Annaji Raut Shikshan Sanstha and anr. Vs. Secretary, Department of Education and Employment and ors. - Court Judgment

A.M. Khanwilkar, J.

1. By this petition under Article 226 of the Constitution, the petitioners pray for quashing and setting aside the permission granted to the respondent Nos. 4 and 5 to start a new Secondary School at Village Sindi. Although the relief claimed in terms of prayer Clause is very wide, the petitioners through Counsel have confined the challenge to the order dated 30th September, 1991 (Annexure-VIII) only to the extent of permitting respondent No. 1 to start a new Secondary School at Sindi.

2. The principal grievance of the petitioners is that the petitioners have already opened a Secondary School at Umri (Sindi, Tahsil Narkhed, District Nagpur) in the year 1987 up to Class VIII only. The same was later on, on account of natural growth, expanded up to Class-X and presently even Standards XI and XII (Junior College) course is being imparted from the said School. The grievance of the petitioners is that although the petitioners/School was existing at Umreri (Tahsil Sindi), the Government granted permission in favour of the respondents No. 4 and 5 to start a new Secondary School at Sindi, which is not even one kilometre away from the existing School of the petitioners. It is the case of the petitioners that the respondent No. 5/School even before grant of permission to start a new secondary school, started a Secondary School at Sindhi in June, 1991. The proposal was submitted to the Education Officer in October, 1990. However, the Education Officer, made adverse report on the said application which was forwarded to the Director of Education. The Education Officer did not recommend opening of any new school in that area as it would result in unhealthy competition. As aforesaid, respondent No. 5, without any prior permission already started its Secondary School with effect from June, 1991. The permission was later on granted in favour of respondent No. 5 directly by the State Government as a special case on 30th September, 1991 with retrospective effect from June, 1991.

3. The petitioners during the course of hearing, have confined the challenge to the said decision of the State Government, in the context of averments made in paragraph Nos. 7 to 10 of writ petition which read thus:

(7) It is submitted that respondent-4 has now started respondent-5 school, the said school has been permitted to function from the year 1991-92. At present there is only VIIIth class in the said school which has between 25 to 30 students. The school is situated at Sindi, at a distance of less than one kilometre from the petitioner No. 2 school, and also gets its students from the two villages of Sindi and Umri. It is therefore, in direct and unhealthy competition with the petitioner.

(8) On the basis of information received, the petitioners submit that when respondent No. 4 applied to respondent No. 1 to 3 for permission to start a new school, both respondent No. 3 Education Officer and respondent No. 2 Deputy Director of Education after due inspection and application of mind submitted adverse reports to the Director of Education not recommending starting of the school. These adverse remarks not recommending the starting of the school can be found in the file containing the application in prescribed proforma made by the respondent 4. The refusal to recommend was probably due to the fact that petitioners were already having a running school in the same area and there were not enough students to start another school.

(9) The petitioners have reliably learnt that respondent No. 4 has obtained permission by misrepresenting facts. It has submitted in its application that the population of the village Sindhi is about 10,000 persons whereas the actual population is only 1199 persons. The respondent No. 4 has further stated that the distance of petitioner's school is about 2 km. from the respondent-4 school whereas it is less than 1 km. Thus by deliberate misrepresentation the respondent No. 4 has misled the authorities to obtain an order dated 30-9-1991 for starting new school from respondent No. 1. The said order dated 30-9-1991 is annexed herewith as Annexure- VIII.

(10) The permission dated 30-9-1991 submitted by the Secretary is illegal and arbitrary. The distance of two school in the same area/village is very less in fact less than a kilometre. This is contrary to the Circular dated 11-5-1989 which specifies that new school not be started within the radius of 5 kms. The said circular dated 11-5-1989 is annexed as Annexure-IX. Aggrieved by this state of affairs the petitioners challenge the same on the following grounds amongst others.

4. To complete the record, it will have to be noted that the writ petition was finally heard and allowed on 4th April, 2001. However, the respondent No. 5 carried the matter in appeal before the Apex Court which came to be allowed on October 31, 2007, being Civil Appeal Nos. 6615-6616/2001. That appeal was essentially allowed on the finding that the earlier decision rendered by this Court was ex parte against the respondent No. 5 and for which reason it was appropriate to relegate the parties before the High Court for reconsideration of the entire matter afresh on its own merit. Accordingly, the matter has been argued afresh by the parties before this Court. Significantly, both the sides have filed written submissions in this Court before the hearing of this petition. Later on, the parties have filed further affidavit which was taken on record. The said affidavit discloses certain subsequent developments such as opening of new schools in the nearby areas including the School of the petitioners at Khedi (Manmath) which is only five kilometres away from village Sindi.

5. Be that as it may, we shall straightway advert to the grounds of challenge pressed into service before us. The first ground is that the respondent No. 5 persuaded the State Government to accord permission by causing misrepresentation. The second ground is that the mandatory procedure was not followed by the State Government while granting permission in favour of the respondent No. 5.

6. Insofar as the former ground, the same is without any substance. According to the petitioners, in the application submitted by the respondent No. 5, it was stated that there were about ten thousand persons residing in the area, whereas the actual population of the village was only 1199. It is then stated that, in the application the distance of the petitioners/school is noted as two kilometres from the school of the respondent Nos. 4 and 5, when in fact it was less than one kilometre. This grievance can be answered by adverting to the application filed by the respondent No. 4 for permission to open new Secondary School. Indeed, in Column No. 7 the population of the area is noted as ten thousand. However, in the very same application, the break up of said ten thousand population has been spelt out in Column No. 8 thereof. Insofar as Sindi village where the school has been permitted to be started by the State Government is concerned, the population mentioned in this application is only 1200, which is almost the same number indicated by the petitioner in paragraph No. 9 of the petition. In that sense, there is no misrepresentation caused by the respondent No. 4 on this count. In other words, the figure 10,000 appearing in column 7 of the application represents the aggregate of the population of all the neighbouring areas referred to in the application. Insofar as the factum of incorrect distance between the petitioners/school and the proposed new school, once again there is no substance in this allegation. Inasmuch as, in column 9 of the application, the respondent No. 4 has disclosed the distance of the proposed school as one kilometre away from the existing school. Suffice it to observe that the basis on which the petitioners allege that the respondent No. 4 caused misrepresentation for securing permission from the State Government is devoid of merits.

7. That takes us to the ground regarding non-compliance of procedural requirements. Indeed, the procedure for starting a new school is spelt out in Chapter-II of the Secondary School Code. The authorities are obliged to meticulously follow the said procedure. In the present case, we find that the respondent No. 4, no doubt, submitted formal application to the Education Officer for opening a new school in accordance with the said provision, however, the Education Officer and the Deputy Director of Education were of the opinion, amongst others, that opening a new school in the region would result in unhealthy competition.

8. In other words, the competent authorities did not recommend starting of a new school in the area. On this finding, the question of granting any permission to the respondent Nos. 4 and 5 to start a new school in that area did not arise. However, the respondent No. 4 proceeded to start a new school in the Sindi from June, 1991 itself, without any formal permission by appropriate authority in that behalf. It appears that the respondent No. 4 then pursued the matter with the State Government. The State Government in turn, as in the case of some other institutions who were pursuing their proposal for opening of new schools in Nagpur Division, by general order dated 30th September, 1991 at 'Annexure-VIII', granted permission to in all 21 schools to start new Secondary Schools at different places in Nagpur Division. The respondent No. 4 is one such school, which has been permitted to start at village Sindi. The recital of the said order, no doubt, indicates that permission to the empaneled school was accorded as a special case with effect from June, 1991 in spite of the general ban to start any new school in absence of a master plan. This observation in the order dated 30th September, 1991 passed by the State Government is, however, no indication that the State Government before granting permission to the respondent No. 4 was aware of the remarks recorded by the Education Officer and the Deputy Director of Education that opening of any new school in the area would result in unhealthy competition. The justification has however been offered in the reply affidavit filed on behalf of the respondent Nos. 1 to 3 in the following words:

It is submitted that although the proposal of respondent No. 4 was no duly recommended by the Education Officer, Z.P., Nagpur, and Deputy Director of Education, Nagpur region, the Government granted permission to respondent No. 4 because of recommendations of people's representatives and educational needs of that area. It is submitted that the contentions raised by the petitioner in sub-paras No. (i) to (iv) are also not correct and, therefore, denied.

9. In the first place, the respondent cannot be allowed to make out a new case in the Affidavit filed before the Court, which case is not spelt out in the impugned order itself. At any rate, going by the aforesaid reply, it is plainly conceded that the proposal of respondent No. 1 was not duly recommended by the Education Officer, Zilla Parishad, Nagpur and Deputy Director of Education, Nagpur Region. However, the Government granted permission to respondent No. 4 because of recommendation of people's representatives and educational need of that area. However, we find that the order passed by the State Government dated 30th September, 1991 does not advert to this crucial fact so as to indicate that the Government consciously granted permission to respondent No. 4 to start a new school in spite of the opinion of the competent Authorities at the local level. There is nothing in the said order to even remotely indicate that the Deputy Secretary of the State Government of the Education Department who has issued the order dated 30th September, 1991; or for that matter any other authorized officer of the State Government were conscious about the adverse remarks of the Education Officer and the Deputy Director of Education to the effect that opening of new school would result in unhealthy competition due to existence of a school in the vicinity. That was a crucial aspect to be considered by the concerned authority, which is one of the condition to be kept in mind while granting recognition by the appropriate authority.

10. Suffice it to observe that in terms of the scheme for granting approval or permission to start a new school noted in Chapter-II of the Secondary School Code, the concerned institution is obliged to make a formal application in the prescribed form to the Education Officer before the specified date to be accompanied along with the requisite fee. The Education Officer is then expected to process the said application and forward the same with his remarks to the Deputy Director of Education before 30th November of the year. The remarks of the Education Officer and Deputy Director of Education are then forwarded to the Director of Education before 30th December of the year. The application along with the remarks of the Deputy Director of Education are then forwarded to the Government by the Director of Education before end of January in the year of starting a school. It is only thereafter the application is processed by the Government and appropriate decision taken to either grant permission to start new school as per the recommendations of the competent officers or refuse the same. In the scheme of procedure envisaged by Chapter-II, the recommendations of people's representatives has no place.

11. What is relevant to note is, Clause 2.13 of the Code expressly provides that in no case should the school be started, unless the written previous permission of the Government is obtained. It further provides that Schools started without such permission shall not ordinarily be considered for permission. This provision pre supposes that prior permission to start a new Secondary School is a Rule and to grant permission to unauthorised school started without such permission is an exception. If it is an exception while granting permission to such a school, the Government has to spell out reasons as to why it is inclined to relax the norm provided in Clause 2.13.

12. From the order which has been passed by the Government dated 30th September, 1991, there is no indication in this behalf at all. It will be useful to advert to the exposition in the judgment of Division Bench of the High Court in the case of Late K.L. Deshmukh Shikshan Sanstha, Karkheda v. State of Maharashtra and Ors. reported in 2000(1) M.L.J. 830, in particular dictum in paragraph 4 there of which reads thus:.The unamended Rule 2.5 in Chapter 2 of the Secondary Schools Code provided that in no case should the school be started, unless the previous permission of the Department is obtained, and the school started without such permission shall not ordinarily be considered for recognition. Now Rule 2.13 of the said Code stipulates that the School started without such permission, shall not ordinarily be considered for grant of such permission. The effect of the amendment is that the work 'recognition' stands substituted by the word 'permission'. It is evident from the reading of the Rule that ordinarily if the applicant opens a new school without grant of permission for such purpose, it would not be considered by the Authorities while taking up the case for grant of permission to start a new school. The object is obvious. It is to visit a person with a penalty on account of the said person on one hand applying for grant of permission to start a new school and on the other hand, without waiting for a receipt of a permission, going ahead with the starting of the school, thereby jeopardizing the interests of the innocent students. It is only in special circumstances to be noticed in writing that the permission may be granted to start a new school, despite the fact that, without grant of such permission, the applicant started the new school.

13. In our opinion, It is more than clear that necessary procedure for starting a new school at Sindi was not adhered to in its letter and spirit by the State Government. The argument of the respondents that the Government was conscious of the fact that the respondent No. 4 school had already started from June, 1991 is reflected from the observation in the order dated 30th September, 1991, only deserves to be stated to be rejected. For, it is a general order for 21 institutions and not specific to the case of respondent No. 4. Besides, the reasons which are not indicated in the order dated 30th September, 1991 cannot be allowed to be supplemented by the respondents in the form of affidavit.

14. Be that as it may, the Counsel for the respondent No. 4 has placed reliance on the decision of the Apex Court in the case of Superstar Education Society v. State of Maharashtra and Ors. being Civil Appeal No. 1105/2008 decided on January 16, 2008. Emphasis was placed on the observation in paragraph Nos. 8, 11 and 12 of the said decision. Paragraph 8 deals with the object of regulating permission for new private schools. In paragraph 11, the Apex Court has referred to the duty of the State Government to provide access for education; and paragraph 12 of the said decision highlights the position that the High Court has not considered whether the schools permitted under the order which was impugned before it, were English Medium Schools or Nor Marathi Schools or Schools run by religious and linguistic minorities, which were not intended to be covered by the proposed master plan. We may observe that the decision of the Apex Court deals with the Public Interest Litigation complaining that large number of schools were being started without following any norms. We fail to understand as to how this decision will be of any help to the respondent Nos. 4 and 5 to justify the patently illegal order passed by the State Government in the present case, for the reasons which we have already indicates in the earlier part of this order.

15. The Counsel for the respondent No. 1 relied on unreported decision of the High Court in Writ Petition No. 2672 of 1992 in the case of Amar Education Society v. State of Maharashtra and Ors., decided on 6th August, 1993. Our attention was invited to the questions raised in the said matter as formulated in paragraph 4. One of the issue considered was that, the permission granted and the consequent opening of new school at Takalghat would result in creating unhealthy competition between the two schools. In that case, the Court went on to observe that the undisputed circumstances about the increase in number of students at Takalghat negated the grievance of the petitioners in that behalf. The argument of unhealthy competition, therefore, was answered in the context of fact situation of that case. In the present case, we have already taken a view that the State Government completely disregarded the opinion recorded by the Education Officer and the Deputy Director of Education to the effect that opening of a new school at Sindhi will result in unhealthy competition, and still proceeded to grant permission to the respondent No. 4/School to start a new Secondary School.

16. The moot question is, at this distance of time whether in exercise of writ jurisdiction it would be expedient to set aside the order in question thereby directing closure of respondent No. 4-School, which will have cascading effect on the staff employed by the respondent No. 4 as well as the students who have taken admission in the respondent No. 4/School. We are conscious of the fact that if the action of State Government is invalid, the consequences of setting aside such invalid order ought not to be the basis for non suiting the petitioner. However, in the peculiar facts of the present case, we decline to exercise our writ jurisdiction. This is so because from the comparative chart furnished by the respondent No. 4 regarding strength of students in the petitioners/School as well as respondent No. 4/School, it is noticed that the strength of students in both the schools have gradually grown and consolidated. It is not a case where on account of starting a new school of respondent No. 4, the petitioners/School has suffered any loss of students. That position can be explained from the comparative chart at page 56 which reads thus.

COMPARATIVE CHART ------------------------------------------------------------------------------------PETITIONER SCHOOL (Started in the RESPONDENT No. 4's. SCHOOLyear 1987 based on affidavit filed by (STARTED IN THE YEAR 1991)respondent No. 3 before the Apex Court------------------------------------------------------------------------------------Year V VI VII VIII IX X V VI VII VIII IX X------------------------------------------------------------------------------------1991 20 30 .. 37 48 38 .. .. 30 .. ..------------------------------------------------------------------------------------1992 34 29 34 45 41 49 . .. .. 25 32 .. ------------------------------------------------------------------------------------1993 37 34 41 61 37 33 . .. .. 32 27 33------------------------------------------------------------------------------------1994 45 42 38 48 55 32 . .. .. 35 33 34------------------------------------------------------------------------------------1995 41 48 45 44 43 51 4 .. .. 37 35 30------------------------------------------------------------------------------------1996 48 47 51 53 46 40 1 34 .. 45 42 30------------------------------------------------------------------------------------1997 63 63 59 59 52 43 8 37 37 75 48 37------------------------------------------------------------------------------------1998 75 60 64 47 36 51 0 58 39 77 71 45------------------------------------------------------------------------------------1999 54 51 42 51 34 36 0 46 58 87 81 53------------------------------------------------------------------------------------2000 51 61 49 42 41 41 4 49 46 76 77 55------------------------------------------------------------------------------------Based on the information given by HM of Based on the affidavit filed by this petitioner's school respondent------------------------------------------------------------------------------------2001 51 69 56 47 41 41 3 50 50 78 79 53------------------------------------------------------------------------------------2002 42 55 54 53 38 43 5 45 51 82 80 59------------------------------------------------------------------------------------2003 47 48 57 55 48 36 0 51 46 80 80 61------------------------------------------------------------------------------------2004 51 56 41 56 47 42 6 44 52 78 78 67------------------------------------------------------------------------------------2005 43 52 49 44 43 40 3 35 46 77 77 65------------------------------------------------------------------------------------2006 35 44 54 57 40 40 0 48 39 78 79 62------------------------------------------------------------------------------------2007 30 33 41 59 37 31 6 39 45 78 76 68------------------------------------------------------------------------------------2008 37 30 31 39 56 34 ------------------------------------------------------------------------------------

17. What is significant to note is that the petitioner institution itself has started another new school in the same region (within 5 kms.) in the year 1997. Insofar as the respondent No. 4/School is concerned, that was started during the same period in the year 1992. Indeed, the respondent No. 4 School is about one kilometre away from the petitioners/School. Taking overall view of the matter, therefore, the argument of unhealthy competition stands belied by the circumstances on record. In that, the petitioners themselves decided to start a new Secondary School at village Khedi (Manmath) in the year 1997 (about five kilometres away from the petitioners existing School as stated on affidavit by the respondent No. 4; and at best seven kilometres as is contended by the petitioners.). Whatever be the distance, either five kilometres or seven kilometres away from the petitioners/School, the fact remains that the petitioners at the same time thought it appropriate to start another school in the nearby area, which pre supposes that the argument of unhealthy competition was only a ruse to keep away any other institution starting its school in the region. Although we may deprecate the manner in which the permission has been granted in favour of the respondent No. 4 to start a new school, however, at this distance of time, having regard to the facts and figures which have come on record, we cannot be totally oblivious of that position.

18. The Apex Court while remanding the matter has also expressed some concern about this development without going into the said aspect in detail as can be seen from the observation in the remand order which reads thus:

The school is running from a very long time and it is imparting education to the students of that area. As per the reply filed by the State, it shows that a number of students are studying there and there is a good progress in the school. It is pointed out that on account of starting a new school near the school of the appellant, the strength of the staff of school of the respondent has not been reduced and it has not seriously affected the enrolment of the students in the respondent's school.

19. It is not in dispute that both the schools are receiving grant-in-aid. The petitioners/School is getting grant-in-aid since 1991, whereas the respondent No. 4/School is extended grant-in-aid since 1996-to begin with 25 per cent which has been now increased to 100 per cent. The figures already indicated earlier also support the stand of the respondents that both the schools in due course of time have become viable. To put it differently, the ad-hoc decision of the State Government purportedly under pressure or so-called recommendation of the people's representation has somehow succeeded. However, it would have been a disastrous experiment if the petitioners' School was to become unviable in due course of time because of unhealthy competition. Without observing any further, we would conclude that in the peculiar facts of the present case, we decline to exercise writ jurisdiction, though we find that the order which is impugned before us issued in favour of respondent Nos. 4 and 5 to start the new school is in complete disregard of the recognized norms formulated by the State Government itself.

20. Accordingly, this petition fails. The same is dismissed with no order as to costs.