Judgment - H. L. GOKHALE, J.

( 1 ) RULE. Rule is made returnable forthwith.

( 2 ) HEARD both the learned Counsel.

( 3 ) AFFIDAVIT in reply has been filed by the Superintendent, Education department (Primary), Zilla Parishad, Kolhapur affirmed on 29th September, 2004. Rejoinder also has been filed. On an earlier date, i. e. on 27th August, 2004, the parties were put to notice that the petition will be disposed of at the admission stage itself.

( 4 ) THE petitioner is a society registered under the Societies Registration act and is running a High School as also a Primary School at Village Mhasave, taluka Bhudargad, District Kolhapur. The petition is filed to challenge the legality and validity of setting up of 5th to 7th standards by another Primary school of the Zilla Parishad in the same village. The case of the petitioner institution is that it is running the school from the year 1968. The school is recognised by the Education Department and receives 100% grant. It is situated in a village, of which the population is just around 3200 and the addition of these classes to the Zilla Parishad Primary School will affect it adversely.

( 5 ) THE respondent No. 3 - Zilla Parishad has decided to add these classes to its primary school in this village. In para 11 and 12 of the petition, political ill-will to the management of the petitioner Society and mala fides of the sarpanch are alleged. The allegations are denied in the reply of the Zilla parishad. However, without going into these allegations, it has to be noted that when the permission was granted to the petitioner school to start 5th standard in the year 1972-73, the Deputy Director of Education had clearly laid down in Clause 5 of the grant that the new class should have minimum average daily attendance of 30 students and that in no case the condition of minimum average daily attendance will be relaxed. It is submitted that addition of these classes to the Zilla Parishad School is going to adversely affect the intake in the 5th standard and the number will go down to less than 30. In fact, when this school of the 'zilla Parishad started the 5th standard in the year 2004-05, the number of students went down from 51 to 35 and now in the year 2005-06, the number has gone down to 22. Mr. Topkar, learned counsel for the petitioner, has tendered a chart signed by the Head Master of the school to that effect.

( 6 ) MR. Topkar thereafter relied upon a Government Resolution dated 10th august 1977 where in Clause 3 it has been laid down that the secondary schools will be permitted to have 5th to 7th standards from 1977-78 onwards and wherever such schools are permitted to have these standards, the Zilla parishads or the Nagar Parishads will close down these divisions from their primary schools, exception of course being where the strength of the students is quite large. Mr. Topkar points out that there is no complaint whatsoever that any student was not admitted in petitioner School and nothing of the kind has been averred in the reply and in fact there is no complaint to such an effect. He draws support from the letter sent by the Deputy Director of education, Kolhapur dated 5th July 2004 where the Deputy Director had clearly written to the Zilla Parishad that this school has been running from 1968, it has been receiving grant and it has been running the classes 5th to 7th standards from 1972 onwards. It has further been stated that if the Zilla parishad starts 5th to 7th standards in the same village, it will have an adverse effect on the school run by the petitioner and the teachers will become surplus. The Deputy Director has therefore in clear terms stated that the Zilla Parishad should not start 5th to 7th standards in its school. Mr. Topkar, therefore, submits that on the basis of the viability of the school, its past performance, its continuous running all these years, service to the society, the government policy, the decision of the Deputy Director of Education, and more than

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