Writ Petition No.5576 of 2013,Civil Application No.1885 of 2013,with Writ Petition No. 4479 of 2013,with Writ Petition No. 6710 of 2013,with Writ Petition No. 7505 of 2013,Civil Application No.1337 of 2013,Civil Application No.1608 of 2013,Civil Application No.1610 of 2013,Civil Application No.1611 of 2013,Civil Application No.1301 of 2013,Writ Petition Stamp No.27990 of 2013

24th December, 2013

Petitioner Counsel: Shri GAURAV JOSHI, Shri J.P. SEN, Shri PIYUSH RAHEJA, Shri ROHAN DAKSHINI, Shri VISHESH MALVIYA and Ms. NIKITA MISHRA i/by M/s. FEDERAL & RASHMIKANT, Shri R.A. DADA, Shri GAURAV JOSHI, PIYUSH RAHEJA, Shri ROHAN DAKSHINI, Shri VISHESH MALVIYA, Ms. NIKITA MISHRAM/s. FEDERAL & RASHMIKANT, Shri MIHIR DESAI, Shri RAVIKIRAN TRIBHUWAN, Shri SANDEEP R. WAGHMARE
Respondent Counsel: Shri S.J. RAIRKAR, Shri NIKHIL R. VIDHWANS, Shri P.J. THORAT, Shri KEVIC SETALWAD, Shri GIRISH KULKARNI, Shri R. ASHOKAN, Shri S.K. SHINDE, Shri A.B. VAGYANI, Shri S.C. WAKANKAR, SHRI P.K. DHAKEPHALKAR, Shri PIYUSH RAHEJA, Shri ROHAN DAKSHINI, Shri VISHESH MALVIYA, Ms. NIKITA MISHRA, Shri ABHIJEET ANTURKARShri M.I. SETHNA, Shri R. ASHOKAN, Shri D.R. SHAH, Shri S. GAWDE
Other Counsel: Shri JATIN ADHAV, Shri PURUSHOTTAM G. CHAVAN, Shri MANOJ HARIT

Cases Cited:
Society for Unaided Private School of Rajasthan Vs. Union of India, 2012 ALL SCR 1449=(2012) 6 SCC 1 [Para 1,22,25,27,35]
Gramophone Company of India Limited Vs. Birendra Bahadur Pandey and Others, AIR 1984 SC 667 [Para 41]
The Appellate Authority & Chairman Shikshan Prasarak Mandal and Another Vs. State Information Commissioner and Another, 2013(1) ALL MR 318=WP No.26/2011, Dt.18/10/2012 [Para 41]
Rohit Pulp and Paper Mills Ltd. Vs. Collector of Central Excise, Baroda (1990)3 SCC 447 [Para 44]
In re The Kerala Education Bill, 1957 AIR 1958 SC 956 [Para 44]
Chief Executive Officer Vs. Surendra Kumar Vakil and Others, (1999)3 SCC 555 [Para 48]

JUDGMENT

A. S. OKA, J. :- These Petitions can be disposed of by a common judgment. The first issue involved in these Petitions is whether in the light of the decision of the Apex Court in the case of Society for Unaided Private School of Rajasthan Vs. Union of India (2012) 6 SCC 1 : [2012 ALL SCR 1449] the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (for short "the Education Act") are applicable to the unaided minority schools not receiving aid or grants to meet the whole or part of its expenses from the Appropriate Government or the Local Authority. If the answer to the said question is affirmative, the second question involved is whether the Schools subject matter of these Petitions are the unaided minority schools.

2. Under Clause (c) of Sub-section (1) of Section 12 of the Education Act, an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local Authority is under an obligation to admit in Class-I, to the extent of at least 25% of the strength of that class, the children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory education to them till its completion. In Writ Petitions the issue which arises for consideration is whether the concerned schools are bound by the Clause (c) of Subsection (1) of Section 12 of the Education Act .

3. With a view to appreciate the submissions made across the bar, it will be necessary to make a reference to the factual controversy arising in each petition.

FACTS OF WRIT PETITION NO. 5576 OF 2013

4. The first Petitioner is a Society registered under the Societies Registration Act, 1860 and a Public Charitable Trust. The first Petitioner has been formed with an object of providing education for children of Anglo-Indian and European Communities in India through the medium of English. The first Petitioner is conducting a minority school by the name St. Mary's School. The State Government has issued Minority Status Certificate to the St. Mary's School on 30th March 2013. The challenge in this Petition is to the order dated 4th May 2013 passed by the Education Officer (Secondary) of Pune, Zilla Parishad, Pune. By the said order, the Education Officer rejected the contention of the Petitioner that the Education Act was not applicable to the St. Mary's School. He held that the Union of India has granted land admeasuring 7.630 Acres on "old grant" basis to the said School and, therefore, though the said School may be a minority school, it is not an unaided school. He, therefore, held that the entire admission process adopted by the school was illegal as 25% of the seats were not reserved in accordance with clause (c) of Sub-section (1) of Section 12 of the Education Act. By setting aside the admission process, a fresh process was ordered to be conducted in accordance with the Education Act.

5. An affidavit-in-reply has been filed to the said Petition by Shri Mushtak Mohammad Shaikh, the Education Officer (Primary), Zilla Parishad, Pune. In Paragraph 6 of the reply, it is contended that the land on which the said school is situated belongs to the Central Government. It is contended that the land is availed at a concessional rate either on lease or is occupied under old grant. Therefore, it cannot be contended that the school is unaided.

6. In this Petition, Civil Application No.1885 of 2013 has been filed by an Intervener who is an Advocate. The Application is filed on the ground that due to the illegality in the admission process, his daughter has been denied admission.

7. The Respondent No.9 has filed a reply contending that the exemption under old grant/concession in the lease rent by the Appropriate Government itself amounts to an aid. Reliance is placed on the Government Resolution dated 19th May 2012 by which certain directions were given to the schools for implementation of the admission process. It was contended that the admission process adopted by the school was not transparent.

FACTS OF WRIT PETITION NO. 4479 OF 2013

8. This Petition has been filed by Bishop's Education Society, Pune. The first Petitioner Society is running three schools. The first is Bishop's School located in Pune Cantonment area (for short "Camp school"). The second school is Bishop's CoEd School at Kalyani Nagar, Pune(for short "Kalyani Nagar School") and the third school is Bishop's Co-Ed School at Undri (for short "Undri school"). It is contended that all the three schools are minority educational institutions. The certificates granted by the State Government have been annexed to the Petition. It is contended that all the three schools are private, unaided and minority institutions which do not receive any kind of grant or aid either from the State Government or from the Central Government.

9. In the Petition, there is a challenge to the letter dated 19th January 2013 (Exhibit-I to the Petition), letter dated 14th/22nd February 2013 (Exhibit-N to the Petition), three letters all dated 7th March 2013 (Exhibits-P, P-1 and P2 to the Petition), the purported interim order dated 22nd March 2013 (Exhibit-W to the Petition), two letters dated 1st April 2013 (Exhibits-EE and FF to the Petition), letter dated 17th April 2013 (Exhibits-JJ to the Petition) and the letter dated 26th April 2013 (Exhibit-NN to the Petition). The first letter which is under challenge is dated 19th January 2013 issued by the Education Officer (Primary), Pune District Parishad, Pune to Block Education Officer, Panchayat Samiti, Haveli, District Pune. By the said letter, the Education Officer (Primary) called upon the Block Education Officer to look into the allegations regarding breach of the Education Act committed by the Petitioners in the complaint filed by the Pune City Congress Committee and to submit a report. On 14th/22nd February 2013, the Block Education Officer, Panchayat Samiti Haveli, Pune informed the Head Master of Camp School that the school was an aided school within the meaning of Education Act and, therefore, 25% reservation for the students of the weaker section and disadvantage group of the society will apply. It was stated in the letter that the Camp School has been situated on the land given on lease by the Central Government for educational purpose. The Extension Officer (Education) of Panchayat Samiti addressed a letter to the Head Master of the Camp school calling upon the Head Master to submit a reply to the earlier letter dated 18th February 2013. Similar letters were addressed to Kalyani Nagar School as well as Undri school on the same date. On 22nd March 2013, an interim order was issued by the Education Officer (Primary) of Pune Zilla Parishad, Pune. In the said interim order, it was held that the Camp school of the Petitioners was using a Government land in cantonment area on lease for a nominal rent of Rs.2,400/- per year for an area of 5.330 acres. It was held that the school was an aided school and, therefore, 25% reservation under Section 12 of the Education Act was applicable. It was alleged that one division consisting of 45 students was illegally started by the school. Therefore, the admission process in all the three schools was temporarily stayed by calling upon the schools to initiate a fresh process of admission. On 1st April 2013, the Petitioners were called upon to attend hearing before the Deputy Director of Education Pune Division, Pune. Initially the hearing was fixed on 8th April 2013 which was postponed to 12th April 2013. By communication dated 17th April 2013, the Petitioners were informed to produce certain documents on 15th April 2013. It was observed in the said letter that in the hearing conducted on 12th April 2013, the Petitioners were called upon to produce the said documents. By letter dated 26th April 2013 issued by the Education Officer (Primary) of Zilla Parishad, Pune, the Petitioners have been informed that they have not submitted documents and, therefore, if by 30th April 2013 the documents were not furnished, an ex parte order will be passed as regards the process of admission for the Academic Year 2013-2014. By letter dated 29th April 2013, the Advocate for the Petitioners informed the Education Officer (Primary) of Pune Zilla Parishad, Pune that the provisions of the Education Act were not applicable to the unaided minority schools. The challenge in the Petition is to the interim order dated 22nd March 2013 and various other communications set out above.

10. Shri Sunil J. Kurhade, In-charge Education Officer (Primary), Pune Zilla Parishad, Pune has filed a reply. It is contended that the Camp school is situated on a land owned by the Central Government which was leased at a concessional rate of rent. It is alleged that in the past the Camp school has availed grant-in-aid for construction under the "old Grant-in-Aid" from the State. He filed additional reply. Firstly it is contended in the reply that the schools at Kalyaninagar and Undri were receiving aid in the form of concession in the property taxes. Reliance was placed in the said reply on letter dated 9th May 2013 issued by the Pune Municipal Corporation regarding the school at Kalyaninagar. It was contended that the audited accounts of the Petitioners show that the rent has been received from all the three schools totally amounting to Rs.4,93,57,391/- and there is interest income. It was contended that though the schools are situated in Pune Cantonment area, Kalyaninagar and Undri respectively, the Education Officer (Primary) of Zilla Parishad has control over the schools on various aspects. There is a reply filed on behalf of the State Government by Nana Uttamrao Raurale, Joint Secretary of the Education Department. The said reply contains various legal submissions on the concept of grant-in-aid. We must state here that the learned Government Pleader made a statement on instructions that the State Government does not desire to rely upon Paragraphs 7 and 8 of the said reply which are really the main averments in the reply and, therefore, it is not necessary to reproduce the same in detail what is stated in the said two paragraphs.

11. Civil Application No.1608 of 2013 has been filed for intervention. It is contended that the Applicants are the parents of the students who were denied admission to class LKG in the Bishop's Camp School, Pune. Civil Application No.1610 of 2013 has been filed by a third party who is a practicing Doctor. The prayer is for permitting intervention. It is contended that the schools of the Petitioners do not qualify for minority status. Civil Application No.1611 of 2013 has been filed by the Applicant who claims to have applied on 18th March 2013 before Zilla Parishad, Pune, on the basis of which the interim order which is impugned in the writ petition was passed. The prayer is for admitting the wards of the intervenors in the school of the Petitioners. Civil Application no.1337 of 2013 has been filed by a third party for intervention with a prayer to confirm the admission granted to his child. Civil Application No.1301 of 2013 has been filed again by the parents of the children who have been granted admissions earlier.

FACTS OF WRIT PETITION NO. 6710 OF 2013

12. This Petition has been preferred by Saraswati Vidyalaya Union, a Society registered under the Societies Registration Act, 1860. According to the case of the Petitioners, the said Society is running three schools, the first school is Saraswati Vidyalaya Union PrePrimary & Primary School (English Medium). The said school is referred to as "the English medium school". It is contended that the said school is an unaided minority school. It conducts classes pre-primary and primary classes ie Lower Kinder Garden to Standard IV. The second school is Saraswati Vidyalaya Union Primary School (Tamil Medium). The said school is referred to as "the Tamil medium school" which is stated to be an aided minority school. The third school is Saraswati Vidyalaya Union High School and Junior College. The said School is referred to as the "High School". It is stated that the said school receives salary grant from Respondent No.1.

13. According to the case of the Petitioners, the first Petitioner society has been recognized as a linguistic minority and a certificate to that effect has been issued to it by the State Government. Reliance is placed on the Government Resolution dated 24th May 2012 by which minority unaided institutions have been excluded from the purview of the Education Act.

14. According to the Petitioners, in January 2012 the admissions in the English medium school for the Academic Year 2012-2013 commenced. It is stated that the school issued admission forms in the format prescribed under the Rules framed by the State Government under the Education Act. Correspondence was made by and on behalf of the English medium school regarding process of admission. The Education Board of Pune Municipal Corporation by letter dated 30th January 2013 contended that at the time of granting approval to the schools, a minority status certificate was not obtained and hence, the Petitioners were not entitled to a benefit of minority status. It will be necessary to make a reference to the letter dated 22nd January 2013 addressed by English medium school to the Education Officer of the School Board. In the said letter, it was stated that, as demanded verbally by the officers, the school submitted a list in July 2012 containing details of 45 students who were otherwise eligible for free education. However, it was contended that the Petitioners did not implement the provisions of the Education Act for the said Academic Year.

15. The challenge in the Petition is to the communication dated 30th January 2013 addressed by the Head of the Education Board of the Pune Municipal Corporation (for short "Education Board") addressed to the Petitioners and the English Medium School alleging that in the year 2012-13, 45 students were admitted in the said school as per the Education Act. It was alleged that the school has received amounts under the Sarva Shiksha Abhiyan and Mid-day meal scheme and hence, it is an aided school. The challenge is also to the communication dated 25th March 2013 issued by the Education Officer (Primary), Zilla Parishad, Pune, addressed to the Head Mistress of the English medium school. It was observed in the said letter that the school is receiving 100% grant for V to X standards. The Tamil medium school was receiving grant-in-aid. It was alleged that the school has received salary grants for the years 2010-11 and 2011-12. It is alleged that the amounts of Rs.9,758/- and Rs.6,669/- for the years 2010-1011 and 2011-2012 respectively were received by the school towards the Midday meal scheme. From the funds of a Member of Parliament, 20 computers have been received by the school. The Pune Municipal Corporation has made available a playground to the School. From the funds of Sarva Shiksha Abhiyan, a sum of Rs.5,500/- has been received by the school for the year 2010-2011 and for the year 2011-2012, a sum of Rs.6,000/- has been received by the school. It is stated that though the school is having classes from preprimary to senior college, by showing technicalities, fresh admissions were given to the students in the primary school and the high school. It was further alleged that the Education Act was applicable to the said school.

16. A reply was issued to the said letter by the English medium school on 26th March 2013. It is stated that it is an independent and autonomous unaided school functioning in the separate campus. The said school does not receive any grant or aid. It is clarified that 100% grant is being received by the High School which is running the classes from V to X which has been recognized by the Zilla Parishad. The salary grants have been received by the High School. It is stated that Tamil medium school is not getting any salary grant though it is recognized as an aided school. It is contended that it is an independent entity. It is stated that the amounts under the Midday Meal Scheme have been received by the said Tamil School. It is stated that the computers and printers were received by the High School and not by English medium school. It is stated that the High School was using a public ground of Pune Municipal Corporation which is being used not only by the students of the school but also by the local residents. It is stated that the said ground is not at all granted by the Pune Municipal Corporation to the school. It is stated that the amounts received in the Sarva Shiksha Abhiyan were by Tamil School. It is thus contended that the English Medium School is not receiving any kind of grant-in-aid and thus, it is an unaided minority school.

17. Another challenge in the Petition is to the order dated 3rd June 2013 passed by the Education Officer (Primary) of Pune Zilla Parishad, Pune. By the said order, it was held that though the school run by the Petitioners was a minority school, it is receiving various categories of grants-in-aid from the Government. It is stated that out of the funds of a Member of Parliament, twenty computers and two printers were received by the school. A direction was issued to refund the fees collected from 45 students in the year 2013-2014. These students were admitted in the year 2012-13 against 25% quota under clause (c) of sub-section (1) of Section 12 of the Education Act. It was observed that receipt of caution fee of Rs.12,000/- amounts to accepting capitation fees. It was alleged that an extra division was being run without approval. It was directed that a separate action will be taken for accepting the caution money and running extra divisions. A direction was issued to keep 25% seats reserved for the Academic Year 2013-2014 as per section 12 of the Education Act.

18. One of the contentions raised in the Petition is that the authorities got confused and did not notice that the Petitioners were running three separate schools as different entities. It is contended that the English medium school which is a primary school is distinct from the High School and the Tamil school. In this behalf, various documents have been relied upon. It is contended that the primary school (English medium school) is not receiving any grant-in-aid and hence, the provisions of the Education Act are not applicable. We must note here that the learned Senior Counsel appearing for the Petitioner on instructions of the Petitioners stated that the Petitioners will refund the fees collected from the 45 students who were admitted in the Academic Year 2013-2014 to the English medium school a list of which has been tendered on record and marked "X" for identification.

19. A reply was filed by the 7th Respondent to which annual report of the first Petitioner has been annexed to show that the school is receiving grant-in-aid. A reply has been filed by the Education Officer (primary) of the Pune Zilla Parishad. It was contended that an open ground having an area of 3865 sq.meters owned by the Pune Municipal Corporation was allowed to be used by the students of the schools of the Petitioners free of cost. It was contended that Tamil school and High school were aided schools. It was contended that the Petitioners have availed of the benefits under the Sarva Shiksha Abhiyan, Mid-day meal scheme and computers from MLA Fund. However, the reply proceeds on the basis that the three schools were distinct and it is specifically admitted that the English medium school had undertaken a separate process of admission. But it is alleged that the process is contrary to the provisions of the Education Act. A reply was also filed by the assistant Administrative Officer of the school board of the Pune Municipal Corporation raising similar contentions.

FACTS OF WRIT PETITION NO. 7505 OF 2013

20. As far as this Petition is concerned, the same takes an exception to the Government Resolution dated 13th February 2013 and order dated 31st July 2013 passed by the Education Officer (Primary), Pune. By the communication dated 31st July 2013 (Exhibit-B to the Petition) which is addressed to the members of the School Board of Pune Municipal Corporation, it is stated that considering various irregularities, an inquiry in respect of the affairs of the Crescent High School, Pune, run by the third Petitioner should be made and a report should be submitted. According to the case of the Petitioners, the said school viz. Crescent High School is recognized as a minority educational institution by the State Government. It is contended that the Petitioners addressed a letter dated 28th May 2013 to the State Government for issuing an order that the Education Act is not applicable to the minority unaided schools. The contention of the Petitioners is that the impugned communication dated 31st July 2013 proceeds on the erroneous footing that the provisions of the Education Act are applicable to the said school and therefore, a prayer is made for quashing the said communication. The challenge to the Government Resolution dated 13th February 2013 is on the ground that the provisions of the Education Act are sought to be applied even to the unaided minority schools.

FACTS OF WRIT PETITION ST. 27990 OF 2013

21. This is a Petition filed by the Petitioner who is a parent of whose son has been admitted to a Junior Kindergarten run by the Bishop's Education Society. The grievance is that 25% quota of seats in the school are kept vacant. A writ of mandamus is prayed for directing the concerned Respondents to allow the Petitioner's son to attend classes.

SUBMISSIONS OF THE PETITIONERS IN WRIT PETITION NO. 5576 OF 2013.

22. The learned counsel appearing for the Petitioners submitted that the St. Mary's School is an unaided school and that a certificate of the minority status issued by the State Government has been annexed to the Petition. He relied upon the decision of the Apex Court in the case of Society for Unaided Private School of Rajasthan Vs. Union of India : [2012 ALL SCR 1449]. He pointed out that the Apex Court has declared that the Education Act is unconstitutional qua unaided minority schools as it violates their fundamental rights guaranteed by Article 30 of the Constitution of India. He pointed out that a Public Charitable Trust by the name "Bombay Diocesan Trust Association Limited" is the lessee of the Central Government under the Lease dated 10th July 1996 of a land admeasuring 1.49 acres. The remaining 7.55 acres of the total land which was granted to the said Trust under the old grant from the Central Government has been occupied by the said school as a beneficial user. He placed reliance on the extract of General Land Register maintained by the Pune Cantonment. He urged that the second Respondent has completely misunderstood the meaning of the term "old grant". He urged that the term"old grant" signifies the manner of occupation of the land and the same has nothing to do with the grant within the meaning of the Education Act. He urged that there is nothing on record to show that the Lease rent is being charged at a concessional rate. He relied upon a letter dated 7th March 2013 issued by the Defence Estates Officer which records that no special concession has been granted to the said school. It is urged that even assuming that the land has been provided to the school at a concessional rate, the grant or concession will not amount to aid or grants within the meaning of the Education Act. Additionally, he submitted that even assuming that there is a concession granted by the Central Government, it does not amount to grant or aid from the Appropriate Government or the Local Authority. He urged that in view of the definition of the "Appropriate Government" in clause (a) of Section 2 of the Education Act, the Appropriate Government in this case will be the State Government. He submitted that by letter dated 21st August 2013, the Chief Executive Officer of Pune Cantonment Board has clarified that the school does not receive any concession in the levy of property taxes and does not receive any grant, aid, benefit, advantage, special concession etc from the Central Government. Thus, the submission is that the school being an unaided minority school, the provisions of the Education Act will not apply. He submitted that the aid or grant contemplated by the Education Act is the one which is received from the Appropriate Government or a local Authority for meeting the recurring expenses of the schools such as teacher's salaries, maintenance of schools, etc. He urged that in the State of Maharashtra, only the schools receiving grant-in-aid can be said to be aided schools and admittedly the St. Mary's School is not receiving any grant-in-aid. He urged that treating the unaided minority schools as aided schools will have drastic consequences. It is pointed out that nonminority unaided schools are required to admit at least 25% of the children of specified categories at the entry level and to provide them free education for which they are entitled to reimbursement from the Government but the aided schools are not entitled to. He, therefore, submitted that if the grant of a land to minority school at a concessional rate, supply of free school equipment to the school or a concession in the property taxes are to be equated with grants or aid, the minority schools which are not receiving grant-in-aid from the State Government will be treated as aided schools and they will not get reimbursement for admitting 25% of the students as per Clause (c) of Subsection 1 of Section 12 of the Education Act.

SUBMISSIONS OF THE PETITONERS IN WRIT PETITION NO. 4479 OF 2013

23. Learned counsel appearing for the Petitioners pointed out that there are three schools run by the first Petitioner Bishop's School Society. The first school is Bishop's school in the cantonment area at Pune. The Bishop's Co-Ed School is in Kalyani Nagar within the limits of Pune Municipal Corporation. The third school is a Bishop's Co-Ed School at village Undri. He pointed out that none of the schools are receiving any grant or aid and in fact the schools at Kalyani Nagar and Undri are recognized as unaided schools by the Government. He submitted that all the three schools are recognized as minority institutions as per the certificates issued by the State Government which are annexed to the Petition. He pointed out that the camp school in cantonment area is constructed on a land leased by the Central Government. He urged that there is a Building Lease dated 24th March 1970 which discloses that a premium was paid and there is a clause for renewal of the lease with corresponding increase in the rent. He urged that there is no material on record to show that any concession has been granted in the matter of payment of lease rent. He submitted that in the impugned order even the schools at Kalyani Nagar and Undri have been included and for the first time in this Petition, 3rd to 5th Respondents have contended that the said schools are aided schools as they are receiving concession in payment of property taxes. He urged that the schools have been paying property taxes at the prescribed rates which are applicable to all the schools in the jurisdiction of the local authority. He submitted that considering the fact that education being a charitable activity, all the schools have been charged property taxes at a particular rate which is being paid by the Petitioners. He urged that as far as the schools in the cantonment area and Kalyani Nagar are concerned, the Zilla Parishad does not have jurisdiction over those areas. He submitted that as the schools in question are unaided minority schools, the provisions of the Education Act are not applicable to them.

SUBMISSIONS IN WRIT PETITION NO. 6710 OF 2013

24. Learned senior counsel appearing for the Petitioners submitted that the Education Officer has created confusion by ignoring that there are three distinct schools run by the Petitioners. The first school is Saraswati Vidyalaya Union Pre-Primary and Primary School (English Medium) which is an unaided minority school. The second school is Saraswati Vidyalaya Union Primary School (Tamil Medium) which is an aided minority school. The third school is Saraswati Vidyalaya Union High School and Junior College which conducts classes from standards V to XII which is receiving salary grants from the Zilla Parishad, Pune, the first Respondent. He pointed out that none of the benefits under the Mid-day Meal Scheme or Sarva Shiksha Abhiyaan have been received by the English medium Primary School. He urged that there is absolutely no material on record to show that the English medium Primary School receives any aid or grant and that the grant-in-aid received by other two schools cannot be taken into consideration. He pointed out that even twenty computers and two printers provided under the funds of Member of Parliament were given to the high school. He pointed out that the play-ground of Pune Municipal Corporation is a public play-ground which is being used by the students as well as the residents of the adjoining areas. He urged that the English medium Primary School pays property taxes at the rate fixed by the Appropriate Government. He, therefore, urged that the English medium Primary School being unaided minority school will not be governed by the Education Act.

WRIT PETITION NO. 7505 OF 2013

25. The learned counsel appearing for the Petitioners again relied upon the decision of the Apex Court in the case of Society for Unaided Private School of Rajasthan Vs. Union of India : [2012 ALL SCR 1449] and urged that the 4th Petitioner School is an unaided minority educational institution to which the provisions of the Education Act are not applicable.

SUBMISSIONS IN WRIT PETITION ST. NO. 27990 OF 2013

26. The learned counsel appearing for the Petitioners has not made separate legal submissions and he has adopted the legal submissions made in the other Petitions.

CONSIDERATION OF SUBMISSIONSON THE QUESTION WHETHER THE PROVISIONS OF THE EDUCATION ACT ARE APPLICABLE TO THE MINORITY UNAIDED SCHOOLS

27. We have given careful consideration to the submissions. We have perused the averments made in the Petitions, reply and documents on record. The first issue which arises for our consideration is whether the provisions of the Education Act are applicable to the minority unaided schools. Therefore, it will be necessary to make a reference to the decision of the Apex Court in the case of Society for Unaided Private School of Rajasthan v. Union of India : [2012 ALL SCR 1449]. The majority view was expressed by S.H. Kapadia, CJ (as he then was) for himself and on behalf of Swatanter Kumar, J. The third Hon'ble Judge (K.S.P. Radhakrishnan, J) has partly dissented. The majority judgment considers various issues. The majority decision specifically considers the issue of validity and applicability of the Education Act qua unaided minority schools. In paragraph 62, the majority judgment holds as under:

"62. Reservations of 25% in such unaided minority schools result in changing the character of the schools if right to establish and administer such schools flows from the right to conserve the language, script or culture, which right is conferred on such unaided minority schools. Thus, the 2009 Act including Section 12(1)(c) violates the right conferred on such unaided minority schools under Article 30(1)".

In paragraph 63 of the majority decision, it is held that the Education Act is constitutionally valid qua aided minority schools. In paragraph 64 of the said decision, the conclusions of the majority view are summed up. Paragraph 64 reads thus:

"64. 20. Accordingly, we hold that the Right of Children to Free and Compulsory Education Act, 2009 is constitutionally valid and shall apply to the following:

(i) a school established, owned or controlled by the appropriate Government or a local authority;

(ii) an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;

(iii) a school belonging to specified category; and

(iv) an unaided non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority." (emphasis added)

In paragraph 65, the majority view proceeds to hold as under:

"65. However, the said 2009 Act and in particular Sections 12(1)(c) and 18(3) infringes the fundamental freedom guaranteed to unaided minority schools under Article 30(1) and, consequently, applying the R.M.D. Chamarbaugwalla v. Union of India MANU/SC/0020/1957 : 1957 SCR 930 principle of severability, the said 2009 Act shall not apply to such schools." (emphasis added)

28. On conjoint reading of paragraphs 64 and 65 of the majority view, we find that there is a categorical pronouncement of law that the Education Act qua unaided minority schools is not valid and, therefore, the Education Act will not apply to the unaided minority schools. The minority view holds that in case of unaided nonminority as well as unaided minority educational institutions, clause (c) of Subsection (1) of Section 12 will have to be read down by holding that it can be given effect to only on the principles of voluntariness and conscience and not on compulsion or threat of non-recognition. Thus, the minority view holds that Clause (c) of Sub-section (1) of Section 12 of the Education Act insofar as it relates to both non-minority and minority unaided schools is directory and not mandatory. Therefore, going by the majority view, the Education Act is not applicable to the unaided minority schools.

CONSIDERATION OF THE SECOND QUESTION: WHAT IS THE MEANING OF "AID OR GRANTS" UNDER THE EDUCATION ACT

29. The second issue which will now arise for consideration is whether the schools with which we are concerned can be termed as "unaided minority schools". If answer to the said question is that the schools are unaided minority schools, then none of the impugned orders/notices/or actions can be valid as they proceed on the footing that the Education Act is applicable to the schools concerned. For deciding the said issue it is necessary to consider the meaning of "aid or grants" under the Education Act. It will be necessary to make a reference to certain relevant provisions of Education Act.

30. Clause (n) of Section 2 of the Education Act reads thus:

"2(n) "school" means any recognised school imparting elementary education and includes-

(i)a school established, owned or controlled by the appropriate Government or a local authority;

(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;

(iii) a school belonging to specified category; and

(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority."

In these Petitions, we are concerned with sub-Clause (iv) of clause (n) of Section 2 of the Education Act. Clause (iv) is a category of recognized schools imparting elementary education which are unaided not receiving any kind of aid or grants to meet its expenses from the Appropriate Government or the Local Authority.

31. The Appropriate Government is defined under Clause (a) of Section 2 of the Education Act which reads thus:-

"2(a) "appropriate Government" means -

(i) in relation to a school established, owned or controlled by the Central Government, or the administrator of the Union territory, having no legislature, the Central Government;

(ii) in relation to a school, other than the school referred to in sub-clause (I), established within the territory of-

(A) a State, the State Government;

(B) a Union territory having legislature, the Government of that Union territory".

32. In the case in hand, none of the schools have been established, owned or controlled by the Central Government or the Administrator of any Union Territory having no legislature. None of the schools have been established in any union territory having legislature. Therefore, all the schools subject matter of these Petitions will be governed by Clause (A) of clause (ii) of Section 2(a) of the Education Act and therefore, in case of all the schools which are subject matter of these Petitions, the State Government will be the appropriate Government. Hence, even assuming that any of the schools subject matter of these Petitions are receiving any aid or grant from the Central Government, the same will not be "aid or grants" within the meaning of the Education Act.

33. Clause (h) of Section 2 of the Education Act defines the Local Authority which reads thus:

"2(h) "local authority" means a Municipal Corporation or Municipal Council or Zila Parishad or Nagar Panchayat or Panchayat, by whatever name called, and includes such other authority or body having administrative control over the school or empowered by or under any law for the time being in force to function as a local authority in any city, town or village;"

Thus, the Local Authority means a Municipal Corporation or a Municipal Council or a Zilla Parishad or a Nagar Panchayat or a Panchayat. It will include such other Authority or body having administrative control over the school.

34. It will be also necessary to make a reference to Section 12 of the Education Act, which reads thus:

"12. Extent of school's responsibility for free and compulsory education-

(1) For the purposes of this Act, a school,-

(a) specified in sub-clause (i) of clause (n) of section 2 shall provide free and compulsory elementary education to all children admitted therein;

(b) specified in sub-clause (ii) of clause (n) of section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent.;

(c) specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall admit in class I, to the extent of at least twenty-five per cent. of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion:

Provided further that where a school specified in clause (n) of section 2 imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education.

(2) The school specified in sub-clause (iv) of clause (n) of section 2 providing free and compulsory elementary education as specified in clause (c) of sub-section (1) shall be reimbursed expenditure so incurred by it to the extent of perchildexpenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed:

Provided that such reimbursement shall not exceed per-child-expenditure incurred by a school specified in sub-clause (i) of clause (n) of section 2:

Provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation.

(3)Every school shall provide such information as may be required by the appropriate Government or the local authority, as the case may be."

35. Clause (c) of Sub-section (1) of Section 12 of the Education Act applies to the schools specified in Sub-clause (iv) of Clause (n) of Section 2 of the Education Act. Sub-clause (iv) is the category of unaided schools not receiving any kind of grants or aid to meet its expenses either from the Appropriate Government or from the Local Authority. In view of the decision of the Apex Court in the case of Society for Unaided Private School of Rajasthan Vs. Union of India : [2012 ALL SCR 1449], the Education Act will not apply to an unaided minority school. Consequently, Clause (c) of Sub-section (1) of Section 12 of the Education Act which applies to unaided schools will not apply to unaided minority schools.

36. It is true that the Education Act does not define an unaided school. However, on this aspect, it will be necessary to go back to the Sub-clauses (ii) and (iv) of Clause (n) of Section 2 of the Education Act. Sub-clause (ii) indicates that an aided school is the one which is receiving aid or grants to meet whole or part of its expenses from the Appropriate Government or the Local Authority. Correspondingly, Clause (iv) provides that an unaided school is the one which is not receiving any kind of aid or grants to meet its expenses either from the Appropriate Government or from the Local Authority. Thus, going by Sub-clauses (ii) and (iv) of Clause (n) of Section 2 of the Education Act, a school becomes an aided school provided it is receiving aid or grants to meet whole or part of its expenses. Thus, receiving any aid or grants will not make a school an aided school within the meaning of sub-clause (ii) of Clause (n) of Section 2 of the Education Act unless the aid or grant is received either from the Appropriate Government or the Local Authority to meet whole or part of its expenses.

37. It will be also necessary to look at Section 12 of the Education Act. As stated earlier, Sub-section (2) of Section 12 of the Education Act deals only with the unaided schools within the meaning of Sub-clause (iv) of Clause (n) of Section 2 of the Education Act. Such schools are required to admit in Class-I to the extent of at least 25% of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and to provide free and compulsory elementary education to them till its completion. Subsection (2) of Section 12 of the Education Act provides that an unaided school specified in Sub-clause (iv) of Clause (n) of Section 2 of the Education Act providing free and compulsory elementary education as specified in Clause (c) of Sub-section (1) of Section 12 of the Education Act is entitled to reimbursement of the expenditure so incurred by it to the extent of per child expenditure incurred by the State, or the actual amount charged from the child, whichever is less. The second proviso to Sub-section (2) of Section 12 of the Education Act provides that where such a school is already under an obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation. We must note here that Sub-section (2) is applicable only to the schools specified in Sub-clause (iv) of Clause (n) of Section 2 of the Education Act in the category of unaided schools not receiving any kind of aid or grants to meet its expenses. The second proviso to Sub-section (2), therefore, is applicable only to an unaided school within the meaning of Sub-clause (iv) of Clause (n) of Section 2 of the Education Act. The second proviso shows that in the category of unaided schools there can be schools which have received any land, building, equipment or other facilities, either free of cost or at a concessional rate. This shows that the legislature never intended to treat a school which has received a land, building, equipment or other facilities either free of cost or at a concessional rate, as aided schools. Sub-section (2) applies only to unaided schools as provided in Sub-clause (iv) of Clause (n) of Section 2 of the Education Act and therefore, the second proviso also applies only to such unaided schools. It follows that merely because a school has received any land or building or equipment or other facilities either free of cost or at a concessional rate, the said school does not cease to be an unaided school. If intention of the legislature was to treat such a school receiving land, building, equipment or other facilities as aforesaid as an aided school, there was no reason to incorporate the second proviso which applies only to unaided schools specified in Sub-clause (iv) of Clause (n) of Section 2 of the Education Act. Thus, going back to Sub-clause (iv) of Clause (n) of Section 2 of the Education Act, a school becomes unaided school provided it is not receiving any kind of aid or grants to meet its expenses from the Appropriate Government or the Local Authority. Even if such school has received land, building or equipment at a concessional rate or free of cost, such a school continues to be unaided school so long as it does not receive any aid or grants to meet its whole or part of expenses from Appropriate Government or the local authority. If interpretation sought to be put by some of the Respondents that a school which has received any land, building, equipment or other facilities either free of cost or at a concessional rate becomes aided school is accepted, the second proviso to Sub-section (2) of Section 12 of the Education Act becomes completely redundant. The intention of the legislature which can be gathered from the second proviso to Sub-section (2) of Section 12 of the Education Act is crystal clear. It never intended to treat a school as an aided school which is not receiving "aid" or "grants" from the Appropriate Government or local authority to meet its expenses, but has received a land, building or equipment or other facilities either free of cost or at a concessional rate. Thus, a school which is receiving aid or grants to meet whole or part of its expenses can be said to be an aided school within the meaning of the Education Act. Thus, a school becomes an aided school provided it receives aid or grants in terms of money to meet its expenditure. The aid in the form of a land, building, equipment or any other facilities by itself will not be an aid or grants within the meaning of Sub-clause (iv) of Clause (n) of Section 2 of the Education Act.

38. Thus, on plain reading of the provisions of the Education Act, a school becomes aided school provided it receives aid or grants in terms of money to meet whole or part of its expenses. Obviously, for running a school , there is a recurring expenditure on the payment of salaries and allowances to the teaching and non-teaching staff, maintenance of the school building, and purchase of articles such as stationary etc required for day-today functioning of the school. If any amount is received by a school either from an Appropriate Government or a local authority to meet whole or a part of such expenditure, a school can be treated as an aided school.

39. In the State of Maharashtra, the Secondary Schools Code contains provisions for "grants" or "aid". Paragraph 92.1 deals with grants to vocational and technical schools. It provides that vocational and technical high schools subject to availability of funds will be eligible for maintenance grant on their total admissible expenditure in accordance with the formula laid down therein. The Secondary Schools Code provides for payment of salary grants and nonsalary grants. Paragraph 101.1 provides for release of building grants to managements of the schools for erecting, purchasing, extending or reconstructing the school buildings. Paragraph 101.8 provides for payment of grant for purchase of sites. Paragraph 101.9 provides for grant-in-aid for building hostels, laboratories, libraries, observatories, school workshops or gymnasia or for providing play-grounds provided the funds are available. Clause 105 provides that expenditure on equipment such as school furniture, library, laboratory, workshop, audio visual and other teaching aid including equipments on craft will be shows shown under ordinary expenditure for the year and will be admissible for non-salary grant subject to further conditions incorporated therein. Paragraph 106.1 provides for grant for meeting reasonable expenditure on hostels attached to secondary schools in rural areas, such as salaries or allowances of the hostel superintendent and his assistants, if any, the rent of the hostel building and other necessary expenditures connected with the proper management of hostel. Therefore, the grant contemplated under the Secondary Schools Code to a recognized school is a grant in terms of money for meeting the expenditure incurred by the managements of the schools. There are Rules framed under the Bombay Primary Education Act,1947. The said Rules are the Bombay Primary Education Rules, 1949 ( for short "the said Rules of 1949") which apply to the primary schools under the control of Municipal School Boards under the Bombay Primary Education Act, 1947. Rule 115 of the said Rules of 1949 provides that normally grant paid to an approved private school in any year is the grant for that year and shall be calculated on the basis of the total admissible expenditure of the preceding year. Various Sub-rules of Rule 115 provide that the grant-in-aid is provided for payment of actual expenditure on salaries of teaching and non-teaching staff, leave salaries, provident funds contribution, amount of rent, taxes, insurance of the building and play-grounds, office expenditure such as printing of letter-heads, etc., furniture and equipments, repairs to the school building, electricity charges and medical charges. There is a separate grant-in-Code which is applicable to primary schools under the Municipal Corporation of Greater Bombay. Chapter III and in particular Rule 45 thereof provides that while assessing the grant-in-aid in favour of the schools, the expenditure incurred on salaries of teaching and non-teaching staff, rent paid for the buildings, money spent on books, prizes and equipments for schools, gathering, excursion and expenditure on ordinary repairs of the building are the categories of the expenditures for which the grant-in-aid will be payable.

40. Thus, the scheme of all the aforesaid provisions of the Rules appears to be that the grant-in-aid is made payable to the schools for meeting the expenses for running the school the most of which is of a recurring nature. Thus, the concept of grants or aid appears to be payment of amounts for meeting the expenditure of the schools on various heads which we have discussed above.

41. At this stage, it will be necessary to make a reference to the submissions made by the learned Additional Solicitor General of India as well as the learned Government Pleader on the meaning of "aid" or "grants" under the Education Act. The learned Additional Solicitor General of India stated that though he has not received any instructions from the Union of India, he is advancing submissions as an officer of this Court. His basic submission is that the words "aid" or "grants" under the Education Act must be given widest possible meaning to include every kind of grant or aid whether direct or indirect. He relied upon a decision of the Apex Court in the case of Gramophone Company of India Limited v. Birendra Bahadur Pandey and Others AIR 1984 SC 667 in support of his submissions. Relying upon the said decision, he submitted that the words in a statute cannot be always interpreted as per its dictionary meaning and such words take colour from the context. He also relied upon a decision of the learned Single Judge of this Court in the case of The Appellate Authority & Chairman Shikshan Prasarak Mandal and Another v. State Information Commissioner and Another WP No.26 of 2011 decided on 18th October 2012 : [2013(1) ALL MR 318]. He submitted that the interpretation of the word "aid" in the said decision will have to be accepted.

42. It is true that the meaning to the word "aid" or "grants" will have to be assigned in the context of the provisions of the Education Act. We have extensively discussed the said aspect in the earlier part of the judgment and, in fact, we have held that considering the second proviso to Sub-section (2) of Section 12 of the Education Act, a grant of land, building, equipment or other facilities free of cost or at a concessional rate is neither a grant nor an aid within the meaning of Sub-clauses (ii) and (iv) of Clause (n) of Section 2 of the Education Act. The learned Single Judge in the case of Appellate Authority & Chairman Shikshan Prasarak Mandal considered the concept of the term "aid" in light of the objects of the Right to Information Act, 2005 and especially in the context of the definition of the term "public authority" under the said Act of 2005. The emphasis on the said definition is on direct or indirect funding provided by the Appropriate Government. It is held that an educational institution which receives grant-in-aid from the State is a body substantially financed by the State. In the present case, going by the provisions of the Education Act, receiving any aid or grant even in indirect manner does not make a school an aided school. The aid or grant has to be for meeting the whole or part of it expenses which is received from the Appropriate Government or the Local Authority. We are of the view that no other interpretation is possible except the one which we have tried to give considering the context. The words "aid or grants" take a colour from the context.

43.The learned Government Pleader also stated that he has not received any specific instructions from the State Government as regards the stand of the State Government. He, however, stated that he is making submissions as an officer of this Court. His first submission is that Section 35 of the Education Act gives powers to the Central Government to issue guidelines to the Appropriate Government or to the Local Authority for the purposes of implementation of the provisions of the Education Act. There are provisions for constituting National Advisory Council and State Advisory Council. Therefore, his submission is that the interpretation of the words aid or grant should be left to the authorities under the Education Act. Without prejudice to the said contention, he submitted that a school becomes an aided school provided it receives grant or aid to meet its recurring expenses. He also derived support for this submission on the basis of the second proviso to Sub-section (2) of Section 12 of the Education Act.

44. At this stage, we must make a reference to the decision of the Apex Court relied upon by one of the Respondents in the case of Rohit Pulp and Paper Mills Ltd. v. Collector of Central Excise, Baroda (1990)3 SCC 447. He relied upon the principles of "Noscitur a sociis". It is urged that the meaning of the word is to be judged by the company it keeps. The submission is that the word "expenses" has to be given a wide meaning so as to include any help to meet any kind of expenditure. Reliance was also placed by the parties in some of the Petitions on a decision of the Constitution Bench of the Apex Court in the case of In re The Kerala Education Bill, 1957 AIR 1958 SC 956. The Kerala Education bill provided for a definition of the aided school to mean a private school which is recognized by and is receiving aid from the Government. The Apex Court considered the question in the context of Article 336 of the Constitution of India. It was held that the amount received by the Anglo Indian Educational Institutions under Article 337 of the Constitution of India must be construed to mean as an aid within the meaning of Kerala Education Bill. It was held that the word "aid" has not been defined in the Bill and, therefore, simple English word should be given its ordinary and natural meaning.

45. In the present case, though the aided or unaided schools may not have been defined, the words "aid or grants" in Sub-clause (ii) of Clause (n) of Section 2 of the Education Act are qualified by the words "to meet the whole or part of its expenses". The words "aid or grants" cannot be interpreted independently of the qualification "to meet whole or part of its expenses" provided under Sub-clause (ii) of Clause (n) of Section 2 of the Education Act. Moreover, as held by us, the second proviso is also a pointer for the interpretation. We have held that if wide meaning is assigned to the words "aid or grants", the second proviso to Sub-section (2) of Section 12 of the Education Act becomes redundant.

46. To conclude, a school becomes an aided school under the Education Act provided it receives aid or grants from the Appropriate Government or a local authority in terms of money to meet its whole or part of expenditure. Thus, a school becomes an aided school provided it receives aid or grants in terms of money to meet its recurring expenditure. The grant of land, building, equipment or any other facilities free of costs or at a concessional rate by itself will not be an aid or grant within the meaning of Sub-clause (iv) of Clause (n) of Section 2 of the Education Act.

FINDINGS ON FACTUAL ASPECTS WRIT PETITION NO. 5576 OF 2012

47. In the context of what we have held above on the meaning of the word "aid" or "grants", now we will have to consider the facts of each cases. Firstly we deal with Writ Petition No.5576 of 2012. We have already extensively referred to the facts of each cases. In the impugned order dated 4th May 2013, the Education Officer accepted that the St. Mary's School has been given minority status by certificate dated 30th March 2013. The only ground held against the school is in Paragraph 2 of the operative part of the said order, the English translation of which reads thus:-

"2. The school has received land under old grant from Central Government admeasuring 4.750 + 2.880 total 7.630. Therefore under RTE Act, 2009 clause 12C admission for weaker and under privilege group has to be reserved and as per Government Resolution 15/03/2013 completed."

48. It will be necessary to make a reference to the averments made in the Petition. In Paragraph 7 of the Petition, it is stated that the lands on which the said school is situated is in two parts. The first part admeasuring 1.49 acres, is held on lease from the Central Government and the remaining part, admeasuring 7.55 acres, is occupied by the Bombay Diocesan Trust Association Limited under the Old Grant from the Central Government. At this stage, a reference will have to be made to the communication dated 7th March 2013 addressed by the Defence Estate Officer to the Principal of the St. Mary's School which is at Exhibit-B to the Petition. It is stated that the land is held on old grant term which provides that the occupants enjoy only the occupancy rights and the Government retains the power with it to resume the land whenever it requires it by issuing a notice to the occupants. The old grant is a nature of land tenure which signifies the terms and conditions on which the land is granted. Reference to the words "old grant" has nothing to do with the word "grant" or "aid" to a school within the meaning of Education Act. The old grant is a nomenclature of a land tenure which is often distinguished from the "new grant" tenure. We must make a useful reference to the decision of the Apex Court in the case of Chief Executive Officer v. Surendra Kumar Vakil and Others (1999)3 SCC 555. The said decision and in particular Paragraph 12 explains the nature of old grant tenure. Paragraph 12 reads thus:-

"12. Under the Cantonment Land Administration Rules, 1925, General Land Registers are being maintained in respect of Sagar Cantonment. These registers were produced before the High Court and were also produced before us. These are old registers maintained in the form prescribed by the said Rules. In these registers, the property in question is shown as being held by S.N. Mukherjee on old grant basis. As explained by Mittal in the passage cited above, the tenures under which permission was given to civilians to occupy government land in the cantonments for construction of bungalows on the condition of a right of resumption of the ground, if required, came to be known as old grant tenures. Such tenures were given in accordance with the terms of Order No. 179 issued by the Governor General-in-Council in the year 1836. These require that the ownership of land shall remain with the Government and the land cannot be sold by the grantee. Only the house or other property thereon may be transferred. Such transfers would require consent of the officer commanding the station when the transfer is to a person not belonging to the army. In respect of old grant tenure, therefore, the Government retains the right of resumption of land." (emphasis added)

Therefore, the Education Officer has committed a gross error by completely ignoring that the "old grant" is a land tenure and not a grant in that sense. The portion of the land held on lease is under a lease executed by the Central Government which is not an Appropriate Government. Hence, in any event, what is received from the Central Government will not be a grant or aid under the Education Act as it is not the appropriate Government for any school subject matter of the Petitions.

49. At this stage, we must make a reference to the affidavit-in-reply filed by the Education Officer. In the first reply, the main contention is regarding power of the Education Officer. It is contended that reasonable opportunity of being heard was given to the Petitioners. Learned counsel appearing for the Petitioners has placed on record a letter dated 21st August 2013 sent by the Chief Executive Officer of the Cantonment Board addressed to the Principal of the school in which there is a categorical statement that no concession has been granted to the school in the matter of payment of property taxes.

50. Therefore, the order of the Education Officer is unsustainable and it will have to be held that the St. Mary's School is an un-aided minority school and hence, the provisions of the Education Act and in particular, the provisions of Section 12 of the Education Act will have no application. Hence, the Petition must succeed.

WRIT PETITION NO. 6710 OF 2013

51. Now we deal with Writ Petition No.6710 of 2013. We have already adverted to the facts of the case. Relying upon the documents at Exhibit - J and J-1 to J-45, it was contended that in the year 2012-2013, admissions were granted by the Petitioners to the English medium school (Saraswati Vidyalaya Union Pre-primary and primary School) in 25% quota and, therefore, it was accepted by the Petitioners that the said school will be governed by the Education Act and in particular Clause (c) of Sub-section (1) of Section 12 of the Education Act. Various explanations are offered by the Petitioners. We must note here that the issue is whether the Education Act is applicable to the school in question. Merely because in the year 2012-2013, the Petitioners granted admissions against 25% quota provided by Clause (c) of Section 12(1) of the Education Act to the children of weaker section and disadvantaged group, there cannot be an estoppel against the statute and the issue regarding applicability of the Education Act will have to be decided on merits. However, we must note here that the learned senior counsel appearing for the Petitioners on instructions stated that the fees received by the school in the year 2013-2014 from the said 45 students who were admitted in the year 2012-2013 shall be refunded to the concerned students. The said statement is made without prejudice to the rights and contentions of the Petitioners. We accept the statement and accordingly we propose to direct that if the fees are not refunded till today, the same shall be refunded within a period of two months from the date of the judgment.

52. In paragraph 3 of the Writ Petition, a specific case is made out that the first Petitioner Society is running three distinct schools which are as under:

(i)The Saraswati Vidyalaya Union Pre-Primary and Primary School (English Medium) (for short "English medium school"). It is stated that it is private unaided minority school;

(ii) The Saraswati Vidyalaya Union Primary School (Tamil Medium) (for short "Tamil medium school") which is stated to be a private aided minority school established for providing education to the children especially in Tamil language; and

(iii) The Saraswati Vidyalaya Union High School and Junior College ( for short "High School") which runs the classes from standards V to XII.

53. Some of the impugned communications proceed on the footing there is only one school. In fact it is tried to be contended that artificially it is shown that the Primary and Secondary schools are separate by giving fresh admissions to the students in standard V. However, the affidavit-in-reply of the Education Officer(Primary) of the Pune Zilla Parishad accepts that the the Saraswati Vidyalaya Union PrePrimary and Primary School ( "English medium school") is a separate school and it is contended in paragraph 4 that the said school ought to have been made a Petitioner. In paragraphs 9 and 14 of the reply it is accepted that the English medium school is a separate school. Even the affidavit filed on behalf of the School Board of the Pune Municipal Corporation accepts the fact that the English medium school is a separate school. In paragraph 4 of the reply, a specific contention has been raised that the said English medium school should have been made a party Petitioner. In Paragraph 6 of the reply, there is a reference made to three distinct schools of the Petitioners being a primary school, a high school and junior college as well as a senior college. In the reply, it is not the case made out that the English medium school is not a different school and that it is a part of the secondary school. On the contrary, repeatedly, there is a reference to English medium school by treating the same as a separate school. Exhibit-R3 which is annexed to the said reply is a report submitted by the Assistant Education Head of the School Board to the Education Board. Page 325 of the said reply specifically refers to pre-primary and primary school consisting of classes from LKG to Standard V.

54. We have perused the reply filed by the Respondent No.7. Even in the said reply, a separate existence of the English medium school is not disputed. Apart from the undisputed position which emerges from the reply of the Education Officer and the School Board, there are large number of documents annexed to the Petition to show the existence of the three separate schools. In view of the undisputed factual position, we are not making a reference to large number of documents.

55. Therefore, we will have to consider whether the English Medium School is an unaided minority school. It will be necessary now to make a reference to the impugned communications. It is alleged therein that on the following grounds the school will have to be treated as an aided school.

(i)The schools are receiving salary grants;

(ii)The schools have received amounts under Sarva Shiksha Abhiyan and Mid-day meal scheme;

(iii) The schools have received 20 computers and 2 printers from the funds of a Member of Parliament;

(iv) The schools are using a play-ground made available by the Municipal Corporation.

56. In the subsequent communication/order dated 3rd June 2013 (Exhibit W to the Petition), again it is reiterated that there are pre-primary and primary, high school and junior and senior college sections in the school. The gist of what is stated in the said communication is as under:

(a) The school is receiving Government aid and grants;

(b) The school has received 20 computers and 2 printers from the funds of a Member of Parliament;

(c) A play-ground has been made available to the school by the Municipal Corporation of City of Pune;

(d) A direction is issued to refund the fees of 45 students collected in the year 2013-2014;

(e) Further direction is issued to admit students against 25% quota as per Clause (c) of Sub-section (1) of Section 12 of the Education Act;

(f) Further direction is that separate action will be taken as regards the collection of caution money and running additional division of 4th standard.

57. We must note here that there is not a single document produced on record by any of the Respondents to show that (a) any grants or aid from the State Government or local authority in terms of money have been received by the English medium school; (b) the 20 computers and 2 printers have been received by the English medium school; (c) the municipal play-ground has been made available exclusively to the English medium school of the Petitioners and (d) any amount has been received by the English medium school either under the Sarva Shikshan Abhiyan or under the Mid-day meal scheme.

58. In the reply filed by the 7th Respondent, several documents have been annexed including the audited accounts of the Petitioners. The said audited accounts itself show that there are separate accounts and separate budgets of the English Medium School, the Tamil medium school and the High School. The salary grants and non-salary grants have been received by the High School and not by the English medium school. To the said reply, a letter dated 17th April 1995 addressed by the Assistant Commissioner of Pune Municipal Corporation to the Vice-President of the first Petitioner has been annexed. The said letter itself records that the municipal play-ground will be made available to the first Petitioner only to enable the children to play on it. The letter specifically records that the play-ground was not being given either on the basis of an agreement or on rent. This supports the specific case made out by the Petitioners that the play-ground has not been given to the schools for exclusive use and the schools have no right in respect of the play-ground. It is merely a facility granted. In the reply of the 6th Respondent it is contended that the Municipal Corporation has granted exemption to the school from payment of property tax.

59. In view of the interpretation which we have made, even assuming that what is alleged in the impugned communications which we have summarised in paragraphs 55 and 56 above is correct, the English medium school cannot be an aided school within the meaning of the Education Act. In the impugned communication dated 3rd June 2013, the minority status of the school has been admitted. Therefore, the Education Act is not applicable to the English medium school.

WRIT PETITION NO. 4479 OF 2013

60. Now, we turn to Writ Petition No.4479 of 2013. We have already referred to the facts of the case. The challenge in this Petition is to various communications which we have set out earlier. The main communication is dated 14th/22nd February 2013 issued by the Block Education officer, Panchayat Samiti, Haveli, Pune, to the Head Master of the Bishop's School. The only contention raised in the said communication is that the land on which the school is situated is owned by the Central Government and the said land has been given on lease to the school. In the first affidavit-in-reply filed by Shri Sunil J. Kurhade, In-charge Education Officer (Primary), Pune Zilla Parishad, Pune, it is contended that the land is leased at a nominal rate of Rs.2,400/- per year and the said school has availed the grant-in-aid for construction under the Old Grant Scheme from the State Government. It is accepted that the school is a minority school. Additional affidavit-in-reply of the 3rd Respondent again affirmed by Shri Sunil J. Kurhade is more elaborate. Firstly it is contended that the school at Kalyani Nagar is assessed at a concessional rate for property taxes. The second ground is that the rent is shown to have been received from the said three schools in the audit report of the Bishop's Education Society. The specific stand is that the rent has been received from the schools by the Government. We fail to understand how these facts will show that the schools are aided schools. To the said reply, Exhibit-R1 is the letter addressed by the Inspector of Pune Municipal Corporation to Advocate Shri Nilesh Borade in which it is stated that the school at Kalyani Nagar is assessed at a concessional rate for the property taxes from 1st July 2004. When we made a specific query to the learned counsel appearing for the 3rd Respondent as to whether the said rate has been applied by the Pune Municipal Corporation to the schools run by all the public trusts, he fairly stated that the said rate is made applicable to all the schools run by the public trusts.

61. In any event, there is no material placed on record to show that any of the three schools are receiving any aid or grants from the Appropriate Government for meeting expenditure. There is no material placed on record to show that the lease has been granted by the Cantonment Board at a concessional rate. We may note here that a copy of the Building Lease dated 24th March 1970 was tendered on record does not show that any concession has been granted to the school in the matter of payment of rent. We have already held that even if the Appropriate Government or a local authority makes a land available to a school at a concessional rate that will not amount to aid or grants. Therefore, even in this Writ Petition, the schools will have to be held to be unaided minority educational schools. Therefore, this Petition must succeed.

WRIT PETITION NO.7505 OF 2013

62. Now we turn to Writ Petition No.7505 of 2013. The challenge therein is to the Government Resolution dated 13th February 2013 as well as to the communication dated 31st July 2013 issued by the Education Officer (Primary) to Shri V.D.Jarad and Others. It is contended in the communication dated 31st July 2013 that the provisions of the Education Act are applicable to the 4th Petitioner school. It alleged in the communication that the said school has not submitted the minority certificate. Various other irregularities have been alleged and a direction has been given to make inquiry and submit a report. The said communication cannot be said to be adverse to the Petitioners. In any case, it only directs an in-depth inquiry and sub-mission of a report.

63. In the Petition, it is contended that the 4th Petitioner is a minority school. We have already held that the provisions of the Education Act and in particular Section 12 thereof are not applicable to the unaided minority schools. We find that a minority certificate of the 4th Petitioner has not been annexed to the Petition. It is, therefore, for the Petitioners to satisfy the concerned authority that the 4th Petitioner is a minority unaided school. Therefore, it is not necessary to issue any writ in this Petition.

WRIT PETITION STAMP NO. 27990 OF 2013

64. Now, we turn to Writ Petition Stamp No.27990 of 2013. This Petition has been filed by the Petitioner, who claims that he secured admission for his son in the Bishop's school at Pune. It is stated that the Petitioner deposited the fees on 23rd March 2013. However, the Petitioner's son is not allowed to continue and sit in the class. It is contended that 25% seats, out of the total seats are vacant. But the Petitioner's son was prevented from attending the class.

65. We must note here that in Writ Petition No.4479 of 2013 filed by the said school, under the ad-in-terim order dated 15th May 2013, the Petitioners were permitted to fill up only 75% seats. Perhaps, that is the reason why the Petitioner's son was not allowed to continue the class. We have held that Clause (c) of Sub-section (1) of Section 12 of the Education Act is not applicable to the said school. Therefore, it is not necessary to pass a separate order in this Writ Petition.

66. Some of the parents and the interveners have contended that as a result of the ad-in-terim orders of this Court which permitted admissions only to the extent of 75% seats, some of the students who were admitted in the schools, could not pursue their studies. We make it clear that as a substantial part of the academic year is over, it is not possible for us to issue a direction at this stage to allow the children to join the schools against remaining 25% seats. It is for the school authorities to consider whether they can be accommodated in the next academic year.

67. Hence, we dispose of the Petitions by passing the following order:

ORDER :

(a) In view of the conclusions in Paragraph 46 above, we uphold the case made out by the Petitioners that (i) St. Mary's School, Pune; (ii) Bishop's School, Camp, Pune; (iii) Bishop's Co-Ed School, Kalyani Nagar, Pune; (iv) Bishop's Co-Ed School, Undri, Pune; and (v) Saraswati Vidyalaya Union Pre-primary and Primary School (English Medium), Pune are unaided minority schools to which the provisions of clause (c) of sub-section (1) of section 12 of the Right of Children to Free and Compulsory Education Act, 2009 are not applicable;

(b) All orders/communications holding to the contrary are quashed and set aside.

(c) We direct that the Petitioners in Writ Petition No.6710 of 2013 shall refund fees of 45 students (admitted in the Academic Year 2012-2013) received for the current academic year. The refund shall be made within two months from today;

(d) Writ Petition Nos.5576 of 2013, 4479 of 2013 and 6710 of 2013 are allowed on above terms subject to what we have observed in Paragraph 66 above;

(e) Writ Petition No.7505 of 2013 and Writ Petition Stamp No.27990 of 2013 are disposed of in terms of Paragraphs 62 to 65 above;

(f) All pending Civil Applications stand disposed of;

(g) There will be no order as to costs.

Ordered accordingly.