Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 598 of 2008 (M/S) Umed Singh Rawat Indu Samiti through its Manager and Secretary Sandeep Rawat, S/O Shri Prem Singh Rawat, having registered office at Village-Basai, Post Office Peerumadara, Ramnagar, District Nainital. …… Petitioner. Versus State of Uttarakhand, through Secretary, School Education, Government of Uttarakhand, Dehradun and three others. … Respondents. Sri Sanjay Bhatt, learned counsel for the petitioner. Sri Sudhir Kumar, learned Brief Holder for the State-respondents. Date May 07, 2009. Hon’ble B.S.Verma, J. This writ petition has been preferred for the following reliefs:- 1. A writ, order or direction in the nature of certiorari to quash the impugned order dated 20-03-2008 issued by Respondent No.3. 2. A writ, order or direction in the nature of mandamus commanding the respondents to release fund for 1482 students at the present rate considering the fact that last year the rate per student for the year 2006-07 was Rs. 845/-. 3. Any other order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case. 4. Award cost of the petition to the petitioner. Relevant facts, giving rise to the present petition, in brief are that the petitioner is a Non-Government Organization ( for short the NGO), which is known as Umed Singh Rawat Indu Samiti 2 having its registered office at Village Basai, Post Office Peerumadara, Ramnagar, District Nainital and it is registered under the Societies Registration Act, 1860. According to the petitioner, the primary function of the NGO is to impart education to the marginalized families in the unorganized sector and to protect the environment in the State of Uttarakhand. The World Bank started a project about 2001-02 for spreading education and for uplift of literacy amongst poor section of the society, who are placed below poverty line. The World Bank has sanctioned a huge financial aid at the disposal of the State Governments and the same is to be utilized on the project known as ‘Sarva Shiksha Abhiyan’. Guidelines have been issued by the Government of India, a copy whereof has been annexed as Annexure No. 3. The State of Uttarakhand in order to impart modern and scientific education in the Maktabs/Madrasas invited applications from the NGOs for the said purpose. The project was to run by the State Governments as per guidelines of the Central Government. The petitioner organization was directed to impart such education to 21 Maktabs/Madrasas. The total number of students for the year 2007- 08 is 1482. The project is run by the petitioner since 2004-05 and presently, the education is being given to 1482 students. According to the petitioner, petitioner NGO was given remuneration at the rate of Rs. 845/- per student. Out of this amount, the petitioner is required to pay the salary of the teachers, who are known as instructors and also the money has to be invested in purchase of teaching and learning materials (for short TLM), which includes black board, chalks, duster, mattresses, school books and dress etc. for each student. These materials are being purchased each year and are utilized as such. It is also stated that the respondents are making inspections of the petitioner NGO off and on. During the current year petitioner was released a sum of Rs. 3,18,337 and no further amount was released. The grievance of the petitioner is that by the impugned order dated 20-3-2008 passed by respondent no.3, which was passed at the fag end of the 3 financial year, the financial grant towards purchase of TLM and other material was refused and the permission to release the financial aid after 31-3-2008 has been refused on that count for the session 2008-09. Hence this writ petition. The main grievance of the petitioner is that the respondents are not justified in not releasing the adequate funds for the year 2007-08 @ Rs. 845/- per student per year in respect of 1482 students as was done by them for the year 2006-07. Counter affidavit has been filed on behalf of the respondent no.3. The affidavit is duly sworn in by Sri Tara Chandra, presently posted as District Project Officer, Sarva Shiksha Abhiyan/Additional District Education Officer (Basic) Nainital. In the counter affidavit, the material allegations made in the writ petition have been simply denied, which shall be discussed in the body of this judgment as and when required. Rejoinder affidavit has been filed on behalf of the petitioner. In the rejoinder affidavit the facts stated by the petitioner in the writ petition have been reiterated and along with the same, certain documents including the true copies of inspection reports made by the respondents as well as verification report dated 26-12-2007 have been annexed as Annexure RA-1 and RA-3 respectively. I have heard learned counsel for the parties at length and perused the material placed before the Court. At the outset, it is pertinent to mention that earlier Writ Petition No. 587 (M/S) of 2008, Umed Singh Rawat Indu Samiti Vs. State of Uttarakhand and three others was filed by the petitioner for issue a writ of certiorari quashing the order dated 29-02-2008 passed by the same respondent no.3 whereby payment of sub- centers/camps run by the petitioner under Education Guarantee 4 Scheme/alternative and innovative education was stopped and mandamus of the Court directing the respondents to release the payment of 1605 students for the year 2007-08 was prayed for. In that writ petition, the following order was passed by this Court vide order dated 17-12-2008:- “(6) Having considered the submissions of learned counsel for the parties and after going through the papers on record, as discussed above, this Court feels that the petitioner has wrongly been denied the payment for imparting education to poor children of marginalized families through ten camps/sub-centres of the two centres in Dabka and Kosi, for the year 2007-08. Accordingly, to that extent, impugned order dated 29.02.2008, passed by District Project Officer, Nainital, and the order dated 14.04.2008, passed by District Magistrate, Nainital, are hereby quashed. The authorities are directed to take a decision afresh relating to payment to the petitioner in respect of the education imparted under ‘Sarva Shiksha Abhiyan’ scheme for the year 2007- 08, in the light of the observations made above.” It is thus evident from the order dated 17-12-2008 passed by this Court, payment has been wrongly denied to the petitioner for the year 2007-08 and the authorities have been directed to take a decision afresh relating to payment to the petitioner. In paragraph no. 8 the memo of petition, the petitioner has stated that the petitioner was directed to impart modern and scientific education in the Maktabs/Madrasas. According to the petitioner, 21 Maktabs/Madrasas were being run during the year 2007-08 and the strength of student was 1482. In the case at hand, the petitioner has also claimed payment in respect of 1482 students @ Rs. 845/- per student for the year 2006-07. 5 The short controversy to be resolved in the present writ petition is as to whether the petitioner is entitled to get payment at the aforesaid rate in respect of 1482 students for the year 2007-08, as claimed by it or not. Before entering into the merits of the petition, it may be observed from a bare perusal of the impugned order dated 20-3- 2008 this fact is borne out that the petitioner NGO had been granted sanction to run all the aforesaid Maktab/Madarsas and the permission was refused after 31-3-2008. It is thus obvious that the petitioner NGO was imparting education to the concerned students as per sanction accorded by the respondent no.3 for the year 2007- 08. In paragraph no. 10 of the petition, it is stated that for the year 2006-07 petitioner was given remuneration @ Rs. 845/- per student. In paragraph no. 17 the petitioner has claimed that the respondents are liable to release funds at the rate of Rs.845 per student for a total number of 1482 students. The petitioner has further alleged in paragraph 18 of the petition that “at present the Petitioner is imparting education to 1482 students in the Maktabs and Madrasas.” It is the positive stand of the petitioner in paragraph no. 19 of the petition that the strength of children has been verified by the respondents and verification note is available on record. As against this, in the counter affidavit, the respondent no. 3 has simply denied that the petitioner is imparting education to 1482 students and this contention of the respondents that because at the time of inspection, less number of students was found, therefore, the strength is not correct. The respondents have not alleged that there has been any particular strength of the students in the Maktab/Madarsas run by the petitioner. It is but natural that some of the students might have been absent on the date of inspections as alleged by the respondents, but it would not be safe 6 in the absence of any positive assertion from the side of the respondents to hold that 1482 students were not imparted education. The petitioner has filed rejoinder affidavit and along with it, the petitioner has annexed verified statements (caste-wise as well as class-wise) of strength of the students. Those statements bear the signatures and seal of the Block Education Officer, who happens to be a subordinate Officer under the supervision and direct control of the respondents. At the outset it would not be out of place to mention here that the payment has been refused to the petitioner by the respondent authorities mainly on two grounds- firstly because the total number of students was not found on the dates of surprise inspections and secondly, teaching and learning materials were not found available. Learned counsel for the petitioner NGO has vehemently argued that the statements relating to the strength of the students were got prepared by the petitioner and the same were got verified by the authorities concerned. Copies of such statements have been annexed along with the rejoinder affidavit filed by the petitioner. Learned counsel for the petitioner has hammered the contention of the respondents that it is not a natural rule that as and when the surprise inspections were made by the authorities concerned, all the students should have put in appearance on the relevant dates. Learned counsel further argued that the respondents cannot refute the statements which were duly verified by their own officers. The arguments advanced by the learned counsel for the petitioner has got force. I am also of the view that it is not necessary to prove full strength of any institution at the time of surprise inspections made by the authorities. As regards the second contention of the respondents that the teaching and learning material (TLM) were not found, 7 learned counsel for the petitioner has contended that the teaching and learning materials are perishable articles and most of them are likely to be torn out and exhausted. Amongst other things, such items included mattresses, black boards, chalks, dusters, books, printed charts, colour pencil, sketch pens, playing items like bats, balls, cocks, rackets, etc. The submission of the learned counsel is that deficiency of perishable articles of teaching and learning materials at the time of surprise inspections cannot be a genuine ground to refuse the grant of funds to the petitioner NGO. Learned counsel also submitted that the surprise inspection notes filed by the respondents are very general in nature, wherein only defects were pointed out. Neither any positive directions to remove the defects were given nor adequate opportunity to make the deficiency good was afforded. Respondents authorities were fully competent to have directed the petitioner NGO to produce the relevant records to justify the alleged shortfall in the stock of perishable articles. The alleged irregularities found in the inspection notes can be made good by removing the defects. On the other hand, the learned Brief Holder appearing on behalf of the respondents-State in the course of arguments submitted that judicial notice of the fact may be taken that the petitioner institution is an NGO and there were no regular appointments of the staff and only honorarium was required to be paid to the instructors for the period they actually worked and usually the educational institutions remain closed for more than three months every year because of winter and summer vacations besides festival holidays. Therefore, the claim of the petitioner for payment in respect of a complete calendar year is not justified. This submission of the learned counsel for the respondents has some force. It is pertinent to mention that earlier also, the petitioner’s writ petition (Writ Petition No. 587(M/S) of 2008) was decided by this Court vide order dated 17-12-2008 and this Court 8 has observed that the petitioner has wrongly been denied payment for imparting education to poor children of marginalized families through ten camps/subcentres of the two centres in Dabka and Kosi for the year 2007-08. The authorities concerned were however directed to take a decision afresh relating to payment to the petitioner in respect of the education imparted under ‘Sarva Shiksha Abhiyan’ scheme for the year 2007-08 in the light of the observations made in the body of the judgment. It is important to mention that at page 5 of the said order, this Court has specifically observed that “Annexure 5 to the writ petition, further shows that in the year 2007-08, the education authorities themselves verified number of students 622 under Alternative and Innovative Education centre Dabka and 983 students in the similar centre at Kosi, who were given education in 4 and 6 sub centres respectively (in total 10 sub centres). Annexure 6 to the writ petition shows that from time to time the information and statements were duly submitted to the education authorities.” In the case at hand, it is also obvious that the statements prepared by the petitioner NGO, which are annexed along with rejoinder affidavits, were got verified by the own subordinate officers of the respondent no.3. Having considered the arguments advanced by the learned counsel for the parties and having perused the material placed before the Court, I find that the petitioner NGO is entitled to get the payment at least at the rate of Rs. 845/- per student per year as prevailing for the last year, i.e. 2006-07, from the respondents. I am also of the view that the petitioner NGO would be entitled to get the payment at the said rate in respect of 1482 students per year, but only for a period of eight months. Thus the petitioner is entitled to get 2/3rd of the amount as claimed by them. The amount already released by the respondents for the year 2007-08 and received by the petitioner shall be adjusted out of the total amount so worked out. 9 In view of the discussion and the reasons stated above, the writ petition deserves to be partly allowed. The session 2007- 08 covers 12 months but the petitioner shall be entitled to the payment @ Rs. 845/- per student for a total of 1482 students for a period of eight months, i.e. only 2/3rd of the amount to be worked out for a complete year and the amount already received by the petitioner shall be adjusted and only difference of the two amounts shall be released by the respondents in favour of the petitioner. The writ petition is partly allowed. The respondents are directed by a writ of mandamus to release the funds in favour of the petitioner, as directed above, within a period of two months. No order as to costs. ( B.S.Verma, J. ) RCP 10 11