Point of Law: Though the petitioner’s school was closed down, it cannot be said that no permission can be given to restart the school.

JUDGMENT :

1. Heard learned advocate Mr. Sudhanshu A. Jha for the petitioner, learned advocate Mr. Meet Shah for learned advocate Mr. A.D. Oza and learned Assistant Government Pleader Mr. Ishan Joshi for respondent-State.

2. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 29.2.2020 passed by the Additional Secretary (Secondary Education) (In-charge), Education department of the State of Gujarat in the appeal preferred by the petitioner.

3. The petitioner is a registered trust under the Bombay Public Trust Act, 1950 and is engaged in educational and social activities. The petitioner was running a school by name “Uttar Buniyadi Shala” in Karanpur village, Taluka Balashinor, District Mahisagar. The petitioner was receiving grant for running the school and according to the petitioner, there was only one school in Karanpur village wherein the students from schedule tribe community and other communities were studying in the said village.

4. According to the petitioner, due to disputes among the trustees, an application was made before the District Education Officer, District Mahisagar to close down the school. On coming to know about such application, objection was raised by other trustees before respondent no.2 District Education Officer on 20.08.2015. However, respondent no.2 without considering such objection passed order dated 18.9.2015 to close down the school.

5. Being aggrieved by the order passed by the District Education Officer to close down the school, the petitioner preferred an appeal before the Gujarat Secondary and Higher Secondary Education Board challenging such order which was confirmed by respondent no.4- Board vide order dated 20.5.2016.

6. The petitioner therefore preferred an appeal before the respondent no.1 Secretary, Education department on 17.6.2016. After giving an opportunity of hearing to the petitioner, vide order dated 31.10.2016, the matter was remanded back to respondent no.4 to reconsider the same.

7. Upon remand, respondent no.4 by order dated 21.7.2017 after considering all the relevant aspects granted permission to the petitioner to continue the school from June 2017.

8. The petitioner thereafter pursuant to such order passed by respondent no.4 continued the school for academic years 2017-2018 and 2018- 2019. It appears that thereafter on 10.01.2019, the Commissioner of Schools respondent no.3 without giving any opportunity of hearing directed respondent no.2 – District Education Officer to close down the school run by the petitioner on the ground that as per Government Resolution dated 28.04.1994, there is no provision to re-grant the permission to a closed school.

9. The petitioner being aggrieved by order passed by respondent no.3-Commissioner of Schools preferred an appeal before respondent no.1 on 5.3.2019. As such appeal was not decided, the petitioner approached this Court by preferring Special Civil Application No.15102/2019 and on a statement being made by learned Assistant Government Pleader before the Court, that appeal would be heard within six weeks, said petition was disposed of as withdrawn.

10. Pursuant to the statement made before this Court, respondent no.1 heard the appeal and passed an order on 29.2.2020 dismissing the appeal relying upon the Government Resolution dated 28.4.1994. Being aggrieved by the impugned order dated 29.02.2020, the petitioner has preferred this petition.

11. Learned advocate Mr. Sudhanshu Jha submitted that Government Resolution dated 28.4.1994 is not applicable in the facts of the case because the said resolution is passed so as to curb unscrupulous persons who after getting permission to start school, close down the school within two to three years and thereafter, shift the school to some other place by taking handsome amount for handing over the management to other persons in other areas and in such circumstances, Government was constrained to pass resolution in 1994.

12. It was pointed out that in