IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2498 of 1999 with SPECIAL CIVIL APPLICATION No 3419 of 1999 with SPECIAL CIVIL APPLICATION No 3935 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- M S BHUT EDUCATION TRUST Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 2498 of 1999 MS MAMTA R VYAS for Petitioners MR BY MANKAD for Respondent No. 1 MR AD OZA for Respondent No. 2 MR ANSHIN H DESAI for Respondent No. 3 MR RM CHHAYA for Respondent No. 4 NANAVATY ADVOCATES for Respondent No. 5 MR TUSHAR MEHTA for Respondent No. 6 2. Special Civil ApplicationNo 3419 of 1999 MR MUKESH R SHAH for Petitioners MR AD OZA for Respondent No. 1 NOTICE SERVED BY DS for Respondent No. 2 MR ANSHIN H DESAI for Respondent No. 3 MR RM CHHAYA for Respondent No. 4 NANAVATY ADVOCATES for Respondent No. 5 MR TUSHAR MEHTA for Respondent No. 6 3. Special Civil ApplicationNo 3935 of 1999 MR MUKESH R SHAH for Petitioners MR AD OZA for Respondent No. 1 NOTICE SERVED BY DS for Respondent No. 2 MR ANSHIN H DESAI for Respondent No. 3 MR RM CHHAYA for Respondent No. 4 NANAVATY ADVOCATES for Respondent No. 5 MR TUSHAR MEHTA for Respondent No. 6 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH Date of decision: 30/12/1999 C.A.V. JUDGEMENT Under the provisions of the Gujarat Secondary Education Act, 1972 an institution is required to obtain recognition from the Gujarat Secondary Education Board. Under the Grannt-in-Aid poloicy, the secondary school can apply for grant from the State Government and it is the State Government which takes the decision as to which institution is to be given grant and subject to which conditions. Considering the limited resources available with the State in the year 1998, the State Government had instructed the Gujarat Secondary Education Board to invite aplications for recognition with grant from institutions interested in imparting education to girls in Secondary Classes and to submit a list of 15 institutions which had aplied for such recognition with grant. Accordingly, 428 institutions applied for recognition with grant. The Board scrutinised the applications and prepared the list of 15 institutions for recognition with grant. The Board forwarded the list to the State Government. By the orders dated 24.3.1999 impugned in these petitions the State Government, however, instructed the Board to grant recognition with grant not only to 2 schools out of the said 15 schools (Respondent Nos.4 and 6 herein) but the State Government also instructed the Board to grant recognition with grant to respondent Nos.3, 5 and 7 although their applications were not included in the list forwarded by the Board but were rejected by the Board. 2 At the hearing of these petitions, it is the case of the Board that the applications of respondent Nos.3, 5 and 7 were rejected and that in spite of the above factual position, the State Government by order dated 24.3.1999 directed the Board under Section 48 of the Act to register the said 5 schools (respondent Nos.3 to 7 herein) and accordingly the said schools were registered by the Board after 6.4.1999. The petitioners in Special Civil Application No.2498 of 1999, four in number, and the petitioner in Special Civil Application Nos.3419 and 3935 of 1999, one in each petition, in all six institutions out of the 15 institutions whose names were included in the list prepared by the Board for the purpose of conferring recognition with grant, have approached this Court challenging the aforesaid decision dated 24.3.1999 of the State Government. 3 The facts leading to filing of these petitions, briefly stated, are as under:- 3.1 By advertisement dated 15.9.1997 (Annexure-i to the additional affidavit on behalf of the Gujarat Secondary Education Board) the applications were invited for the registration of secondary schools from persons intending to start secondary schools from June 1998. It was mentioned in the advertisement that the institutions starting schools without grant shall be given separate conditions along with application form and only the institutions intending to start girls schools shall be eligible for grant. In response to the advertisement, Board received 428 applications for recognition with grant and 168 applications for recognition without grant. Initially, by letter dated 20.2.1998 (Annexure-ii) the State Government instructed the respondent-board not to grant any recognition with grant to any school in view of the inability of the Government to make any estimate for allocation of grant to new schools in the budget for the next year i.e. 1998-99. Thereafter by letter dated 18.6.1998 (Annexure-iii) the Additional Chief Secretary of the State Government instructed the respondent-Board that before granting recognition the Board shall enquire whether there was real need for starting a new school in the area; whether opening of a new school will have an adverse effect on the existing schools; whether the management is having sound financial position; whether the facilities of land, building and other infrastructure facilities were available in the new school and that the process for granting recognition to new schools may be started accordingly. Again by letter dated 15.7.1998 (Annexure-iv) the State Government instructed the Board to commence the process. By letter dated 6.8.1998 (Annexure-v) the State Government instructed the respondent-board that the respondent-Board i.e. Gujarat Secondary Education Board shall prepare the list of the schools selected for granting recognition with grant along with the reasons for the recommendations and shall forward the list of such schools to the State Government. This direction was issued under Section 48 of the Gujarat Secondary Education Act. 3.2 The respondent-board which had started the process of scrutinising the applications prepared a list of 15 institutions which deserved to be recognised with grant as per the instructions given by the State Government vide letter dated 6.7.1998. The letter dated 13.8.1998 from the respondent-board to the State Government along with a copy of the Resolution dated 12.8.1998 is produced at Annexure-vi to the Additional Affidavit filed on behalf of the respondent-Board. The resolution mentioned that as per the instructions from the Education Department of the State Government, the Board selected 5 schools from tribal areas and 10 schools from the other areas. From each district only one secondary school for girls was to be selected for the purpose of giving recognition with grant, accordingly five girls' schools were selected from tribal areas - one each from Santrampur Taluka in Panchmahals District, Dantaner Taluka in Banaskantha District, Dediapad Taluka in Bharuch District Khedbrahma Taluka in Valsad District and Kamrej Taluka in Surat District. As far as 10 girls schools from non-tribal areas are concerned, one schools was selected from each of 10 different districts viz. Amreli, Kheda, Jamnagar, Junagadh, Bhavnagar, Mehsana, Rajkot, Vadodara, Sabarkantha and Surendranagar. 3.3 Thereafter by letter dated 8.1.1999 (Annexure-vii) the State Government instructed the Board that all the institutions whose applications were not accepted by the Board (i.e. all the institutions other than 15 institutions included in the list recommended by the Board) be informed that their applications were rejected and that 15 institutions included in the list may also be informed that for lack of adequate allocation in the budget, the said schools could also not be granted recognition with grant. In compliance with the said instructions, the Board informed the State Government on 30.1.1999 that the Board had informed the concerned schools that their applications were not granted. Ultimately, by letter dated 24.3.1999 (Annexure-x) the State Government instructed the Board under Section 48 of the Act to give recognition with grant to five institutions for staring grantable secondary schools. Those five institutions are respondents nos.3 to 7 including respondent no.4 and 6 whose names were already included in the list of 15 institutions selected by the responent-Board. Accordingly the Board has given recognition with grant to the said five schools after 6.4.1999. The petitioners have challenged the aforesaid decision of the State of Gujarat contained in the communication dated 24.3.1999 (Annexure-X) and the consequential orders of the respondent-Board. While issuing notice, this Court had granted ad interim relief which came to be vacated when the petitions came to be admitted on 1.7.1999 and fixed for early final hearing. The matters have now reached final hearing. 4. The main grounds raised in the petition are:- 4.1 The petitioners' schools were already included in the list of 15 institutions selected by the respondent-BOard as per the instructions and guidelines issued by the State Government and therefore they ought to have been granted recognition with grant. 4.2 The petitioner-institutions had already made arrangements for staring secondary schools for girls in their respective areas where no other school was available and therefore there was need for starting the school in the concerned area and that there was no likelihood of any unhealthy competition. In Special Civil Application No.2498 of 1999 it is stated that petitioner no.4-school is situated in a tribal area in Junagadh District where there is no girls school and the parents of minor girls are not prepared to send their children for secondary education. Similarly, petitioner no.2 school is situated in a tribal area where there is no girls school, petitioner no.1 and petitioner no.3 schools are also situated in rural areas where there is no girls schools within the radius of 10 km. 4.3 Allegations are also made by the petitioner in the memo of SCA No.2498 of 1999 in para 3.12 in the following terms:- "3.12 The petitioners submit that all the 5 schools which are given recognition, are in one district only viz. Rajkot and that too with retrospective effect i.e. from June, 1998. It is all the more interesting to note that all the schools are run by Patels and out of the said 5 schools, 4 schools are run by one Shri Shivlalbhai Vekaria, who is, as per the knowledge of the petitioners, got very good intimate relations with the leading political leaders." 5. The affidavit-in-reply dated 13.9.1999 has been filed on behalf of the State Government pointing out as under:- 5.1 The Secondary Education Board is competent to grant recognition to non-grantable schools and that the State Government asked the Secondary Education Board to scrutinise the applications for recognition with grant and list out 15 schools to which the grant can be given specifically mentioning that five schools should be in tribal area and 10 schools should be in non-tribal area and that the suggestions which may be made by the Board should be in accordance with various guidelines issued by the State Government from time to time. The power to give grant to the schools is vested with the State Government. In the budget indent of 31.3.1999 there was a provision of grant to 15 schools and, therefore, the State Government asked the Board to investigate the applications. However, suggestions or proposals made by the Board are not binding on the State Government and the State Government can decide about giving grant to any school which is eligible. 5.2 On merits of the decision, the affidavit contains the following averments:- "I submit that as regards giving the grant to the 15 institutions came up for consideration before the State Government the State Government also received some applications from the Institutions who had already applied also to the Gujarat Secondary Education Board. I submit that those institutions directly applied to the State Government for grant. I submit that out of the names suggested by the Gujarat Secondary Education Board two institutions were given grant and three institutions which were not suggested by the Secondary Board and who had applied to the Secondary Education Board and the State Government, after careful consideration, the State Government decided to give grant to them as per new policy of June, 1999. I submit that those applications were considered by the State Government at the higher level and after considering that they are otherwise eligible for grant, they were given grant and the orders are already passed for giving grant to these five institutions. I submit that as regards other 10 institutions are concerned, their applications were rejected on the ground that it was considered after 31.3.1999. "I submit that the applications of other five institutions were considered prior to 31.3.1999 and the Board was informed by the State Government that the grant should be given to these five institutions as per new grant policy of 1999. I submit that the Gujarat Secondary Education Board gave recognition in April 1999 subject to new policy as per direction of the State Government." 5.3 As regards the power to given directions to the Board, the State Government has relied on the provisions of Section 48 of the Act and that the power of the Board to grant registration to a secondary school or to withdraw registration is subject to the power of the State Government under Section 48 of the Act. Accordingly, in exercise of the said powers, directions were given by the State Government for registering five schools with grant of which two schools were recommended by the Board. 5.4 It is further stated in the affidavit as under:- "The applications of other ten institutions could not be finalised before 30.3.1999. I submit that the orders are passed by this Honourable Court to give grant to higher secondary schools where there are no provision for grant and Secondary schools grant was utilised for the purpose of higher secondary. I submit that in the present year there is provision to give grant to 15 schools and if the petitioners will apply for the same it will be considered in accordance with law along with other applications which are already received for the current year." 6. Affidavit-in-reply and additional affidavits are also filed on behalf of respondent no.2 - Gujarat Secondary Education Board pointing out the facts which are already set out in para 3 herein above. In the affidavit dated 13.9.1999 the Board has also pointed out reasons for rejecting the applications of the respondents nos.3, 5 and 7 as under:- Respondent no.3 "(i) the building is not suitable for the school as contemplated under Regulation 9(13), (1)(2) of the Gujarat Secondary Education Regulations, 1974 (hereinafter referred to as "the Regulations") as in the proposal form itself the said respondent has mentioned the measurement of the four rooms which prima-facie found inadequate and further at the time of hearing the photograph of under construction of the building was produced, and (ii) the possibility of unhealthy competition as contemplated under Regulation 9(16). The aforesaid decision of the Board was conveyed to the respondent no.3 by order dated 12.1.1999. Respondent no.5 "the proposal for registration was rejected mainly on two grounds, (i) the Building is not suitable for the school as contemplated under Regulations 9(13)(1)(2) as in the proposal itself the said respondent has only mentioned measurement of three rooms out of found and which were found inadequate and for the purpose of furniture and other facilities the said respondent have mentioned that they have though it spend Rs.2.000 lakhs for the same (in fact not created infrastructure before claiming for registration), and (ii) the need of the school is not established as contemplated in Regulation 9(15). The aforesaid decision was communicated to respondent no.5 by order dated 12.1.1999." Respondent NO.7 "in the case of respondent no.7, Shri Lauva Patel Kanya Kelvani Mandal, Gondal, the proposal was rejected mainly on two grounds, (i) the building is not suitable to the School as in the case on the spot inspection report of the D.E.O. it has been clearly mentioned that the construction is going on, and (ii) the need of the school is not established. I say that after the aforesaid decision, it seems that the respondent no.7 represented their case before the Government through M.L.A. Shri Jayrajsinh Jadeja and pursuant to the said representation, by order dtd. 16.10.1998, the Government informed the Board that the Government has granted approval to the respondent no.7 with the condition that hte said Trust would not be entitled for the grant. After the said communication of the Government, the Board has categorically informed the State Government that the action of the State Government granting approval straight way is not in accordance with the provision of law and therefore, requested the Government to reconsider the decision. In spite of this communication of the Board, the Government informed the Board that the Board cannot review the Government decision and there is no valid reason for the Board not to implement the Govt. decision. In the meanwhile, Government by order dated 24.3.1999 directed the Board to register the school and that too with the grant." As far as respondents nos.4 and 6 are concerned, since their names were already included in the list of 15 schools, no averments are made in the affidavit-in-reply on behalf of the Board. 7. As far as respondents nos.3 to 7 are concerned, affidavit-in-reply dated 15.7.1999 has been filed on behalf of respondents nos.3 to 6. Identical averments are made in the affidavit-in-reply on behalf of each of respondents nos.3 to 6. In the separate affidavits filed on behalf of each of the said four respondents it is stated that the respective trust has one of their objects to impart education to girls who are deprived of education because of want of facilities of good schools as well as hostels that each of the four trusts has its own funds of about Rs.3 crores and has its own land between 8-15 acres and that the concerned trust has developed the land and has created facilities of running school as well as facilities of 18 to 24 rooms for the hostel wherein all basic amenities are provided for. The allegations of oblique motive are denied. Additional affidavits-in-reply dated 10.10.1999 also came to be filed on behalf of the respondents nos.3 and 5. In the said affidavits attempt is made to explain that respondent no.3 has established a residential school meant for girls at village Khamta situated in Kodatari Taluka on Rajkot-Jamnagar highway and respondent no.3 trust has already constructed 28 rooms wherein the respondent-school is imparting education to the students of that area and respondent no.3 charges only token fee towards the boarding charges. It is further stated that since respondent-Board had rejected the application of respondent no.3 as per the communication dated 12.1.1999, respondent no.3 filed an appeal before the State Government on 5.2.1999 and that the said appeal was kept for hearing but in the meanwhile as the registration was granted in favour of respondent no.3-trust vide order dated 7.4.1999, the said appeal having become infructuous, the respondents have prayed for its disposal. It is further stated in the affidavit that there is no school of a similar nature with residential facilities in the whole taluka or within the vicinity of 50 km from the school of respondent no.3. The allegation of political patronage to Shivlal Vekhariya is denied. Similarly, in another additional affidavit-in-reply dated 10.10.1999 it is stated that respondent no.5-school is meant for girls and is at village Chandali situated in Lodhika Taluka on Rajkot-Junagadh Highway and the trust has constructed 28 rooms where education is being imparted to the girls belonging to that area. Here also token fees are charged from the students towards boarding charges. The appeal against the decision dated 12.1.1999 of the Board was filed by respondent no.5 before the State on 5.2.1999 but as the registration was granted in favour of respondent no.5 vide order dated 7.4.1999, the appeal became infructuous and, therefore, respondent no.5 prayed for its disposal. In this affidavit also averments are made that there is no school of similar nature meant for imparting education with residential facilities in whole Lodhika taluka and that no similar such school is situated within the vicinity of 50 km from the school of respondent no.5-trust. The allegation of political patronage to Shivlal Vekhariya is denied. 8 At the hearing of the petitions, learned counsel for the petitioners Ms M.R.Vyas and Mr M.R.Shah have submitted that once the State Government asked the respondent-Board to short-list 15 schools out of 428 schools (5 from tribal areas and 10 from non-tribal areas) for the purpose of recognition with grant and once the Board selected such 15 schools, and the petitioners' names were included in the said list of 15, the State Government and the respondent-Board could not have denied the recognition with grant to any of the petitioners and that in any view of the matter, even if the financial resources were not adequate for the year 1998-99, the State Government ought to have granted recognition with grant to 15 schools as and when financial resources permitted the State Government to do so. However, the very fact that the State Government instructed the respondent-Board to give recognition with grant to schools whose applications were rejected by the respondent-Board clearly shows the arbitrary and discriminatory treatment meted out by the respondents to the petitioners. It is submitted that the petitioners have clearly averred right from day one that the Board had selected all the 15 schools for girls education and that five schools were from 5 different tribal areas in 5 districts and 10 schools from different non-tribal districts as per the instructions of the State Government as acknowledged in the affidavit-in-reply filed on behalf of the State Government (para 6 of the affidavit-in-reply dated 13.9.1999). Still however, out of the five schools in question, as many as four are in Rajkot District itself being respondents nos.3, 4, 5 and 7. Specific averments made in para 3.4 of the petition that four schools are run by Shivlal Vekaria are not disputed. This clearly smacks of not merely arbitrariness but also nepotism shown by respondent no.1 in favour of respondents nos.3, 4, 5 and 7 all of which are run by Shivlal Vekariya. 9 Mr A.D.Oza, learned counsel for the Gujarat Secondary Education Board, has reiterated the submissions made in the affidavit-in-reply and additional affidavit-in-reply and has submitted that the power to grant recognition is vested in the Board under Section 31 of the Act read with Regulation 9 of the Regulations framed under the Act and that the Board had rejected the applications of respondents nos.3, 5 and 7 for registration on the grounds which are already disclosed in the reply affidavits and which grounds were also disclosed to the concerned respondents. It is asserted on behalf of the respondent-Board and also stated in the reply that the Board had not received any appeal having been filed by respondents nos.3, 5 and 7 against the communication dated 12.2.1999 from the Board rejecting the applications of respondents nos.3, 5 and 7. It was very much within the power of the Board to reject the applications on the grounds mentioned in those respective communications. It is submitted that without giving the Board an opportunity of being heard, the State Government could not have reversed the decision of the Board and that the power conferred upon the State Government under Section 48 of the Act is to give directions in matters of policy and that too after giving the Board an opportunity of being heard. It is submitted that whether the decision of the Board to reject the application for registration of an institution in a particular case should be reversed or not was not a policy matter and it was only in an appeal under Section 31(10) of the Act that the State Government could have reversed the decision of the Board. It is further submitted that the question