Writ Petition No.4305 of 2009

25th July, 2011

Petitioner Counsel: Mr. S. S. JOSHI
Respondent Counsel: Mr. A. M. DESHPANDE,Mr. A. M. GORDEY,Mr. S. D. CHOPDE

JUDGMENT

SMT. VASANTI A. NAIK, J. :- Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties.

2. By this writ petition, the petitioner seeks a writ of certiorari to quash and set aside the Government Resolution dated 29th August, 2009 transferring the school of Pujya Jagnnath Baba Shikshan Prasarak Mandal, Mukutban, Tal. Wani, Dist. Yavatmal to the respondent no.3Shri Kanhaiyalal Maharaj Trust to run the same at mouza Jebapur, Tal. Sakri, District Dhule, from the academic sessions 20.09.2010. The petitioner seeks a further direction to the State of Maharashtra to grant approval to the proposal of the petitionersociety for transfer of the ashram school situated at mouza Kayar, Tal. Wani, Dist. Yavatmal to the petitionersociety.

3. Few facts giving rise to the petition are stated thus :Sometime in the month of March, 1999, the State of Maharashtra had granted permission to one Pujya Jagnnath Baba Shikshan Prasarak Mandal, Mukutban, Tal. Wani, Dist. Yavatmal to run the ashram school at mouza Kayar, Tah. Zari, Dist. Yavatmal. It is the case of the petitioner that Tal. Zari was in the Master Plan prepared by the State of Maharashtra for granting permission for opening of the ashram schools. Due to an inspection carried out by the concerned officials of the State, it was found that the society, to which permission was granted for opening the ashram school at Kayar, was not properly managing the said school and the society was asked to remove the deficiencies. Since, the deficiencies were not removed by the said society, the respondent no.2the Commissioner, Tribal Development, Nashik, passed an order cancelling the permission granted for running the ashram school at village Kayar. Though, the society filed an appeal against the said order before the State of Maharashtra, the appeal was rejected by an order dated 19.05.2009.

4. It is the case of the petitioner that Pujya Jagannath Baba Shikshan Prasarak Mandal, Mukutban had proposed to seek transfer of the management of the school to the petitionersociety and since the petitionersociety was agreeable for such a transfer, a proposal for transfer of the management was submitted by the petitionersociety and Pujya Jagannath Baba Shikshan Prasarak Mandal to the respondent no.2Commissioner through the Project Officer, on 16.09.2008. It appears that the proposal was evaluated by the Project Officer and the same was forwarded by the Project Officer to the Deputy Commissioner, Tribal Development, Amravati, on 31.10.2008. The Deputy Commissioner, Tribal Development, Amravati, on consideration of the proposal, forwarded the same for further action to the respondent no.2Commissioner along with his recommendations, on 20.11.2008. In turn, the respondent no.2 forwarded the proposal to the Statement Government with its recommendations, on 08.12.2008. Ultimately, on 01.06.2009, the State of Maharashtra directed an enquiry in the matter and sought a report on the said issue. It is the case of the petitioner that an enquiry was conducted by the concerned Project Officer and a report was forwarded by the Project Officer to the State Government on 16.07.2009.

5. It is the case of the petitioner that while the proposal of the petitioner was under active consideration of the respondent no.1State, the petitioner was surprised to find that the State of Maharashtra, by a Resolution dated 29.08.2009 had ordered transfer of the ashram school to respondent no.3Trust in Dhule district. The petitioner has impugned the Government Resolution dated 29.08.2009 and sought a direction to the respondents to grant approval to the proposal of the petitionersociety for transfer of the ashram school to the petitioner society.

6. Mr. S. S. Joshi, the learned counsel for the petitioner society submitted that the Government Resolution dated 29.08.2009 transferring the ashram school in favour of the respondent no.3Trust from District Yavatmal (Vidarbha region) to Dhule district, which is situated in North Maharashtra region, is clearly illegal and is liable to be set aside. According to the learned counsel for the petitioner, the communications placed by the petitioner on record clearly show that the State of Maharashtra had decided to transfer the ashram school in favour of the respondent no.3society due to political pressure and by giving a complete go bye to the provisions of the Ashram School Code. It is submitted on behalf of the petitioner that there is no provision in the Ashram School Code for transfer of the ashram school from one place to another, except clause 3.41 of the Code and none of the conditions or contingencies, as mentioned in clause 3.41, are attracted in this case so as to effect the transfer of the school from village Kayar in Yavatmal district to village Jebapur in Dhule district. It is submitted on behalf of the petitioner that the Government Resolution dated 29.08.2009 directs the absorption of the students and the staff from the ashram school at village Kayar in Yavatmal district to the ashram school at village Jebapur in Dhule district. It is the case of the petitioner that a new procedure and practice, which is contrary to the Ashram School Code, has been followed by the State of Maharashtra while transferring the ashram school from mouze Kayar to mouze Jebapur, by the Government Resolution dated 29.08.2009. According to the learned counsel for the petitioner, as per the information gathered by the petitioner society, it appears that there was no proposal submitted by the respondent no.3 for transfer of the ashram school from mouze Kayar to mouze Jebapur, situated in a different district of the State of Maharashtra. The learned counsel for the petitioner submitted that there was no reason whatsoever for transferring the ashram school from an extremely under developed region to a comparatively developed region of the State of Maharashtra. The learned counsel for the petitioner submitted that the haste in which the State of Maharashtra granted permission to the respondent no.3 to run the ashram school at village Jebapur, itself shows that the grant of the ashram school to the respondent no.3 is for extraneous reasons. It is submitted on behalf of the petitioner that village Jebapur, which is situated in Tal. Sakri, District Dhule, does not find place in the Master Plan of the ashram schools. It is lastly submitted on behalf of the petitioner that there are two ashram schools situated within a distance of 12 kilometers from village Jebapur, where the ashram school of village Kayar is being transferred.

7. Mr. A. M. Deshpande, the learned Assistant Government Pleader appearing on behalf of the respondent nos.1 and 2, supported the action of the respondent no.1 and submitted that the ashram school at village Kayar was derecognized on 01.01.2009 and the appeal against the derecognition was dismissed on 19.05.2009. It is submitted on behalf of the State that a fresh proposal was then submitted by the petitioner for grant of ashram school at village Kayar, on 27.05.2009. The learned Assistant Government Pleader submitted that the State of Maharashtra had independently considered the proposal of the petitioner dated 27.05.2009 and since the petitioner did not have the necessary infrastructure for running the ashram school at village Kayar, Tal. Wani, (presently) Dist. Yavatmal, the proposal of the petitioner was rejected. It is the case of the State of Maharashtra that since the respondent no.3 had the necessary infrastructure at mouze Jebapur and the proposal of the respondent no.3 was found to be in order, the respondent no.3 was rightly granted the permission to run the ashram school at village Jebapur in Dhule district by transferring it from village Kayar. The learned Assistant Government Pleader relied on clause 2.3(6) of the Ashram School Code to canvass that it is necessary for a society to have the land and building of its own or atleast a leased premises for the purpose of running an ashram school. It is submitted on behalf of the State that the proposal of the petitioner shows that the petitioner did not have the land or building as required by clause 2.3(6) of the Code. It is submitted on behalf of the respondent nos. 1 and 2 that the ashram school at village Kayar was derecognized as there was no place for residence of the students and there was also no laboratory or library facility. In this background, the learned Assistant Government Pleader submitted that the State of Maharashtra took a decision to transfer the ashram school from village Kayar in Yavatmal district to village Jebapur in Dhule district. It is submitted on behalf of the respondent nos.1 and 2 that though, Taluka Sakri, in which village Jebapur is situated, does not find place in the Master Plan for ashram schools, the said taluka clearly falls in the Tribal Subplan and hence, the permission granted to the respondent no.3 to run the ashram school at village Jebapur, cannot be found fault with. According to the learned Assistant Government Pleader, the trust, which was initially running the ashram school at village Kayar had filed an appeal against the order of derecognition and it was not the case of that trust that it was not desirous of running the ashram school at village Kayar and that it should be transferred to the petitionersociety. In such circumstances, according to the learned Assistant Government Pleader, there was no question of transferring the management in favour of the petitionersociety, specially because the petitioner society did not have the necessary infrastructure for running the ashram school at village Kayar. The learned Assistant Government Pleader sought for the dismissal of the writ petition.

8. Mr. A. M. Gordey, the learned Senior counsel appearing on behalf of the respondent no.3 submitted that the proposal for transfer of the management was submitted by the petitionersociety and Pujya Jagannath Baba Shikshan Prasarak Mandal, but in the meanwhile, the ashram school was derecognized on 01.01.2009 and there was no question of transferring the management of the ashram school, which was derecognized. It is submitted on behalf of the respondent no.3 that the respondent no.3 had the necessary infrastructure for running the ashram school at village Jebapur and the State of Maharashtra had rightly granted permission to the respondent no.3Trust to run the ashram school at village Jebapur by transferring it from village Kayar to village Jebapur. It is submitted on behalf of the respondent no.3 that the staff working in the ashram school at village Kayar was ready and willing to work in the ashram school at village Jebapur in Dhule district and the case of the petitioner that the impugned order has caused inconvenience to the staff and the students of the ashram school at Kayar, is without any substance. It is submitted on behalf of the respondent no.3 that the respondent no.1 had allotted the ashram school at village Jebapur in Dhule district to the respondent no.3 by considering the local need of the district for having an ashram school.

9. The learned Senior Counsel for the respondent no.3 alternatively submitted that in case this Court finds favour with the case of the petitioner in regard to the first prayer made by the petitioner, this Court may direct the respondent nos.1 and 2 to reconsider the claim of the respondent no.3 to open an ashram school at village Jebapur. According to the learned Senior Counsel, the claim of the respondent no.3 to start an ashram school at village Jebapur needs to be independently considered by the State of Maharashtra and the claim of the respondent no.3 may not be jeopardised merely because the State of Maharashtra mixed up the issues and granted permission to the respondent no.3 to run the ashram school at village Jebapur in place of the ashram school, which was run at village Kayar. The learned Senior Counsel also sought for the dismissal of the writ petition.

10. On hearing the learned counsel for the parties, it appears that two types of applications/proposals were submitted by the petitioner to the respondent nos.1 and 2. The petitionersociety had firstly sought transfer of the management from Pujya Jagnnath Baba Shikshan Prasarak Mandal, Mukutban to the petitionersociety and had also independently submitted a proposal for grant of permission to run the ashram school at village Kayar on 27.05.2009. It appears that the proposal submitted by the Pujya Jagnnath Baba Shikshan Prasarak Mandal and the petitionersociety for transfer of the management, was under active consideration of the respondent no.1 and the other authorities for a long time. It appears that various communications were issued by the authorities to each other and ultimately, the respondent no.1 had directed the Project Officer by an order dated 01.06.2009 to make an inspection and enquiry in regard to the proposal of the petitioner and forward a report to the Stat Government. The report was forwarded by the Project Officer to the State of Maharashtra on 16.07.2009. We do not know as to what action was taken by the State Government on this report or on the fresh proposal submitted by the petitionersociety on 27.05.2009. However, it is surprising to note that by a communication dated 17.08.2009, the Project Officer at Nandurbar wrote to the Additional Commissioner, Tribal Development Division, Nashik that in pursuance of a letter of the Hon'ble Minister bearing No. M/TD/VIP 718/2009 dated 13.08.2009, the proposal of the respondent no.3 to run the closed ashram school, should be forwarded. In pursuance of the letter of the Hon'ble Minister, the Project Officer had sent the proposal of the respondent no.3 to the Additional Commissioner along with necessary information. It appears that this communication, which is placed on record by the petitioner as also the respondent no.3, shows that the ashram school at village Kayar was one of the five closed ashram schools in Maharashtra, from which one school was sought to be granted to the respondent no.3society. The State Government and its officers, who are normally slow in taking actions in important matters, in abnormal haste, decided to process the case of the respondent no.3 as fast it could. By the communication dated 21.08.2009, the Additional Commissioner, Tribal Development, Nashik wrote to the Commissioner, Tribal Development, Nashik by again referring to the letter of the Hon'ble Minister of Tribal Development, dated 13.08.2009 and two other communications that the grant of permission to the respondent no.3society to run the ashram school at village Jebapur, was recommended. This communication, however, showed that village Jebapur, Tal. Sakri, did not find place in the Master Plan, though the said village fell within the tribal subplan. Though this communication appears to have been issued on 21.08.2009 only, with an electrifying speed, everything appears to have been processed, if really it was so processed and the respondent no.1, by the Resolution dated 29.08.2009 transferred the ashram school at village Kayar to be run by the respondent no.3 at village Jebapur, Tah. Sakri, dist. Dhule. It appears from both the communications, dated 17.08.2009 and 21.08.2009, that the ashram school was transferred from village Kayar to village Jebapur due to political pressure, as could be clearly seen from the reference to the letter of the Hon'ble Minister for Tribal Development, dated 13.08.2009.

11. Apart from the fact that the ashram school was transferred from village Kayar to village Jebapur due to political pressure, we find that there is nothing in the Ashram School Code, which authorises the State of Maharashtra to transfer the ashram school from one place to another, except in the contingencies mentioned in clause 3.41 of the Code. It is stated in Clause 3.41 of the Code that except for the reasons mentioned in clause 3.41, an ashram school cannot be transferred from the place where it was originally located. Clause 3.41 of the Code stipulates five contingencies in which the ashram school may be transferred from one place to another and undisputedly, none of these contingencies arise in this case. Hence, the State Government could not have, by the impugned resolution dated 29.08.2009, transferred the ashram school from village Kayar, Tah. Wani, Dist. Yavatmal to village Jebapur, Tah. Sakri, Dist. Dhule. It appears that initially when permission was granted to Pujya Jagannath Baba Shikshan Prasarak Mandal, Mukutban to run the ashram school in village Kayar, the relevant taluka in which Kayar was situated was included in the Master Plan. It is clear from the communication issued by the Additional Commissioner, Tribal Development, Nashik to the Commissioner, Tribal Development, Nashik, on 21.08.2009 that village Jebapur, Tah. Sakri in District Dhule is, however, not included in the Master Plan, though it may be falling in the tribal subplan.

12. Though, much has been argued by the learned Assistant Government Pleader about the lack of amenities with the petitionersociety to run the ashram school, which resulted in the rejection of the proposal of the petitionersociety for running the ashram school at Kayar, it is necessary to note that nothing in this regard has been stated in the submissions filed on behalf of the respondent nos.1 and 2. Moreover, it is necessary to note that there is absolutely nothing on record to show that the proposals of the petitionersociety for transfer of the management or to open the ashram school at village Kayar, dated 27.05.2009 was indeed considered by the State Government and was rejected at any point of time. Atleast, the petitionersociety was not communicated at any point of time that the proposal made by the petitioner for grant of permission to run the ashram school at villge Kayar was rejected by the State Government. Hence, in the absence of any order of rejection of the proposal and in the absence of anything in that regard in the affidavitinreply filed on behalf of the respondent nos.1 and 2, it would be futile on the part of the Assistant Government Pleader to canvass that the petitioner's proposal was rejected as the petitioner did not have the necessary infrastructure for running the ashram school at Kayar. It is merely stated in the affidavitinreply that the proposals of the petitioner and the respondent no.3 were considered with the other proposals received by the respondent no.1. We, however, do not feel that this was done as the State had, by the communication dated 01.06.2009, sought an enquiry in regard to the proposal of the petitioner and a report in that regard was forwarded to the State Government by the communication dated 16.07.2009. In any case, there is nothing on record to show that the State Government considered the proposal of the petitioner and rejected it by recording the reasons for the same. The submission made on behalf of the respondent nos.1 and 2 that Pujya Jagnnath Baba Shikshan Prasarak Mandal had never disclosed its intention to transfer the ashram school to the petitioner society after its derecognition and therefore, there was no question of granting the ashram school in favour of the petitionersociety, specially when it was derecognized, is also misplaced as in case the respondent nos.1 and 2 were not desirous of considering the proposal of the petitioner for transfer, the respondent no. 1 could have independently considered the proposal of the petitionersociety, dated 27.05.2009, which did not relate to the transfer of the management and was related to the grant of permission to run the ashram school at village Kayar. It is worthwhile to note that it is stated in paragraph 6 of the affidavitinreply of the respondent nos. 1 and 2 that the respondent no.3 had submitted its proposal for allotment of the ashram school, which was previously run by Pujya Jagnnath Baba Shikshan Prasarak Mandal, Mukutban and if that be so, it is not understood as to why the respondent no.1 transferred the ashram school from village Kayar, Dist Yavatmal in Vidarbha region to village Jebapur, Tah. Sakri, district Dhule, in North Maharashtra region. The petitioner has specifically averred in the petition that the petitioner has knowledge that the respondent no.3 had not submitted any proposal for grant of the ashram school at village Kayar or for transfer of the ashram school from Kayar to village Jebapur and none of the respondents have filed any proposal/application on record to show that indeed the respondent no.3 had sought the permission for transfer of the ashram school at village Kayar to village Jebapur or for running the ashram school at Kayar. In any case, we have already held that there could not have been a transfer of the ashram school from one place to another, except in the contingencies mentioned in Clause 3.41 of the Ashram School Code. Though, there are some affidavits filed on record to show that the staff in the ashram school at Kayar have willingly joined their service at the ashram school at Jebapur, we can visualize the circumstances in which the staff must have been forced to shift from the Vidarbha region to the North Maharashtra region due to the transfer of the ashram school from village Kayar in Yavatmal district to village Jebapur in Dhule district.

13. We find that the State was not empowered to transfer the ashram school at village Kayar in Yavatmal district to village Jebapur in Dhule district, specially when the two districts are located in different regions of the State of Maharashtra. The State of Maharashtra could not have granted permission to the respondent no.3 to run the ashram school at village Jebapur, in place of the ashram school, which was being run since the year 1999 in village Kayar in Yavatmal district. The transfer of the ashram school has been effected by the respondent no.1 by giving a total go bye to the provisions of the Ashram School Code. We find from the communications placed on record that the impugned Government Resolution dated 29.08.2009 was issued by the respondent no.1 in view of political pressure. The State has acted in this case at an electrifying speed so as to grant the ashram school at Kayar in favour of the respondent no.3Trust, to be run and administered at village Jebapur in Dhule district. The said Government Resolution is bad in law and is liable to be set aside.

14. Hence, for the reasons aforesaid, the writ petition is partly allowed.

The impugned Government Resolution, dated 29.08.2009 is quashed and set aside. The respondent no.1State of Maharashtra is directed to consider the proposal of the petitionersociety, dated 27.05.2009 as also the proposal for transfer of the management, afresh on merit along with the proposals of the other societies, if any.

The respondent no.1 is free to independently consider the proposal of the respondent no.3 for grant of permission for opening an ashram school at village Jebapur, Tah. Sakri, Dist. Dhule, in accordance with law.

The respondent no.1 is directed to decide the proposal of the petitioner society as early as possible and positively within a period of Six months from the date of this judgment.

Rule is made absolute in the aforesaid terms with costs.

Petition partly allowed.