SCA/11429/1994 of VIKLANG SAHAKAR VIDHALAYA Vs DISTRICT EDUCATION OFFICER on 5 December 1995

ORAL JUDGMENT:

��Heard the learned counsel for the parties. Thepetitioner is challenging by way of this writ petition theorder dated 29-6-1993 annexure-B passed by the GujaratSecondary Education Board, and the order of respondent No.4dated 30th March,1994 passed in Appeal filed by thepetitioner against the aforesaid order. In the writpetition, the petitioner has not correctly impleaded theparties. The petitioner is Vikalang Sahakar Vidyalaya whichcannot be said to be, nor is it the case of the petitioner,a legal entity. From the facts which have been stated inthe writ petition as well as from the title of the writpetition, it appears that Vikalang Sahakar Vidyalaya is aneducational institution for handicaped persons, which iscontrolled, managed and run by Navdeep Education Trust,Khedabrahma, District Sabarkantha. The petition should havebeen filed by the Trust through its managing trustee. It isnot the case of the petitioner that Vikalang SahakarVidyalaya which is not a legal entity could have applied forregistration for secondary school for the handicapedpersons. The trust is running a primary school forhandicaped children at Khedabrahma, District Sabarkantha.The Trust had applied for registration for startingsecondary school for handicapped persons to the SocialWelfare Department of the State of Gujarat. The SocialWelfare Department of the State of Gujarat informed theTrust that it has no jurisdiction in the matter of grant ofregistration.

2. On 29th August, 1992 the Trust submitted applicationbefore the Gujarat Secondary Education Board for grant ofregistration for secondary school. The application of thetrust aforesaid has been rejected by the Board vide itsorder at annexure-D dated 29th June, 1993. Englishtranslation of the order of the Gujarat Secondary EducationBoard dated 29th June, 199.R

petitioner. From the order of the Board aforesaid, it givesout that the proposals of the trust for registration of thesecondary school was considered by the Committee vide its resolution dated 16-6-1993 and the Committee has declined togrant registration for secondary section to the Trust on thefollowing three grounds:

"1. As per bye-law 9(12)91)(2), facility of the building is not available there.

2. As per Bye-law 9(7)(1), documentary

evidence in support of the financial

stability have not been produced.

3. As per Bye-law 9(15), the necessity is not established/justified."

This decision of the Committee has been communicated to thepetitioner vide letter annexure-B dated 29th June, 1993.The Trust, dissatisfied with the order of the Board filedappeal before the appellate authority. The appellateauthority has afforded full opportunity of hearing to thepetitioner. The appellate authority, after hearing therepresentatives of the trust, approved the resolution of theCommittee of the Board declining registration of secondaryschool to the Trust. The appellate authority has given fourreasons for confirming the decision of the Board. Theappellate authority held that in the primary school, uponvisit made, the strength of the students was found asfollows:

Standard I to IV .. 11 students

Standard V .. 5 students

Standard VI .. 5 students

Standard VII .. 6 students.

Taking into consideration the strength of the students inthe school, the appellate authority did not consider therequest of the Trust for registration of the secondaryschool for disabled persons to be reasonable. Sitting underArticle 226 of the Constitution of India I do not find anyillegality or irregularity or any travesty in the approachof the appellate authority.

3. Learned counsel for the petitioner contended that when the inspection of the school was made there waswholesale absenteeism. About eighty students had gone toattend polio camp at Ahmedabad, four students were sick andthey were taking rest in the hospital. It has beencontended that otherwise the total strength of students inthe school is more than 120. I do not find any substance inthe contention of the learned counsel for the petitioner.The petitioner has not produced any record either before theappellate authority or even before this Court to show that the strength of the students in the primary school run bythe Trust was more than 120. Mere assertion of thepetitioner without there being any supporting evidence,cannot be relied upon and given effect.

4. In para 10 of the petition though the petitioner has made averments about the strength of the students, but thoseaverments do not inspire any confidence. In the affidavitwhich has been filed by the petitioner in support of thewrit petition, averments made in para 10 have been verifiedon the basis of the deponent's own knowledge and to the bestof information which he obtained from the annexures to thepetition and other relevant records and reliable sources andhe believed the same to be true. Such verification offactual averments cannot be accepted. The deponent, as perhis verification, derived knowledge of these facts orinformation from the annexures to the petition. But none ofthe annexures contained any evidence regarding the strengthof the students in the school. How many students are therein the school, could be established by producing theattendance register as well as the returns which are beingfiled or some other declarations made before the authoritygranting registration to the primary section,and thepetitioner could have produced the documentary evidence, vizcash book, fees receipt books, number of teachers, theirattendance register and their salary receipts, etc., Withoutproducing such evidence, the petitioner felt satisfied bymaking averments, though on affidavit, and that affidavit,as stated earlier, is not an affidavit worth relying. Thedeponent himself has not firmed on the strength of thestudents of the school, otherwise he would not have verifiedthe averments made in para 10 on the basis of personalknowledge and not on information derived from the annexureto the petition or the relevant records.

Conclusion

5. Inspection of the school has been made, as it comesout from the writ petition, by an officer of the status ofDistrict Education Officer. From the averments which havebeen made in para 10 of the writ petition, the inspectionhas been made by the officer during school hours. Thepetitioner at no point of time had challenged the inspectionreport of the District Education Officer. In view of thesefacts the appellate authority was perfectly justified totake into consideration the report of the District EducationOfficer and giving finding of fact that the strength of thestudents in the primary school was only 27 students. Thisfinding of fact recorded by the appellate authority does notsuffer from any infirmity, which warrants any interferenceby this Court under Article 226 of the Constitution ofIndia.

6. The second ground that the petitioner has notfurnished 'no objection letter' of other secondary schoolssituated within 10 k.m. area is also a relevantconsideration and that the counsel for the petitioner hasconceded that no such 'no objection letter' has beenproduced. But he contended that 'no objection' could nothave been possibly taken from the school in question and assuch this ground is nothing but an extraneous consideration.I fail to see any substance in this contention. It is truethat the other institutions will not give 'no objection' tothe petitioner or the trust on its asking, but the trust hasnot made any attempt to seek such 'no objection' from thesaid institutions. The petitioner should have asked for 'noobjection' from the other institution, though giving 'noobjection letter' by such such institutions may not bewithin the power or control of the petitioner. Then theauthority would have considered the matter and might havecalled for the information. But unless such exercise isundertaken by the petitioner, it was not for the authoritiesto call for such information from other institutions.

7. The third ground which has been given by the appellate authority has also much substance and merits. Theappellate authority, after taking into consideration thestrength of the students in primary section has rightlyreached to the conclusion that the necessary strength ofstudents is not likely to be there for secondary school.Yet another ground has been given by the appellateauthority, that the building kept by the Trust for theschool is not having the rooms of adequate space. Theappellate authority has recorded a finding of fact that therooms are of the size 7' x 7'. These findings of fact couldnot be successfully challenged by the petitioner. Thepetitioner has not produced any cogent and satisfactoryevidence regarding suiitabiility of building for thesecondary school. The building which consists of rooms ofthe area 7' x 7' can hardly be said to be fit or adequate torun a secondary school.

8. Learned counsel for the petitioner has argued thatthe authority has taken into consideration extraneousfactors for passing the order. The learned counsel for thepetitioner submitted that the appellate authority hasrejected the appeal on the ground that the school has notstarted standard VIII. Learned counsel for the petitionersubmitted that without registration the trust could not havestarted standard VIII, otherwise the trust would have beenliable for penal consequences. Though the appellateauthority has taken into consideration that the managementhas not started classes of standard VIII, but it is not theonly ground on which the appeal of the petitioner has been

dismissed. In all five grounds have been given out by theappellate authority. The Board has given out three groundsin support of its order. So even if this ground is takenout, or held to be not available, then too, the othergrounds as stated above are sufficient to maintain the orderof both the authorities. The Board has recordedcategorically a finding that necessity of secondary schoolfor handicapped persons has not been established, andlooking to the strength of the students in primary sectionthat finding cannot be said to be arbitrary. Apart fromthis, when there are in all only 27 students in the primarysection and it is not the case of the petitioner that thereis no other primary school available in the near vicinity,the necessity for secondary school has rightly been held tobe not there. The students of the primary school run by thepetitioner trust can be given admission in other secondaryschools.

9. Much emphasis has been placed by the learned counselfor the petitioner on the face that the appellate authorityas well as the Board has committed serious illegality inholding that the trust has no financial stability. Beforethe appellate authority the petitioner has given out thatthere is balance of Rs.5,01,310.93 ps in the DenaBank,Khedabrahma Branch, and as such it cannot be said thatthe trust has no financial stability. If it is a fact, thenthe trust may have financial stability, but the other threegrounds which have been given by the appellate authority andthe grounds which have been given by the Board are relevantand material to the question of grant of registration and onthe basis of these grounds if both the authorities havedeclined to grant registration, it cannot be said to be acase which warrants interference by this court in thematter. Even after excluding the aforesaid grounds, theorder is sustainable on the other grounds given andaccordingly they are sustained.

10. In the result this writ petition fails and the sameis dismissed, with no order as to costs.

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