1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 5894 OF 2009 *** Sharada Shikshan Prasarak Mandal, Pimpalgaon Kolte, Tq. Bhokardan, Dist. Jalna. Through its President, Mr. Bhausaheb Sarjerao Solunke, Age: 54 years, Occu.: Agriculture, R/o Village Pimpalgaon Kolte, Taluka Bhokardan, District Jalna. ... PETITIONER. Versus 1. The State of Maharashtra. (Through Secretary, Department of School Education and Sports, Mantralaya, Mumbai-32). (Copy to be supplied to the Office of Government Pleader, High Court Building, Aurangabad). 2. The Director of Education, Secondary and Higher Secondary, Maharashtra State, Pune-1. 3. The Education Officer Secondary, Zilla Parishad, Jalna. 4. Rejkuwar Bahu-Uddeshia Seva Sanstha, Jalna (Copy to be served on the President, Mr. Bhagwan S. Dobal, Age: Major, Occu.: Service, R/o House No.1, Parwati Apartment, Mastgad, Jalna). ... RESP0NDENTS 2 *** Mr. V. D. Gunale, Advocate h/f Mr. C. T. Jadhav, Advocate for the Petitioner. Mr. V. B. Ghatge, A.G.P. for Respondent Nos.1 to 3. Mr. D. R. Irale Patil, Advocate for Respondent No.4. *** CORAM: S. B. DESHMUKH & SHRIHARI P. DAVARE, JJ. DATED:- 1st OCTOBER, 2010. ORAL ORDER [Per Deshmukh, J.]: 1. We have heard learned counsel for the parties. 2. Rule, made returnable forthwith, heard finally by consent of the parties. 3. Petitioner is a trust registered under the provisions of Bombay Public Trust Act, 1950 (the said Act, for short). The petitioner trust has been established for imparting education in the State of Maharashtra. According to the Petitioner, Government Resolution dated 29th April, 2008 had invited application/ proposals for various primary/ secondary/ higher secondary schools. The petitioner proposed new higher secondary school (for 11th Standard) at village 3 Pimpalgaon Kolte, Taluka Bhokardan, district Jalna. The petitioner claims that the petitioner trust/ society is a local society functioning at village Pimpalgaon Kolte, Taluka Bhokardan, district Jalna. Petitioner does possess infrastructure, including land at village Pimpalgaon Kolte. On 5th May, 2008 petitioner deposited requisite amount by challan with the State Bank of Hyderabad, for new higher secondary school proposal. Counsel for the Petitioner submits that such proposal for new higher secondary school was tried to be submitted on 12th May, 2008 along with the copy of the challan. Respondent No.3 refused to accept the proposal and made endorsement in writing on the proposal. Page 25 is the copy of the said proposal submitted by the Petitioner for the academic year 2008-09. Endorsement on this proposal under the signature of Respondent No.3 reads "in view of item No.15 of letter dated 9th May, 2008 proposal tendered on 12th May, 2008 by the Petitioner could not be accepted". Grievance of the Petitioner is that on the same date i.e. on 12th May, 2008 respondent No.2 has 4 taken a decision for extending time for acceptance of the proposals for new higher secondary school (11th standard) till 20th May, 2008. According to the Petitioner, on 20th May, 2008, petitioner submitted proposal for new higher secondary school and it was accepted. Grievance is raised by the petitioner that though the proposal was submitted on 20th May, 2008 the acknowledgment or receipt has been endorsed by the Respondent incorrectly as 21st May, 2008. Petitioner further submitted that thereafter no action was taken on the proposal of the Petitioner, which was lying with Respondent No.3. According to the Petitioner, in the year 2008-09 two other societies had moved the proposals but were rejected, reasons which are not known to the Petitioner. According to the Petitioner, during the academic year 2008-09 no new school was sanctioned at village Pimpalgaon Kolte. On 14th July, 2009 the State Government took a decision and extended facility of A.T.K.T. (allowed to keep turns) to the 10th standard students. On 24th August, 2009, Respondent No.2 allegedly asked 5 by Respondent No.1 for clarification as to whether proposal of the petitioner society can be considered since it was received within the extended period of time. According to the Petitioner, despite repeated requests and persuasion no positive d3ecision was taken by the Government till rejection of the proposal of the petitioner. With these grievances, writ petition has been filed by the Petitioner on 28th August, 2009. The dates are material, in the case on hand. Verification of this writ petition by one Mr. Bhausaheb Sarjerao Solunke is dated 28th August, 2009. Registry had examined the writ petition on 29th August, 2009. On 31st August, 2009 circulation was granted by this Court. On 7th September, 2009, matter was adjourned to 14th September, 2009. 4. The petition has suffered amendment with the leave of this Court. Mr. Gunale, learned counsel, took us through amended prayers. By amended prayer clause (C-a) writ of mandamus is sought by the petitioner for quashing and setting aside the order dated 29th August, 2009, a day later to the date of filing of the 6 writ petition. This order is Annexure-M. It is in favour of Respondent No.4 which is also trust registered under the provisions of the B.P.T. Act. Indisputably, this Respondent No. 4 runs a secondary school viz. Shivaji Higher Secondary School at same village i.e. Pimpalgaon Kolte, Taluka Bhokardan. prayer clause (C-b) seeks writ of mandamus against the authorities to consider all the proposals to establish new higher secondary school at village Pimpalgaon Kolte, Taluka Bhokardan. To our pointed query to Mr. Gunale, as to how many proposals were submitted for establishment of new higher secondary school during the academic year 2008-09, answers that "three trust or societies", one of them was the Respondent No.4, the other one is Gajanan Maharaj Bahu Udeshiya Sewa Bhavi Sanstha, Gosegaon, Taluka Bhokardan, district Jalna. So far the third proposal is concerned, it was by the Petitioner. Gajanan Maharashtra Bahu Udeshiya Sewa Bhavi Sanstha is not party in this writ petition. The Petitioner trust indisputably did not had any primary or secondary school on the date of 7 filing of the petition. It is the first attempt on the part of the petitioner to seek establishment of new higher secondary school (11th standard). With these prayers, in our opinion, this petition can be considered only in relation to quashment of the permission granted in favour of Respondent No.4 during the year 2008-09 for running new higher secondary school i.e. 11th standard annexed to the original secondary school. 5. Mr. Gunale, learned counsel, took us to the amended pleadings. According to him, Respondent No.4 does not possess required infrastructure for such higher secondary standard. So far proposal of the present petitioner is concerned, he submitted that it was initially tried to be submitted on 12th of May, 2009 within the time permissible with requisite challan, wrongly was not accepted by the Respondents, second time it was submitted on 20th May, 2010 within extended period of time, however, wrong endorsement is made by the authorities that it was received on 21st May, 2009. Principally, the challenge is to 8 the proposal of Respondent No.4. We may not dwelve on the submission of proposal by the present petitioner to the authorities. 6. Mr. Ghatge, learned A.G.P. points out affidavit in reply filed on behalf of the Respondent No.2. It has been affirmed by one Mr. Subhash Shinde, Education Officer (Secondary), Zilla Parishad, Jalna. In para 5, letter of Director of Education, Maharashtra State, Pune dated 9th May, 2008 is referred. It is Annexure R/1 to the affidavit. From this letter dated 9th May, 2008 [R/1], Mr. Ghatge took us to item No.15. It is clear from item No.15 that independent/ new higher secondary school for 11th and 12th standards, were banned from submission of proposals. In other words, proposals which were invited, only were expected from the existing secondary schools. If some person/ society desires to establish new higher secondary school for 11th and 12th standard, for the first time, such proposals were manifestly directed not to be accepted. This is signed by the Director of Education and 9 communication has been addressed to all Education Officers 9Primary) and (Secondary). We have seen from this communication that the Director of Education has made a reference to various Government Resolutions from 19th June, 2004 till 7th May, 2008. Education, right to education, is a matter of constitutional/ statutory right in favour of the citizens. Needless to say, that policy of the State Government pertaining to education, keeps changing considering the need of the hour and other deciding/ relevant factors. In substance, the communication of the Director of Education makes a reference to the policy decision of the State Government that proposals for establishment of new higher secondary school, for the first time, not to be accepted. In our opinion, respondent authorities were justified in not accepting the proposal of the present petitioner, factually and undeniably who had no right to submit such proposal for establishment of new higher secondary school (11th standard) for the first time during the year 2008-09. 10 7. The petitioner who approached this Court on 28th August, 2009, did not plead lack of infrastructure by Respondent No.4. However, with the leave of this Court he did raise pleadings, which we have noticed. After this amendment Respondent No.4 has filed affidavit in reply, page 51. It has been affirmed by one Prof. Bhagwansingh S/o Shivsing Dobhal. We refer only two paragraphs from this affidavit in reply i.e. para 8 and 9. In para 8, statement is made that availability of infrastructure has been considered by the State Government while granting permission in favour of respondent No.4. In para 9, a statement is made that after grant of permission in favour of Respondent No.4 on 29th August, 2009, the authorities of the Zilla Parishad have carried out inspection of the school run by Respondent No.4 and submitted report to the Deputy Director. Said report is part of the reply affidavit Annexure R/2. Annexure R/2 is the letter dated 5th January, 2010 addressed to the Deputy Director of Education, Aurangabad Region, Aurangabad. 11 It has been issued under the signature of Education Officer (Secondary), Zilla Parishad, Jalna. In fact, it is submission of the report by the Education Officer (Secondary), Jalna. From this report, we have noticed that during the academic year 2009-10 11th standard Arts discipline has been started and 25 students have been enrolled. Proposal was recommended by the Education Officer (Secondary) for grant of permission under 3.1. With this, we have also seen letter dated 27th January, 2010 (page 104). It is addressed by Deputy Director of Education, Aurangabad to Education Officer, Jalna. Permission under 3.1 has been granted in favour of Respondent No.4, subject to decision of this writ petition pending before this Court. In this communication also reference is made to the Government letter and recommendation. 8. Mr. Gunale, learned counsel, points out rejoinder, page 106 on the point of lack of infrastructure. He points out page 115. It is copy of the rough map/ site plan. Page 116 is having some photographs. According to Mr. 12 Gunale page 117 is a communication. We are at lost to understand it. Minutely we have seen this communication. This letter appears to be on the letter head of Gram Panchayat Pimpalgaon Kolte; names of three persons have been mentioned as Village Development Officer (Gram Sevak), Up-Sarpanch and third one is Sarpanch. Thereafter there are names of three persons, one of them is Gangadhar Salunke, another is Mr. Chandrakant Danwe, M.L.A. and third one is Tryambak Sonwane, Presiding School Committee. We have seen this document. In our opinion, this document has absolutely no evidenciary value. Up-Sarpanch does not have any business in view of the provisions of Bombay Village Panchayat Act, 1958. There is no authority with the Gram Panchayat either to endorse or make some grievance in this manner. We reject this document in its entirety. 9. During the course of hearing Mr. Irale Patil has pointed out communication dated 27th January, 2010 (page 26) addressed to learned Minister for Revenue and Rehabilitation. We do not wish to give any importance to such 13 communication. 10. The Petitioner invokes extra-ordinary jurisdiction of this Court under Article 226 of the Constitution. We have given due consideration to the submissions of learned counsel for the parties. Mr. Gunale could not point out any constitutio0nal or statutory provision for giving preference to local trust or society. Factually 25 students have been admitted during the academic year 2009-10 with the school run by Respondent No.4. That academic year has been passed over. Students have been promoted in the next standard i.e. 12th standard according to their performance. Apart from this, to grab opportunity for establishment and running school or colleges, one cannot forget that educational institutions are not being permitted for the trust for making money to the trust, making available employment to the staff members etc. Schools are primarily meant for making available education to the students. The prime object appears to have been forgotten by all concerned. 14 11. In our opinion, the petition is devoid of substance. At the end of this academic year the students, who are taking education in 12th standard, are likely to be promoted. 12. In the result, writ petition stands dismissed. Rule discharged. No order as to costs. Interim relief, if any, stands vacated. [SHRIHARI P. DAVARE, J.] [S.B.DESHMUKH, J.] Dated:-01/10/2010. ans/5894 15 WRIT PETITION NO.: OF 200 Date of decision: 1st OCTOBER, 2010. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. THE HONOURABLE SHRI JUSTICE SHRIHARI P. DAVARE. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . 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? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE