SCA/6381/1998 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6381 of 1998 With SPECIAL CIVIL APPLICATION No. 1479 of 1999 With SPECIAL CIVIL APPLICATION No. 10295 of 1999 With SPECIAL CIVIL APPLICATION No. 3619 of 1999 With SPECIAL CIVIL APPLICATION No. 9574 of 1999 With SPECIAL CIVIL APPLICATION No. 6089 of 2000 With SPECIAL CIVIL APPLICATION No. 7725 of 2000 With SPECIAL CIVIL APPLICATION No. 12339 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= SARDAR PATEL CHARITABLE TRUST - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : SCA Nos.638/98 & 1479/99: MS MAMTA R VYAS for Petitioners MS ARCHANA RAVAL, AGP for Respondent 1 MR AD OZA for Respondent(s) : 2 SCA Nos.10295/99, 3619/99, 9574/99, 6089/2000 & 7725/2000: MS MAMTA R VYAS for Petitioners MS ARCHANA RAVAL, AGP for Respondents SCA No.12339/2000: SCA/6381/1998 2/38 JUDGMENT Mr Nirzar Desai for the petitioner Ms Archana Raval, AGP for respondent No.1. Mr AD Oza for respondent No.3 Rule served to respondents Nos.2 & 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 05/07/2006 ORAL JUDGMENT 1. In this group of petitions, the petitioners have a common cause of action. The petitioners have received necessary recognition and permission for running Secondary and Higher Secondary schools in the State of Gujarat. Such permissions have been granted at the first instance either by the Gujarat Secondary and Higher Secondary Board or by the State Government in appeal. All the petitioners were granted such permission to run their schools on the condition that the Government will not bear the burden of financing such schools. In short, the petitioners had received permission from the respondents to start their new schools without grant-in-aid. Later on, the petitioners applied to the authorities to give grant to run their respective schools. The respondents did not SCA/6381/1998 3/38 JUDGMENT accede to their requests. The petitioners have, therefore, at different stages under different circumstances approached this Court. Though there are certain minor factual differences, the central issue in all these petitions is common. The short question that has been placed before this Court for consideration and decision is whether the petitioners are entitled to receive grant-in-aid for their schools from the Government. In other words, the question is whether the Government erred in rejecting the request of the petitioners to release grant in favour of their educational institutions. 2. For the purpose of deciding the above controversies, some of the factual aspects brought on record can be noted. 3. Special Civil Application No.1479 of 1999 has been filed by one Ankur Kelvani Mandal. The petitioner therein applied for starting school in the secondary section. Such an application was rejected by the Board on 9.8.91. The petitioner, therefore, filed an appeal and the State Government by an order dated 4.8.94 granted permission to the petitioner to run the SCA/6381/1998 4/38 JUDGMENT school. Such permission, however, was with the condition that the petitioner shall not claim grant-in-aid for its school. It may be noted that though permission was granted by the State Government in the year 1994, case of the respondents is that the the petitioner did not start its school right up to 2000 and thereafter also, after running the school for about five years, the petitioner once again closed down the school. To these factual averments, learned advocate for the petitioner has not raised any dispute. In fact, these aspects are also borne out from the affidavit filed by the petitioner. The case of the petitioner is that for want of financial aid from the Government, the petitioner could not start the school and the school-management, therefore, made series of representations to the State Government for giving grant to the petitioner to run its school. Such representations were made in the years 1995 to 1998. Since no response was available from the Government, the petitioner filed Special Civil Application No.5699 of 1998. The said petition came to be disposed by an SCA/6381/1998 5/38 JUDGMENT order dated 5.11.98 wherein the learned single Judge of this Court directed the State Government to consider the case of the petitioner for releasing of grant. It was observed that the case of the petitioner cannot be discriminated from other similar cases. It was observed that the undertaking given by the petitioner (not to claim grant even in future) would not disentitle the petitioner from such consideration since at the time of giving the undertaking the petitioner was not aware of the fact that grant has been given to other similarly situated schools. 3.1Pursuant to the said order dated 5th November 1998, passed by this Court, the case of the petitioner was considered by the State Government, but turned down by an order dated 18.12.98. In the said order also, the State Government once again reiterated that the petitioner had been granted permission to start the school on the condition that the petitioner will not claim grant from the Government and in that view of the matter, request of the petitioner cannot be accepted. SCA/6381/1998 6/38 JUDGMENT 3.2 The petitioner has filed an additional affidavit dated 19th April 2000 and placed certain additional averments on record. Through the averments made in the petition as well as made in the above-mentioned additional affidavit, in the nutshell, the case of the petitioner is that despite its undertaking given to the Government for not claiming grant even in future, the case of the petitioner cannot be completely shut out of consideration and that large number of similarly situated other institutions and schools have been granted benefit of grant-in-aid even subsequently despite similar undertakings having been given by them also. Certain orders passed in favour of other institutions have also been placed on record to seek parity. 3.3 In Special Civil Application No.6381 of 1998, the case of the petitioner Trust is that the petitioner-Trust was desirous of starting a secondary school. The petitioner therefore applied to respondent No.2 Board on 30th August 1991. The application was rejected by the Board on 24th November 1992. The petitioner appealed before the State Government against the decision SCA/6381/1998 7/38 JUDGMENT of the Board. The appeal was allowed and permission to start a secondary school was granted by the State Government by an order dated 18.4.94, however, on a condition that the school will not receive grant in aid from the Government. In this case also, the petitioner had agreed to accept the permission to run the school without grant-in-aid facility. 3.4 It is the case of the petitioner that the petitioner's school was situated in an economically backward area and that the petitioner Trust therefore required the grant-in-aid facility to run its school. Such requests were made periodically to the State Government. However, only on the ground that the petitioner had agreed to start the school without the facility of grant, the Government did not accede to the request of the petitioner. Here also, the petitioner has tried to set up a case of hostile discrimination alleging that under similar circumstances, the respondents have released grant in favour of several other schools. 3.5 In Special Civil Application No.10295 of 1999, facts are more or less similar except that the SCA/6381/1998 8/38 JUDGMENT petition is pertaining to permission granted by the Government to start 11th standard class in science stream. The petitioner was already running a school in secondary section with grant- in-aid facility. Permission to start standard 11 class in science stream was, however, given without grant in aid. The petitioner therein though initially started standard 11 class some time in the year 2000, was later on forced to close down the said section since last year for want of funds. The recognition of the school, however, has not yet been cancelled. 3.6 Remaining petitions, involve no different factual aspects. It is, therefore, not necessary to record the factual aspects in those petitions. Suffice it to say, all the petitioners have a common grievance of not being granted benefit of grant by the Government. It may also be noted that all schools were granted permission at the outset on the condition that the schools will not receive grant from the Government. 4. Affidavits have been filed in Special Civil Application No.6381 of 1998 and also in Special Civil Application No.1479 of 1999. The SCA/6381/1998 9/38 JUDGMENT respondents have opposed the claim made by the petitioners. Broadly stated, it is suggested that the question of release of grant is a matter of Government policy. The applications of the petitioners for starting new schools were considered within the parameters of such policy. It was found appropriate that permission can be granted only on the condition that the schools will not receive grant in aid. It was, thereafter, not open for the school-managements to turn around and claim grant-in-aid facilities under any circumstances. 4.1To dispel the averments of discrimination, it is contended, inter alia by the State Government in its affidavit that grant was made available to such of the schools which were situated in tribal areas of absolute economic backwardness. Such requests were granted as special cases. It is suggested that petitioner in Special Civil Application No.1479 of 1999 runs a school in Godhra town which cannot be considered a tribal area or backward area. 4.2 In Special Civil Application No.6381 of 1998, two additional affidavits came to be filed. SCA/6381/1998 10/38 JUDGMENT First affidavit dated 8.3.2006 is by Shri P.Panneervel, Principal Secretary, Education Department, State of Gujarat. Yet another affidavit came to be filed by one Shri A.P.Dhaduk, Deputy Secretary, Education Department, State of Gujarat which is also dated 8th March 2006. These affidavits were filed pursuant to certain interim observations and directions issued by this Court on 13th February 2006. Reference will be made to the said order passed by this Court as well as the contents of the above mentioned affidavits at a later stage. 5. On the basis of the above factual matrix, learned advocate Ms.Vyas for the petitioners had made detailed submissions. It was her contention that though initially all the petitioners were granted permission by the State Government to start schools without the facility of grant, the same cannot prevent the petitioners from seeking grant-in-aid for all times to come. She submitted that the petitioners had made applications to the authorities and made out a case for release of the grant. Such applications should have been SCA/6381/1998 11/38 JUDGMENT considered favourably. It is pointed out that in number of cases, the applications were not considered at all on merits simply stating that once the applicant has accepted the permission to run the school without the facility of grant, the application for release of grant cannot be considered. She pointed out that in fact, in case of petitioner of Special Civil Application No.1479 of 1999, this Court had in terms stated that the application of the petitioner should be considered despite the earlier undertaking that the petitioner shall not claim grant. Despite this direction by this Court, the Government once again turned down the request of the petitioner on the sole ground that earlier the petitioner had agreed not to claim grant. 5.1It was additionally contended that the petitioners are discriminated in terms of consideration of giving grant. It was contended that large number of similarly situated institutions were provided the facility of grant, but the petitioners, though identically placed were not given such treatment. It was, therefore, contended that the State Government has SCA/6381/1998 12/38 JUDGMENT been following pick and choose policy in the matter of grant-in-aid. 5.2 It was additionally contended that the petitioners are running schools with great difficulty. Financial constraints and resource crunch has led to certain institutions closing down the schools. It was submitted that though case was made out by the petitioners to give grant to the petitioners, the Government has not released the grant and the respondents, therefore,should be directed to release the grant from the date of the applications made by the institutions. It was alternatively submitted that in any case, the applications of the petitioners should be considered on the basis of the factual material obtaining as on the date when such applications were made. She submitted that even if the petitioners are not held entitled to receive grant for the past period, at least their applications be considered on the basis of the situation prevailing at the relevant time. 5.3It may also be noted that it has been the case of the State Government that to achieve uniformity while considering such applications, a policy is SCA/6381/1998 13/38 JUDGMENT being formulated by the State Government to consider the cases on special ground. In this regard, it was contended by the learned advocate for the petitioners that such new policy cannot be applied to the petitioners since their applications are pending with the authority since many years. It was, therefore, urged that the cases of the petitioners should be considered in light of the earlier policy of the Government and on parity with other institutions which have been granted such facilities in the interregnum. 6. On the other hand, learned advocate Shri AD Oza appearing for the Board and learned AGP Ms.Archana Raval appearing for the State opposed the petitions. 7. Learned advocate Shri Oza submitted that in most of the cases, the Board had initially declined to grant permission to the petitioners to start the schools, but the State Government in appeal permitted starting of schools, however, with specific condition that the petitioner will neither be entitled to receive grant nor will they claim such grant in future. It is, therefore, not possible for the petitioners to SCA/6381/1998 14/38 JUDGMENT apply for grant subsequently. 7.1It was also submitted that in several cases, the petitioners have closed down their schools and such institutions under no circumstances can seek grant from the Government. It was also contended that the question of bearing the burden of starting a new school is a matter of Government policy and the same depends on several factors including the financial constraints of the Government. It was also contended that only under exceptional circumstances as special cases, the Government would consider releasing of grant once an institution has been permitted to start a school without the benefit of grant. Such special cases depend on facts of individual applicant and it would not be possible to compare different set of circumstances to make out a case of discrimination. It was further submitted that cases to which reference is sought to be made by the petitioners pertained to the institutions located in remote backward areas of predominantly tribal population. In short, the ground of discrimination was sought to be repelled. 7.2 Reliance was placed on a decision of the SCA/6381/1998 15/38 JUDGMENT learned single Judge of this Court dated 17th June 2000 rendered in Special Civil Application No.5888 of 1998 in the case of Vidhya Sagar Education Trust v. Secretary. The said decision, the learned single Judge of this Court was pleased to observe that each case depends on its own facts and circumstances for the purpose of conversion of schools from non-grant to grant-in-aid schools. It was pointed out that the decision of the learned single Judge in the case of Vidhya Sagar Education Trust, though carried in appeal, the LPA was withdrawn by the appellant-petitioner. 7.3 Reliance was also placed on decision of the learned single Judge in the case of Atladara Kelavani Mandal v. State, 2004(1) GLR 244 wherein the learned single Judge was pleased to observe that there is no compulsion on the part of the educational institution to receive grant-in- aid and that the action of the State to provide for grant to the education institution is essentially a policy matter for which the State should have the liberty to decide its own yard- stick. 7.4 Reliance was also placed on a decision of the SCA/6381/1998 16/38 JUDGMENT learned single Judge dated 20th April 2006 passed in Special Civil Application No.4707 of 2001 in the case of Adarsh Pragati Mandal v. State of Gujarat. In the said decision, the learned single Judge of this Court was pleased to observe that giving of grant is not automatic, but the sme is subject to fulfillment of certain eligibility criteria and consideration of factors such as financial viability. It was observed that to claim grant-in-aid is not a legal right of the petitioner much less fundamental right. 7.5 Reliance was also placed on a decision of the learned single Judge dated 30th July 2002 rendered in Special Civil Application No.3108 of 2002 in the case of Anjuman Education Trust v. State of Gujarat wherein also, the learned single Judge had taken a similar view. 8. Learned AGP Ms.Raval, in addition to adopting the arguments advanced by learned advocate Shri Oza, further submitted that the petitioners had in terms agreed not to avail of grant or claim such grant even in future. They had given such undertaking to the Government. She pointed out that Chapter 18 of the Grant-in-aid Code SCA/6381/1998 17/38 JUDGMENT pertains to releasing of grant by the Government. Rule 84 of the Grant-in-aid Code specifically provides that releasing of grant is at the discretion of the Government. She, therefore, submitted that the State Government in its policy consideration found that it was not possible to give permission to the petitioners to start schools with grant facility. Subsequently, there was no change in circumstances warranting a different consideration. She submitted that the petitioners cannot claim parity since in other cases, the Government decided to release grant considering the special facts and circumstances of each case. It is further submitted that the petitioners have no legal right much less fundamental right to claim grant. Reliance was placed on the decision of the Hon'ble Supreme Court in the case of State of Maharashtra v. Lok Shikshan Sanstha, AIR 1973 SC 588 wherein in para 5 of the decision, the Hon'ble Supreme Court observed that Grant-in-aid Code provided for certain restrictions in starting of the institutions and even if Article 19 can be SCA/6381/1998 18/38 JUDGMENT invoked, such restrictions were reasonable restrictions. 9. Before deciding the legal controversy arising in this group of petitions on the basis of the arguments advanced by the learned advocates, it would be necessary to take note of certain developments which took place during the pendency of these petitions. It appears that while hearing this group of petitions, learned single Judge of this Court (Coram: M.R.Shah, J.) on 1st February 2006 took note of the averments made by the petitioners that number of schools have been granted the benefit of grant-in-aid though initially such schools were not granted the same. The Court also took note of the averments made on behalf of the State Government that such schools were converted into grant in aid schools as special cases. The Court, therefore, directed the State Government to file a reply pointing out the definition of “Special Case” and asked to specify the criteria for considering and treating the schools case as special case. Pursuant to the said order dated 1st February 2006, it appears that one Shri SCA/6381/1998 19/38 JUDGMENT Panneervel, Secretary, Education Department was present before the Court. Time was prayed for on behalf of the State Government to place on record the norms for treating the request as a special case. This Court therefore passed the following order on 13th February 2006 in Special Civil Application No.6381 of 1998. “In response to the notice issued by this court, Shri Paneervel, Secretary, Education Department is present in the court. Ms Archana Raval, learned AGP prays for time to file reply and to place on record the norms treating a case as a special case for converting non- granted school to granted school. Shri Paneervel has submitted that as such the decisions are taken at the highest level and the department is only implementing the same. However, he wants to place on record the norms and other things and to point out whether the said norms are in fact applied uniformally to all other similar institutions or not. Till further orders are passed by this court, the respondents are restrained from converting any secondary/higher secondary school in the State from non-granted to granted school without the prior permission of this court. If, there are any extraordinary exigencies, it will be open for the respondents to move an appropriate SCA/6381/1998 20/38 JUDGMENT application for considering the individual case, which can be dealt with by this court on such appropriate application. A specific reply to be filed on or before 23.2.2006. S.O. to 24.2.2006.” 9.1Pursuant to the directions issued by this Court on 1st February 2006 and 13th February 2006, two affidavits came to be filed on behalf of the respondents. One was filed by One Shri P.Panneervel, Principal Secretary, Education Department being an affidavit dated 8th March 2006. Yet another affidavit also dated 8th March 2006 came to be filed by one Shri A.P.Dhaduk, Deputy Secretary, Education Department. Contents of these affidavits need to be noted at some length. 9.2 In his affidavit Shri P.Panneervel stated that by resolution dated 30th June 1999, the Government has fixed certain norms for the purpose of sanctioning grant to the educational institutions which are as follows:- “i. For the secondary schools, there should be no school within the radium of 10 kms and for the tribal area there should be no school existing within 5 kms. Radius. SCA/6381/1998 21/38 JUDGMENT ii. Regarding higher secondary schools, there should be no school within the radium of 15 kms. From the existing school and for the tribal areas there should be no school within the radius of 10 kms iii. In urban areas the grant-in-aid for secondary schools shall be considered on the basis of the population of 10,000 per school. iv. For higher secondary schools in urban areas, the grant-in-aid shall be considered on the basis of one school per 30,000 population.” It is further stated that recognition is being given to self-finance school with condition that they would not seek grant-in-aid in future also. However, many schools make applications to convert them into grant- in-aid schools. Considering the budget allocation during the relevant financial year and considering the Government criteria, some schools have been considered as special cases to sanction grant in aid. It may happen that some schools may fall with the said criteria, but considering the budgetary limits, all such applications cannot be granted or be given equal treatment and in any case, once self SCA/6381/1998 22/38 JUDGMENT finance schools have accepted recognition with the condition not to apply for grant in future, they cannot insist on grant in aid assistance. 9.3It is further stated in para 4 of the affidavit that in view of the order passed by this Court on 13th February 2006, the Government proposes to fix certain norms for considering the applications as special cases. Para 4 of the affidavit reads as follows: “4. It is stated that in view of the order passed by this Hon'ble Court dated 13.02.2006 the Government proposes to fix the following norms for to consider a special case for grant- in-aid approval: a. Various backward communities operate schools on non-grant basis with a view to obtain sufficient donation from community leaders and others. However, those cases who are not able to obtain sufficient donations and those schools belonging to low rate of literacy may be considered as special case. b. Those villages, which are less than 35% female literacy rate attracted focus of the State Government under Kanya Kelavani Rath. Such