5 to close down illegal and unauthorised Classes being run at village Chinchwan. It is the case of the petitioner that considering population of village Chinchwan i.e. 2400 and strength of students if taken into consideration, only one High School can be sustained in the village. But without taking into consideration this fact State Government has allowed second High School of respondent No. 4 in the said locality. The petitioner further submitted that due to unauthorised running of the Classes in the village by respondent Nos. 4 and 5, the petitioner's school is at the verge of loosing one Division due to lack of strength which may ultimately result in reduction of staff and further unwarranted circumstances and unhealthy competition which is not expected by law and under Secondary School Code.
3. After present writ petition was preferred this Court, respondent No. 4 approached respondent State authorities for regularizing their Classes. As per their application and as per Government policy and Circular dated 21-07-2004, respondent State granted permission to respondent No. 4 to continue additional Classes by order dated 29-09-2005. In view of the subsequent developments in the matter, the petitioner preferred Civil Application for amendment of petition as well as prayer clause and same was allowed by this Court. By granting amendment, the petitioner also prayed to quash and set aside the order dated 29-09-2005 issued by respondent No. 2 Divisional Dy. Director of Education in favour of respondent No. 4. The present petition is filed by the petitioner challenging the permission granted by respondent Government to respondent No. 4 to start Classes from Standard VIIIth. It is the case of the petitioner that it is not proper on the part of Government to allow respondent No. 4 to start Classes from Standard VIIIth when there is no required strength of students in village Chinchwan, without taking any survey and perusing Master Plan in that regard and when village Chinchwan is not included in Master Plan.
4. In support of the petitioner's submission, Mr. V.D. Salunke, learned Counsel appearing for the petitioner took us to the relevant provisions of the Secondary Schools Code 2006, which are as under.
2.13 In no case should the school be started, unless the written previous permission of the Government is obtained. Schools started without such permission shall not ordinarily be considered for permission.
3.2 A school seeking recognition of the Department shall satisfy it as regards thefollowing conditions:
(1) The school is actually needed in the locality and it does not involve any unhealthy competition with any existing institutions of the same category in the neighbourhood;
(15) The Management undertakes not to conduct or allow unrecognised schools or classes to be conducted in the premises of the schools or elsewhere;
7.1 When a school, including a permanently recognised school, has ceased in the opinion of the Department, to fulfil any of the condition of recognition, recognition of that school may be withdrawn.
7.3 If the management is prepared to remove the defects communicated to it, areasonable time to be fixed by the Deputy Director, may be allowed to the management to do so. If the response of the management is, in the opinion of the Deputy Director, satisfactory, recognition may be continued, subject to such further condition and instructions as may be deemed necessary. But if the response is not satisfactory, the recognition may be withdrawn.
7.6 The Management shall not shift any school run by it from its existing location to any other location for any reason, without prior written permission of Government. If the Management shifts the school without prior permission of Government, the recognition of such a school shall automatically stand with drawn on ground of such unauthorised shifting.
(This rule is added vide G.R. No. GAC-1081/283/SE.2 Dt. 24/7/81).
8.1. New schools shall not open standards for which permission has not been granted. No recognised school shall teach a standard or standard higher than those for which it has been recognised, without the previous permission of the appropriate authority.
5. On the basis of above mentioned provisions of the Secondary Schools Code 2006, Mr. V.D. Salunke, learned Counsel appearing for the petitioner submitted that in no case school should be started unless written previous permission of the Government is obtained by any Institution. Counsel for the petitioner further submitted that in the present case though permission granted by the Government to respondent No. 4 was to start one Class of Ist Standard, respondent No. 4 started other Classes of primary school also. Therefore, it is necessary to cancel the permission granted to respondent No. 4 to start Classes as per order dated 22-03-2004 and 22-08-2004. Learned Counsel for the petitioner further submitted that it is the duty of school seeking recognition, Department shall satisfy itself that the school is actually needed in the locality and it does not involve any unhealthy competition in the existing Institution of the same category and in the present case, the petitioner is conducting school since 1962 and there is no need in the said locality for a new school. On the basis of either population or Master Plan, respondent No. 4 by misguiding respondent No. 4 Government, obtained permission dated 22-03-2004 and 22-08-2004 for conducting Classes. Counsel for the petitioner further submitted that on the basis of the provisions of Secondary Schools Code 2006, Government can withdraw the recognition of school though it started as per Regulation 7.1 and 7.3 as stated hereinabove. Counsel for the petitioner further submitted that new school cannot be opened for the standards for which permission has not been granted. In the present case, it is the case of the petitioner that respondent Government granted permission to respondent No. 4 by order dated 22-03-200 4 to start Ist Standard Class only. Not only that as per second permission dated 22-08-2004 the respondent Government granted permission to respondent No. 4 to start VIIIth Standard only. In spite of all these facts, respondent No. 4 started Classes of IInd to Vth Standard and IXth and Xth Standard without obtaining any permission from competent authority. In view of these facts, the petitioner submitted that permission granted to respondent No. 4 to start Classes as per order 22-03-2004 and22-08-2004 be recalled and set aside.
6. In support of these submissions, learned Counsel appearing on behalf of petitioner pointed out that respondent Nos. 1 to 3 in their affidavit in reply in Para.2 specifically stated that respondent No. 4 started IXth Standard Class without their permission. He further pointed out from the affidavit in reply of respondent Nos. 1 to 3 that the Education Officer specifically admitted in his reply that respondent No. 4's proposal in respect of IXth Standard is pending before him. This shows that without obtaining prior permission, respondent No. 4 started IXth Standard Class in the said locality. Counsel appearing for the petitioner further submitted that these facts were also admitted by respondent No. 4 in its affidavit in reply dated 28-03-2006.It is specifically stated by respondent No. 4 in its reply that 'The primary school and High Schools have conducted the examination of the students and the result is declared in the last year. This year also examinations are likely to be conducted for 8th and 9th Standard and the examination of Xth Standard is conducted'. On the basis of these observations, Counsel appearing on behalf of the petitioner submitted that respondent No. 4 itself admitted that without obtaining any permission from the competent authority, they started IXth and Xth Standard Classes and therefore, the petition is to be allowed as prayed.
7. Mr. V.B. Ghadge, learned A.G.P. for respondent Nos. 1 to 3 that as per Government directions issued in Government letter dated 21-07-2004 it is specifically mentioned that if any Institution to whom the Government had permitted to run VIIIth Standard and Institution simultaneously starts IXth and Xth Standard without permission, in that case if Institution applies for the permission to Dy. Director of Education, Dy. Director of Education after verifying infrastructures and other facilities can take the decision for granting permission to run further Classes of IXth and Xth Standard. It is the case of the respondent Nos. 1 to 3 that the Government permitted respondent No. 4 on no grant basis on 23-08-2004 to start Classes and Institution has applied for granting permission to IXth Standard on 02-12-2004. The Education Officer (Secondary), Zilla Parishad, Beed after considering the said proposal forwarded to the higher authority for taking appropriate decision. It is the case of respondent Nos. 1 to 3 that on considering available strength in the village, Government has permitted school in favour of respondent No. 4 on permanent no grant basis for the academic year 2004-2005 and the existing strength of petitioner's school is above the norms laid down by the Government for particular Classes. It is the case of these respondents that minimum strength for running each Standard is 30and strength of the petitioner's school is more than required strength. They further submitted that it is the discretion of the Government whether to grant additional Division to the petitioner's school or to grant new school in favour of other Institution as per policy of the State. Learned A.G.P. contended that the petitioner's school is on permanent grant in basis and therefore, Government has chosen to grant new school on permanent no grant basis. On the basis of this, learned A.G.P. appearing on behalf of respondent Nos. 1 to 3 stated that whatever action taken by the Government in present case is according to law and therefore, there is no question of setting aside and/or declaring null and void in the present petition.
8. Respondent No. 4 filed his affidavit in reply dated 28-03-2006 opposing the present petition on the ground that as on today they are running school with all permissions from respondent State Government. Learned Counsel appearing on behalf of respondent No. 4 submitted that they started school at Badevasti and not at Chinchwan as per sanction granted by the Government in their favour. In support of his contention, he pointed out Para. 2 of the affidavit in reply filed by respondent No. 6 dated 21-08-2006. Para. 2 of the affidavit reads as under:
The contentions raised in para. No. 5 isnot correct. It is submitted that the respondent No. 4 has started school at Badevasti where the Government had granted permission to start the school. Therefore, the contentions of the petitioner is not correct.
Learned Counsel appearing on behalf of respondent No. 4 submitted that the competent authority by its letter dated 30-09-2006 granted permission to their Institution to continue the school which was granted as per order dated 22-03-2004 and 22-08-2004 and additional Classes i.e. IXth and Xth as well as primary school Classes. In view of this submission, learned Counsel appearing on behalf of respondent No. 4 submitted that the present writ petition be dismissed with costs.
9. Learned Counsel appearing on behalf of the petitioner Mr. V.D. Salunke submitted that Bombay High Court made some suggestions which were accepted by Advocate General and incorporated policy for starting new schools in the matter of Gramvikas Shikshan Prasarak Mandal v. The State of Maharashtra and Ors. : AIR2000Bom437 . Learned Counsel appearing on behalf of the petitioner relied on Para. 9 of the said judgment which reads as under.
While the decision of the Bombay High Court in Gramvikas Mandal directed the formulation of a Master Plan by incorporating the suggestions made by the court, it does not bar the grant of permission to schools, before the Master Plan was finalised. At all events, the proposed Master Plan is not intended to apply to English Medium schools, non Marathi schools and schools run by religious and linguistic minorities. We are also informed that the State Government has already constituted a Committee under the chairmanship of Director of Education (Secondary & Higher Secondary) Maharashtra on 24-07-2006 for preparing a Master Plan.
On the basis of this authority, learned Counsel appearing on behalf of the petitioner submitted that in the present case, there is no Master Plan prepared by respondent State for Chinchwan village. Not only that the respondent State had not carried out any survey for assessing the need of additional educational institutions in the said locality. Therefore, Counsel appearing on behalf of the petitioner submitted that in view of the judgment passed by this Court in the matter of Gramvikas Shikshan Prasarak Mandal (Supra),this Court be pleased to allow the present writ petition by cancelling the permission granted to respondent No. 4 by Government on 22-03-2004 and22-08-2004.
10. In reply to the said contention, Counsel appearing for respondent No. 4 Mr. D.J. Choudhari submitted that Apex Court in the matter of Superstar Education Society v. State of Maharashtra and Ors. in Special Leave Appeal (Civil) No. 14768/2006 considered the judgment of the Division Bench of Bombay High Court in the matter of Gramvikas Shikshan Mandal. Apex Court held that it does not bar the grant of permission to schools before the Master Plan was finalised. Apex Court further held that it is the duty of the State Government to provide access for education. Unless new schools in the private sector are permitted it will not be possible for the State to discharge its constitutional obligation. Apex Court further held that schools who follow the parameters and conditions prescribed by the Education Code can be granted permission to start new schools. Learned Counsel appearing on behalf of respondent No. 4 specifically relied on Para. Nos. 3, 4, 5, 6, 9 and 12 of the said judgment which read as under:
3. In the year 2000 a Public Interest Litigation was filed in the Bombay High Court complaining that large number of schools were being started in the State without following any norms. A Division Bench of the Bombay High Court considered the matter in Gramvikas Shikshan Prasarak Mandal v. The State of Maharashtra and Ors. AIR 2000 Bombay 437. By judgment dated 11-04-2000, the High Court directed the State Government to prepare a Master Plan, for granting permission to the Primary, Secondary and Higher Secondary Schools during 2000-2010, by reviewing and updating the existing state policies and schemes and by incorporating the guidelines suggested by the High Court, in its judgment. The decision clarified that the master plan will be only for Marathi Schools. As regards English Medium Schools and othernon Marathi Schools, no directions were issued. It was also stated that schools established by religious or linguistic minorities will not be governed by the proposed Master Plan.
4. Due to several reasons, there was delay in finalising the master plan. On considering the reasons assigned by the State Government, the Aurangabad Bench permitted sanctioning of all types of schools including Marathi Medium of Schools for 2004-2005 and 2005-2006 on permanent unaided basis even though the Master Plan was not ready.
5. In regard to the year 2005-06, the State Government considered more than 3000applications and the proposals/recommendations by the District Level Committee in regard to such applications, and granted permission for 1495 new Higher Secondary classes/schools by order dated 16-05-2006 on 'no grant basis'. Such permission was granted subject to the following conditions:
(i) No financial assistance would be provided to any of the newly approved Higher Secondary classes even in future.
(ii) The Higher Secondary Schools should scrupulously follow the orders issued by the Government from time to time, as also the provisions of Secondary School Code and Maharashtra Employees of Private Schools(Conditions of Service) Act, 1977 and the1981 Rules framed thereunder.
(iii) The school administrations should not charge any fee from students in excess of the fees approved by the Government.
(iv) The school administrations should maintain adequate and sufficient financial position.
(v) The schools should display prominently a Board stating 'Higher Secondary School with permission on permanent no grant basis' and also state in their letterheads' School on permanent no grant basis'.
(vi) The societies running the schools should furnish affidavits confirming that they are ready to run the Higher Secondary classes on permanent no grant basis and such affidavits shall be permanently maintained.
In pursuance of such permission, the Higher Secondary classes were commenced and were being conducted.
6. When the matters stood thus, the fourth respondent (Maharashtra Rajya Shikshan Sansthan Mahamandal) filed a Public Interest Litigation (W.P. No. 2897/2006) before the Nagpur Bench challenging the order dated 16-05-2006 on the ground that grant of permission to 1495 schools violated the direction issued by the High Court in Gramvikas Mandal (supra) for preparation of a master plan. None of the1495 schools which were granted permission, were impleaded as parties to the writ petition. It was contended that the decision rendered in Gramvikas Mandal required finalization of a Master Plan before granting permission for starting new schools and in the absence of Master Plan, grant of permission to start new schools was illegal. The High Court by its judgment dated 07-07-2006, allowed the said writ petition at the stage of admission itself, and quashed the Government Order dated 16-05-2006, on the ground that grant of permission for new schools by the State Government, without preparing the Master Plan and without fixing any year wise quota for new schools, was in breach of the procedure prescribed in the case of Gramvikas Mandal, and therefore, illegal. Aggrieved by the order of the Division, several institutions which had been granted permission under the order dated 16-05-2006have filed these appeals by special leave.
9. While the decision of the Bombay High Court in Gramvikas Mandal directed the formulation of a Master Plan by incorporating the suggestions made by the court, it does not bar the grant of permission to schools, before the Master plan was finalized. At all events, the proposed Master Plan is not intended to apply to English medium schools, non Marathi schools and schools run by religious and linguistic minorities. We are also informed that the State Government has already constituted a Committee under the chairmanship of Director of Education (Secondary & Higher Secondary) Maharashtra on 24-07-2006 for preparing a Master Plan.
11. It is the duty of the State Government to provide access for education. Unless new schools in the private sector are permitted it will not be possible for the State to discharge its constitutional obligation. Permission has been granted to1495 new schools under the order dated 16-05-2006 on permanent no grant basis without any financial commitment or liability on the part of the State Government, even in future, and at the same time ensuring that the schools follow the parameters and conditions prescribed by the Education Code, reserving liberty to the authorities to take appropriate action, should there be any violation. The said order does not contravene any provision of law. It was not even the case of the writ petitioner that the schools permitted did not fulfil the conditions and requirements relating to such schools.
12. The High Court has quashed the order dated 16-05-2006 without even noticing that many of the schools which have been permitted under the said order, were English medium schools or non Marathi schools or schools run by religious and linguistic minorities, which were not intended to be covered by the proposed Master Plan. It also failed to notice that any delay in drafting or finalizing the Master Plan cannot be a bar for new schools being permitted, particularly in view of the subsequent orders of the Aurangabad Bench. When the permission had been accorded and schools had started functioning on that basis, the High Court ought not to have quashed the permission granted to those 1495 schools, without impleading the Schools or without hearing them. On the facts and circumstances, the assumption that the order dated 16-05-2006violated the order in Gramvikas Mandal does not appear to be sound. Even if the High Court wanted implementation of the decision in Gramvikas Mandal, it ought to have directed that the Master Plan should be prepared within a time bound schedule rather than quashing the permission granted to 1495 schools thereby denying access to a large number of students aspiring for higher secondary education.
11. On the basis of these submissions, learned Counsel appearing on behalf of respondent No. 4 submitted that present petition be dismissed with costs.
12. It is clear from the observations of the Apex Court in the matter of Superstar Education Society that Government can grant permission to Education Society to start schools though the Master Plan and other conditions as laid down by Bombay High Court in the matter of Gramvikas Shikshan Mandal are not fulfilled. The main criteria prescribed by the Apex Court is that educational institution must follow rules and regulations prescribed for starting the educational institutions. In the present case, during the pendency of the writ petition, respondent No. 4 approached the Government as per Government Circular dated 21-07-2004 which is at Page 50 in the present petition and applied for regularizing their Classes. On the basis of Circular dated 21-07-2004 respondent State Government allowed respondent No. 4 to continue additional Classes as per their application. For that purpose, learned Counsel appearing on behalf of respondent No. 4 relied on communication issued by the Education Department, Mantralaya dated 30-09-2006 which is taken on record and marked as 'X' for identification. In view of the subsequent recognition granted by respondent State Government to respondent No. 4 society, nothing survives in the present petition. Not only that the petitioner failed to justify the cause for opposing and/or for cancelling permission granted by Government to respondent No. 4 to start schools in the said locality.
13. In view of the above mentioned facts and circumstances, there is no merit in the present petition and same is liable to be dismissed.
14. The present writ petition is dismissed with no order as to costs. Rule discharged.