^ G^-a.-y^ L<5 °) IN THE HON»BLEHIGH COURT OF CHHATTISGARH AT BILASPUR ^Wc W.P. (S) NO'r^'/ OF 2008 PETITIONER5 1. ^€ ^ / ..'*" •^ -^ ^^-y ^•""" RBSPONDENTS: 1. o^ ^c^?;0"' ^'^^ ^"" 2. ro^"0 3. ^ Karnoud Shikshan Prasar Samiti, Through its Secretary, Gram Karnoud, P.0. Karnoud, Tahshil Champa, District- Janjgir-Champa (CG) Swami Vivekananda Higher Secondary School, Karnoud, Through its Principal, P.0. Karnoud, District- Janjgir- Champa, Chhattisgarh VERSUS State of Chhattisgarh, through its Secretaiy, Department of School Education, Mantralaya, D.K.S. Bhawan, Raipur (C.G). Director, Public Instructions Sanchanalay, Raipur, Chhattisgarh. District Education Officer, Janjgir-Champa, (C. G) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN NATURE OF CERTIORAm, MANDAMUS, AND OTHER SUITABLE WRIT OR WRITS, DIRECTION OR DIRECTIONS, ORDER OR ORDERS: HIGH COURT OF CHHATTISGARH : BILASPUR PETITIONERS WRIT PETITION (S) N0.4931 OF 2008 Karnoud Shikshan Prasar Samiti & Another RESPONDENTS Versus State of Chhattisgarh & Others A^ I1^ ^f- Post for pronouncement of the orders on the _2lday of April, 2011 Sd/- Satish K. Agnihotri Judge HIGH COURT OF CHHATTISGARH : BILASPUR • WRIT PETITION (S) N0.4931 OF 2008 PETITIONERS RESPQNDENTS Karnoud Shikshan Prasar Samiti & Another Versus State of Chhattisgarh & Others (Writ petitions underArticle 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Sanjay K. Agrawal, Advocate for the petitioners. Shri Y.S. Thakur, Deputy Advocate General for the State. (Delivered on this 2F day of April, 2011) 1. By the instant petition, the petitioners seek a writ of mandamus commanding the respondents tocQnsider giving grants-in-Aid (maintenance grant) to the petitioner No.2 for the year 2008-09 and continue thereafter for the subsequent academic years. Further, the respondents be directed to release the grants-in-Aid (maintenance grant) for the year 2004-05 also. The respondents may further be directed to grant the benefit of 5th pay commission to the teachers/staff including arrears for the years 2006-07 & 2007-08. 2. The facts, in nutshell, as projected by the petitioners for proper adjudication of the case, are that the petitioner No.l/Karnoud Shikshan Prasar Samiti (for short "the petitioner No.l/Samiti") is a registered society under the provisions of the M.P./C.G. Society Registrikaran Adhiniyam, 1973 (for short "the Act, 1973"). The petitioner No.l/Samiti was formed with an object to ^ /•^^ %,.. '^•y establish educational institutions to impart school education to the poor sections of the society. In order to achieve itsobject, the petitioner No-1/Samiti started an educational institution namely; Swami Vivekanand Higher Secondary School, Karnoud/petitioner No.2 (for short "the petitioner No.2/School") and the same has been granted recognition to run the school up to 12 class. The State Government with a view to provide assistance to the non-governmental educational institutions, made rules regulating grants-in-Aid namely; the Revised Rules for Grant-in-Aid to non-government educational institutions in Madhya Pradesh (for short "the Rules"). 3. The State Government recommended to the Director, Public Instructions, Raipur, by communication dated 9-9-2004 (Annexure P/6) to grant an amount of Rs.5,00,000/- as maintenance grant for the financial year 2003-04 for the purpose of payment of salary and allowance to the staff of the school. Subsequently, by order dated 16-3-2005 (Annexure - P/8) further payment as ad hoc grants-in-aid was made for the academic session 2005-06. According to the petitioners, maintenance was sanctioned from time to time, which was properly utilized by the petitioner school and utilization certificate thereof was also submitted. Further, a sum of Rs.5,42,000/- was sanctioned. Subsequently, the State Government by memo dated 7-8-2007 (Annexure - P/14) approved the release of a sum of Rs.6,00,000/- for the year 2007-08 to the petitioner school. It was further approved that a sum of Rs.4,92,000/- f( s ^^».a»fiijfci )i would be released on submission of utilization certificate. Thereafter, a sum ofRs.4,92,000/- was released by memo dated 21-1-2008 (Annexure - P/1.5). Contention of the petitioners is that by order dated 9-6-2008 (Annexure P/17), the Regional President of the Government Aided Teachers and Staff Association, Raipur requested the respondent State to grant regular maintenance aid to the petitioner School for the arrears of pay, in accordance with the recommendation of the 5th Pay Commission. On the basis of said letter, the respondent No.l/State vide its letter dated 25-6-2008 (Annexure P/18) directed the Director, Public Instructions to release the arrears of amount to the petitioner School. Even by letter Annexure P/19, the petitioner School requested the respondent No.2 for payment of Rs. 11,35,739/- towards the arrears for the year 2007-08 and further a sum of Rs.23,17,439/- towards regular maintenance grant-in-aid for the financial year 2008-09. The respondent No.1 informed the Regionai President of the Government Aided Teachers and Staff Association, Raipur that the petitioner No.2/School has been granted Rs. 10,92,OOO/- towards the maintenance grant for the year and, as such, payment of additional amount is not possible under the provisions of law vide communication dated 5-8-2008 (Annexure - P/20). The action of the respondent authorities in not granting maintenance grant-in-aid to the petitioners for the year 2008-09, is illegal, arbitrary and bad in law. Thus, this petition. l^ 8. Shri Agrawal, learned counsel appearing for the petitioners, would submit that the petitioner's institution is performing the public duty by imparting education, which has to be performed by the State, therefore, the respondent authorities, as per the Grant-in-Aid Rules are bound to extend the benefit of grant-in- aid to the petitioner school, as they are extending the said benefit to the similarly situated other non-governmental educational institutions. Shri Agrawal, would further submit that the impugned action of the respondent authorities in not granting the regular maintenance grant to the petitioner No.l/Samiti and the petitioner No.2/School, is ex-facie arbitrary and discriminatory, as the State is discriminating among the similarly situated non-government educational institutions. Shri Agrawal, would next submit that the non-extension of grants-in-aid by the respondents to the petitioner's institution is nothing, but a discrimination and violation of the provisions of the Constitution of India as well as violation of directions given by the Supreme Court, which is binding underArticle 141 ofthe Constitution of India. Withholding of grant-in-aid to the petitioner No.2/School for the year 2008-09 and the benefit of 5th Pay Commission for the year 2006-07 & 2007-08 and non-grant of grant-in-aid for the year 2004-05 is ex-facie bad in law. On the other hand, Shri Thakur, learned Deputy Advocate General appearing for the State, would submit that there are two types of grant-in-aid first is regular grant-in-aid i.e. 100% grants-in-aid and second ad hoc grants-in-aid. The State w '^.y^'' 1 lt- -^ Government has granted grants-in-aid on ad hoc basis to the petitioner's school and the petitioners are receiving the grant-in- aid on ad hoc basis, not on regular basis. The State Government after examining the proposal submitted by the District Education Officer, accorded its sanction for the grant-in-aid to the non- governmenteducationalinstitution. 9. Shri Thakur would further submit that so far as the claim of the petitioners for grant of benefit of the 5 Pay Commission to the teachers/staff and arrears for the year 2006-07 and 2007-08 is concerned, the State Government has taken a decision to provide benefit of 5 Pay Commission to the teachers/staff and arrears to such non-government educational institutions, whjch are receiving 100 % grant-in-aid from the State, whereas, the petitioner society is receiving the grant-in-aid on ad hoc basis and, as such, the petitioner's institution is not entitled for the benefit of 5 Pay Commission and arrears. 10. Shri Thakur would next submit that the grant-in-aid cannot be claimed as a matter of right. All grants are subject to availability of funds. Even otherwise, if the petitioners havechosen to establish and run an educational institution on their own, it cannot be expected from the State Government to pay salary to the teachers and employee of the institution. It is for the management, which has established the institution, to arrange and make payment of salary to the teachers and employees. The State Government has limited resources from revenue. It cannot overlook its duties in other sectors eg. power, infrastructure, roads and industry etc. Thus, the petitioners are not entitled to any relief and the petition may be dismissed. 11. In rejoinder, Shri Agrawal, learned counsel appearing for the petitioners, would submit that the Director, Public Instructions vide order dated 19-1-2006 (Annexure P/21) recommended that the petitioner institution be granted 100% grant i.e. regular grant from the year 2006-07 stating about all the credentials of the institution and thereby the Government for the year 2006-07 granted regular grant to the extent of 100% to the petitioners institution. Therefore, the respondents are estopped from saying that the petitioner institution is being granted ad hoc grant. There is no reason for non-grant of grants-in-aid for the year 2008-09. The State Government has, without any reason, failed to sanction grant-in-aid for the petitioner institution for the year 2008-09. 12. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 13. Relevant provisions of the Rules for grant of grants-in-aid to non-government educational institutions are quoted below: "4. GENERAL CONDITIONS- Taking into account the requirement and availability of funds, grants under these rules will be given, to non-Government institutions which impart sound and secular instructions. Such grants will be subject to the conditions specified in these rules and also subject to furt:her conditions as may be specified by the State Government from to time-to-time. 7 l^ 5.RECOGNITION- No grant can be claimed by any institutions as a matter of right. No payment of grant shall be made to an institutions unless- [a] It has been in continuous existence for at least one year prior to the date of application ; [b] tt has been duly recognized/affiliated to the Board of Secondary Education if it is a Higher Secondary School or to a university, if it is a Colleges; and [c] It has recognition/ permission from the Director, Public Instruction/concerned authority of the Education Department if it is a School and from the 'M.P. Uchcha Shiksha Anudan Ayog,if it is a College. 6. The grants shall be of three kinds, viz- [i] Maintenance grant, [ii] Building grants, and [iii] Equipment grant. 14. 28. Maintenance Grant- [a] Maintenance grant is a recurring grant sanctioned for running and maintaining an education institution. [b] It wilt be sanctioned on an yearly basis. [c] Grant assessed and sanctioned will be operative for two consecutive financial years including the year for which it is assessed and sanctioned." Rule 4 of the Rules enables the State Government to give grants to non-government educational institutions, which imparts sound A ~"\ ^sy ^^^•^^"' and secular instructions, depending on the requirement and availabilityoffunds. 15. Rule 5 of the Rules prescribes that no grant can be claimed by any institution as a matter of right. Rule 6 provides that there are three kinds of grants namely; (i) maintenance grant; (ii) building grants, and; (iii) equipment grant. 16. Rule 28 of the Rules provides for maintenance grant as a recurring grant sanctioned for running and maintaining an educational institution and it will be sanctioned on yearly basis. There is no provision for giving maintenance grant for ever. 17. On perusal ofthe communication dated 9-9-2004, it appears that the petitioner school was granted the maintenance grant to the tune of Rs.5,00,000/- for the financial year 2003-04. Thereafter, for the year 2005-06, similar ad hoc grant was given as is evident from the memo dated 16-3-2005 (Annexure - P/8). For the financial year 2006-07 an amount of Rs. 10,92,0007- was sanctioned as is evident from the memos dated 10-7-2006 & 7-12-2006 (Annexure - P/10). 18. The •question of law arising in this case is asto whether the petitioner school engaged in imparting school education to the children is entitled to maintenance grant as grants-in-aid on regular basis, as a statutory, legal or constitutional right. No document has been produced to indicate asto whether the recognition to run the school was granted and what were the terms & conditions. Secondly, whether the State Government has failed to perform its constitutionat obligations, as prescribed under Article 21A of the Constitution of India. Thus, it became necessary to open and run the petitioner school whereunder the State was under an obligation to ensure that the children get proper and good quality education. 19. There is no dispute that for the period 2003-04, 2005-06 & 2006-07 a sum of Rs.5,00,000/-, Rs.5,00,000/-, Rs.5,50,000/- & Rs.5,42,000/- was granted for payment of salary & allowances for the staff of the petitioner school, but it cannot be held from any standard that the petitioner school was a recipient of regular grants-in-aid underthe provisions ofthe Rules. 20. Contention of the learned counsel appearing for the petitioner that the Director of Public Instructions has recommended to the Government to consider giving regular grants-in-aid, but that does not, ipso-facto, confer any right on the petitioner school. This is for the State Government to ensure that children are getting proper and good quality education in the schools run by the Government or by the institutes, which are fully aided. 21. Article 21A of the Constitution mandates free education to the children of the age of six to fourteen years. Thus, this Couri: cannot issue a writ of mandamus directing the respondent State to ^rant a relief wherein infraction of legal, statutory, constitutional or fundamental rights, of the petitioner/school, have not been established. 10 n3 22. In Chandigarh Administration and Others v. Rajni Vali (Mrs.) and Others , the Supreme Court held that "imparting primary and secondary education to students is the bounden duty of the State Administration. It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the State has enacted Statutes and framed Rules and Regulations to control/regulate establishment and running of private schools at different levels. The State Government provides grant-in- aid to private schools with a view to ensure smooth running of the institution and to ensure that the standard ofteaching does not suffer on account of paucity of funds. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standard of teaching in any educational institution." 23. Yet again, in State of'Orissa and Another v. Mamata Mohant/, emphasis was laid on quality of education and held that quality of teaching staff cannot be compromised, as the children are entitled to get proper and good quality educiation. 24. A constitution Bench of the Supreme Court in Unni Krishnan J.P. and Others v. State of Andhra Pradesh and Others , in respect of right of the educational institution to grants-in-aid held as under: 1 (2000) 2 SCC 42 2 (2011)38cc 436 3 (1993)1 SCC645 ^^. 11 }^ "226 (3) A citizen of this country may have a right to establish an educational institution but no citizen, person or institution has a right much less a fundamental right to affiliation or recognition, or to grant-in-aid from the State. The recognition or affiliation shall be given by the State subject only to the conditions set out in, and only in accordance with the scheme contained in Part III of this Judgment. No Government/University or authority shall be competent to grant recognition or affiliation except in accordance with the said scheme. The said scheme shall constitute a condition of such recognition or affiliation, as the case may be, in addition to such other conditions and terms which such Government, University or other authority may chooseto impose." 25. In State of H.P. v. H.P. State Recognised & Aided Schools Managing Committees and Others , relied upon by the learned counsel appearing for the petitioners, the Supreme Court has referred with approval the constitutional mandate as obsen/ed in Unni Khshnan J.P. (supra). 26. Submission of the learned counsel appearing for the petitioners that the respondent State has exercised arbitrary & discriminatory power in giving grants-in-aid to other similarly situated institutions is without any basis. The petitioners have neither produced the specific details asto what are the schools, which are similarly situated and the State has given grants-in-aid ignoring the claim ofthe petitioner school. Thus, on the basis of mere self-same statemenVaverment, the allegation of 4 (1995)48cc 507 A; i"-« ^^. ^ ^SS^ 11 ^fip^ll "v^. .'/'..- ^^^^:"" •» 12 ,-ys 27. 28. 29. 30. Gowri arbitrary & discriminatory exercise of power cannot be held as established. With regard to grant.of arrears on the basis of 5 pay commission, submission of the learned counsel appearing for the State in the preceding para of this judgment (para 9) merits acceptance. Applying the well settled principles of iaw to the facts of the present case and for the reasons mentioned hereinabove, it is held that the petitioners have failed to establish any right to grant-in-aid from the State. In the result, the writ petition, being bereft of merit, is liable to be and is hereby dismissed. There shall be no order asto cots. Sd/- Satish K. Agnihotri Judge