SCA/12455/2005 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12455 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial 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 civil judge ? ========================================================= KANJETA VIBHAG YUVAK MANDAL & 1 - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : NANAVATY ADVOCATES for Petitioner(s) : 1 - 2. MR SHIVANG SHUKLA, AGP for Respondent(s) : 1, RULE SERVED for Respondent(s) : 1 - 4. MR AD OZA for Respondent(s) : 3, MS MAMTA R VYAS for Respondent(s) : 4 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 02/04/2008 ORAL JUDGMENT 1. The short facts of the case appears to be that SCA/12455/2005 2/12 JUDGMENT the petitioner No.1 is a Trust which was granted permission to start the school of Higher Secondary in the academic year of 2001-2002. At the time when the permission was granted to the petitioners, the same was with the condition that no grant shall be made admissible and the school shall be non-grantable. It appears that thereafter, the petitioners moved the Government for providing the facility of the grant and at that stage, when the decision was yet to be taken, the petitioners apprehended that the Government shall not provide the grant to the petitioners on account of the political vendata, as mentioned in the petition, hence the petitioners have approached to this Court for the relief inter alia to direct the respondents to provide grant to the school of the petitioners. The petitioners in the petition has pointed out certain instances of various other schools viz. (1) Shri Jay Yogeshwar Vidhya Mandir, Mander, Tal. Limkheda, Dist. Dahod (2) Gujarat Rajya Ram Nivasi Seva Yuvak Mandal, Dasa Sanchalit Shri Ratnekuvar Vidhyala, Kesarpur, Tal.Limkheda, Dist. Dahod (3) Jambusar Vibhag Yuvak Mandal, Jambusar, Tal. Devgadhbariya Sanchalit Jay Kisan Ucchtar Madhyamik Shala, Jambusar, Tal. DevDist. Dahod (4) Adivasi Yuvak Seva Sangh, Chitrodiya Sanchalit Shri Gayatri Madhyamik Shala, Dist. Dahod.(5) Gujarat Rajya Akhil Gram Vikas Mandal, Dasa, Tal. Limkheda Sanchalit Sardar Patel Vidhyalaya, SCA/12455/2005 3/12 JUDGMENT Nanaambaliya, Tal Limkheda, Dist. Dahod, and it is the case of the petitioners that all such schools are granted permission to start the school on non-grant basis and subsequently, vide order order dated 13.05.2005, copies whereof are produced from page 45-51, the State Government has provided grant facility to such schools which were political sympathiser, whereas, the school of the petitioner has not been provided grant facility and therefore, the present petition. 2. Heard Mr. D.P.Buch for Mr.Nanavati, Mr.Shukla , learned AGP for the State Government and State Authorities, Mr.Oza for the respondent No.3 Board and Ms.Vyas has filed her appearance for respondent Nos.4 & 5. 3. It appears from the affidavit-in-reply filed by SM Gamit, Under Secretary, Education Department, that instead of meeting with the ground of discrimination as alleged in the petition, the affidavit-in-reply has been filed by showing that the declaration was submitted by the petitioners at the time when the permission was granted not to claim the grant and the Judgement of this Court wherein the view taken is that, if declaration was given for not to claim the grant, it is not open to the School concerned or its management to claim the grant at the later stage, are not relied upon. SCA/12455/2005 4/12 JUDGMENT 4. However, there is no reply to the allegations of discrimination except general denial. In the reply, it has not been pointed out as to why different treatment has been given to the aforesaid institution which were initially registered as non-grantable, but subsequently, the grant facility is extended by the State Government. 5. It is true that if the institution is registered on the condition that no grant shall be admissible and such condition is incorporated in view of the declaration filed by the institution at the time when the application for registration has been made, as of right, in normal circumstances, such institution or the school cannot insist for seeking a mandamus to the Government for releasing of the grant or extending the facility of the grant to such school. However, if the State Government has permitted such similarly situated school for extending the facility of the grant, it would be required for the State Government to provide same treatment, keeping in view the availability of the funds. Even if there are limited resources available with the State Government for providing grant facilities, such is to be rationally balanced and the exercise of power by the State Government of providing grant-in-aid facilities to certain schools by applying pick SCA/12455/2005 5/12 JUDGMENT and choose method or on some extraneous consideration is not permissible. It is required for the State Government to lay down the proper policy for giving rational treatment keeping in view the larger interest of the education in the concerned local area and then to extend the facilities of grant to the school. No material whatsoever has been placed on record in the affidavit-in-reply to the said aspects. 6. At this stage, reference may be made to the decision of this Court(Coram:Akil Kureshi, J.) dated 05.07.2006 in Special Civil Application No. 6381/98 and allied matters. In the said decision, this Court had an occasion to consider the policy of the Government to extend facility of the grant to certain schools and after considering the contentions raised on behalf of both the sides, it was observed by the Court at paras 11, 12, 13, 15, 16, and 17 as under: “11. I have considered the material on record and the submissions made by the learned advocates appearing for the parties. All the petitioners were granted permission either by the Board or in appeal by the State Government to start schools without the benefit of grant. The petitioners accepted such terms and recognitions with clear understanding that the Government will not bear the burden for running the schools. In fact, all the petitioners agreed not to claim grant even in future. In that view of the matter, it can be seen that the petitioners have no right to insist that their cases for conversion from non-grant- SCA/12455/2005 6/12 JUDGMENT in-aid schools to grant-in-aid schools must be accepted by the State. The question of providing grant for secondary and higher secondary education must depend on the Government policy and budgetary allocation. The petitioners who received permission and recognition on a clear understanding that the Government will not bear the financial burden of running such institutions cannot claim, as a matter of right, that their applications must be accepted. So much is clear from number of decisions reference to which have already been made hereinabove. In the case of Vidhya Sagar Education Trust (supra), this Court had observed that the decision depends on on its facts and local circumstances such as availability of the educational facilities to the students. In the case of Atladara Kelavani Mandal (supra), the learned single Judge of this Court observed that the action of the State providing grant-in-aid is essentially a policy matter and the State should have liberty to decide its own criteria. Once an institution voluntarily accepts that it would abide by various conditions, it would not be justified in raising a grievance that certain conditions are harsh. In the case of Adarsh Pragati Mandal (supra), also learned single Judge observed that giving of grant is not automatic and the same must be subject to certain criteria including financial viability. It was observed that to claim grant-in-aid is not a legal or fundamental right and the same is a policy matter of the Government which can be based on ground realities and factual situation in each case. It is also observed by the learned single Judge in the case of Vidhya Sagar Education Trust (supra) that each case must depend on its individual facts and it would not be possible to compare two different cases. 12. The petitioners who had thus received permission to start their schools without SCA/12455/2005 7/12 JUDGMENT the facility of grant, therefore, cannot, as a matter of right, claim that their applications for conversion into grant-in- aid institutions must be accepted. 13. The entire problem, however, cannot be decided on this basis alone. Though the petitioners have no legal right to insist that they must get grant as a matter of right, however limited, the petitioners do have a right to seek that their applications be considered by the authorities on the basis of the prevalent policy. Despite the petitioners having been informed in clear terms that they will not receive grant and despite the petitioners having clearly agreed that they will not claim grant even in future, their applications cannot be kept out of consideration by the Government for all times to come under all circumstances. This is so since the Government itself in large number of cases has considered the applications for conversion from non-grant- in-aid institutions to grant-in-aid institutions. Even if such requests are accepted on rare occasions and only upon special case being made out, nevertheless,there are large number of instances brought on record wherein the State Government itself despite such clear understanding and undertakings by the institutions considered and granted such applications for conversion. In fact, the case of the petitioners has been that in number of cases, Government decided to release the grant even without formal application by the institutions. Even if the question of release of grant is as matter of policy of the Government, surely such policy cannot be implemented indiscriminately. The policy should be implemented uniformly and similarly situated persons should be treated similarly. Any deviation from such a path without valid reasons would be opposed to the equality clause enshrined in Article 14 of the SCA/12455/2005 8/12 JUDGMENT Constitution and would be struck down by the court of law. In the nut-shell, therefore, though the petitioners have no legal right to insist that they must be given grant by the Government, their applications must be considered by the Government on the basis of some uniform policy which would apply to all similarly situated cases. 14. ..... 15. Before this Court gives suitable directions in this regard, some of the contentions raised on behalf of the petitioners need to be dealt with. As noted earlier, learned advocate Ms.Vyas appearing for the petitioners submitted that even if the petitioners cannot be granted conversion with retrospective effect, the cases of the petitioners must be examined on the basis of the factual parameters obtaining at the time of making of the applications. It was submitted that the new policy being formulated by the Government cannot be applied to the petitioners for judging their cases. 16. I am afraid these contentions cannot be accepted. In whatever manner, the petitioners were granted permission to run educational institutions without grant-in- aid. They have been running the schools, in most of the cases, either through collection of fees from students or by raising funds independently. Whatever be the source, requiring the Government to release grant for the past years would neither be economically possible nor just or equitable. The petitioners cannot be enriched for the past years for having run the schools through other means including by charging full fees from the students in some cases. Their stand that their cases should be considered on the basis of the earlier policy of the Government and in any case on the basis of factual matrix obtaining at the SCA/12455/2005 9/12 JUDGMENT relevant time also cannot be accepted. Firstly, the petitioners can at best claim consideration of their applications on the basis of the prevailing Government policy. Secondly, this Court, prima facie found that there was no well laid down and well circulated Government policy to consider such cases. It was precisely because of this reason that the Court called upon the Government to specify its stand through affidavit. The Government has now come out with guidelines to consider such cases. It would be improper to require the Government to consider the applications of these petitioners without any reference to any guidelines simply because in the past in some cases the Government had granted conversion from non-grant-in-aid to grant- in-aid institutions. The ground realities have undergone changes since the applications were made by the institutions to the Government. The applications, therefore, must receive consideration as the situation prevails at present on the basis of the current Government policy. Though in some cases, attempt has been made to point out that under identical circumstances some institutions were granted such conversion whereas the petitioners were denied such treatment, it is virtually impossible for this Court to come to the conclusion that two cases are exactly of same nature. There are wide variance of facts and circumstances and as observed by this Court in the case of Vidhya Sagar Education Trust (supra), each case would normally depend on its own facts. Therefore, the petitioners cannot base their claims on the basis of the conversion granted by the Government in the past in favour of certain institutions. If at all there were any irregularities and laxities shown by the Government while accepting the case of such institutions, it may be a case to inquire further in this regard. That, however, by itself would not give a SCA/12455/2005 10/12 JUDGMENT positive right in favour of the petitioners to claim parity. Equality is a well laid down positive concept and cannot be applied in negative (see State of Bihar v. Kameshwar Prasad Singh,(2000) 9 SCC 94) and no citizen has a right to insist that irregularity or illegality committed in favour of another person should be repeated in his case also (see case of State of M.P. v. Ramesh Kumar Sharma AIR 1994 SC 845). 17. The upshot of the above discussion would be that the Government should be asked to formulate and publish its policy for consideration of special cases for conversion of non-grant-in-aid school into grant-in-aid school. The respondents should apply such policy in future in all cases uniformly subject of course to budgetary allocations. This is however not to suggest that such policy must remain constant or stagnant. For valid consideration to meet with different requirements to adopt to changed circumstances, it would always be open to the Government to modify the policy through subsequent GRs. Since it is found that in case of these petitioners, their applications have been turned down by the respondents time and again solely on the ground that they had at one stage agreed not to avail of grant while number of other institutions who had also given such undertakings were given grant, I find it appropriate that the Government should indicate its reasons for considering such applications in future. This would minimize the possibility of any discrimination as also enable the higher authorities or the courts to examine the reasons which weighed with the Government or its authorities in either granting or refusing such conversion. It would, therefore, be necessary that while dealing with, deciding and disposing of such applications, either accepting or refusing conversion, the authorities should record its reasons, however, brief the same may be. SCA/12455/2005 11/12 JUDGMENT Observations made by the Hon'ble Supreme Court in the case of Mohinder Singh v. Chief Election Commissioner, reported in AIR 1978 SC 851 may be noted. “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. In Gordhandas Bhanji (AIR 1952 SC 16) (at p. 18): "Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself". Orders are not like old wine becoming better as they grow older.“ 7. Therefore, it appears that the case of the petitioners is required to be considered by the State Government in light of the observations made by this Court in the above referred decision and the present Judgement. Since uptil now, there is no decision rendered to extend the facility of the grant to the petitioners or not, SCA/12455/2005 12/12 JUDGMENT it would be just and proper to direct the State Government to decide the application of the petitioners for extending the facilities of the grant as early as possible preferably within some stipulated time limit. 8. Hence, it is directed that the State Government shall decide the application of the petitioners for extending the facility of grant or otherwise in light of the observations made hereinabove as early as possible preferably within a period of six months from the receipt of the order of this Court. 9. Petition is partly allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs. (JAYANT PATEL, J.) *bjoy