1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION NO. 13 of 2010 IN WRIT PETITION NO. 2327 of 2008 1. Laxmi Education Society, A registered Trust through its Trustees, having office at 9, Wallace Street, Fort, Mumbai – 400001. 2. Hemant Vissanji, of Mumbai, Indian Inhabitant, Trustees and Honorary Secretary of Laxmi Education Society, a registered Trust having office at 9 Wallace Street, Fort, Mumbai 400 001. ....Petitioners Versus 1. The Director of Education, Central Building, Pune 400 101. 2. The State of Maharashtra, Through the Secretary School Education, Mantralaya, Mumbai 400 032. 3. Laxmi Charitable Trust, Registered Trust through its Trustees, having office at 9, Wallace Street, Fort, Mumbai. ....Respondents 2 Mr. N.H. Seervai, Sr. Advocate with Mr. A.G.Kothari, Mr. Akshay Patil and Mr. Madekar for the petitioners. Mr. Nilesh Pawaskar, Spl. Counsel with Mr. B.H. Mehta, AGP for respondent State. CORAM:- A.M.KHANWILKAR AND R.M.SAVANT, JJ JUDGMENT RESERVED ON:- 5th April, 2010. JUDGMENT PRONOUNCED ON:- 19th April, 2010. Per Court (PER A.M. KHANWILKAR, J) At the outset we may record that the parties were informed that one of us (Justice R.M.Savant) may not take up this matter as Shri C.J.Sawant, Senior Advocate has had occasion to appear for one of the parties at some stage of the litigation as was noticed from the order dated 30th June, 2008 in Writ Petition No. 1246/2008 and connected matters. However, Counsel appearing for all the parties submitted that they have no objection whatsoever and would proceed with the hearing of the Review Petition before this Bench itself. The Counsel were requested to take instructions from their respective clients, in response to which they have once again reiterated the same position. In the circumstances, we proceeded with the hearing of this Review Petition. 2. This Review Petition is essentially to recall only some of the observations or findings in Judgment dated 10th December, 2009, in particular referred to in Paragraph 42 to 45. According to the Applicants, the following facts stated in the Judgment under review, which is the basis of the observations, are incorrect, namely; 3 (i) the Court has noted that inspite of the order of refusal of closure of the two junior colleges, the management proceeded to close down the same. According to the Applicants, the order of closure was challenged by way of Writ Petition before this Court and the matter was subjudice. (ii) It is noted that no interim-relief was granted by the Court of competent jurisdiction qua the order refusing to grant permission to close the school. According to the Applicants the order passed on 7th August, 2008 in Writ Petition No. 2327/2008 was in the nature of granting interim relief to the Applicants. (iii) The Court has noted that disregarding the positive order passed by the Court to participate in the admission process, the management contravened the said order and proceeded to close down the college. Even this is factually incorrect. (iv) The Court has noted that the management was adopting modus operandi to dissuade the fresh students from taking admission in the two junior Colleges and then using it as a ground of depletion of students’ strength to justify the closure of the two junior colleges,. Even this is factually incorrect and there was no material on record to support this opinion. (v) The management continued to receive salary grants in respect of permanent employees in the two junior colleges and the said employees had virtually no work and were made to sit idle. Even this finding is contrary to the record. 4 3. The above findings are found in Paragraphs 42 to 45 of the Judgment under review and it is on that basis the Court proceeded to make observations and also issued directions against the management. We shall straightway examine the correctness of the stand of the Applicants as to whether the above stated facts noted in the Judgment under review are without any supporting record and error apparent on the face of the record as is contended. 4. Turning to the first fact that the management closed down the junior colleges inspite of the order of refusal of closure permission; in so far as this fact is concerned, the same is on the basis of the order dated 25th July, 2008 of the Director of Education at pages 205 to 217 of the paper book. The operative part of this order at page 217 proceeded to reject the proposal of the Applicants for permission to close down the junior colleges. Indeed, the Applicants challenged the said decision by way of Writ Petition No. 2327/2008 which was earlier registered as Writ Petition (ST) No. 1808/2008 as is evident from the reliefs claimed therein which reads thus: “The Petitioners therefore prays as under:- a) This Hon’ble Court be pleased to issue appropriate Writ, Orders and Directions under Article 226 of the Constitution of India, quashing and/or setting aside the Findings recorded in Minutes of Meeting dated 21st July 2008 at Exh. “R”, and Order dated 25th July 2008 at Exh ‘S’ hereto. (b) The pending the hearing and final disposal of the Petition this Hon’ble Court be pleased to forthwith stay the Findings recorded in Minutes of Meeting dated 21st July 2008 at Exh. ‘R’, and Order dated 25th July 2008 at Exh.’S’. hereto. 5 (c) For interim and ad-interim reliefs in terms of prayer (b) above. (d) For costs of the Petition. (e) For such other and further reliefs as this Hon’ble Court may deem fit and proper.” 5. Suffice it to observe that the management proceeded to close down the junior colleges during the relevant period inspite of order dated 25th July, 2008 passed by the Director of Education rejecting their proposal for permission to close down the two junior colleges. It is noticed that in the Writ Petition No. 2327 of 2008 no positive order was passed to allow the Applicants to close down the two junior colleges. 6. In so far as the second fact stated in Paragraph 42 that the management closed down the junior colleges even though no interim-relief was granted in their favour by the Court of competent jurisdiction. According to the Applicants, in the Writ Petition filed by the Applicants being Writ Petition No. 2327/2008, which was heard along with companion Writ Petitions being Writ Petition No. 2521/2008 and 1639/2008, on 7th August, 2008, the nature of order passed by the Division Bench of this Court was to grant interim-relief in favour of the Applicants. To answer this contention we would reproduce the order passed on 7th August, 2008, which reads thus:- “Heard. Rule, returnable early. Learned advocates for respondents waive service. As regards interim relief is concerned, the impugned order to the 6 extent it directs the appointment of Administrator is stayed subject to continuation of the undertaking given by the petitioner in writ petition (l) No. 1379 of 2007, No. 1569/07 and 55/07 on 18th September, 2007 and incorporated in the order passed therein in paragraph 10(b) being duly complied with. Liberty to the parties to mention the matter for final disposal in the week commencing from 6 October, 2008.” 7. As aforesaid, this common order was passed while hearing four different Writ Petitions, besides the Writ Petition No. 2327/2008 which was filed by the management to challenge the order dated 25th July, 2008 passed by the Director of Education. The other Petitions pertained to other issues such as appointment of Administrator on the management of the colleges. In so far as Writ Petition No. 2327/2008 is concerned, we have already reproduced the interim-relief as was claimed in that Petition. No positive relief was claimed to allow the management to close down the two junior colleges which was the proposal submitted by the management to the Director of Education and was rejected in terms of order dated 25th July, 2008. Besides, no such order was passed in favour of the management by this Court. Reliance placed on order dated 7th August, 2008 to contend that it was in the nature of interim order is ill advised. For, it merely stayed the impugned order to the extent it directed the appointment of Administrator. This order cannot be interpreted to mean that the Applicants were permitted to close down the two junior colleges as such. The argument, however, proceeds on the basis of the later part of the order which states that the stay to the appointment of Administrator was subject to the condition of undertaking given by the management in Writ Petition No. 1379/2007 and connected matters on 18th September, 2007 (correct date is 20th 7 September, 2007) as incorporated in the order, in particular Paragraph 10(d) being duly complied with. In this connection, our attention was invited to Paragraph 10(d) of the order dated 20th September, 2007 passed by another Division Bench of this Court in Writ Petition (L) No. 1379/2007 at pages 130-141 of the Review paper-book. Clause 10(d) of the said order reads thus:- “(d) The students who have already been granted admission by the college by its own or under the orders of this court in the presence of the Education Officer shall be permitted to complete their academic course for two years i.e. 11th and 12th standards. The college will not in any way hamper the educational career or curtail the said period under any circumstances.” 8. It was argued that the undertaking given by the management was only to continue the students who were granted admission by the college on its own or under the orders of the Court to complete their academic course for two years i.e. XI th and XII th Standards. It was argued that since the undertaking given on behalf of the management was limited to the students already admitted, there was no question of giving admission to new set of students for the next academic year. The argument clearly overlooks the fact that the Judgment of this Court dated 20th September, 2007 was to direct the Government to take expeditious decision on the closure notice submitted by the management of the colleges. Consequent to the said directions, the Director of Education considered the said proposal submitted by the management and for reasons recorded in his order dated 25th July, 2008 refused to grant such permission. The effect of that order necessarily obligated the management to run the two junior colleges and to admit students for the new academic year 2008-09. More so because there was no interim order of any competent Court in favour of the management to the contrary. The undertaking given by the management before 8 this Court as recorded in order dated 20th September, 2007 was worked out at the end of the academic year 2007-08 and in particular upon order passed by the Director of Education on 25th July, 2008. The Applicants could have been extricated from discharging their obligation of continuing to run the junior colleges only if the Court of competent jurisdiction was to so pronounce in favour of the management to permit the management to close down the junior colleges from academic years 2008-09. No such order was produced before the Court at the relevant time or even now before us. Neither the order pressed into service dated 7th August, 2008 or for that matter dated 20th September, 2007 will be of any avail to the Applicants. On the other hand, we find that no interim-relief of stay to the order passed by the Director of Education dated 25th July, 2008 was pressed and in fact no such relief could have been granted. The Applicants could have only asked for positive mandatory relief of allowing them to close the two junior colleges from the academic year 2008-2009 as substantive relief and in any case by way of interim-relief which was never done. 9. The third submission made is that in Paragraph 42 of the order under review, it is noted that the management disregarding the positive order passed by the Court to participate in the admission process failed to do so. In so far as this fact noted in the order under review is founded on the factual matrix stated in Writ Petition No. 1640/2009 (original Writ Petition (L) 971/2009) filed by the residents of Andheri, which was heard on 29th May, 2009 by another Division Bench. At the interim stage, the Court passed the following order:- “P. C. 1. Heard Counsel for the parties. 9 2. Laxmi Education Society, the petitioner in Writ Petition No. 2327 of 2008 has, from time to time, intimated the authorities about its intention to close down the two colleges run by the Society, but the authorities have refused them permission to close down the colleges and against the order of Director, refusing such permission, it has filed Writ Petition No. 2327 of 2008. That writ petition has been admitted. However, no interim relief for closure of the colleges has been granted. 3. It may be noted that the Government had appointed administrator to run the management of the said colleges. By an order dated 7th August, 2008, in bunch of writ petitioners, the Division Bench of this Court has stayed the appointment of administrator subject to continuation of the undertaking (direction) given in Writ Petition Nos. 1329/07, 1569/07 and 55 of 2007 on 18th September, 2007. The Government has taken out a notice of motion No. 304 of 2009 to vacate the stay to the appointment of Administrator mainly on the ground that the management of the colleges is not cooperating with the authorities by not supplying necessary data which is required to the Government for Online process of admission. 4. A Public Interest Litigation i.e. Writ petition No. 971 of 2009 is also filed by parents of the some students, who propose to take admission in college in the ensuing academic session and in that petition, they have sought direction that the management should supply the data for the Online admission process of Standard XI for the academic year 2009-10 as prescribed by the Government. 5. The learned Counsel appearing for the management makes a statement that they had complied with the direction given by the Division Bench in the order dated 18th September, 2007 in respect of the students who were admitted and 10 according to them, all those students have completed their course and during last two years the said two colleges have not given admission to any students. On the other hand, the Special Counsel Mr. Pawaskar for the Government makes a statement that last year, admission to some 500 students was given by the Government in the said colleges but they were required to be accommodated elsewhere because the management had removed all the teaching faculty. He contents that this year, the Government has undertaken a responsibility to pay salary of the teaching faculty and the Government can take care that the students are not required to be removed for accommodation elsewhere. The learned Special Counsel also makes statement that data/information is required at this stage only for the purpose of making preparation before the actual admission process starts because the admission process will actually begin only after the results of SSC are declared, which are expected sometime after 8th June, 2009. 6. In view of the facts and circumstances, for the present, the following directions will meet the ends of justice. (i) The Management shall provide data and information for starting online admission process for Standard XI ( 2009- 10) in the prescribed proforma which is already supplied to the management on or before 1st June without fail, without prejudice to their contentions which they have taken in their Writ petition. (ii) Both the petitions and the notice of motion be placed together before the regular Court on 10th June, 2009. ” 11 10. We have no doubt in reiterating that the effect of this order was to direct the management to provide necessary data and information for starting online admission process for standard XI th for academic year 2009-2010 in the prescribed proforma on or before the specified date. Indeed, this was to be done without prejudice. According to the Applicants, however, this order cannot be construed as a positive order passed by the Court to participate in the admission process but it only required the Applicants to furnish necessary data and information so as to start the on line admission process. The above order, however, belies the claim of the Applicants - as the Court has noted that the data/information to be furnished by the Applicants were required at this stage only for the purpose of making preparations before the actual admission process starts and the admission process would begin after the results of SSC were declared sometime after 8th June, 2009. 11. Notably, the above order was passed in two different proceedings, namely, in Writ Petition filed by the residents as also on the Notice of Motion No. 304/2009 filed by the State Government to vacate the stay for the appointment of Administrator on the ground that the management of the colleges were not cooperating with the Authorities by not supplying necessary data which was required by the Government for online process of admission as is noted in Paragraph 3 of the order dated 29th May, 2009. The reliefs claimed in the said Notice of Motion read thus: “(a) That this Hon’ble Court be pleased to set aside the order dated 7th August, 2008 passed by the Division Bench comprising of the Hon’ble Mr. Justice R.M.S.Khandeparkar (as he then was) and the Hon’ble Mr. Justice A.A. Sayed in Writ Petition (Lodg) No. 1825 12 of 2008 and thereby confirm the order of appointment of administrator dated 25.7.2008 passed by the Director of Education, Secondary and Higher Secondary, Maharashtra State, Pune; (b) That pending the hearing and final disposal of the above Notice of Motion, this Hon’ble Court may be pleased to set aside the order dated 7th August, 2008 passed by the Division Bench comprising of the Hon’ble Mr. Justice R.M.S. Khandeparkar (as he then was) and Hon’ble Mr. Justice A.A. Sayed; (c) Such other and further reliefs that may be passed by this Hon’ble Court as may be required in the facts and circumstances of the present case.” 12. It may be useful to advert to the averments in the affidavit in support of this Notice of Motion. Considering the case made out by the State Government in the Notice of Motion and in the Writ Petition filed by the residents being Writ Petition No. 1640/2009 (original Writ Petition (L) No. 971/2009), the Court passed the order on 29th May, 2009 which was obviously indicative of requiring the Applicants to facilitate the admission process. 13. In so far as fourth finding of fact noted in Paragraph 43 of the order under review to the effect that the management was adopting modus operandi so as to dissuade fresh students from taking admission in the junior colleges and then using it as a ground of depletion of students’ strength so as to justify the closure of two junior colleges. Even this is substantiated from the averments in Writ Petition No. 1640/2009 (WP(L) No. 971/2009) as also the Notice of Motion No. 304/2009 filed by the State Government where specific grievance was made that 13 the Applicants were creating situation so that the students do not take admission in their colleges. It was the case of the State Government that admission to above 500 students was given by the Government in the junior colleges of the Applicants but the said students were later on required to be accommodated elsewhere because the management removed all the teaching faculty. It is in this context, the above finding has been noted and is substantiated by the said record. The Court, therefore, opined that the directions issued even by this Court remained on paper because of the recalcitrant attitude of the management, which, in law, was obliged to continue the two junior colleges till the decision of the competent Authority on the proposal of closure submitted by the management was to attain finality. The management was obliged to run the junior colleges and the same were deemed to be operating irrespective of the fact that no students could take admission in the two junior colleges on account of fortuitous circumstances which were the making of the management for the relevant academic years. 14. That takes us to the last objectionable finding of fact noted in Paragraph 45 of the order under review, wherein it is mentioned that the management continued to receive salary grants in respect of permanent employees in the two junior colleges and the employees had virtually no work and were made to sit idle. In this connection, the Applicants have invited our attention to the order passed by the Learned Single Judge of this Court dated 30th June, 2008 in Writ Petition No. 1246/2008 and connected matters. In Paragraph 45 of the said order which is available at Page 203 of the paper book, relevant extract thereof is reproduced thus: “Till the period the Tribunal tenders its decision, it will not be 14 possible to direct payment by either State or the management. That will have a adverse effect and may affect the controversy before the State Government so also the Tribunal. That would be prejudging both issues. In such circumstances, I am not in a position to accept the request of Mr. Dighe. Since the delay has occurred also on behalf of the Education Authorities, the Management also cannot be directed in the peculiar facts of this case to release the salary more so, when the aspect of legality of termination is still at large.” 15. Reliance is also placed on the Minutes of the meeting held on 5th May, 2009 in the Chamber of Minister, School Education in relation to the present colleges which is available at page 257 of the review paper-book: “Thereafter, Hon’ble Minister ordered that since Hon’ble High Court has not passed any orders about closing the colleges, the colleges would continue to be run. The salary stopped for teachers should be resumed.” 16. It is thus contended that it is the State Government who took the responsibility of paying the salary of the teachers and the management was not responsible therefor. The fact that the State Government had taken the responsibility of payment of salary to the employees is restated in the order of this Court dated 29th May, 2009. In Paragraph 5 thereof, the contention of the Special Counsel for the State Government has been noted that the Government has undertaken responsibility to pay salary to the teaching faculty to ensure that the students are not required to be accommodated elsewhere for want of teaching staff. On the basis of this, it is argued that the management cannot be 15 made responsible for non-payment of salary from March 2008 till April 2009 or for that matter for payment thereof from May 2009 onwards which was on account of the initiative taken by the State Government on its own. The Applicants may be justified to the extent that they were not responsible for payment of salary to the employees from May 2009 as that responsibility was taken over by the Government. However, we cannot overlook the fact that the Government was required to take that responsibility in view of the experience that the students earmarked to the two colleges in question were not given admission or could not take admission during the academic year 2009-2010 because the management had removed all the teaching faculty. Therefore, the State Government took initiative to take the responsibility of paying salary to the teaching faculty with a hope that the students would be admitted in that college atleast from that academic year till the decision on the proposal for closure of the two colleges would attain finality. In other words, inspite of payment of salary grants in respect of permanent employees in two junior colleges,