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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
Adiwasi Vikas Mahila Mandal Through Mantri Kantaben Sakjibhai Katara - Appellant
Versus
State Of Gujarat – Respondent
R/Special Civil Application No. 2427 of 2019
Decided on : 06-09-2021
Constitution of India,1950 – Article 226 and 227 - Gujarat Secondary and Higher Secondary Education Act, 1972 - Sexual harassment – Trust - Petitioner-trust applied for registration to open high school in tribal area with Respondent Gujarat Secondary & Higher Secondary Education Board and such permission was granted vide order under the provisions of Gujarat Secondary and Higher Secondary Education Act, 1972 read with the Gujarat Secondary Education Rules, 1973 framed thereunder - Petitioner-trust was supposed to take action against Principal of school with regard to complaint of sexual harassment made by one - Petitioner-trust accordingly issued notice to Principal to initiate action under Rule 36(1) of Rules 1973 - This fact is also disclosed by petitioner in affidavit in reply filed by petitioner-trust in Special Civil Application filed by one - Whether it has called petitioner twice for a hearing or granted twenty days to produce documents.
Finding of the Court:
When it is clear that the Board has acted in flagrant breach of the procedure prescribed in Regulation 9A, it is immaterial whether it has called the petitioner twice for a hearing or granted twenty days to produce documents. This Court is unable to agree with the submissions advanced by learned advocate for the Board that the Board has granted full opportunity to the petitioner and satisfied the principles of natural justice. Opportunity has to be granted as prescribed in Regulation 9A and not as the Board deems fit. The Board cannot supersede the Regulations as it pleases. When no Inquiry Officer has been appointed, no charge-sheet issued, no evidence in support of the allegations supplied, it is evident that at every stage the procedure under Regulation 9A has been flouted by the Board. Due to the flagrant disregard of the provisions of Regulation 9A, the petitioner has been placed in a disadvantageous position and the principles of natural justice, as contemplated by Regulation 9A, have been violated - In view, impugned order is passed by respondent rejecting appeal of petitioner-trust without considering the provisions of Regulation 9A of Regulations, 1974 - Moreover, Respondent has failed to assign any reason for accepting the reports and copies of such reports were never provided to petitioner resulting into breach of principles of natural justice - Thus, petitioners are not given an opportunity to provide explanation with regard to reports - Respondent has therefore, erred in observing that petitioner has failed to provide an explanation with regard to cancellation of registration of the school run by the petitioner-trust.
Result: Petition is partly allowed
JUDGMENT :
BHARGAV D. KARIA
1. Heard learned advocate Mr. M.A. Parekh for the petitioner, learned advocate Mr. A.D. Oza for respondent no.2 and learned Assistant Government Pleader Ms. Asmita V. Patel for the respondent-State.
2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :
(B) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction and be ordered to Quash & Set aside the Impugned Order (as per Ann. E) passed by the Resp. No. 1 In Appeal U/s 31(10)F of the Gujarat Higher Secondary Act, forthwith, in the interest of justice;
(C) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction and be ordered to Quash & Set aside the Impugned Order (as per Ann. D) regarding De-Recognized of Grant dt. 29.9.2018, forthwith & further be declared as it is null & void, in the interest of justice;
(D) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction and directing the Respondents, herein, to make a Fresh Personal Visit to the petitioner's High School Viz. Saraswati High School on Working Days and then a make unbiased Report, in context of, Students’ future, forthwith, in the interest of justice;
(E) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction and directing the Resp. No. 3 to submit their Fresh Report about the management of the petitioner's High School, Saraswati High School, forthwith, in the interest of justice;
(F) Pending, admission and final disposal of the present petition be pleased to direct Resp. No. 1 the Secretary of Secondary & Higher Secondary Education that NOT to Operate or Implement or Start Any Proceeding against the petitioner’s High School Viz. Saraswati High School, Gadia over the Impugned orders At Ann. E & Ann. D, forthwith, in the interest of justice:
(G) Pending, admission and final disposal of the present petition be pleased to direct Resp. No. 1 the Secretary of Secondary & Higher Secondary Education that to Release & Allocate 100% Grant to the petitioner’s Trust, forthwith, so that the petitioner's trust can maintain the said School properly in all respect, in the interest of justice;
(H) Any other and further relief/s may kindly be granted in the interest of justice:”
3. Brief facts of the case are that the petitioner is a public charitable trust registered under the provisions of the Bombay Public Trust Act, 1950.
3.1) The petitioner-trust applied for registration to open the high school in the tribal area with Respondent no.2 Gujarat Secondary & Higher Secondary Education Board and such permission was granted vide order dated 18th July, 1995 under the provisions of Gujarat Secondary and Higher Secondary Education Act, 1972 (For short “Act, 1972”) read with the Gujarat Secondary Education Rules, 1973 (For short “Rules 1973”) framed thereunder.
3.2) Respondent no.4 District Education Officer vide letter dated 4th August, 2018 recommended to close down the high school of the petitioner-trust on the basis of various irregularities stated therein.
3.3) The petitioner-trust was suppose to take action against the Principal of the school with regard to the complaint of sexual harassment made by one Smt. Kailashben Ambalal Prajapati in the year 2016. The petitioner-trust accordingly issued notice to the Principal to initiate action under Rule 36(1) of Rules 1973. This fact is also disclosed by the petitioner in the affidavit in reply filed by the petitioner-trust in Special Civil Application No. 7334/2016 filed by Smt. Kailashben A. Prajapati.
3.4) The petitioner-trust also filed reply giving explanation to various irregularities mentioned in communication dated 4th August, 2018 whereby recommendation was made by respondent no.2 Board to respondent no.1 to close down Saraswati
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