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2016 Supreme(Bom) 1949
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. Shinde, Sangitrao S. Patil, JJ.
Jalgaon Mirai Bahuddeshiya Vikas Sanstha, Through its Chairman, Sharad Murlidhar Netkar - Petitioner
Versus
The State of Maharashtra Through its Principal Secretary, Tribal Development Department, Mantralaya, Mumbai & Ors. - Respondents
Writ Petition No. 9970 of 2012
Decided On : 04-05-2016
For the Petitioner:Mr. S.B. Talekar, Advocate.
For the Respondent:Mr. S.G. Karlekar, Asst. Government Pleader, Mr. N.D. Khamborkar, Advocate.
The main legal point established in the judgment is the requirement to follow the provisions of the Ashram School Code, the principles of natural justice, and the arbitrary nature of administrative decisions.
Headnote:
Transferee Institution - Vires of Government Resolution - Ashram School Code, Rule 2.23, 2.16, 2.17, 2.19 - The court discussed the vires of the Government Resolution and the application of the Ashram School Code, specifically focusing on Rule 2.23, 2.16, 2.17, and 2.19. The court highlighted the failure to follow the provisions of the Ashram School Code, the principles of natural justice, and the arbitrary nature of the decisions made by the authorities.
Fact of the Case:
The Transferee Institution challenged the vires of a Government Resolution that ordered the retransfer of an Ashram School from the Transferee Institution to the Original Institution. The Original Institution's Ashram School was initially derecognized due to deficiencies and transferred to the Transferee Institution. The Transferee Institution invested in infrastructure and staff, but the Government Resolution canceled the transfer without a hearing.
Finding of the Court:
The court found that the Government Resolution was arbitrary, unconstitutional, and violated the principles of natural justice. It highlighted the failure to follow the provisions of the Ashram School Code and the lack of opportunity for the Transferee Institution to be heard.
Issues: The issues included the vires of the Government Resolution, the application of the Ashram School Code, the principles of natural justice, and the arbitrary nature of the decisions made by the authorities.
Ratio Decidendi: The court held that the Government Resolution was illegal and unconstitutional due to the failure to follow the provisions of the Ashram School Code and the principles of natural justice. It emphasized the need for the Transferee Institution to be given an opportunity of hearing before any decision about derecognizing the Ashram School.
Final Decision: The court quashed the Government Resolution, directed the authorities to provide the Transferee Institution and the Original Institution with a hearing, and ordered a final decision to be made within eight weeks.
Sangitrao S. Patil, J.
Heard. Rule. Respondents waive service. By consent of the parties, Rule is made returnable forthwith and the petition is heard finally.
2. The petitioner (hereinafter referred to as “Transferee Institution”) has challenged the vires of the Government Resolution bearing No. A.Aa.Sha.2009/Pra.Kra. 126/Ka.11, issued by the Department of Tribal Development, Government of Maharashtra, Mantralaya, Mumbai, on 14.09.2012, where under the Ashram School which was transferred to the petitioner has been ordered to be retransferred to respondent no.5 (hereinafter referred to as “Original Institution”) and the recognition of the Ashram School granted in favour of the Transferee Institution vide Government Resolution dated 04.03.2010 came to be withdrawn.
3. There is no dispute that the Ashram School run by the Original Institution at village Kawadshi (Bor). Taluka Varora, District Chandrapur, came to be derecognized by respondent no.2 as per the order dated 27.02.2009, on the allegations that there was mismanagement of the Ashram School, there was no sufficient strength of the students, no adequate infrastructure was available, etc. The Original Institution preferred an appeal under Rule 2.19 of the Ashram School Code, against the order dated 27.02.2009 to the Secretary of the Tribal Development Department. Pursuant to the hearing of that appeal held on 12.05.2009, the Original Institution was given an opportunity to remove the deficiencies by September 2009, with a view to save the tribal students from suffering the loss in their academic career as per the order dated 19.05.2009. The Original Institution did not remove the deficiencies within the given time. Therefore, respondent no.2 sent a letter dated 25.09.2009 and recommended that the Ashram School run by the Original Institution should be derecognized permanently. Accordingly, the Ashram School run by the Original Institution came to be derecognized and the Ashram School so derecognized was ordered to be transferred to the Transferee Institution vide Government Resolution dated 04.03.2010.
4. The Government Resolution dated 04.03.2010 came to be stayed by respondent no.1 as per the order dated 28.05.2010. The said stay order was communicated to the Transferee Institution vide letter dated 01.06.2010. The President of the Transferee Institution made representations against the stay order before the Cabinet Minister as well as the Minister of State, Tribal Development Department, Government of Maharashtra, but it was of no avail. Ultimately, the Transferee Institution received Government Resolution dated 14.09.2012 issued by respondent no.1 where under the Government Resolution dated 04.03.2010 came to be cancelled and the Ashram School was ordered to be retransferred to the Original Institution for being run again subject to certain terms and conditions. It is this Resolution which has been challenged by the Transferee Institution by this Writ Petition.
5. The learned Counsel for the Transferee Institution submits that the stay order dated 28.05.2010 as well as the final order as contained in the Government Resolution dated 14.09.2012 have been passed behind the back of the Transferee Institution, without extending an opportunity of hearing. He submits that once the Ashram School was transferred to the Transferee Institution, as per the provisions contained in the Ashram School Code, the said school could not have been derecognized without hearing the Transferee Institution. He submits that the decision to grant ex parte stay on 28.05.2010 and the decision to derecognize the Ashram School allotted to the Transferee Institution and retransferring it to Original Institution as per the Government Resolution dated 14.09.2012 are arbitrary, colourable, illegal and unconstitutional.
6. The learned Counsel for the Transferee Institution further submits that two more Ashram Schools were transferred by respondent no.1 from Kinala (Borli), Taluka : Umred, District : N
