2010 Supreme(Bom) 532

In the High Court of Bombay at Aurangabad
THE HONOURABLE MR. JUSTICE A.M. KHANWILKAR & THE HONOURABLE MR. JUSTICE S.S. SHINDE
Asha Seva Bhavi Sanstha & Others
Versus
The State of Maharashtra & Others
WRIT PETITION NO.345 OF 2010 WITH WRIT PETITION NO.355 OF 2010 WITH WRIT PETITION NO.8324 OF 2009 WITH WRIT PETITION NO.8337 OF 2009 WITH WRIT PETITION NO.6041 OF 2009 WITH WRIT PETITION NO.6018 OF 2009 WITH WRIT PETITION NO.128 OF 2010 WITH WRIT PETITION NO.365 OF 2010 WITH WRIT PETITION NO.366 OF 2010 WITH WRIT PETITION NO.374 OF 2010 WITH WRIT PETITION NO.385 OF 2010 WITH WRIT PETITION NO.405 OF 2010 WITH WRIT PETITION NO.504 OF 2010 WITH WRIT PETITION NO.555 OF 2010
Decided On : 08-04-2010

Headnote:Constitution of India - Articles 14, 21, 19(1)(g), 41, 45 and 51(h)(j)(k) - Writ petition - Challenging State Government Resolution dated 20.7.2009 - Proposal submitted by petitioners, non-minority institutions, registered as public charitable trusts, for starting a primary, secondary or higher secondary school on permanent "no grant basis" in "Marathi Medium" cancelled/rejected - Contention, decision arbitrary and ultra vires constitution - Held - Impugned Resolution illegal and unconstitutional - Private Management intending to start schools on permanent no grant basis have fundamental right to establish such schools subject to fulfilling conditions for grant of recognition of such schools - Necessary directions given in paragraphs - Petition allowed. Considering the above, in Courts opinion, the impugned Resolution and the policy of the State articulated therein, is illegal and un-constitutional. Courts hold that the private management intending to start schools on permanent no grant basis, have a fundamental right to establish such schools, subject. However, on fulfilling the conditions for grant of recognition of such schools.

       To sum up, Courts conclude that :

       (a) Right to establish an educational institution of its choice on permanent no grant basis, is a fundamental right guaranteed to all the citizens within the meaning of Article 19(1)(g) of the Constitution of India.

       (b) That fundamental right, however, cannot be confused with the right to ask for recognition of the School.

       (c) The proposals for recognition of the school to be established by the private management on "permanent no grant basis and not receiving any other aid whatsoever" from the Government, will hence forth have to fulfill the conditions specified amongst others, in Sections 12, 19, 25 read with Schedule of the Act of 2009 and of the Rule 3.2 of the Code (for Secondary/ Higher Secondary School) or Rule 107 of the Rules of 1949 (for Primary School), as the case may be and also in the recognition order itself.

       (d) Indeed, it will be open to the State to impose strictest terms and conditions including inter alia, mentioned by us in paragraph 67 above, fulfillment whereof can be made precondition for grant of recognition, continuation thereof, by the private schools to be established and run on no grant in aid basis and without receiving any other aid whatsoever from the Government. The terms and conditions, however, will have to be reasonable restrictions and in the interests of the general public.

       (e) The unaided Schools so established and recognised will be obliged to admit specified percentage of children in the neighbourhood belonging to weaker section and disadvantaged group and provide free and compulsory elementary education to them till the completion, as per the mandate of Section 12(1)(c) of the Act of 2009.

       (f) The unaided schools, however, would be entitled only for reimbursement of the expenditure incurred by it to the extent of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less in such manner as may be prescribed, in terms of Section 12(2) of the Act of 2009.

       (g) These unaided schools after grant of recognition cannot stake claim for grants in aid, or any other kind of aid from the Government, at a later point of time, as a matter of right.

       (h) Initially provisional recognition shall be granted to the unaided private Secondary/Higher Secondary School, it if fulfills the conditions specified in Act of 2009 and Rule 3.2 of the Code for grant of recognition, as provided in Rule 4.1 of the Secondary Schools Code; and recognition shall be granted to unaided private primary school, if it fulfills the conditions specified in Act of 2009 and Rule 107 of the Rules of 1949, as provided in Section 39 of the Act of 1947 read with Rule 107 of the Rules of 1949.

       (i) It will be open to the Government to consider to amend the opening part of Rule 107(1) of the Rules of 1949 so as to make it consider with Section 18 of the Act of 2009 as also to provide for the regime of issuance of provisional recognition to even primary Schools in the first place as per the mechanism provided in Rule 4.1 of the Code.

       (j) The pre-existence of a perspective plan or inclusion of the location in the perspective plan or School Development Plan, as the case may be, for considering proposal for recognition of the "private unaided schools" on permanent no grant in aid basis or not receiving any other aid from the Government whatsoever, cannot be a condition precedent,

       (k) The perspective plan or school Development Plan will be relevant and ought to be insisted upon only in relation to proposals for establishment of schools on "grant in aid basis or receiving any other aid" from the Government.

       (l) The impugned decision of the State reflected in the Government Resolution dated 20th July, 2009 to cancel all the proposals for permission to start "Marathi medium" schools by issuing one executive flat or blanket order on the premise that such proposals can be considered only after the enforcement of the perspective plan, is illegal and unconstitutional being discriminatory and arbitrary and also suffers from the vice of non-application of mind.

       (m) We further hold that the provisions of the Secondary Schools Code relating to permission under Rules 2.1 to 2.14 of the Code and Rule 106 of the Rules of 1949 to start a school would apply only to the proposals for establishing a school on "grant in aid basis or receiving any other aid" from the Government. However, even after grant of permission, such School shall not function or run until the grant of recognition, as per section 18 of the Act of 2009. Only on this interpretation the constitutional validity of the abovesaid provisions and the opining part of Rule 107(1) of the Rules of 1949 can be saved.

       (n) We also hold that the State shall forthwith consider the proposals of all the private institution "for grant of recognition" for Marathi Medium School on permanent grant in aid basis and not receiving any other aid from the Government whatsoever, in the given locality on its own merits and in accordance with law.

       (o) That be done expeditiously and the decision so taken be communicated to the concerned Management, in any case, not later than 31st May, 2010, so that, if recognition were to be granted, the concerned School can commence at the beginning of the academic year 2010, 2011 from June 2010.

       (p) We have also made some broad suggestions in Paragraph 62 as to the factors to be considered and remedial measures taken before finalizing the perspective plan or School Development plan. We hole and trust that the Government would consider the same in right earnest.

       (q) We, therefore, allow all these petitions on the above terms.