The court emphasized the need for modalities, transparency, and compliance with principles of natural justice in the matter of change of management, and highlighted the unguided and unbridled power given to the Deputy Director of Education under the Code.

A.B. Chaudhari, J.

1. Heard. Rule. Rule returnable forthwith. Both these writ petitions are taken up for final disposal. Heard finally by consent of the learned counsel for the parties.

FACTS :

2. In Writ petition No.1916/2010 the petitioner claims to be a trustee of respondent no.4 education society while in Writ Petition No.1261/2010 the employees of the school run by respondent no.4 education society have a grievance in the matter of transfer of management of the school to respondent no.5 society by the respondent no.4 society.

SUBMISSIONS :

3. The learned counsel appearing for the petitioner in both writ petitions made the following submissions :-

(a) In Writ Petition No.1916/2010 Nitin Raghobaji Raut is a trustee of the respondent no.4 Matoshri Bahuuddeshiya Shikshan Sanstha and the dispute amongst the trustees are pending before the Joint Charity Commissioner in the form of Application No.20/2009. Being a trustee, he obtained an order from the Joint Charity Commissioner, Nagpur on 15th October 2009 below Exh.4 in Application No.20/2009 under section 47 of the Bombay Public Trust Act by which ad-interim stay was granted by the said authority staying the process of transfer of management and that order was extended on 24/12/2009. According to him, therefore, there could be no transfer of management by impugned order dated 16/10/2009.

(b) The transfer of management could have been made only in accordance with the provisions of Maharashtra Educational Institutions Transfer of Management Act, 1971 and Rules framed thereunder. Admittedly, that having not been done, the impugned order is illegal.

(c) There being a dispute amongst the trustees and the management of respondent no.4 and in the absence of any no objection certificate, as contemplated by circular dated 8/12/2005 issued by Director of Education, no steps to transfer the school could have been taken. The decision to transfer the school is passed at whims and caprice and not for any plausible reason but upon production of fake documents.

(d) The employees in Writ Petition No. 1261/2010 were not made aware about the mode of transfer of school from one management to another. Impugned order certainly acted adverse to the interest of the employees who are also the beneficiaries of the School. The impugned order could not have been passed without hearing all the interested persons and beneficiaries. Thus, there was no transparency observed before making the impugned order and thus impugned order is bad in law being arbitrary.

4. Per contra, the learned counsel for the respondent opposed the writ petitions. It is submitted that the ad-interim order issued by the Joint Charity Commissioner on 15/10/2009 was never served at any time before passing of the impugned order dated 16/10/2009 on the authority. Therefore, it cannot be assumed that the authority had knowledge of the said order and hence the said order would not affect the impugned order. On the contrary, the said order appears to have been served after passing of the order dated 16/10/2009 and handing over and taking over the charge after transfer of management of school. The ad-interim order was never continued till the last continuation order was made on 24/12/2009. As there was no order continuing the ad-interim stay, the same had become infructuous. At any rate, in Writ Petition No.1261/2009 the said ad-interim stay order was set aside by consent and the matter was remanded back to the Deputy Director of Education for reconsideration and the parties were directed to maintain status-quo and thus the stay order stood modified and that is why no benefit can be derived from the said ex-parte order.

5. It was then argued that the order dated 9th of March 2010 passed by the said authority is nothing but an order of revival of the earlier order dated 16/10/2009. The learned counsel for the respondent no.4 invited our attention to the additional submissions dated 2/12/2010 and the documents filed therewith and argu