The executive power of the State under Article 162 of the Constitution of India is co-extensive with the legislative power, and when the field of law is occupied by a Legislative Act, the exercise of executive power is not available. The Government cannot supersede statutory Rules by administrative instructions.

JUDGMENT :

Amit Borkar, J.

1. By this petition under Articles 226 and 227 of the Constitution of India, the Petitioners are challenging orders dated 9th October 2012 passed by Respondent No. 1 along with order dated 27th February 2012 passed by Respondent No. 4 withdrawing recognition of Petitioner No. 2 to 4 schools purportedly under Clauses 7(1) to 7(4) of the Secondary School Code, Rule 109 (2) of the Bombay Primary Education Rules, 1949 and powers conferred by Government Resolutions (“GRs”) dated 21st November 1995 and 19th December 1995.

2. Since the present petition is being disposed of on the limited ground of lack of exercise of power and breach of procedure prescribed, only those relevant facts for adjudication of the said issues are stated herein under.

3. In the year 1993, Petitioner No. 1 - Society was granted permission to start primary school initially on a no-grant basis. The recognition was granted to the school started by Petitioner No. 1 by GR dated 20th March 1995. Two schools were thereafter permitted by the Respondents - Authorities.

4. On 20th December 2020, Respondent No. 3 made a surprise visit to Petitioner Nos. 2 to 4 schools and submitted a report for cancellation of their recognition of Respondent No. 1. Respondent No. 1 rejected proposal for cancellation of recognition of Petitioner Nos. 2 to 4 - Schools. Respondent No. 4 again directed Respondent No. 3 to submit a fresh report regarding the cancellation of recognition of Petitioners No. 2 to 4 schools. Respondent No. 3 submitted a report to Respondent No. 4 regarding the cancellation of recognition of Petitioner Nos. 2 to 4 schools. Respondent No. 4, in pursuance of the said report, issued a show-cause notice to the Petitioners, to which the Petitioners replied. Pending the said proceedings, regular inspection of Petitioner Nos. 2 to 4 school on 17th September 2011 carried out. Respondent No. 4 on the basis of the inspection report dated 3rd February 2012, 4th February 2012 and another report dated 24th March 2012 submitted by Respondent No. 3 and complaints made by Respondent No. 6 passed order of cancellation of recognition of Petitioner Nos. 2 to 4 by order dated 27th February 2012.

5. Petitioners challenged the said order by way of appeal before Respondent No. 1, which was dismissed on 5th May 2012 by Respondent No. 1. Being aggrieved by the order dated 5th May 2012, Petitioners filed Writ Petition No. 4544 of 2012 before this Court. This Court by order dated 5th May 2012 remanded the matter back to Respondent No. 1. Respondent No. 1 heard Petitioners and again dismissed the Appeal of Petitioners. Therefore, the Petitioners have filed the present petition challenging the order dated 9th October 2012 passed by Respondent No. 1 and the original order dated 27th February 2012.

6. This Court, by order dated 8th February 2012, issued Rule and refused to grant interim relief in favour of the Petitioners.

7. Respondents Nos. 1 to 5 have filed a reply stating that Ashram School Code is not in existence. Cancellation of recognition for Primary Ashram School is governed by the Rules under Bombay Primary Education Rules, 1949. The Secondary School Code governs the cancellation of recognition for Secondary Ashram School. The procedure laid down under both is different and is followed in the present case. It is stated that though the provisions of the Bombay Primary Education Rules, 1949 and Secondary School Code are made applicable, the officers of the Education Department are not under the control of the Social Justice Department and, therefore, for administrative convenience, the power of cancellation of recognition of Primary Ashram School has been conferred upon the Director of Social Welfare by GR dated 21st November 1995 and Corrigendum dated 12th December 1995. Respondent No. 1 by GR dated 19th December 1995 has conferred powers of cancellation of recognition upon the Director of Social Welfare. The said reply has explained the reasons for the cancellation