SANT DNYANESHWAR SHIKSHAN SANSTHA AND ANR. versus STATE OF MAHARASHTRA AND ORS. on 5 March 2019

1. These appeals by special leave challenge the correctness ofthe judgment and order dated 22.10.2013 passed by the High Court ofJudicature at Bombay, Bench at Aurangabad in Writ Petition Nos.6537Bof 2012 and 3728 of 2012 respectively.

2. A Primary Ashram School was being run by BanjaraMagasvargiya Shikshan Prasarak Mandal in the name of PrabodhankarThakare Prathmik Ashram Shala, Talegaon Tanda, Taluka-Chasligaon,Distt-Jalgaon. Around 2009 certain irregularities and deficiencies havingCbeen found, a report was submitted to the Director of VJNT, OBC,Social Welfare of Special Backward Class, Pune. Consequently, therecognition granted to said Ashram Shala came to be withdrawn on23.08.2010 for not taking corrective steps with regard to deficientinfrastructural facilities. By the same order the students of said AshramDShala were directed to be absorbed in nearby Ashram Schools.

3. By subsequent order dated 15.12.2010 passed by the Director,permission/no objection was given to absorb the employees of saidAshram Shala in other Primary Ashram Schools recognized by theGovernment. In a tabulated chart, the order noted the names of PrimaryEAshram Schools where each of those employees was to be absorbedand directed the employees to report within seven days. The employeesat Sl.Nos.10,11 and 12 were temporarily adjusted in the office of SpecialDistrict Welfare Officer and after review of vacant posts in the division,the adjustment of said employees was to be undertaken. In partialFmodification of the aforesaid order, an order was passed on 18.06.2011making revised postings of the employees.

4. Thereafter, on 02.01.2012 a Resolution was passed byGovernment of Maharashtra, Department of Social Justice and SpecialAssistance accepting proposal of handing over said Ashram Shala toGanother entity named Sant Dnyaneshwar Shikshan Sanstha, Islampur,Taluka Walava, District Sangli (appellant in Civil Appeal No.9384 and9385 of 2014). Under the Resolution the entire Ashram Shala which hadbeen closed down was to be transferred to a place at a distance of400 kms. The relevant portion of the Resolution was as under:- H

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“Govt. Resolution :- The proposal of handing over closed downAshram School named as the Prabodhankar Thakare PrimaryAshram School run and govern by the Banjara BackwardEducation Society, At Talegaon Tanda, Taluka Chalisgaon to theDnyaneshwar Education Society, Islampur, Taluka Walava, DistrictSangli and transfer at the Punyashlok Ahilyadevi Holkar PrimaryAshram School, Choundi, Taluka Jamkhed, District Ahmed Nagaris approved subject to following terms and conditions:

1. The currently serving approved Teaching/Non-Teachingemployees of closed down Ashram School shall be absorbed.

2. The Resident Students of the closed down Ashram School shallbe shifted in new society.

3. The Orders, Terms and Conditions time to time issued by theGovernment shall be binding upon the society.”

5. The employees of erstwhile Ashram Shala which was closeddown and who were absorbed in various posts as stated above challengedthe Resolution dated 02.01.2012 and communication issued to each ofthose employees on 06.04.2012 to report at the new place, by filing WritPetition No. 3728 of 2012 before the High Court. On 24.04.2012 theeffect of communication dated 06.04.2012 was stayed by the High Court.Despite the order of stay, a communication was issued by the AssistantCommissioner, Social Welfare Department to various schools where theemployees were actually absorbed to relieve them. It is a matter ofrecord that since April, 2012 the employees have not received anypayment towards salary or emoluments.

6. The challenge raised by the employees was accepted by theHigh Court. The High Court considered Government Resolution dated01.08.2007 dealing with the subject “The conditions for transfer ofPrimary and Secondary Residential Schools” and found that saidResolution dated 01.08.2007 did not make any reference to transfer of aderecognized or closed school. It further found that none of the termsand conditions as stipulated in said Resolution dated 01.08.2007 weresatisfied in the present case. It was observed that the recognitionaccorded to an Ashram School was being considered as if it was abusiness licence. The High Court held that the transfer was not precededby any circulation about intention to transfer, which would have enabled AB

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Aother institutions to explore possibility of putting in their claims. The HighCourt also relied upon the decision of the Division Bench of the sameHigh Court rendered in Jeevanjyoti Krida and Shikshan PrasarakMandal vs. State of Maharashtra and ors.[1] .

Allowing the Writ Petition the High Court quashed GovernmentResolution dated 02.01.2012 and directed the State authorities to releaseBthe salaries of the employees regularly with further direction to issue tosaid employees proper absorption orders in the schools nearer to thederecognized Ashram Shala or allow them to continue at the places ofabsorption according to the position prior to 02.01.2012.

C7. The aforesaid decision of the High Court is presently underchallenge by appellant in C.A. Nos.9384 and 9385 of 2014 (‘appellant’for short). While issuing notice on 17.12.2013, this Court had directedthat the school run by the appellant in terms of Resolution dated 02.01.2012would continue to run and would not be directed to be closed down tillfurther orders. Consequently, the school is still being run by the appellant.DChallenge has also been raised by State of Mahrashtra by filing CivilAppeal Nos. 9673-9674 of 2014 against the very same judgment of theHigh Court. According to the State, the Resolution dated 02.01.2012was perfectly within the competence of the State and was a properexercise of power.

E8. We have heard Mr. Sudhanshu S. Choudhari, learned Advocatefor the appellant in Civil Appeal Nos.9384 and 9385 of 2014, Mr. ArunR. Pednekar, learned Advocate for the State in Civil Appeal Nos. 9673-9674 of 2014 and Mr. Vinay Navre, learned Advocate for the employees.

9. The Government Resolution dated 01.08.2007 dealt with certainFconditions under which transfer of employees of primary and secondaryresidential schools could be permitted. Those conditions were as under:- “1. The government may permit or consider another option togrant other place to the Ashram run by the institute if the populationis enough and the plan has been granted by the government, andGconsidering all the facilities of that Ashram.2. The location from where the Ashram is functioning and itsundertakings and if there is a necessity to requisite that land orthere is any danger of earthquake flood natural calamity or H12012(6) Mahrashtra Law Journal (Mh.L.J) page no. 836

3. If the population of the place where the Sanstha is located is byany reason lessened or moved to some other place/village and ifthe population becomes less than 50% or

4. If there is any scarcity of basic needs such as availability ofland, water, electricity or any other tension such as communaltension and or if that place is not safe for there is occurrence oftension frequently, within the area of 10 k.m., the Director of thatDivision of the government can permit to start the functioning ofthe Sanstha if there is all the required facilities.

5. The permission can be sought by the director of the publicwelfare (local) authority to shift the location of the Sanstha withinthe area of 10 km. if the basic facilities such as water, electricity,ground, building are available at that place.

6. If there is an application from the Sanstha or if it faces theproblems as mentioned in para 1 such as lack of basic necessities,or the population of children is reduced or the place has gone intoGovernment requisition plan etc. then in that case the govt.authority can consider the permission to shift the place of theSanshtha.

7. The authority will have the power to grant the permission underextraordinary conditions or situations.

8. If the grant has not been given to any Sanstha once it hasshifted its base, the responsibility of the payment of salaries of theteachers and staff shall be wholly on the Sanstha itself.

9. If the location of the Sanstha (Organisation) is changed withoutseeking the permission of the authority then in that case it will beheld illegal and for that the Govt. authority will not be responsiblefor any query which may be raised on issues such as staff,immovable property population of the children. And the permissiongiven to that organization will stand cancelled. The govt. authoritywill have the right and power to hand over the functions of theSanstha to some other Sanstha/Organization.”

10. In Jeevanjyoti[1]almost similar fact situation came up forconsideration before the High Court where transfer of recognition, afterderecognition of an existing Ashram School, was effected and the distancebetween two places was about 600 kms. After considering the issues A

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Ainvolved, the High Court held that once an existing Ashram School wasderecognized there would be no occasion to handover that recognitionto another Ashram School. The relevant portion of the decision of theHigh Court was as under:-

“………Evidently since a policy decision has been taken by theBGovernment in 2006 not to allow new Ashram Schools, this wasan attempt to get around that decision ostensibly by handing overthe recognition of a derecognized school to another NGO. Oncean existing Ashram School was derecognized, there would be nooccasion to handover that recognition to another Ashram School.If as a result of the derecognition of an Ashram School theCGovernment is in a position to fund some other institution elsewherein the State of Maharashtra, that is a completely separate andindependent decision, in arriving at which a transparent decisionmaking process must be followed. Recognition is not like a licenceto enter on a business which can be transferred. Once recognitionDgranted to a school is withdrawn, that original recognition ceasesto exist in law and in fact. There is no occasion then to ‘transfer’the erstwhile recognition to another institution.

… … …

12. Ordinarily, we would have been inclined to set aside theGovernment Resolution dated 30 August, 2011 at this stage, havingregard to the illegality in purportedly transferring the recognitionof a derecognized primary Ashram School to the FourthRespondent and the absence of a transparent procedure, evenassuming that this was permissible. However, the Court cannotnow be unmindful of the factual position on the ground which isthat 120 students have been admitted during the current academicyear to the Fourth Respondent which is a residential primaryAshram School. These students who belong to the reservedcategory would now be left in a state of uncertainty if theGovernment Resolution dated 30 August, 2011 is set aide andtheir education would be liable to suffer. In this view of the matter,we are now taking recourse to the step of quashing and settingaside the Government Resolution dated 30 August, 2011,particularly having regard to the fair attitude shown by Counselappearing on behalf of the Petitioner that even the Petitioner wouldnot seek such an extreme direction at this stage having regard to E

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the aforesaid circumstances. We are, however, of the view thathenceforth the State Government must frame appropriateguidelines, procedures or, as the case may be, rules and regulationslaying down the procedure for considering requests for transfersof managements of Ashram Schools falling within the jurisdictionboth of Tribal Development Department and the Social JusticeDepartment. Until the State Government does so, we are of theview that direction should be issued by the Court to obviate anarbitrary exercise of power. The directions which we issue wouldbe as follows:

(i) When a change in the management of an aided AshramSchool is contemplated, the State Government shall issue andpublish a notice in two prominent newspapers in the concernedarea and on the website of the Department inviting applicationsfrom interested organisations including NGOs for conducting theAshram School. The Government shall simultaneously invitesuggestions from all stakeholders in including parents, citizens andthe teaching and non-teaching staff who may be affected by thetransfer of a management;

(ii) The Director (VJNT) or, as the case may be, the Director(Tribal Development) shall hold an enquiry in regard to the reasonsfor a proposed change in management. The concerned DistrictSocial Welfare Officer shall submit a report to the Director(VJNT) or, as the case may be, the Director (Tribal Development)before a final decision is taken. The track record and credentialsof the proposed transferee management(s) shall be dulyconsidered;

(iii) After objections are heard, the Director (VJNT) or, as thecase may be, the Director (Tribal Development) shall pass areasoned order. The actual transfer or change in managementshall be given effect to thirty days after the publication of thepassing of the order in the same mode of publication as indicatedearlier and it should preferably be from the commencement ofthe new academic session, unless for exceptional reasons itbecomes necessary to exercise the power during the academicyear to prevent a disruption of the education of the children.”

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A11. The decision in Jeevanjyoti[1]was rendered on 11.09.2012 i.e.after the Government Resolution dated 02.01.2012. However, saiddecision was never challenged by the State. On the other hand, aGovernment Resolution was issued on 19.12.2016 laying down policyfor transfer of recognition of an Ashram Shala in a fair and transparentmanner, in terms of said decision in Jeevanjyoti[1]. In the face of suchBstand by the Government, the submission raised by Mr. Navre, learnedadvocate that the appeal preferred by the State Government against thedecision which had followed the decision in Jeevanjyoti[1]may not beentertained, has some force.

12. In any case, we have gone through the record and considered rivalCsubmissions. The way the issue of transfer was dealt with by the StateGovernment, the criticism levelled by the High Court was fully justified.The permission to an Ashram Shala was taken as if it was a businesslicence which could be utilized at any place. In terms of GovernmentResolution dated 01.08.2007, the applications for transfer would normally Dbe considered within a distance of 10 kms. In the present case, thedistance itself is 400 kms. and for a Primary Ashram Shala it would notbe proper to expect the children enrolled in the Ashram Shala to betransferred to a new place. Further, there was no school in existence atthe place where the transfer was effected and an entity that was basedin a completely different district was allowed to set up a new AshramEShala. In our view, the High Court was right in rejecting the submissionsadvanced on behalf of the appellant as well as the State Government.We, therefore, affirm the view and dismiss these appeals.

13. However, we deem it appropriate to pass following directions:-

a) Considering the facts and circumstances that the studentsFpresently enrolled in the Ashram school run by the appellant wouldbe put to great prejudice if the school is to be closed as a result ofdismissal of these appeals, it is directed that said school maycontinue till the academic session 2019-2020. However, the schoolof the appellant which is presently functioning by virtue ofResolution dated 02.01.2012 shall not be allowed to function fromGthe academic session 2020-2021.

b) The State authorities are directed to invite proposals strictly interms of the directions issued by the High Court in Jeevanjyoti[1]from interested parties/societies to set up a new school or conductthe very same school which was closed down. Preference shallH

be given to those who wish to re-start or set up a new AshramSchool at a location in conformity with Resolution dated 01.08.2007.If no such proposal is received or is not found viable, then interms of the decision in Jeevanjyoti[1]and for exceptional reasonsto be recorded, permission may be given to start a new AshramShala at a location beyond the limits prescribed under saidResolution dated 01.08.2007. In either case, there shall be adequatepublicity and steps will be undertaken in conformity with thedecision in Jeevanjyoti[1].

c) The employees who are presently transferred to the school ofthe appellant shall always be treated to be in continuous serviceand the entire period from 02.01.2012, right upto the date of thisjudgment, shall be taken to be part of continuous service.

d) All those employees, till the conclusion of academic session2019-2020 shall be part of the school presently being run by theappellant. Contemporaneous with the closure of said school interms of direction (a), the services of the employees shall bedirected to be absorbed in any school wherever there arevacancies, or to the school which, as a result of the aforesaiddirection would either be re-started or newly set up.

e) The employees shall be entitled to salary and emoluments forthe period that they had rendered service. For the period theycould not/did not render service, the employees shall be entitled to25% of back-wages.

(f) All the arrears of salary and emoluments shall be released bythe State Government to the employees within six weeks fromtoday.

14. With the aforesaid directions these appeals stand dismissedwithout any order as to costs.

Kalpana K. Tripathy

Appeals dismissed.

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