(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 2085 OF 2001 Indira Education & Welfare Society, Parbhani (Through its President : Abdul Wahab s/o. Mohammed Ismail, Aged 38 years, Occupation : Business, R/o. Bagwan Gully, Parbhani). .. Petitioner. versus 1. The State of Maharashtra, through the Secretary, Education Department, Mantralaya, Mumbai - 32. 2. The Deputy Director of Education, Aurangabad. 3. The Chief Executive Officer, Zilla Parishad, Parbhani. 4. The Education Officer (Primary), Zilla Parishad, Parbhani. ....................... Mr. Monish Nilwant, Advocate, holding for Mr. S.B. Talekar, Advocate, for the petitioner. (2) Mrs. V.A. Shinde, Assistant Government Pleader, for respondent nos.1 and 2. Mr. B.A. Shinde, Advocate, for respondent nos.3 and 4. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 11TH APRIL 2011 ORAL JUDGMENT : 1. Heard learned Counsel for respective parties. 2. One of the contentions of Adv. Nilwant, appearing for the petitioner, is the petitioner was directly given a show cause notice without any previous warning and opportunity to improve. He relies upon provisions of Rule 109, Sub-Rule 2 of the Bombay Primary Education Rules, 1949 (For short, "1949 Rules"), to urge that as per said provision, direct issuance of show cause notice is not legal. He invites attention to reply given to show cause notice with contention that the said reply has not been looked into by the Administrator of respondent no.3 / Zilla Parishad and though specific ground in this respect was taken up in appeal before respondent no.2, respondent no.2 / Deputy Director has also overlooked these aspects. He states (3) that though school at Bagwan Colony was started as a branch, later on main school at Mumtajnagar was itself merged in that school and the Education Officer has after noticing this, directed that school at Bagwan Colony should be accepted or recognized as legal and valid. He states that these documents on record, therefore, clearly show that petitioner should have been given proper opportunity to make amends and necessity of consideration of their stand. 3. Learned AGP Mrs. V.A. Shinde, for respondent nos.1 and 2, and Adv. Mr. B.A. Shinde, for respondent nos.3 and 4, have supported the impugned order. They point out that right from 1989 till the year 2000, various warnings and memos have been issued to the petitioner and after noticing that there was no improvement, the impugned action has been taken. According to him, as lapses noticed are serious in nature, this court should not interfere. Adv. Mr. B.A. Shinde states that the school is not functioning for the last 10 years, students therein have been absorbed in other schools and staff has also been given employment in other schools. 4. Adv. Mr. Nilwant, appearing for the petitioner, has relied upon a judgment of Division Bench of this court reported at 1998(2) Bom. C.R. 821, in the case of Annabhau Sathe (4) Shikshan Prasarak Mandal Vs. The State of Maharashtra & others. The Division Bench in paragraph 5 of the judgment has found that the action of withdrawal of recognition to school results in serious consequences and it not only adversely affects the management of such school but also affects future of the students studying in such school. The Division Bench has further held that it is, therefore, necessary for the authorities created under the Bombay Primary Education Act, 1947, and the Rules of 1949 made thereunder, that they act strictly as per the provisions of the said Act and the Rules. 5. Provisions of Rule 109 of 1949 Rules (unamended) show that as per its Sub-Rule 2, School Board or Education Committee may at any time withdraw the recognition on the recommendation of the inspecting officer, if the conditions on which the school was recognized are not being observed or if the standard of instruction in the school falls materially below the level obtaining in public schools or for other reasonable and sufficient cause. However, proviso thereto require due warning to be given to management with reasonable time to it to carry out the requirements / compliances suggested by School Board or Education Committee. This Sub-Rule 2 has been substituted on 27-2-1978 and there, the competent authority has to communicate to management any defects, specific breach of (5) conditions and give it reasonable time to remove defects or to fulfill the specific conditions and to improve the standard of instructions. If the compliance is not done within specified time, the competent authority can thereafter call upon management of the school to explain within period of one month why recognition of school should not be withdrawn. Thus, in the scheme of Rule 109, Sub-Rule 2, importance is given to opportunity to petitioner / management to show compliances and to rectify the breach of conditions. 6. Here, according to the petitioner, on 17-1-2001, a show cause notice has been directly issued to it without any previous warning and opportunity to make amends. The respondents have relied upon the communication issued in the year 2000 to show last such opportunity given to petitioner / management. The said communication is undated and petitioner before this court is disputing its receipt. However, it is not necessary for this court to look into that aspect. The communication mentions visit to school on 6-7-2000 and obviously it is, therefore, after 6-7-2000. It mentions in its first paragraph less attendance of students and there is no charge about bogus students. Then certain lapses and omissions are noticed and in clause 15, it is mentioned that though school is having permission since June 1989, it has not constructed a (6) permanent building. In concluding paragraph i.e. paragraph 16, Head Mistress of the school has been directed to effect compliances with all matters within her jurisdiction within period of three months. It is mentioned that in case of default, two increments of Head Mistress and one increment each of remaining Teachers would be permanently withheld. For other compliances, management is found responsible and hence period of one year has been given to management to provide authorized place and a well constructed Pakka structure. 7. According to the respondents, period of one year mentioned in this communication is to be counted as end of academic year i.e. 2000-2001. However, that is not possible as the Education Officer has not mentioned that school building and authorized place is to be made available by session end. 8. This communication does not speak of internal dispute between management or its effect on school administration or about absence of School Committee, about bogus students, about unauthorized transfer of school to other place or certain other issues mentioned in show cause notice dated 17-1-2001. It is, therefore, obvious that this communication issued in the year 2000 on the basis of inspection dated 6-7-2000 is also not relevant and cannot be treated as an (7) opportunity given to the petitioners to make improvement. 9. The petitioner has submitted its reply to show cause notice and the impugned order is passed by the Chief Executive Officer in his capacity as Administrator being the Education Committee of Zilla Parishad. The impugned order mentions that the reply has not been received within time and it is also not satisfactory. The facts disclosed about transfer of school and its branch or then closure of school at Mumtajnagar from 1992 and closure of branch of school in Dr. Zakir Husain Nagar is not looked into. The fact that the alleged communication in the yea r 2000 gave them time of one year to find out authorized place and to provide a building, is also not looked into. 10. In appeal again, situation is not much different. The appellate order dated 23rd April 2001 again overlooks the provisions of Rule 109(2) of 1949 Rules. 11. In this situation, I find that the matter needs to be sent back to respondent no.2 / appellate authority for giving petitioner appropriate opportunity of hearing in the light of material on record. The school of petitioner is not functioning since last more than 10 years and hence whether there has been subsequent change having bearing on such permission shall also be required (8) to be looked into. 12. In the result, the petition is partly allowed. The impugned order dated 23rd April 2001, passed by respondent no.2, in appeal, is hereby quashed and set aside. The appeal is restored for its fresh consideration and petitioner shall appear before respondent no.2 on 9th May 2011. Respondent no.2 shall hear petitioner, consider relevant records and pass appropriate orders afresh as early as possible and in any case, by 30th June 2011. 13. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/2085wp