Case: SANT DNYANESHWAR SHIKSHAN SANSTHAN  Vs. THE STATE OF MAHARASHTRA

2. A Primary Ashram School was being run by Banjara Magasvargiya Shikshan Prasarak Mandal in the name of Prabodhankar Thakare Prathmik Ashram Shala, Talegaon Tanda, Taluka-Chasligaon, Distt-Jalgaon. Around 2009 certain irregularities and deficiencies having been found, a report was submitted to the Director of VJNT, OBC, Social Welfare of Special Backward Class, Pune. Consequently, the recognition granted to said Ashram Shala came to be withdrawn on 23.08.2010 for not taking corrective steps with regard to deficient infrastructural facilities. By the same order the students of said Ashram Shala were directed to be absorbed in nearby Ashram Schools.      3. By subsequent order dated 15.12.2010 passed by the Director, permission/no objection was given to absorb the employees of said Ashram Shala in other Primary Ashram Schools recognized by the Government. In a tabulated chart, the order noted the names of Primary Ashram Schools where each of those employees was to be absorbed and directed the employees to report within seven days. The employees at Sl.Nos.10,11 and 12 were temporarily adjusted in the office of Special District Welfare Officer and after review of vacant posts in the division, the adjustment of said employees was to be undertaken. In partial modification of the aforesaid order, an order was passed on 18.06.2011 making revised postings of the employees.      4. Thereafter, on 02.01.2012 a Resolution was passed by Government of Maharashtra, Department of Social Justice and Special Assistance accepting proposal of handing over said Ashram Shala to another entity named Sant Dnyaneshwar Shikshan Sanstha, Islampur, Taluka Walava, District Sangli (appellant in Civil Appeal No.9384 and 9385 of 2014). Under the Resolution the entire Ashram Shala which had been closed down was to be transferred to a place at a distance of 400 kms. The relevant portion of the Resolution was asResolution :- The proposal of handing over closed down Ashram School named as the Prabodhankar Thakare Primary Ashram School run and govern by the Banjara Backward Education Society, At Talegaon Tanda, Taluka Chalisgaon to the Dnyaneshwar Education Society, Islampur, Taluka Walava, District Sangli and transfer at the Punyashlok Ahilyadevi Holkar Primary Ashram School, Choundi, Taluka Jamkhed, District Ahmed Nagar is approved subject to following terms and conditions:      1. The currently serving approved Teaching/Non-Teaching employees of closed down Ashram School shall be absorbed.      2. The Resident Students of the closed down Ashram School shall be shifted in new society.      3. The Orders, Terms and Conditions time to time issued by the Government shall be binding upon the society.The employees of erstwhile Ashram Shala which was closed down and who were absorbed in various posts as stated above challenged the Resolution dated 02.01.2012 and communication issued to each of those employees on 06.04.2012 to report at the new place, by filing Writ Petition No. 3728 of 2012 before the High Court. On 24.04.2012 the effect of communication dated 06.04.2012 was stayed by the High Court. Despite the order of stay, a communication was issued by the Assistant Commissioner, Social Welfare Department to various schools where the employees were actually absorbed to relieve them. It is a matter of record that since April, 2012 the employees have not received any payment towards salary or emoluments.      6. The challenge raised by the employees was accepted by the High Court. The High Court considered Government Resolution dated 01.08.2007 dealing with the subject?The conditions for transfer of Primary and Secondary Residential Schools?and found that said Resolution dated 01.08.2007 did not make any reference to transfer of a derecognized or closed school. It further found that none of the terms and conditions as stipulated in said Resolution dated 01.08.2007 were satisfied in the present case. It was observed that the recognition accorded to an Ashram School was being considered as if it was a business licence. The High Court held that the transfer was not preceded by any circulation about intention to transfer, which would have enabled other institutions to explore possibility of putting in their claims. The High Court also relied upon the decision of the Division Bench of the same High Court rendered in Jeevanjyoti Krida and Shikshan Prasarak Mandal vs. State of Maharashtra and ors. 2012(6) Maharashtra Law Journal (Mh.L.J) page no. 836 .      Allowing the Writ Petition the High Court quashed Government Resolution dated 02.01.2012 and directed the State authorities to release the salaries of the employees regularly with further direction to issue to said employees proper absorption orders in the schools nearer to the derecognized Ashram Shala or allow them to continue at the places of absorption according to the position prior to 02.01.2012.      7. The aforesaid decision of the High Court is presently under challenge by appellant in C.A. Nos.9384 and 9385 of 2014 (‘appellant? for short). While issuing notice on 17.12.2013, this Court had directed that the school run by the appellant in terms of Resolution dated 02.01.2012 would continue to run and would not be directed to be closed down till further orders. Consequently, the school is still being run by the appellant. Challenge has also been raised by State of Mahrashtra by filing Civil Appeal Nos. 9673-9674 of 2014 against the very same judgment of the High Court. According to the State, theResolution dated 02.01.2012 was perfectly within the competence of the State and was a proper exercise of power.

Court's reasoning:
9. The Government Resolution dated 01.08.2007 dealt with certain conditions under which transfer of employees of primary and secondary residential schools could be permitted. Those conditions were asThe government may permit or consider another option to grant other place to the Ashram run by the institute if the population is enough and the plan has been granted by the government, and considering all the facilities of that Ashram.The location from where the Ashram is functioning and its undertakings and if there is a necessity to requisite that land or there is any danger of earthquake flood natural calamityIf the population of the place where the Sanstha is located is by any reason lessened or moved to some other place/village and if the population becomes less than 50%If there is any scarcity of basic needs such as availability of land, water, electricity or any other tension such as communal tension and or if that place is not safe for there is occurrence of tension frequently, within the area of 10 k.m., the Director of that Division of the government can permit to start the functioning of the Sanstha if there is all the required facilities.The permission can be sought by the director of the public welfare (local) authority to shift the location of the Sanstha within the area of 10 km. if the basic facilities such as water, electricity, ground, building are available at that place.If there is an application from the Sanstha or if it faces the problems as mentioned in para 1 such as lack of basic necessities, or the population of children is reduced or the place has gone into Government requisition plan etc. then in that case the govt. authority can consider the permission to shift the place of the Sanshtha.The authority will have the power to grant the permission under extraordinary conditions or situations.If the grant has not been given to any Sanstha once it has shifted its base, the responsibility of the payment of salaries of the teachers and staff shall be wholly on the Sanstha itself.If the location of the Sanstha (Organisation) is changed without seeking the permission of the authority then in that case it will be held illegal and for that the Govt. authority will not be responsible for any query which may be raised on issues such as staff, immovable property population of the children. And the permission given to that organization will stand cancelled. The govt. authority will have the right and power to hand over the functions of the Sanstha to some other Sanstha/Organization.In Jeevanjyoti 2012(6) Maharashtra Law Journal (Mh.L.J) page no. 836 almost similar fact situation came up for consideration before the High Court where transfer of recognition, after derecognition of an existing Ashram School, was effected and the distance between two places was about 600 kms. After considering the issues involved, the High Court held that once an existing Ashram School was derecognized there would be no occasion to handover that recognition to another Ashram School.The decision in Jeevanjyoti 2012(6) Maharashtra Law Journal (Mh.L.J) page no. 836 was rendered on 11.09.2012 i.e. after the Government Resolution dated 02.01.2012. However, said decision was never challenged by the State. On the other hand, a Government Resolution was issued on 19.12.2016 laying down policy for transfer of recognition of an Ashram Shala in a fair and transparent manner, in terms of said decision in Jeevanjyoti 2012(6) Maharashtra Law Journal (Mh.L.J) page no. 836 . In the face of such stand by the Government, the submission raised by Mr. Navre, learned advocate that the appeal preferred by the State Government against the decision which had followed the decision in Jeevanjyoti 2012(6) Maharashtra Law Journal (Mh.L.J) page no. 836 may not be entertained, has some force.In any case, we have gone through the record and considered rival submissions. The way the issue of transfer was dealt with by the State Government, the criticism levelled by the High Court was fully justified. The permission to an Ashram Shala was taken as if it was a business licence which could be utilized at any place. In terms of Government Resolution dated 01.08.2007, the applications for transfer would normally be considered within a distance of 10 kms. In the present case, the distance itself is 400 kms. and for a Primary Ashram Shala it would not be proper to expect the children enrolled in the Ashram Shala to be transferred to a new place. Further, there was no school in existence at the place where the transfer was effected and an entity that was based in a completely different district was allowed to set up a new Ashram Shala. In our view, the High Court was right in rejecting the submissions advanced on behalf of the appellant as well as the State Government.