1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Writ Petition No.5707 of 2007 ( Janta Shikshan Prasarak Mandal and one .vs. State of Mah. And ors. ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders ======================================= Mr. P.C. Madkholkar, Advocate for Petitioner. Mrs. K.S. Joshi, Assistant Government Pleader for Respondents No.1 and 2. Mr. S. K. Mishra, Advocate for Respondent no.3. Mr. Firdos Mirza, Advocate for Respondent no.4. .......... CORAM : A.P. LAVANDE & P.D. KODE, JJ. DATE OF RESERVING THE ORDER : MARCH 20, 2009 DATE OF PRONOUNCING THE ORDER: APRIL 2, 2009 ORDER 1. Heard learned counsel for the parties. 2. The petitioner no.1 Education Society is running a Urdu School since 1.4.1964 initially for two standards and thereafter yearly addition of another section by natural growth upto matriculate examination. Petitioner no.2 is Head Master of said Urdu High School at Barshitakli, District Akola. Both petitioners have invoked 2 extra ordinary jurisdiction by seeking appropriate writ in nature of mandamus or otherwise for quashing/setting aside the order dated 8.11.2007 (Annexure-A) passed by respondent no.2 granting permission to respondent no.4 for adding Standard 5th and for declaring that no such order could have been passed by respondent no.1 and the entire exercise made by respondents being mala fide. 3. The petition has been founded upon contentions that (i) the principles/procedure/directives laid by the Courts in the judgments relating to grant of permissions to open new school, being not followed while according the permission impugned in petition and grant of same being ex facie mala fide; (ii) the same being granted on 8.11.2008 for opening a school from the month of June, 2006 for the academic session 2006-2007 and for academic session 2007-2008 and (iii) the representation made by the petitioners to the Education Officer that the same would be adversely affecting the strength of the students for 5th standard for school of the petitioners has not been considered. 4. The respondents have prayed for dismissal of petition by placing on record affidavits of respondents No. 2 to 4 inter alia contending that (i) respondent no.2 having issued impugned order 3 on the basis of order dated 29.8.2007 passed by respondent no.1 according the permission for additional sections by way of natural growth to various schools including that of respondent no.4 and same being not challenged by petitioners, the petition is not tenable; (ii) permission being not granted for opening a new school and same being accorded only for addition of sections to the already existing school due to the natural growth and (iii) the permission being granted on the basis of the report received by respondent no.2 from respondent no.3 about respondent no.4 having fulfilled the directions contained in the Government Resolution dated 1.3.1999 prescribing the norms for the 5th standard by way of natural growth and forwarded by respondent no.2 to respondent no.1, there is no violation of any direction/procedure or mala fide. 5. After considering submissions advanced by the learned counsel for the parties, though we find that in the case of Gramvikas Shikshan Prasarak Mandal Sondoli .vs. State of Maharashtra, reported in AIR 2000 Bombay 437 this Court had made the suggestions to the policy and the scheme formulated by the State Government regarding grant of permission for establishing new primary and secondary schools in the State as recorded in para 7 of 4 the said decision and further this Court in a decision in a case of Dnyanganga Krida Arogya Va Shikshan Prasarak Mandal .vs. State of Maharashtra and ors reported in 2003 (2) Mh.L.J. 130 had examined the question of granting permission for new school on the basis of the said directions and the said directions amongst other having prescribed a procedure for considering grant of permission for opening of new schools and same amongst others requiring preparation of master plan etc. , still it is difficult for us to find any substance in submissions of learned counsel for the petitioners of respondents having not followed the said directives given and/or the procedure prescribed. We are of such opinion as careful perusal of the said decisions relied by the learned counsel for the petitioners reveals that same predominantly relates to norms and standard for establishment of new primary and secondary school in a State. Furthermore perusal of the decision in a case of Super Star Education Society .vs. State of Maharashtra and ors reported in (2008) 3 SCC 315, relied by the learned counsel for the respondents clearly reveals that Apex Court while clarifying the decision in the case of Gramvikas Shikshan Prasarak Mandal cited supra in para 9 has observed that the master plan to be prepared was not intended to 5 apply to English Medium Schools, non-Marathi school and school run by religious and linguistic minorities and the submission of the counsel appearing on behalf of respondent no.4 that respondent no.4 being a Urdu Medium School makes it extremely difficult to accept the submission of the learned counsel for the petitioner of there being violation of the directives given by the decision and/or the procedure formulated. 6. Apart from the aforesaid, we also find it difficult to accept such a submission of the learned counsel for the petitioners in view of the submissions of the counsel for the respondents being found supported by the record before us which amongst other clearly reveals that respondent no.1 had issued order dated 29.8.2007 after respondent no.3 had sent a proposal to respondent no.2 for awarding a permission for adding new sections to respondent no.4 school after respondent no.4 having complied with the directives contained in the GR dated 1.3.1999 prescribing the norms for 5th standard by way of natural growth and the same being forwarded by respondent no.2 to respondent no.1. Thus the permission being accorded for adding new sections to the existing school and the permission being not accorded for starting a new school also makes it difficult to agree with 6 submission of the learned counsel for the petitioners of the entire exercise being in violation of the directions/procedure or norms prescribed by the judgments relied. Needless to add that the manner in which the permission is found to have been accorded as revealed from the material placed before us also repells the submissions that the entire exercise is mala fide. 7. With regard to another submission of learned counsel for the petitioner that since secondary school commenced from 5th standard , grant of permission for opening 5th standard to respondent no.4 itself indicates of permission being granted for opening new school, also does not seem to be a sound submission in fact and circumstances of the present case having indicated of the permission being granted for adding section to already existing school. We find no merit in the said submission having regard to the observations pointed out by learned Assistant Government Pleader from paragraph no.13 in the decision in a case of Suryakant Sheshrao Panchal .vs. Vasantrao Naik Vimukta Jati, Bhatakya Jamati Aadarsh Prasarak Mandal and ors. reported in 2002 (3) Mh.L.J. 659 wherein it is observed : 7 “A primary school is normally from 1st to VIIth standards. However, a primary school from Ist to IV th standards is called as Level -I and the primary school from Vth to VIIth standards is called as Level- II.” Needless to add that the said observations are self eloquent to repel the submission of the learned counsel counsel for the petitioner of inferring grant of permission for 5th standard being indicative of permission being granted for opening a new school. 8. Similarly, as perusal of letter dated 19.5.2007 written by respondent no.3 to respondent no.1 at Annexure C reveals that respondent no.3 by the same had conveyed the gist of the matter from the representation made by the petitioner school to him for respondent no.1 taking action about the same also makes us unable to give any credence to the submission canvassed thereon by the learned counsel for the petitioner that by the said letter respondent no.3 having made a report to respondent no.1 for not granting permission to respondent no.4. 9. In the premises aforesaid and as rightly pointed out by the leaned counsel for the respondents , the petitioner having not at all challenged the main order dated 29.8.2007 passed by respondent no.1 8 from which the order impugned in the petition follows , we find that no case is made out by the petitioners for exercising extra ordinary jurisdiction under Article 226 of the Constitution of India for interfering with action taken by respondents no.1 and 2 in granting the permission for opening a new section in already existing a school. Hence the petition which is sans merits deserves to be dismissed and is dismissed accordingly. JUDGE JUDGE halwai