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2019 Supreme(Bom) 769
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.R. GAVAI, DAMA SESHADRI NAIDU, JJ.
Shree Krishna Education Society, Through Chairman/Secretary - Appellant
Versus
State of Maharashtra, Through Secretary, School Education Department and Another - Respondent
Writ Petition No. 5951 of 2015, 8028, 8143, 8030, 8029, 8026, 8027 of 2014, 3226, 3227, 3228, 3229, 3231, 3232, 3233, 3234 of 2013
Decided on : 03-05-2019
Advocate Appeared:
Narendra V Bandiwadekar, Adv., Vinayak Kumbhar, Adv., Sagar Mane, Adv., Prashant Bhavake, Adv., A.I. Patel, Adv., Deelip Patil-Bankar, Adv., R.M. Shinde, Adv.
Headnote:
MEPS Rules – Rule 9 – Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 –Sections 2, 16 – Claim for the grant – Refusal – An unaided school applies for grant-in-aid. – The authorities subject it to scrutiny and find it eligible. Despite the in-principle approval, the school does not get the grant immediately, for the disbursement depends on fund availability. – The grant is discretionary. – As the school waits, the Government changes the eligibility criteria: the school must have followed the rule of reservation. – Then, it insists that the school should have implemented the reservation policy in recruiting its staff-even before it has applied for the grant-in-aid and it rejects the schools claim for the grant. – Does the new policy of reservation apply inclusively to both the unaided and permanently unaided schools or exclusively to the permanently unaided schools alone – Is the new policy of reservation prospective or retrospective – Does the Government have the discretion to deny aid even to the schools that complied with the statutory mandate – Can a school claim the grant-in-aid retrospectively, that is, from the date of its application – Held, Petitioner schools maintain that the condition about the schools complying with the reservation came to be prescribed for the first time through clause 2 [b] of the Government Resolution, – That said, we must also note that the first respondent issued the 2011 GR to prescribe the norms for providing a grant to the "permanent unaided" Primary and Secondary Schools. – Even the Education Department attests to this fact. – Section 16 of the MEPS Act does empower the Executive to bring in subordinate legislation retrospectively, but that retrospectivity cannot prejudicially "affect the interests of any person to whom such rule may be applicable." – The GR, dated 17th February 2004, allows the Government can change "the formula for grant-in-aid taking into consideration the availability of the financial resources and the needs of the State and their priority." – Court wonder whether this change in policy as the Government now insists on-and with retrospective effect, at that-has anything to do with the States financial resources or its needs, even priorities. – Court must read "the financial resources, needs and priorities" ejusdem generis for they all relate to the formula of the grant-in-aid and the fund availability. – Court find from GR, that the proposals for the grant from these schools were received by December 2010. – And these schools, in fact, were evaluated "as per the norms in the GR – GR, was issued to convert the permanently non-aided schools into simple unaided schools and then to evaluate them for grant-in-aid; – By the time the GR 2011 was issued, the petitioner schools had been evaluated; they received in-principle approval, but could not have the funds allotted and disbursed for the reasons unconnected with their eligibility. So the legislative, administrative, or even policy changes shall not affect these schools adversely; – Writ Petitions Allowed
DAMA SESHADRI NAIDU, J.
Introduction:
An unaided school applies for grant-in-aid. The authorities subject it to scrutiny and find it eligible. Despite the in-principle approval, the school does not get the grant immediately, for the disbursement depends on fund availability. The grant is discretionary. As the school waits, the Government changes the eligibility criteria: the school must have followed the rule of reservation. Then, it insists that the school should have implemented the reservation policy in recruiting its staff-even before it has applied for the grant-in-aid and it rejects the school's claim for the grant.
2. Aggrieved, the School-besides a few other similarly placed schools- challenges the government refusal. So the issues we should resolve are these:
(A) Does the G.R. No. ee'kev 2009@¼411@01¼@ee'k'k&1, dated 15th November 2011, apply to the petitioner schools?
(B) If it does, should it apply prospectively or retrospectively? In other words, should the schools comply with the reservation policy by the date they have applied for the grant-in-aid or only from the date the grant is given?
Facts:
3. The Petitioner is a registered Educational Institution, running a Government recognized Secondary School-Vidyaniketan Vidyalaya. The first respondent is the Secretary, School Education Department, and the 2nd respondent the Director of Education. With validly secured permissions, the petitioner started an "unaided" Secondary School, from the Academic Year (AY) 2000-2001. Over time, the petitioner school has established up to Std. X. Of the unaided private schools, some are 'plainly' unaided and some 'permanently' unaided. The petitioner's school belongs to the former category.
4. Through Government Resolution ("GR"), 11th October 2000, the first respondent prescribed the norms to sanction grant-in-aid to the Secondary Schools in the State of Maharashtra. As per those norms, an unaided school will have no grant for the first four years; later it gets grant-in-aid in stages: starting from the fifth year, annually it will have 20%, 40%, 60%, 80%, and in the 9th year 100%. The Government, however, revised the norms through another GR, 17th February 2004.
5. The norms mandate that if an unaided school applies for the grant-inaid, first the District Level Committee will examine the request and submit its report to the State Level Committee. Then, the State Level Committee examines and recommends to the first respondent, which will notify the names of the schools eligible for the grant-in-aid, acting on that recommendation.
6. So, on the petitioner's application for grant-in-aid, the District Level Committee assessed the school for the AY 2009-10. The school secured about 95 marks. The report forwarded to it, the State Level Committee has also independently considered the petitioner's request along with others and concluded that the school is eligible. Thus, the State Level Committee, through its report, dated 11th January 2012, submitted to the Respondent No.1 that 11 schools should be declared eligible for the grant-in-aid. The petitioners, in this context, assert that their assessment was completed save the formal grant of the aid.
7. About the same time, the permanently unaided schools wanted the Government to delete the tag "permanent" from their categorization, so they too can claim aid. The Government, then, through a GR, dated 20th July 2009, deleted the word "permanent" from the permission it had granted to those "permanent-unaided schools." This deletion did not cover English Medium Schools, though. Three more years later, those schools, too, would be eligible for grant-in-aid-that is, from A.Y. 2012-13.
8. As the record reveals, in November 2011, the first respondent issued a GR, laying down the norms for assessing the erstwhile permanently unaided schools.
9. In the wake of 2011 GR, the 2nd respondent issued a Circular, dated 22nd March 2013, directing the Regional Directors and Education Officers (Secondary) of the
