1 chsw31.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.31 OF 2011 IN WRIT PETITION NO.1919 OF 2009 Vibgyor High School ...Petitioner Versus State of Maharashtra & Ors. ...Respondents WITH CHAMBER SUMMONS NO.33 OF 2011 IN WRIT PETITION NO.1925 OF 2009 Rustom Kerawalla Foundation ...Petitioner Versus State of Maharashtra & Ors. ...Respondents ...... Mr.Sanjay Jain with Mr.I.J.Nankani with Mr.H.S.Khokhawala i/b Nankani & Associates for Petitioners in Chs/31/2011. Mr.Prateek Seksaria with Mr.Lalit Jain i/b L.J.Law for Petitioner in Chs/33/2011. Ms.I.Calcuttawalla, A.G.P. for Respondents 1 and 2. Mr.B.K.Subbarao i/b Mr.Kumar Biswa for Respondent No.3 in Chs/31/2011. Ms.Avisha Gopalkrishnan, Respondent No.3 in-person in Chs/33/2011. ...... CORAM:- A.M.KHANWILKAR AND A.R.JOSHI, JJ. DATED:- JANUARY 17, 2011. 2 chsw31.11 P.C. 1. These are two Chamber Summonses separately filed in pending Writ Petition Nos.1919 of 2009 and 1925 of 2009. The Writ Petition No. 1919/2009 is filed by the School (i.e.Vibgyor High School) and Writ Petition No.1925 of 2009 is filed by the Trust (Rustom Kerawalla Foundation). By both these Petitions, the action of the Appropriate Authority of the Education Department of the State of Maharashtra is put in issue. When these Writ Petitions were heard on 3rd August, 2010 for the reasons recorded in the order, the Court thought it appropriate to relegate the parties before the Appropriate Authority for reconsideration on matters stated in the said order. 2. Pursuant to the said order, the Writ Petitioners as well as the private Respondents participated in the proceedings before the Appropriate Authority who in turn, on 27th October, 2010 has answered the issue that was framed by this Court in order dated 3rd August, 2010. Primarily, as a consequence of that opinion of the Appropriate Authority, the Writ Petitioners have approached this Court by way of present Chamber Summonses so as to permit them to urge additional facts and grounds in support of the reliefs already claimed in the Writ Petitions. In that sense, the 3 chsw31.11 facts and grounds which are proposed to be inserted in the Writ Petitions in consonance with the schedule appended to the Chamber Summonses, is the outcome of the opinion recorded by the Appropriate Authority of the Education Department. Besides, the same being subsequent developments in the interest of justice, the prayer for amendment of the Writ Petitions deserves to be allowed. 3. However, both these Chamber Summonses are resisted only by Respondent No.3 in the respective Writ Petitions. The other Respondents including the State Government has no objection for allowing amendment of the Writ Petitions as prayed by the Writ Petitioners. The objection on behalf of Respondent No.3 is as follows: 4. Firstly, the copies of the Chamber Summonses have been served on the said Respondent only on 13th January, 2011 at around 6.55 p.m. As a result, the said Respondent could not prepare and file reply thereto. At the outset, the Counsel appearing for Respondent No.3 in Writ Petition No. 1919/2009 as also the Respondent No.3 appearing in-person in the companion matter were asked as to whether they want time to file reply affidavit to these Chamber Summonses. They categorically declined that 4 chsw31.11 offer and contended that they would take objections by way of arguments. Accordingly, there is no force in the preliminary objection taken by the said Respondent No.3. In any case, the fact that the copies of the Chamber Summonses have been served on her only on 13th January, 2011 cannot be the basis to deny relief of amendment of the Writ Petitions as prayed. 5. The next point urged before us is that, the Petitioners have already urged all the relevant grounds in the Writ Petitions presented before this Court which are pending for consideration. Inspite of that, the Petitioners approached another Bench of this Court by filing independent Writ Petition so as to question the validity of the Government Resolutions dated 22nd July, 1999 and 15th July, 2010 respectively. The Petitioners succeeded in persuading the Court to quash the said Government Resolutions being ultra vires. According to the Respondent No.3, the conduct of the Petitioners would disentitle them for any discretionary relief. The argument though attractive at the first blush will have to be stated to be rejected. In that, the stated Writ Petition was filed by the Association of International Schools and Principals Foundation and Universal Education Foundation being Writ Petition (Lodging) No.1876 of 2010. The Petitioners in the present Writ Petitions are not parties thereto. 5 chsw31.11 6. To get over this position, it was argued that the signatory (R.P.Kerawalla) to the affidavit in support of the Writ Petitions pending before this Bench is one of the Petitioner in Writ Petition No.1925/2009. What is significant to note is that the said Shri R.P.Kerawalla is not the Petitioner by name but is only signatory for and on behalf of Petitioner No. 1 Association of International Schools & Principals Foundation. In our opinion, that would make no difference to the relief claimed in the present Chamber Summonses by the Writ Petitioners in the pending Writ Petitions. The fact that similar or identical contentions have been raised in the present Writ Petitions, as agitated in the subsequently filed Writ Petition by the Association, cannot be the basis to answer the controversy that needs to be dealt with while considering the present Chamber Summonses. Reliefs in the present Petitions will have to be considered on its own at the appropriate stage, if and when occasion so arise. 7. It was argued that relying on the decision in Writ Petition No. 1925/2009, the Petitioners did not allow the Deputy Director of Education to proceed with the fair inquiry as was required in terms of order dated 3rd August, 2010. Once again, this argument cannot be the basis to deny 6 chsw31.11 request for amendment of the Writ Petitions. The question whether the Petitioners did not allow fair inquiry before the Deputy Director as is contended by the Respondent No.3, can be inquired into at the appropriate stage. 8. It was then contended that the decision in Writ Petition No. 1925/2009 is likely to cause prejudice, injury and loss to the Respondents. For, it has been invited by the Petitioners without giving opportunity to the Respondent No.3 to argue before the other Court on the question whether the Government Resolution dated 22nd July, 1999 and Government Resolution dated 15th July, 2010 were ultra vires the Constitution. For the reasons already recorded, we fail to understand how this argument can be the basis to deny the request of the Petitioners for amendment of the Writ Petitions. It was submitted on behalf of the Respondent No.3 that the decision by the other Bench in Writ Petition No.1925/2009 be treated as per incurium and be ignored. In our opinion, the question whether the said decision is binding on the parties in the present Petitions, is a matter, which can be considered at the appropriate stage. The fact that the Petitioners are allowed to amend the Writ Petitions would not preclude the parties to argue all contentions available to them at the time of hearing of the Writ Petitions. 7 chsw31.11 Needless to mention that the same will be considered on its own merits in accordance with law. 9. It was next contended that the Petitioners before this Court failed to comply with the direction contained in order dated August 3, 2010. They failed to file documents before the Appropriate Authority and avail of the opportunity given by this Court under the said order on specious reasons stated by them. Even if this contention is to be accepted as it is, we fail to understand as to how that may have any bearing on the question as to whether amendment as prayed for by the Writ Petitioners can be allowed or otherwise. The amendment is founded on the subsequent events and more so in the context of the opinion recorded by the Appropriate Authority in the inquiry commenced after the order passed by this Court on August 3, 2010. The Writ Petitioners cannot be denied opportunity to challenge the correctness of the view taken by the said Authority with regard to matters answered by it in the context of the observations made in our order dated 3rd August, 2010. 10. The Respondent No.3 who is appearing in-person contended that the Petitioners cannot be allowed to take advantage of the decision of this 8 chsw31.11 Court dated 1st September, 2010 in Writ Petition (Lodging) No.1876/2010. Inasmuch as the order of remand was passed by this Court in anterior point of time on 3rd August, 2010. That is a matter which can be considered at the appropriate stage but cannot be the basis to reject the prayer for amendment of the Writ Petitions. 11. Accordingly, both the Chamber Summonses are allowed. Amendment be carried out within ten days from today and copy of the amended Writ Petitions be served on the Respondents within the same time. It will be open to the Respondents in Writ Petitions to file their reply to the amended Writ Petitions if they so desire within ten days from service of the amended Writ Petitions. (A.R.JOSHI, J.) (A.M.KHANWILKAR, J.)