Allowed

C/M Sri Saraswati Laghu Madhyamik Vidyalaya and Another v. State of U.P. and 3 Others

Allahabad HC26 Apr 2023WRIC/42526/2017

Case brief

AI extract

What is this about?

The High Court allowed the writ petition challenging the refusal of grant-in-aid to an educational institution. The court set aside the impugned order dated 09.08.2017 and remitted the matter to the State Government for fresh consideration, directing it to examine the claim based on the Government Order of 2006 and address the dispute regarding subsequent establishments within 3 kms.

What did the court decide?

Impugned order dated 09.08.2017 set aside; matter remitted to State Government for fresh decision to be taken positively by 31.07.2023.

C/M Sri Saraswati Laghu Madhyamik Vidyalaya and… — Education and Admissions | Allahabad HC (2023)

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Court No. - 52

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Case :- WRIT - C No. - 42526 of 2017

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Petitioner :- C/M Sri Saraswati Laghu Madhyamik Vidyalaya And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Vineet Kumar Singh Counsel for Respondent :- C.S.C.,Mohd Shere Ali

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Hon'ble Kshitij Shailendra,J.

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Heard Shri Vineet Kumar Singh, learned counsel for the petitioners and learned Standing Counsel for the State-respondents.

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The grant-in-aid to the petitioners’ institution has been refused by the order impugned dated 09.08.2017 mainly for two reasons. The first reason assigned is applicability of the Government Order dated 13.07.2017 whereby a decision was taken by the Government to review the situation after a period of five years with a stipulation that in case necessity arises, the matter would be considered. Second ground is that there are three institutions being run by the Board within the radius of 3 Kms. where the petitioners’ institution is situated and, therefore, taking the petitioners’ institution on grant-in-aid list shall put an additional burden on the Government.

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Insofar as the reliance place on the Government Order dated 13.07.2017 is concerned, learned counsel for the petitioner has placed reliance upon a decision of this Court in the case of Jai Ram Singh and others vs State of U.P and others, reported in 2019 (6) ADJ 255, whereby the aforesaid Government Order was set aside to some extent.

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Insofar as the second ground of establishment of three board institutions within 3 Kms is concerned, the contention of learned counsel for the petitioner is that temporary recognition was

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granted to the petitioners’ institution in the year 1978 and permanent recognition in the year 1985. He further submits that a clear stand has been taken in the writ petition that no institution run by the board is situated within 3 kms of radius. He further submits that even if a contrary stand has been taken in the order impugned or in the counter affidavit, the same would not adversely affect the rights of the petitioners’ institution to claim grant-in-aid as the said three institutions were established much much later in time and since the petitioner was agitating its claim for inclusion in grant-inaid list since 2006, subsequent establishment of any educational institution within 3 Kms of radius would not be an impediment insofar as the petitioners' right is concerned.

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In the order impugned, The U.P. Right of Children to Free & Compulsory Education Rules, 2011, particularly Rule 4(1) (b) has been relied upon. The Court further finds that petitioners' case is based upon the Government Order dated 07.09.2006 and that the Government Order dated 13.07.2017 would govern subsequent cases and cannot be made applicable retrospectively and once the said Government Order has been quashed by this Court in the case of Jai Ram Singh (supra), insofar as the review after every five years is concerned and, even otherwise, the said period has elapsed during the pendency of the writ petition, the matter needs to be examined by the State-Government afresh.

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This Court finds that on previous occasions also, writ petitions filed by the petitioners were allowed and the matter was remanded to the authorities. This Court, while deciding a previous writ petition filed by the petitioners, being Writ C No. 40224 of 2016 ( C/M Sri Saraswati Laghu Madhyamik Vidyalaya and another

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vs State of U.P. and others ), by order dated 17.10.2016, clearly observed as follows:

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" This Court finds that petitioner's application for the institution to be taken on aid, was moved with reference to Government Order issued by State on 7.9.2006. However, petitioner's claim has not been rejected with reference to the specific Government Order, whereunder, claim itself has been raised by the petitioner. Contention advanced by counsel for the petitioners that the petitioners' application was liable to have been considered with reference to the concerned Government Order and not any subsequent enactment appears to have forced."

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The operative portion of the said order reads as

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follows:

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"Following the reasons assigned in aforesaid order, present writ petition is also liable to succeed. Consequently, order of State Government dated 21st May, 2015 is set aside. Matter is remitted back for fresh consideration of cause by respondent no. 1, keeping in view the observations made above, by means of a reasoned speaking order within a period of three months from the date of presentation of certified copy of this order."

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This time, I find that a different ground has been taken by the Government while declining to include the petitioners’ institution on the grant-in-aid list. Therefore, I find that whenever the matter is being considered by the State-Government pursuant to the orders passed by this Court, the claim of the petitioners is being rejected by taking different grounds. This practice of the Government must come to an end and, therefore, while examining the validity of the impugned order challenged in the present writ petition and while issuing appropriate directions to the StateGovernment, when the matter shall be re-examined by the Government under this order, the points framed by this Court in this order shall be specifically dealt with.

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Insofar as the existence of institutions run by the Board within the radius of 3 Kms. of the petitioners’ institution is concerned, the contention of learned counsel for the petitioners is that the petitioners’ institution was granted temporary recognition in the year 1978 and permanent recognition in the year 1985 and, therefore, if the Government is taking a stand in the light of provisions of the Right of Children to Free and Compulsory Education Act, 2009 and The U.P. Right of Children to Free & Compulsory Education Rules, 2011, the establishment of institutions run by the Board within 3 Kms. of radius would not be fatal to the claim of the petitioners’ institution for being included in the grant-in-aid list. The submission is that subsequent establishment of institutions run by the Board would not defeat the claim of the petitioners’ institution as it was being pressed for the last several decades.

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In the impugned order, the words " …. iwoZ ls gh lapkfyr gS …." have been used in paragraph 6. These words do not indicate as to whether the institutions were established by the Board prior to the establishment of the petitioners’ institution or prior to the date when the petitioners’ institution put its claim for grant-in-aid. Therefore, this matter needs special consideration in the light of provisions of Right of Children to Free and Compulsory Education Act, 2009 and Rules of 2011.

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In the order impugned, since the petitioners’ claim has been rejected taking aid of Rule 4 (1) (b) of the aforesaid Rules, 2011, it would be appropriate to refer the same for consideration. The said Rules 4 (a) and (b) of the Rules, 2011 are quoted hereinbelow:

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“ 4. Areas or limits of neighbourhood (Section 6). - (1) The areas or limits of ‘neighbourhood within which’ a school has to be established by the Committee authorised by the State Government, shall be as under -

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(a) in respect of children in classes I-V, a school shall be established in habitation which has no school within a distance of 1.0 km. and has population of at least 300;

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(b) in respect of children in Classes VI-VIII, a school shall be established in habitation which has no school within a distance of 3.0 km. and has population of at least 800;

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A perusal of the aforesaid Rules would show that it speaks of subsequent establishment of a school by the Committee authorized by the State Government. A plain reading of the same, prima facie, suggests that it refers to those institutions, which are established in furtherance of Act of 2009 and Rules of 2011 and in case applicability of Rule 4 (b) is being taken by the State to deny petitioners’ claim, it has to be ascertained as to whether any institutions established pursuant to the Act of 2009 and Rules of 2011 or at any time after establishment of the institutions seeking grant-in-aid, would defeat such claim.

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In view of above, the writ petition succeeds and is allowed . The order impugned dated 09.08.2017 is hereby set aside and the matter is remitted to the State-Government for a fresh decision.

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The State-Government shall examine the case of the petitioners’ institution on the following aspects:-

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(i) Once the Government Order dated 13.07.2017 has been set aside by this Court in the case of Jai Ram Singh and others vs State of U.P. and others reported in 2019 (6) ADJ 255, the said

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Government Order shall not come in the way of consideration of petitioners’ claim.

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(ii) The State-Government shall ascertain in the light of factual position with regard to institutions allegedly established by the Board within 3 Kms of radius of the petitioners’ institution as well as legal impact of Rules 4 (a) and (b) on such alleged establishment in the light of the fact that the petitioners’ institution was granted temporary recognition in the year 1978 and permanent recognition in the year 1985 and was pressing its claim for grant-inaid for the last several decades.

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(iii) The Government shall analyse the time factor under which the institutions were established by the Board and shall also record legal position in the order as to whether such establishment can be treated as a factual or legal impediment in approving grantin-aid to institutions, which were already recognized and were running for the last more than 4-5 decades. The words “has to be established” and “shall be established” used in Rule 4(a) shall be given due weightage.

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(iv) The case of the petitioner shall be examined in the light of Government Order dated 07.09.2006.

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(v) Full opportunity of hearing shall be provided to the petitioners before taking decision.

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