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Gujarat High Court
Judgename :D.H.WAGHELA, M.S.Shah
SHISHU JYOT KALYAN AND KELAVANI TRUST - Appellant
Versus
GUJARAT SECONDARY EDUCATION BOARD - Respondent
S.C.A. 18141 of 2003
Decided On : 03/14/2005
Impart of Secondary Education - Grant of permission - Non-deposit of required amount - Refusal of registration - Propriety of.
Head Note :
(a) Gujarat Secondary Education Act, 1972 (Gujarat Act 18 of 1973) - Section 17 - Impart of secondary education - Grant of permission - Non-deposit of required amount - Refusal of registration - Propriety of - The function of Board of Secondary Education is not only to enforce discipline and ensure compliance with the procedural formalities but also to see that the school fulfilling a felt need of the concerned locality having requisite infrastructural facilities and being managed by a competent and reliable body is not faced with the closure only on account that it did not produce proof of its financial stability at the relevant time - Petitioners in the case have by now deposited 4.29 lakhs which is more that to compensate for the loss of interest on deposit which was required to be made in June, 1997 - The petitioners case for registration of their school on basis of permission letter dated 24.04.1997, therefore, deserves to be considered - Sense of proportion, sense of priorities, positive balanced approach and empathy are as much expected from executive authorities as from Courts - Court directed respondents to consider the case of petitioners for registration of school in question, in the light of considerations indicated by it.
Held :
The regulatory agency like the Education Board cannot be oblivious of the fact that its function is not only to enforce discipline and ensure compliance with the procedural formalities, but also that it should ensure that the school fulfilling a felt need of the concerned locality, having the requisite infrastructural facilities and being managed by a competent and reliable body is not faced with closure only on the ground that it did not produce the proof of its financial stability at the relevant time. Moreover, apart from the deposit of Rs. 2.25 lakhs in August 2003, the petitioners have also deposited a further sum of Rs. 2 lakhs pursuant to this Courts order dated 26.12.2003 which would more than compensate for the loss of interest on the deposit which was to be made in June 1997. [Para 16.7]
Head Note :
(b) Gujarat Secondary Education Act, 1972 (Gujarat Act 18 of 1973) - Sections 17, 31 and Regulation 9(7)(1) - Permission to impart secondary education - Cancellation of permission - Absence of notice to show-cause - Sustainability of cancellation communication - Board having granted permission to petitioners to impart secondary education cancelled the same for having not deposited Rs. 2 lakhs on Jt. account with DEO to establish its financial stability without giving an opportunity of hearing to the petitioners - Court observed that cancellation of permission has such serious consequences that the duty of giving opportunity of hearing has to be implied and the Board or the Government cannot cancel the same without giving specific opportunity of hearing to show-cause why permission should not be cancelled - Mere letter or communication requiring institution to comply with the conditions cannot construe sufficient to order cancellation of permission - Court, therefore, held that the cancellation of permission letter dated 23.04.1997 by impugned communication dated 17.08.1998 cannot be said to be legal or valid - Court accordingly quashed the communication dated 17.08.1998.
Held :
What is challenged in the present petition is the decision of the Board to cancel the permission letter dated 23.04.1997 on the ground that the petitioners had not made the deposit of Rs. 2 lakhs in a joint account with the DEO. The Board has, however, not placed on record any notice of the Board calling upon the petitioners to show cause why the permission letter should not be cancelled nor have they placed any evidence to show that the letter dated 17.08.1998 communicating the decision to cancel the permission was communicated to the petitioners. From the report dated 08.01.2004 of Mr. J.R. Jhala, Assistant Education Inspector, at Annexure "I" to the further affidavit in reply dated 09.02.2005 also, it appears that the DEOs Office also had not received any communication from the Board regarding cancellation of the permission. In Courts view, therefore, the cancellation of the permission letter dated 23.04.1997 by the impugned communication dated 17.08.1998 cannot be said to be legal or valid. [Para 14]
Head Note :
(c) Gujarat Secondary Education Act, 1972 (Gujarat Act 18 of 1973) - Sections 17 and 31 - Regulation 9 - Imparting secondary education - Requirement of registration of institution - Conditions for - Specified in order of importance.
Held :
A bare perusal of the statutory provisions indicates that a person cannot impart secondary education through a school unless such school is registered under the Act. For such registration, detailed procedure is provided in Section 31 of the Act and Regulation 9. An analysis of the aforesaid statutory provisions also indicates that the following criteria have to be applied by the Board while considering the case of opening a new secondary school-
(i) the new school will fulfill a felt need of the locality concerned.
(ii) the school has the building, library, furniture, equipments and sanitary facilities for a secondary school.
(iii) the management is competent and reliable and is in the hands of a properly constituted authority or a managing body.
(iv) the financial stability of the management of the school is assured.
The other sub-clauses of Clause (7) of Regulation 9 provide for the requirements that the school has to fulfill for continuance of its registration.
The aforesaid criteria are set out in the order of their importance and, therefore, if the first criterion is not fulfilled, the question of applying subsequent criteria would not arise. Similarly if the second criterion is not fulfilled, the question of considering the remaining two criteria would not arise. [Para 12]
Law Laid Down :
Cancellation of permission to impart secondary education has such serious consequences that the duty of giving opportunity of hearing has to be implied.
Cases Law Analysis :
Madresa-E-Garibnawaz vs. State of Gujarat, AIR 2005 Guj. 65 [Para 15];; Rajendra Prasad Mathur vs. Karnataka University, AIR 1986 SC 1448 = 1986 Suppl. SCC 740 [Para 22];; Ashok Chand Singhvi vs. Jodhpur University, AIR 1989 SC 823 [Para 22];; Prof. Yashpal & Anr. vs. State of Chattisgarh & Ors., 2005 (2) AIR SCW 1168 [Para 22].-Relied on
Cases Referred :
A.P. Christians Medical Educational Society vs. Government of A.P., 1986 (2) SCC 667;; State of Tamil Nadu vs. St. Joseph Teachers Training Institute, 1991 (3) SCC 87;; State of Maharashtra vs. Vikas Sahebrao Roundale, 1992 (4) SCC 435;; Guru Nanak Dev University vs. Parminder Kr. Bansal, 1993 (4) SCC 401;; Controller of Examinations & Ors. vs. G.S. Sunder, 1993 Suppl (3) SCC 82;; Central Board of Secondary Education vs. Nikhil Gulati, 1998 (3) SCC 5;; C.B.S.E. vs. P. Sunil Kumar, 1998 (5) SCC 377;; Council for Indian School Certificate Examination vs. Isha Mittal, 2000 (7) SCC 521;; Regional Officer, C.B.S.E. vs. Ku. Sheena Peethambaran, 2003 (7) SCC 719;; Akhil Bharat Paryavaran Sureaksha Parishad Education Trust vs. Gujarat Secondary Education Board, SCA No. 1940 of 2001 decided on 22.03.2001;; Gujarat Higher Secondary Education Board vs. Shree Zalawad Education Trust, LPA No. 216 of 2003 decided on 20.03.2003;; Adarsh Charitable Trust vs. State of Gujarat, SCA No. 1380 of 2003 dated 04.03.2003.
Decided in Favour of :
Petitioner
Main Petition Allowed
& Misc. Petition No. 72/2005
Disposed of Accordingly
( 2 ) THE facts leading to institution of these proceedings, briefly stated, are as under :- 2. 1 petitioner No. 1-Shishu Jyot Kalyan and Kelavani trust and its Managing Trustee (hereinafter referred to as "the petitioners"), have filed the present petition. The petitioner-trust runs the following institutions :- medium standard Since (I) rachna Primary gujarati i to VIII june 1991 school (II) rachna Secondary gujarati viii to X june 1995 school (III) rachna Primary hindi i to VIII june 1992 school (IV) rachna Secondary hindi vii june 1997 school ix june 1998 x june 2004there is no dispute about the first three schools run by the petitioners; as they are registered by the respective regulatory bodies being the Administrative officer, Primary Education Committee of the Ahmedabad municipal Corporation for the two primary schools and gujarat Secondary Education Board for the Gujarati medium secondary school. The controversy in the present petition only centers around the fourth institution i. e. Rachna Secondary School (Hindi Medium ). It is, however, necessary to refer to the relevant facts about the establishment of the other three institutions also in view of the contentions raised in the petition. 2. 2 in June 1995, the petitioner-trust was granted permission by the Gujarat Secondary Education Board to establish Rachna Secondary School (Gujarati Medium ). One of the conditions of the said permission was that the petitioner-trust was to deposit Rs. 2 lakhs as security deposit for showing the financial stability of the trust. The trust deposited the said amount of Rs. 2 lakhs on 6. 12. 1996. The trust which was already running Rachna primary School (Hindi Medium) with students in Stds. I to VII found that there was a need for establishing a hindi medium secondary school for students passing out from its Hindi medium primary school. Accordingly, the trust applied for permission for establishing a Hindi medium secondary school. By communication dated 23. 4. 1997 (Annexure "a"), the petitioner-trust was granted permission by the Gujarat State Education Board to establish a Hindi medium secondary school from June 1997 subject to the condition that the trust files an undertaking and a deed of declaration on a permanent basis not to take grant. It also appears that subsequently by letter dated 28. 4. 1997 the Board also required the petitioners to deposit a sum of Rs. 2 lakhs with a bank in the joint names of the District Education officer and the trust. 2. 3 in response to the above communication, by letters dated 15. 9. 1997 and 21. 12. 1997 (Annexure "b" and "d"), the Managing Trustee informed the Board that the trustees had already finalized the deed of declaration, but some time would be required for making the deposit in the joint account and, therefore, time may be granted; the delay may be excused considering the fact that it was an educational institution managed by a trust run by persons of scheduled castes. By letter dated 15. 10. 1999 (Annexure "d"), the Managing Trustee again informed the deo that the deed of declaration was ready, but some time was still required for collecting the funds to the tune of Rs. 2 lakhs. Since the aforesaid assurance was not acted upon, by letter dated 29
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