1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 345 OF 2008 Shri Chhatrapati Shivaji Shikshan Sanstha, Karanjkala, Tq. Kallam, District Osmanabad, through its President Sou Jayashri w/o Ramesh Savant, age 35 years, occ. Household, r/o Karanjkala, Tq. Kallam, District Osmanabad ...Petitioner VERSUS 1- The State of Maharashtra, through its Secretary, School Education & Sports Department Mantralaya, Mumbai, 2- The Director of Education, (Secondary & Higher Secondary), Maharashtra State, Pune-1, 3- The Deputy Director of Education Latur, Division Latur, 4- The Education Officer (Secondary), Zilla Parishad, Osmanabad, 5- The Head Master, Shri Shivaji Vidyalaya, Karanjkala Taluka Kallam Dist. Osmanabad, 6- The Head Master, Shripatrao Bhosle High School, Osmanabad. ...Respondents 2 ..... Shri R.R.Suryawanshi, advocate for the petitioner Shri D.R.Korde, A.G.P. for respondent nos. 1 to 4. Respondent nos. 5 and 6 served, absent. ..... CORAM : S.B.DESHMUKH AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE ORDER : 03.12.2009. DATE OF PRONOUNCING THE ORDER : 07.12.2009. O R D E R : (PER SHRIHARI P. DAVARE, J.) 1 Perused. Heard learned respective counsel for the parties. 2 By the present petition filed by the petitioner under Articles 14 and 226 of the Constitution of India, the petitioner challenges the order dated 19.11.2007 passed by respondent no. 4, thereby attaching the 5th and 7th standard classes of the petitioner/society and absorbing the said standards to Shripatrao Bhosale High School, Osmanabad; and also the order dated 7.6.2006 passed by respondent no.3, thereby withholding the 3 grants of 5th and 7th standard classes of the petitioner/society. 3 The petitioner is the educational institution, a society registered under the Societies Registration Act, 1860 and the Bombay Public Trusts Act, 1950 and is running the school, namely Shivaji Vidyalaya, Karanjkala, Taluka Kallam, District Osmanabad from 8th to 10th standard classes and as per subsequent recognition order dated 18.4.1994, copy thereof is produced at Exh.’A’ page 22, the said society opened and started 5th to 10th standard classes in the said school. 4 Respondent no.1 is the State of Maharashtra through the Secretary, School Education and Sports Department, Mantralaya, Mumbai. Respondent no.2 is the Director of Education (Secondary and Higher Secondary), Maharashtra State, Pune-1. Respondent no.3 is the Deputy Director of Education, Latur Division, Latur. Respondent no.4 is the Education Officer (Secondary) Zilla Parishad, Osmanabad. Respondent no.5 is the Head Master of Shivaji Vidyalaya, Karanjkala, Taluka Kallam, District Osmanabad. Respondent no. 6 is the Head Master of Shripatrao Bhosale High School, Osmanabad. 5 The petitioner submits that the petitioner submitted a 4 proposal before respondent no.4 for grant and approval of teaching and non-teaching staff and accordingly by order dated 29.8.2005, respondent no.4 granted approval to teaching and non-teaching staff for the academic year 2004-05 and the students shown in the 5th and 7th standards were as below :- Academic Year 2004-2005 --------------------------------------------------------------------------------- Standard 5th 6th 7th --------------------------------------------------------------------------------- Number of 31 39 55 students admitted --------------------------------------------------------------------------------- Academic Year 2005-2006 --------------------------------------------------------------------------------- Standard 5th 6th 7th --------------------------------------------------------------------------------- Number of 15 25 30 students admitted --------------------------------------------------------------------------------- Academic Year 2006-2007 --------------------------------------------------------------------------------- Standard 5th 6th 7th --------------------------------------------------------------------------------- Number of 3 8 12 students admitted --------------------------------------------------------------------------------- 6 However, considering the strength of students in 5th and 7th standard classes for the academic year 2006-07, the Deputy 5 Director of Education, by order dated 7.6.2006 declared that the said standards are not eligible for grant in aid and copy of the inspection report dated 28.12.2006 and the order dated 7.6.2006 issued by respondent no.3 are annexed at Exh. ‘B’ collectively at pages 23 to 26. 7 The petitioner contends that due to closure of the said standards of the school run by the petitioner, respondent no.3 appointed administrator upon the petitioner/society by order dated 27.6.2006 and accordingly the concerned administrator i.e. the Block Education Officer, Panchayat Samiti, Washi took the charge as administrator of the petitioner/society on 25.7.2006. The said administrator sent a letter to the petitioner society on 25.7.2006 and instructed not to look after the financial aspects of the society (copy of the said letter is annexed at Exh. ‘C’ page 27). 8 It is also the contention of the petitioner that parents of the students submitted application before respondent no.4 requesting to direct respondent no.5 to give admission to their children in the said school in 5th and 7th standard classes, but respondent no.4 did not respond to the same. The petitioner submits that one Assistant Teacher Smt. L.R.Pawar submitted 6 application dated 31.8.2007 before respondent no.4 contending that respondent no. 5 was not giveg admission to the students in 5th to 7th standard in the said school despite the approach of the parents with the transfer certificates. However, respondent no.5 flatly refused to give admission to the students in the said school. Hence, the said teacher by an application dated 31.8.2007 Exh. ‘F’ collectively page 34 called the directions from respondent no. 4. 9 It is further contention of the petitioner that thereafter by order dated 21.9.2007, respondent no.2 cancelled the appointment of the administrator and directed the petitioner society to remove lacunae within the stipulated period of one year and copy of the said order is produced at Exh. ‘G’ page 39. Accordingly, the concerned administrator handed over the charge of the said school to the petitioner on 4.10.2007. Exh. ‘I’ page 41. 10 It is the case of the petitioner that respondent no.5 instigated the concerned administrator to insist upon respondent no.4 to attach the said standards to another school and accordingly respondent no.4 attached the classes of 5th standard to 7th standard to Shri Shanteshwar Vidyalaya, Sastur, Taluka Lohara vide order dated 25.10.2007, copy of which is produced at 7 Exh. ‘J’ collectively page 42, however, subsequently by issuing the amended impugned order dated 19.11.2007, attached 5th to 7th standards to Shripatrao Bhosale High School, Osmanabad and absorbed the teachers to the said schools, copy thereof is produced at Exh. ‘J’ collectively page 44. 11 Hence, the petitioner submits that the petitioner forwarded a detailed representation dated 21.11.2007 to respondent no.4 and made the grievance that the action of attachment of classes of standard 5th to 7th and absorption thereof with another school was in flagrant contravention of the provisions of the Bombay Public Trusts Act, 1950 and the Secondary Schools Code and also pointed out that the said action was without giving any notice and proper opportunity of being heard and in the absence of resolution of the society, and hence, submitted that the said action was illegal. A copy of the representation dated 21.11.2007 is produced at Exh. ‘K’ page 46. 12 It is also the contention of the petitioner that the wife of respondent no.5 is working as teacher in Shripatrao Bhosale High School, Osmanabad on temporary basis and with a view to get the benefit of permanency to her, said respondent no.5 in collusion with the administrator succeeded to absorb the teachers and 8 attached 5th to 7th standards of the petitioner society to the said school i.e. Shripatrao Bhosale High School, Osmanabad illegally and collusively. 13 Being aggrieved and dissatisfied by the said order dated 19.11.2007, Exh. ‘J’ collectively page 44, passed by respondent no.4 attaching 5th and 7th standard classes of the petitioner/society namely, Shivaji Vidyalaya, Karanjkala, Taluka Kallam, District Osmanabad to Shripatrao Bhosale High School, Osmanabad, the petitioner has preferred present writ petition under Article 226 of the Constitution of India requesting to quash and set aside the same. 14 Respondent no.4 has filed the affidavit in reply on 17.4.2008, which is sworn in by Shri Shivdas s/o Tatya Nalawade, working as Deputy Education Officer (Secondary), Zilla Parishad, Osmanabad and denied the averments and contentions made in the present petition unless admitted therein specifically. It is submitted that as per Rule 19(1) of the Secondary Schools Code the minimum attendance in a particular class should be at least 30. The school having attendance below the said number is not eligible to receive grants from the Government. The average strength of students in the petitioner school was below 30 during 9 the academic year 2005-06 and the attendance of students in 5th to 7th standard classes was less than average and, therefore, the Deputy Director of Education by his letter dated 7.6.2006 held that those classes would not receive grants and would be treated as non-grant in aid division. 15 It is also submitted that by letter dated 4.10.2007 the office of respondent no.4 requested the management and the Head Master to take efforts to increase the strength of the students in the said school, but the petitioner failed to do so and also did not pay salary of the staff appointed to these classes. However, the management did not pay any heed to the said letter issued by Education Department and since the staff was not paid their salaries and taking into consideration the Government Resolution dated 12.6.2007 the Education Department made arrangements for education of the students studying in 5th to 10th standards admitting them in another school in same district. Accordingly, it was seen that no student is deprived of education. 16 Learned counsel for respondent no.4 pointed out that in order to accommodate the staff of the petitioner school, the Education Department attached 5th and 7th standard classes from petitioner’s school to Shripatrao Bhosale High School, Osmanabad 10 after taking into consideration all the aspects of the matter and with a view to absorb the concerned teachers of the petitioner’s school in Shripatrao Bhosale High School, Osmanabad. 17 Accordingly, it is the contention of respondent no.4 that the action taken by the Education Department was just and proper, because in spite of various chances given to the petitioner and notices issued in that respect, the petitioner management failed to take efforts to see that the strength of the students studying in 5th to 7th standard was increased. Moreover, looking to the fact that it would not be affordable to the Education Department to grant necessary sanction to only few students and further looking to the fact that students have been accommodated in another school where the students reside, in pursuance of the Government Resolution dated 12.6.2007, the act of the Education Department attaching 5th and 7th standard classes of the petitioner/society to Shripatrao Bhosale High School, Osmanabad is just, proper and in the interest of students and staff. 18 We have perused the contents of the petition and also perused the annexures therewith, as referred to herein above. We have also perused the affidavit in reply filed by respondent no.4 11 and the contents therein. We have also minutely perused the impugned order dated 19.11.2007 page 44 and also gave our anxious consideration to the submissions advanced by the learned counsel for the parties. 19 At the out set, after forwarding the representation dated 21.11.2007, Exh. ‘K’ page 45, by the petitioner, the petitioner filed the present petition on 15.1.2008 without waiting for the response from the respondents and even sending any reminder to the respondents in that respect. Moreover, it also appears that the respondents have given ample opportunities to the petitioner and even issued notice dated 4.10.2007, but the petitioner failed to increase the strength of students in 5th to 7th standard classes, and also considering the fact that the management did not pay the salary of the staff appointed on the said 5th to 7th standards, the Education Department rightly took the decision basing upon the Rule 19(1) of the Secondary Schools Code and also relying on the Government Resolution dated 12.6.2007, and passed the impugned order dated 19.11.2007 (page 44), thereby attaching the classes of 5th and 7th standard classes of the petitioner/society and absorbing the same to Shripatrao Bhosale High School, Osmanabad i.e. the very same village where students 12 reside and also absorbed the teaching staff of the said 5th and 7th standard classes of the petitioner/society to the Shripatrao Bhosale High School, Osmanabad and the said action of the respondents cannot be faulted with. Moreover, it is material to note that respondent no.4 has taken due care and looked after the convenience of the students while taking the said action by attaching 5th and 7th standard classes of the petitioner/society and absorbing the same to Shripatrao Bhosale High School, Osmanabad, since students of the said classes were residing at Osmanabad, and no interference therein is warranted in the present petition. 20 In the circumstances, we are of the considered view that this is not a fit case to exercise the extra ordinary jurisdiction under Article 226 of the Constitution of India and, therefore, present petition deserves to be dismissed and same stands dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs. (SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.) dbm/wp345.08.