1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4257 of 2001 Date of decision: 9.9.2010 For approval and signature HON'BLE MR. JUSTICE S.B.DESHMUKH HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/4257-01wp 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4257 OF 2001 1. Bharat Shikshan Sanstha Omerga, Taluka Omerga, District Osmanabad. Through its Secretary, Shri Nanasaheb Sidram Musande, Age 65 years, occ. Pensioner, r/o. Juni Peth, Omerga, Tal.Omerga, Dist. Osmanabad. 2. Nanasaheb Sidram Musande, Age 65 years, occ. Pensioner, r/o Juni Peth, Omerga, Taluka Omerga, Dist. Osmanabad. ...PETITIONERS VERSUS 1. The State of Maharashtra. 2. The Director of Education, Maharashtra State, Pune. 3. The Education Officer (Secondary), Zilla Parishad, Osmanabad, District Osmanabad. 4. Shramjivi Shikshan Prasarak Mandal, Omerga, Tal.Omerga, Dist. Osmanabad Through its Secretary, Shri Basavraj Madhav Patil, Age 45 years, occ. Hon.Minister, for Rural Development Department, Mantralaya, Mumbai. 3 5. Shri Basavraj Madhavrao Patil, Age 45 years, occ. Minister for Rural Development Department, Mantralaya, Mumbai. 6. Saraswati Higher Secondary School, Makni, Taluka Lohara, Dist. Osmanabad. Notice to be served on its Principal. ...RESPONDENTS ... Shri A.C.Darandale, Adv., h/f Shri N.R.Bhavar, Adv., for petitioners. Shri K.S.Patil, A.G.P., for respondent State. Shri V.G.Sakolkar, Adv.for respondent nos. 4 and 6. Shri H.B.Nandagavale, Adv., h/f Shri S.S.Deo, Adv., for respondent no.5. ... CORAM: S.B.DESHMUKH AND K.U.CHANDIWAL, JJ. DATE : 9/9/2010 *** Date of reserving the judgment:6/9/2010 Date of pronouncing the judgment: 9/9/2010 *** ORAL JUDGMENT:(Per K.U.Chandiwal, J.) 1. Rule was issued on 13.8.2002. 2. Heard. At the time of issuing Rule, 4 following order was passed: " In the meanwhile, we direct the Respondent No.3 to inspect the Junior College run by the petitioners as well as the Respondent No.4 at village Makni, taluka Lohara, dist. Osmanabad and submit a report to us regarding the infrastructure, teaching facilities and the strength of students in each class. The infrastructural facilities would include the school building, Laboratory, Library, toilets, teachers common hall, playground,etc. This report shall be submitted to us within two weeks." 3. The thrust of the petitioner is the grant of permission to respondent no.4 to run the school effective from the academic year 2000-2001 was illegal and erroneous. The order dt.30th August, 2001 is questioned, canvassing that such permission is granted in the middle of the year, with retrospective effect, resulting into unhealthy competition as the Higher Secondary School run by the petitioner trust would be affected. The grievance put forward to respondent nos. 1 to 3 are turned deep. The permission to open class XI at village Makani in Arts Faculty is violating the provisions of law. 4. Pursuant to the directions issued by this Court, referred to above, fact finding report is furnished by the competent authority. The report of the Education Officer, Zilla Parishad, Osmanabad, illustrates having visited 5 the petitioners school as well as the school/institution of respondent no.4. The comparative chart is annexed at Page Nos. 73, 74 and 75 with the affidavit. Having analyzed the chart, in juxtaposition, it is explicit that adequate facilities in tune with the norms are found existing by the competent authority. The strength of the students in XIth and XIIth Standard of respondent no.4 was 66 and 67 for the academic year 2002-2003. It is an Arts College. However, there is arrangement of Laboratory and the instruments are worth Rs.34,480/-. 5. This report illustrates that there is no high-handedness on the part of the authorities in grant of permission to respondent no.4. 6. It is pertinent, though the permission refers for the academic year 2000-2001, however, the communication is received in second week of 2001 and XIth Standard Arts Faculty, indeed, was commenced from the academic year 2001-2002. 7. In the additional affidavit of Ramkrishna Vyankatrao Kharosekar, on behalf of respondent no.4, it is highlighted that the Deputy Director of Education, Latur Division, Latur, by further order dt.6.10.2003, granted departmental permission for XIth Standard Arts Faculty from 2001-2002, it was also granted for 6 XIIth Standard Arts Faculty, based on the annual growth of respondent no.4. The total strength of XIth and XIIth Standards from 2001-2002 till 2010-2011 is demonstrated, which is an upward graph. There are total 8 teaching staff, one Librarian and one Peon appointed for XIth and XIIth Standards under a prior approval of Deputy Director of Education. 8. Considering the averments in the rejoinder and the inspection that has been carried out, coupled with the affidavit of Shrikrishna Vithalrao Kadam, Education Officer, it is clear that there is no dearth of students in the vicinity to cause any unhealthy competition for petitioner institution vis-a-vis respondent no.4. Even if it is educational field, healthy competition in building academic career would be enhancing the quality and standard of either the petitioner or the respondent no.4. 9. The directions in the School Code cannot be said to be mandatory in nature. It has no statutory force, they are executive instructions and will not be changing the scenario in the 7 matter. In the result, we do not find any merit in the writ petition. It is dismissed. Rule discharged. (K.U.CHANDIWAL) (S.B.DESHMUKH) JUDGE JUDGE ... AGP/4257-01wp