COMMITTEE OF MANAGEMENT VIDYARTHI UCHCHTAR MADHYAMIK VIDYLAYA JAGDISHPUR BARDHIHA KUSHI NAGAR Vs. STATE OF U P

JUDGEMENT

(1.) PRESENT writ petition has been filed by the Committee of Management, Vidyarthi Uchchtar Madhyamik Vidylaya, Jagdishpur Bardhiha, Kushi Nagar, through its Manager Sri Jagdish Prasad Pandey, questioning the validity of decision dated 21.11.2007 taken by the State Government, refusing to bring the attached primary Section of the institution within the scope and ambit of U.P. Act No.24 of 1971. Brief background of the case is that there is an institution known as Vidyarthi Uchchtar Madhyamki Vidylaya, Jagdishpur Bardhiha, Kushi Nagar, which, as per the petitioners, was established in 1969 as Junior High School with temporary recognition and further petitioner claims that it was accorded permanent recognition on 29.06.1972. Petitioners submit that on the same day i.e. 29.06.1972, District Inspector of School also granted recognition to primary section and passed order of its attachment with Junior High School. Petitioners submit that the said Junior High School was upgraded to the level of High School, and the State Government had decided to take primary sections attached to High School within the purview of U.P. Act No. 24 of 1971. The petitioners submit that on 21.12.1989, District Inspector of Schools recommended for inclusion of the petitioners' institution in the list of institutions to whom protection of U.P. Act No. 24 of 1971 was given. Contention of petitioners is that their institution was not included in the list of 393 primary sections attached to Intermediate Colleges. Petitioners have stated that against such an arbitrary action of the State Government, they filed writ petition No.50413 of 2002, and this Court at the said juncture had asked the Director of Education to look into the matter. Petitioners submit that thereafter, matter was represented, but the claim of petitioners was rejected by the Director of Education on 05.06.2003. Against the order dated 05.06.2003, petitioners preferred writ petition No.25827 of 2003, wherein this Court on 09.03.2006 quashed the order dated 05.06.2003 and asked the authority concerned to reconsider the matter. Petitioners submit that thereafter, they represented the matter on 15.04.2006, and again the claim was rejected on 21.07.2006. Petitioners, thereafter, again filed writ petition No.47043 of 2006, and this Court allowed the writ petition on 03.09.2007 by directing the State Government to reconsider the claim of petitioners' institution. Petitioners submit that thereafter, again matter has been rejected. At this juncture, present writ petition has been filed. Counter affidavit has been filed and therein plea has been sought to be taken that the claim of the petitioners is based on fictitious document and further the petitioners are not entitled to the benefit of Government Order dated 06.09.1999, as such no relief can be accorded to the petitioners. Rejoinder affidavit has been filed disputing the averments made in the counter affidavit and reiterating those made in the writ petition. After pleadings mentioned above have been exchanged inter se parties, present writ petition has been taken up for final hearing and disposal with the consent of the parties. Sri R.C. Dwivedi, learned counsel for the petitioners, contended with vehemence that in the present case impugned order in question is based on report of the District Inspector of Schools dated 22.10.2007 and based on the said report totally unwarranted presumptions have been drawn that the petitioners' claim is based on fraud and manipulation, and as such in this background, it has been requested that the decision making process is faulty and writ petition deserves to be allowed. Countering the said submission, learned Standing Counsel, on the other hand, contended that the terms and conditions for inclusion of attached primary section within the purview of U.P. Act No.24 of 1971 was not at all fulfilled and qua this aspect of the matter enquiry had been conducted and the petitioners had been afforded full opportunity and thereafter positive conclusions have been drawn, which are supported by the documentary evidence, as such no interference be made. After respective arguments have been advanced, factual position which emerges in the present case is that the State Government has taken policy decision on 06.09.1989 to bring attached primary sections of the recognised institutions run by Madhyamik Shiksha Parishad, U.P. at Allahabad within the scope and ambit of U.P. Act No. 24 of 1971, and the terms and conditions provided therein were: (i) only such attached primary sections were to be brought within the scope and ambit of U.P. Act No. 6 of 1971, who were granted recognition prior to 21.06.1973 and had been continuously running; (ii) institutions being accepted as attached primary section must have been receiving reimbursement grant; (iii) name of attached primary school should be within the ceiling list.; (iv) Recognition to class I to VIII must be accorded by the District Inspector of Schools, school land, building and the Principal should be one; (v) Students of class V are being accorded admission to class VI without any transfer certificate. In order to see as to whether all these terms and conditions were fulfilled or not, the relevant records and comments were called for from the District Inspector of Schools by the State Government. At the point of time when State Government proceeded to take decision as directed by this Court, comments dated 22.10.207 sent by the District Inspector of Schools were placed before it, Sri Jagdish Prasad, the Manager of the institution was heard in the matter. The Joint Director of Education and the District Inspector of Schools also participated in the hearing. The petitioners have made categorical statement of fact in paragraph 32 of the writ petition that on the date of hearing on 23.10.2007, the District Inspector of Schools, Kushi Nagar, did not submit his comments dated 22.10.2007 and further it was also requested that in case some documents or comments are filed, then same might be supplied. Said specific statement of fact mentioned in paragraph 32 of the writ petition has been dealt with in paragraph 25 of the counter affidavit, and it proceeds to mention that District Inspector of Schools had given copy of the report, which was as per the law and the matter had been disposed of accordingly. Thus, this is admitted position that the decision is based on the comments submitted by the District Inspector of Schools, but copy of the same was not supplied to the petitioners. Counsel for petitioner has placed reliance on the judgment of Hon'ble Apex Court, in the case of K. Vijailaxmi vs. Union of India, 1998 (4) SCC 37 for the proposition that document based on which conclusion came to be reached having not been supplied, decision cannot be sustained. Said proposition is not disputed, but the larger question is that if the copy of the comments had not been supplied what prejudice had been caused to the petitioners, when factual averments mentioned were based on record. Had the impugned order been based mainly on the ground that manipulations were made in the record, the matter would been remanded back, but here categorical mention has been made that at no point of time institution was ever shown in the ceiling list and at no point of time any reimbursement grant had been paid to the petitioners ' institution, which are condition precedent for including institution in grant-in-aid list of the State Government. In the entire body of writ petition this factual fact has not been questioned and in fact, it has been accepted to be true statement of fact recorded by the State Government on query being made. Once admitted position is that the terms and conditions of the Government Order dated 06.09.1989 are not fulfilled and said statement of fact has been mentioned in the order, then what prejudice has been caused to the petitioners on account of non supply of the comments, the petitioners have miserably failed to establish and substantiate their case before this Court. Principle of natural justice cannot be said to be a fixed straight jacket formula; same depends on the facts of each case. Once attached primary section was not shown in the ceiling limit and at no point of time reimbursement grant was given, then on this admitted position, the case of petitioners would not improve by providing opportunity of hearing and remanding the matter back and that would serve no purpose and would be exercise in futility. The authorities concerned have clearly and categorically given finding as to why judgment in writ petition No.6241 of 1992 was not applicable. In this background, once the terms and conditions for inclusion of attached primary section in the grant-in-aid list of the State Government to bring the same within the scope and ambit of U.P. Act No.24 of 1971 was not at all fulfilled, then on admitted position no reprieve can be granted Consequently, writ petition fails and the same is dismissed.