1 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3891 OF 2001 Jijamata Shikshan Prasarak Mandal through its President Shri Prakash Jadhav at Post Ghunki, Tal-Hatkanangale District Kolhapur ..Petitioner Versus 1. The Education Officer (Secondary Schools) Zilla Parishad Tal-Hatkanangale Dist Kolhapur 2.Rajashri Shahu Shikshan Sanstha Chavare,Tal-Hatkanangale Dist Kolhapur 3. Chavare High School, Chavare through its Head Master Chavare, Tal-Hatkanangale Dist Kolhapur 4. State of Maharashtra ..Respondents Shri B.D.Joshi for the Petitioner Shri A.Y.Sakhare i/b Smt Varsha Palav for Respondent Nos.2 & 3 Shri A.I.Patel AGP for State CORAM: P.B.MAJMUDAR AND R.M.SAVANT JJ 10 th June, 2010 ORAL JUDGMENT (Per R.M.SAVANT, J.) 1. By this Petition filed under Article 226 2 of the Constitution of India, the Petitioner impugns the order dated 16-6-2001 granting recognition to Respondent No.3 school being illegal, bad-in-law, arbitrary, malafide and discriminatory in nature. The Petitioner also seeks a direction for inter alia directing the Respondent No.1 to grant recognition to the Petitioner school from academic year 2001-2002. 2. Shorn of unnecessary details, a few facts are necessary to be cited for adjudication of the above Petition. 3. The Petitioner is a society registered under the Societies Registration Act 1860. The Petitioner started a school for standard 8 th to 10 th namely Chavrai Madhyamik Vidyalaya in village Chavare. The Petitioner applied to Respondent No.1 i.e. Education Officer,Zilla Parishad for recognition of the said school. The District Level Committee has recommended the case of the Petitioner. It appears that 3 the recognition was refused to the Petitioner school. However, Respondent No.3 school which was started in the same village was granted recognition in the year 2001. 4. It appears that on 6-7-2001 an advertisement was issued by Respondent No.2, which runs Respondent No.3 school, greeting Mr. Jayantrao Avale on his 60 th Birthday and thanking him for granting recognition to Respondent No.3 school. The challenge to the recognition granted to Respondent No.3 school is on the ground that the said recognition has been granted for extraneous reasons as Respondent No.3 school is backed by politically influential persons, one of them being Mr. Jayantrao Avale. In so far as the Petitioner school is concerned, the approval / recognition has been refused to the Petitioner on the grounds which have been communicated vide letter / order dated 20-8-1999. The grounds for the 4 said refusal of approval / recognition find place in the said order at item No.1 to 6. One of the reasons is that within the periphery of 5 k.m. there are facilities available of a secondary school and hence there is no need of a new secondary school. As indicated above, the said decision though not directly questioned in the above Petition since a direction has been sought by the Petitioner against the Respondents that recognition should be granted to it indirectly. The said reasons are questioned by the Petitioner in the above Petition. 5. The above Petition had come up for admission on 29-8-2001, when a Division Bench of this Court comprising of B.N.Srikrishnan, J. (as His Lordship then was) and Smt. Nishita Mhatre, J. was pleased to pass an ad-interim order thereby permitting the Petitioner to run its school pending further orders of this Court. The 5 above Petition thereafter came to be admitted on 4-3-2002 by another Division bench and the ad-interim order permitting the said school to run has continued up to this date. It would be relevant to note that, both the schools run by the Petitioner and the school run by Respondent No.3 are co-existing without there being any prejudice to each other. At least no grievance has been putforth on behalf of Respondent No.3, which as mentioned above has been granted recognition in the year 2001. It appears that there are sufficient number of students available for both the schools. The authorities have also, therefore, allowed the functioning of the said two schools till this date. It would be pertinent to note that no application has been filed on behalf of the authorities in this Petition inter alia stating that operation of both the schools is not conducive. Since the petitioner s school 6 has not been granted approval / recognition the students who have studied up to 10 th standard are required to fill in examination form through some other school for appearing at the 10 th standard examination. This has been the course of action which has been followed since the year 2001. 6. During the pendency of the above petition another event which has occurred is that the Central Legislation known as the Right of Children to Free and Compulsory Education Act, 2009 has come into force, the intrinsic regime provided therein is geared towards providing rights education or quality education by providing required infrastructure and compliance of specified norms and standards in the schools. The said Act, therefore, has given a different dimension in so far as right to education of the children is concerned. Various petitions were filed before the Aurangabad Bench of 7 this Court by trusts and societies which had applied for permission to open new primary and secondary school in terms of the policy applicable and which were turned down by the State Government. The said action of refusal of the State Government was tested on the touch stone of Article 19(1)(g) of the Constitution of India and the said batch of writ petitions came to be disposed of by the Division Bench at Aurangabad, by Judgment and order dated 8-4-2010. The Division Bench while disposing of the said Writ petitions has vide paragraph 82 issued directions to the State Government in the matter of consideration of an application for grant of approval / recognition to open a primary / secondary school. In our view the application for approval / recognition for opening any new primary or secondary school, unaided school would, therefore, also have to be considered on the touch stone of the Act of 8 2009, as also by the direction by this Court, in the said Judgment dated 8-4-2010. 7. In the instant case the Petitioner school is running since the year 2001 but the same is running on account of the interim orders passed by this Court and, therefore, it would be necessary for the authorities to consider the application of the Petitioner also on the basis of the Act of 2009 and the directions issued by the Division bench as contained in the Judgment and order dated 8-4-2010, whether the petitioner school can be granted approval / recognition. Apart from this, the authorities would also be obliged to consider the fact that the petitioners school has been running since the year 2001 and both the schools of the petitioner and Respondent No.3 are co-existing since that time without any prejudice to each other. We, therefore, set aside the communication dated 20 th August 1999 and direct the authorities 9 to consider the case of the petitioners for approval / recognition in accordance with law especially on the touch stone of the Act of 2009 as also the directions as contained in the Judgment and order dated 8-4-2010 and having due regard to the facts as aforesaid. 8. In so far as the challenge to the permission granted to the Respondent No.3 is concerned, as indicated above both the schools i.e. school run by the Petitioner and Respondent No.3 are co-existing since the year 2001 and, therefore, there does not appear to be any issue in both the schools co-existing. Though much was sought to be made as regards the manner in which the permission was granted to Respondent No.3. In the light of the aforesaid facts we do not deem fit to go into the said issue as the said issue is not relevant at this stage. 9. We, therefore, allow this Petition only to the extent of directing the authorities to 10 consider the Petitioner s case for grant of approval / recognition as indicated in the earlier part of this judgment. The Petitioner would be free to file further detailed application seeking approval / recognition which would be considered by the authorities in terms of our directions as mentioned herein above. The said application to be made by the Petitioner within 8 weeks from the date. The authorities to consider the application within a period of three months thereafter. In the meantime, the interim order which is operating in this petition since the year 2001 to operate till the decision is taken on the application of the Petitioner for approval / recognition by the concerned authorities. In case the decision is adverse to the Petitioner, the same not to be given effect to for a period of 8 weeks of the communication of such decision to the Petitioner. 11 10. Rule is accordingly made absolute to the aforesaid extent with parties to bear their respective costs. (R.M.SAVANT J.) (P.B.MAJMUDAR J.)