1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1081 OF 1994 Pravara Rural Education Society, Pravaranagar, Taluka Shrirampur, District – Ahmednagar. PETITIONER VERSUS 1. The State of Maharashtra (Copy to be served on the Government Pleader, High Court, Bench at Aurangabad) 2. The Secretary, Education Department, Government of Maharashtra, Mantralaya, Bombay-32 3. Deputy Director of Education, Education Department, Dr.Ambedkar Road, Pune-1 4. The Education Officer, (Secondary), Zilla Parishad, Ahmednagar, Dist. Ahmednagar 5. Dr.Baburao Bapuji Tanpure, Shikshan Sanstha, At. Rahuri, Taluka Rahuri, Dist : Ahmednagar, Through it’s President – Dr.Baburao Bapuji Tanpure, R/o.Rahuri, Tal. Rahuri, Dist : Ahmednagar 2 6. Prasad Baburao Tanpure, M.L.A. R/o. Rahuri, Taluka- Rahuri, Dist. Ahmednagar RESPONDENTS Mr.V.D.Hon, learned counsel for the petitioner. Mr.V.H.Dighe, learned AGP for respondent no.1 to 4. Mr.P.B.Salunkhe, h/f. Shri.D.B.Patil, learned counsel for respondent no.5 and 6. (CORAM : P.V.HARDAS AND A.V.POTDAR, J.J.) DATE : 21/07/2009 ORAL JUDGMENT : (Per P.V.Hardas, J.) 1. In this petition under Article 226 of The Constitution of India, petitioner prays for issuance of a writ for quashing and setting aside an order dated 02/07/1992 passed by respondent no.3, granting permission to respondent no.5 for starting a school at village Kolhar Kd. Tal.Rahuri, District : Ahmednagar. The petitioner also prays for writ of mandamus directing respondent no.1 to 4 to grant continuation and necessary permission to the petitioner society with regard to the school at village Kolhar Kd.Tal. Rahuri of Ahmednagar District. Pursuant to the amendment which was carried out by the petitioner, the petitioner has prayed for quashing and setting aside letter dated 25/08/1997 issued by the Deputy Director of Education, Pune refusing to grant the permission to the petitioner for running the said school. 2. Such of the facts as are necessary for the decision of this petition may briefly be stated thus. 3 3. The petitioner Trust which was desirous of starting a secondary school at village Kolhar Kd, submitted an application sometime on 28/10/1991. Necessary amount also came to be deposited by the petitioner Trust for the academic year 1991-92. However, despite the application of the petitioner, no orders came to be passed. In 1992, the petitioner again submitted an application and deposited the necessary amount for grant of permission for starting a secondary school at village Kolhar Kd. for the academic year 1993-94. It appears that the application of the petitioner went unattended and suddenly by an order dated 02/07/1993, the respondents granted permission to respondent no.5 for starting a new secondary school at village Kolhar Kd. The petitioner took exception to the grant of permission to respondent no.5 and accordingly submitted several representations which went unheeded. The petitioner therefore filed the present petition. 4. When the petition was listed for admission before this Court, this Court by its order dated 27/07/1995, while issuing notice before admission, recorded that the 5th respondent despite being granted the permission for starting the school had not started the school. The villagers were in dire need as no school was functioning at village Kolhar Kd, and therefore the petitioner with an altruistic motive, started the school albeit unauthorizedly. This Court therefore permitted the petitioner to run the said school and expressed in no uncertain terms that the petitioner was not liable for any action for 4 having started an unauthorized school. Under the orders of this Court therefore vide para no.6 of the said order, the Court directed the petitioner society to run the school at village Kolhar Kd. as was previously done by the petitioner. This Court also directed that the application of the petitioner for running the school for the next year shall be considered on its own merit. It appears that the respondent no.5 did not start the school at all, and the petitioner continued running the school. This petition which was filed in the year 1994, is pending till today and factual position which emerges is that respondent no.5 has not started the school, but the petitioner is running the school since then. 5. On notice being issued to the respondents, respondents have filed their affidavit in reply. We may at this juncture briefly refer to the affidavit which is filed by the respondent no.4. i.e. Deputy Education Officer (Secondary) Zilla Parishad, Ahmednagar, dated 06/05/2009. In the said affidavit at para no.4 it is stated that the Government by its order dated 24/01/2000 granted permission to the petitioner for starting a school from the academic year 1999-2000 on permanent no grant basis and at present the school run by the petitioner is in existence. Classes from Standard 8 to Standard 10 are being conducted and the strength of the students in 10th standard is 37. It also transpires from the affidavit that the Education Office has sanctioned devisions to the said school in accordance with the norms laid down. At para no.5 of the affidavit in reply, it is again re- iterated that respondent no.5 though had been granted permission to 5 start the school, had not started the school in accordance with the said permission. It is also disclosed in the affidavit that apart from the school of the petitioner, no other school is in existence which would cater to the needs of the villagers. It is also stated that the petitioner institution is running the school since 1992. At para no.6, it is stated that since the respondent no.5 had not started the school at all, the permission which has been granted to respondent no.5 has been rendered practically infructuous on account of passage of time. 6. We have heard Shri.V.D.Hon, learned counsel for the petitioner, learned AGP on behalf of respondent no.1 to 4 and Shri.P.B.Salunkhe, learned counsel on behalf of respondent no.5 and 6. It is the contention of the respondent no.5 and 6 that the petitioner has not made out any case for interference in the extra ordinary jurisdiction of this Court under Article 226 of The Constitution of India. 7. The respondent no.5 had been granted permission for starting a school which permission is the subject matter of challenge in the present petition. It is no doubt true that the petitioner had started the school since 1992, but unauthorizedly. However, it appears that the irregularity in starting the school by the petitioner has been finally rectified or remedied by the respondents in granting permission to the petitioner society on permanent no grant basis. Undisputedly, respondent no.5 though had been granted permission to start the school has not started the school till today, i.e. even after 6 lapse of 15 years. In such circumstances, since the school of the petitioner is the only school in existence which caters to the needs of the villagers, according to us, the petition deserves to be allowed and the impugned order deserves to be quashed and set aside. Since this Court had already expressed an opinion that no action needs to be taken against the petitioner for unauthorizedly starting the school, we refrain from making any further observations. 8. It also appears that the order which was passed by this Court on 27/07/1995 came to be recalled by this Court on an application submitted by the 5th respondent. The petitioner being aggrieved by the aforesaid order, filed Special Leave Petition. It also appears that leave came to be granted to the petitioner and the Supreme Court by its order dated 07/04/1997, restored the order passed by Division Bench of this Court dated 27/07/1995. In the result, therefore the petitioner is running the school un-interruptedly since 1992 with the observations of the Court being re-enforced by the order of the Supreme Court that no action needs to be taken against the petitioner for unauthorizedly starting the school. 9. It also appears that CA no.1452/01 is pending in this Court with an order of this Court that this civil application be heard alongwith the writ petition. By this civil application, the petitioner seeks to modify the order dated 24/01/2000 granting permission to the petitioner society to run the school on permanent no grant basis to a permission on grantable basis. We are informed on behalf of the 7 learned counsel for the parties that this Court has taken a view that the permission granted by the Government for starting schools on permanent no grant basis have been held to be unsustainable and the Government has been directed to hold the schools admissible for grants in phased manner. We accordingly direct the respondents to review its decision of granting permission on permanent no grant basis in the light of existing policy and the judgments of this Court and to pass appropriate orders in respect thereof within 6 months from today and communicate the same to the petitioner. The Government while considering the question of reviewing the decision of granting permission to the petitioner on permanent no grant basis shall take into consideration the fact that the petitioner has been running the school since 1992 while the respondent had not started the school at all. The permission which was granted to respondent no.5 was on grant basis. These aspects may be considered by the Government while deciding to review the permission granted to the petitioner on permanent grant basis. 10. Rule is thus made absolute in the petition on the terms indicated above and the directions issued in the civil application. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JULY 2009/wp1081-94