JYOTIRLING EDUCATION SOCIETY Vs. JAI HANUMAN SHIKSHAN SANSTHA

JUDGEMENT

(1.) Rule; with the consent of Counsel for the parties returnable forthwith. With the consent of Counsel and at their request the Petition is taken up for hearing and final disposal. The challenge in these proceedings is to an order dated 25 October 2010 passed by the Deputy Director of Education, Kolhapur Division, Kolhapur, by which the management of a Secondary School has been transferred from the Jyotirling Education Society (represented by the First Petitioner) to the Jai Hanuman Shikshan Sanstha (the First Respondent). The contention of the Petitioners is that the transfer has taken place in a manner contrary to the provisions of Clause 12 of the Secondary School Code. Petitioner Nos.2 to 4 are trustees of the First Petitioner. The Second Respondent and the Third Respondent are respectively, the President and the Vice President of the First Petitioner Trust. According to the Petitioners, the First Petitioner applied on 10 September 2007 for an increase in the number of divisions of the School. On 17 September 2007, the Deputy Director of Education sanctioned additional divisions for the 9 th and 10 th Standards subject to certain conditions stated in his order. Respondent Nos.2 to 4 are stated to have filed a proposal seeking permission for the transfer of the management of the School conducted by the First Petitioner to the First Respondent. The Fifth Respondent initially raised as many as 15 objections/requisitions and called for an enquiry on the part of the Education Officer (Secondary). The Education Officer (Secondary), Zilla Parishad, Kolhapur recommended the transfer of the management of the School on 2 November 2008. On receipt of the report, the Deputy Director of Education, issued a letter on 16 December 2008 adverting to certain deficiencies in the proposal. On 21 July 2009, the First Petitioner filed a complaint to the Deputy Director of Education, seeking an enquiry in regard to the proposal of the transfer of management. On 22 July 2009, the Deputy Director of Education communicated certain deficiencies in the proposal. The Petitioners also filed a complaint with the Charity Commissioner on 2 December 2009 and objected before the Deputy Director of Education against sanctioning of the proposal for transfer. On 18 December 2009, the Deputy Director of Education, in response to the complaint filed by the Petitioners called upon the Education Officer (Secondary) to hold an enquiry into the complaint. The impugned order was passed by the Deputy Director of Education on 25 October 2010, providing for the transfer of the management of the School.

(2.) Counsel appearing on behalf of the Petitioners submitted that in a judgment of a Division Bench of this Court delivered on 17 February 2011, (Jeejau Shikshan Sanstha vs. State of Maharashtra, Writ Petition 1261 of 2010 decided by the Division Bench at Nagpur) guidelines have been laid down in order to regulate the grant of permissions for transfer of management of Secondary Schools. Counsel submitted that the Deputy Education Inspector in the office of the Deputy Director of Education has filed an affidavit dated 8 November 2011 expressly acknowledging that the guidelines laid down by this Court have not been followed by the office of the Deputy Director of Education while issuing the impugned order dated 25 October 2010. Counsel appearing on behalf of the Petitioners submitted that though the judgment of this Court has been rendered after the impugned order was passed, the judgment only makes explicit what is inherent in the power conferred by Clause 12 of the Secondary School Code. It has been urged that the Petitioners were not afforded an opportunity of being heard before the impugned order was passed, though at various stages the Petitioners have lodged complaints before the Deputy Director of Education and in fact, in pursuance of those complaints, the Education Officer was called upon to enquire into the matter. Counsel submitted that the office of the Charity Commissioner has, in response to a query under the Right to Information Act, 2005, recorded that no permission has been granted for the transfer of the School under Section 36 of the Bombay Public Trust Act, 1950. Moreover, it has been submitted that there was no basis in the contention of Respondent Nos.2 to 4 that the school faced financial stringency. According to the Petitioners, the signatures of Petitioner Nos.1 and 3 on the resolution, authorising the transfer, are fabricated and this has been drawn to the attention of the authorities. According to the Petitioners, there was no financial stringency faced by the School and the alleged financial difficulties are belied by the circumstance that the proposal for sanctioning additional divisions for Standards 9 and 10 was allowed by the Deputy Director of Education. Moreover, it has been submitted that before the Education Officer recommended the proposal for transfer, the financial position of the School ought to have been considered. Neither has the Education Officer, nor the Deputy Director of Education applied his mind to the financial position of the School.

(3.) On the other hand, Counsel appearing on behalf of the transferee management has submitted that a proper hearing was afforded by the Deputy Director of Education. The Petitioners have no locus to challenge the order authorising the transfer and that the transfer of the management would have been already implemented.