State of U.P. Thru. Addl. Chief Secy. Basic Edu. U.P. Lko. and 3 Others Vs Committee of Management Malti Devi Girls Junior High School Thru. Manager Umesh Kumar and Another

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Neutral Citation No. - 2025:AHC-LKO:28406-DB

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Reserved

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Chief Justice's Court

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Case :- SPECIAL APPEAL No. - 292 of 2024

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Appellant :- State of U.P. Thru. Addl. Chief Secy. Basic Edu. U.P. Lko. and 3 others Respondent :- Committee of Management Malti Devi Girls Junior High School Thru. Manager Umesh Kumar and another Counsel for Appellant :- C.S.C., Anand Kumar Singh (ACSC) Counsel for Respondent :- Manvendra Singh, Girish Chandra Verma, Sheshnath Bhardwaj, S.N. Bhandari

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Hon'ble Arun Bhansali, Chief Justice Hon'ble Jaspreet Singh, J.

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(Per : Arun Bhansali, CJ)

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This special appeal is directed against order dated 24.07.2024 passed in Writ-A No. 4133 of 2022, wherein the writ petition filed by the respondent-institution has been allowed and order impugned in the writ petition dated 13.06.2022 was quashed and the appellants were directed to include the respondent-institution under grant-in-aid with effect from the date of receipt of its application in terms of government order dated 07.09.2006.

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The petition was filed by the respondent-institution challenging order dated 13.06.2022, whereby its application for providing grant-in-aid was rejected. Further prayer was made for a direction to provide grant-inaid in terms of government order dated 07.09.2006 with effect from 01.12.2006.

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It was inter alia indicated that the respondent was conducting classes VI to VIII, which was granted temporary recognition on 31.03.1984 and permanent recognition on 30.05.1986. By order dated 07.09.2006 and consequential order dated 09.09.2006, State Government took a policy decision for providing grant-in-aid to Junior High Schools

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imparting education from classes VI to VIII with criterion being seniority to be determined from the date of permanent recognition. Applications were invited, pursuant to which the respondent-institution also submitted its application along with requisites. It is claimed that recommendation was made by the district level committee for bringing the respondentinstitution under grant-in-aid, however, in the list issued by the State Government on 02.12.2006, the institution was excluded from the list though Junior High Schools which had been granted recognition upto 23.04.1999 were included. The exclusion of the respondent-institution was made in terms of Clause 2(13) of the government order dated 07.09.2006, confining the grant only to Junior High Schools, which were running classes VI to VIII only.

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Though not relevant in the present case, the said clause was questioned by filing writ petitions, which came to be allowed and special appeals were dismissed and special leave petitions also came to be dismissed. On account of the judgements of the Court quashing interpretation/restricting the grant, the entire issue was revisited and the Director of Education (Basic), by letter dated 20.04.2011 recommended the respondent-institution to be brought in grant-in-aid in terms of conditions indicated in government order dated 07.09.2006. It was indicated therein that the respondent-institution was inadvertently excluded from the list of institutions brought in grant-in-aid on a mistaken impression that it was conducting classes in addition to classes VI to VIII.

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The recommendation was again reiterated by the Basic Education Officer on 03.06.2016 indicating various factors pertaining to infrastructure of the institution finding the same within the scope of conditions enumerated for inclusion under the grant-in-aid. Similar reports were submitted by the Director of Education on 03.03.2020 and 09.12.2020.

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When no cognizance of the reports was taken by the government, the respondent-institution filed Writ Petition No. 25648 (M/S) of 2019, which was disposed of on 18.11.2019 directing the concerned authority to take a final decision with regard to the representation. The representation was rejected by the government on 20.01.2021 inter alia on the ground that a new policy has been notified on 14.07.2020 and in case new institutions are taken under grant-in-aid, excess financial liability would be imposed upon the State Government. The order dated 20.01.2021 was challenged by filing Writ-C No. 31922 of 2021 which was disposed of on 31.01.2022, requiring the appellants to afford an opportunity of hearing to the respondent-institution pursuant to which, the order impugned dated 13.06.2022 was passed.

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Submissions were made before the learned Single Judge that government order dated 14.07.2020 cannot be applied retrospectively since rights of the respondent-institution stood crystallized in terms of government policy dated 07.09.2006 and since beginning, the denial was factually incorrect and therefore, the respondent-institution could not be deprived of the grant-in-aid to which it was otherwise entitled. Other grounds indicated in the order impugned were contested on the ground that the report dated 02.05.2022 was not supplied to the respondentinstitution as the indications made in the order are contrary to the actual report (Annexure-18 to the writ petition).

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It was also agitated that once the initial refusal was on account of misconception, the denial was not justified. Reliance was placed on a Division Bench judgement in State of U.P. and others vs. C/M Hanuman Prasad Poddar Purva Madhyamik Vidyalaya and another : Special Appeal No. 387 of 2020, decided on 15.05.2024 and Smt. Anwari Begum vs. State of U.P. and others : (2000) 3 UPLBEC 2673.

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The plea was contested on the ground that the claim for grant-in-aid was required to be considered as on the date and in terms of the policy and since on the date of consideration, the policy dated 14.07.2020 was in vogue, the rejection cannot be questioned. Submissions were made that fresh policy was promulgated pursuant to the direction in Jai Ram Singh and others vs. State of U.P. and others : Writ Petition No. 38992 of 2017, decided on 23.05.2019. Further submissions were made that the institution has no inherent right for inclusion in the list of institutions being brought in grant-in-aid. Reliance was placed on State of U.P. and others vs. Principal, Abhay Nandan Inter College and others : AIR 2021 SC 4968.

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After hearing the parties, learned Single Judge came to the conclusion that the respondent-institution was excluded from the list issued pursuant to government order dated 07.09.2006 on account of misconception that it was excluded in view of Clause 2(13) of the said government order, which fact was evident from the report dated 20.04.2011 submitted by the Director of Education specifically indicating that the respondent-institution was inadvertently excluded and making recommendation to include it under grant-in-aid, which recommendation was reiterated on 03.06.2016, 03.03.2020 and 09.12.2020. However, while passing order impugned, no cognizance was taken of the said reports, which was not justified.

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Further indication made in the order impugned pertaining to the fact that permanent recognition order of respondent-institution appears to be suspicious and that requisite documents were not supplied, were negated by the learned Single Judge on account of Annexure-18 produced in the writ petition which did not include paras 11 and 12 as relied on. Learned Single Judge was also of the opinion that once the exclusion was contrary to terms of the government order of 2006 and the action was admitted to be inadvertent, the respondent-institution being entitled for the grant-in-aid as its right stood crystallized on the date of application

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itself and that the government order dated 14.07.2020 was applicable only to future applications, the learned Single Judge relying on the judgement in C/M Hanuman Prasad Poddar Purva Madhyamik Vidyalaya (supra), allowed the writ petition.

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Counsel for the appellants made vehement submissions that the learned Single Judge was not justified in negating the grounds contained in order impugned wherein the report dated 07.06.2022 clearly indicated about the permanent recognition certificate to be prima facie suspicious and none of the requisites were made available. Further submissions were made that the learned Single Judge was not justified in issuing directions to take the institution in question in grant-in-aid from the date of submission of the application as the same is only available from the date of issuance of order of granting the aid. Further submissions were made seeking to justify the initial rejection on the ground that classes were being run up to High School level.

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Learned counsel emphasized that in terms of the new policy dated 14.07.2020, a policy decision has been taken not to take any private institution on the list of grant-in-aid and therefore, in view of the said policy, the respondent-institution is not entitled for any relief.

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By way of an additional affidavit filed in the present appeal, large number of documents have been placed on record without any averments in the supplementary affidavit pertaining to and/or connecting the same with the present dispute. It was submitted that the respondent-institution, had filed Writ-C No. 2563 of 2018 before the High Court at Allahabad, wherein orders dated 13.07.2017 and 24.08.2017 were challenged, which remained pending and after the writ petition was allowed at Lucknow, the same was withdrawn on 21.11.2024. Submissions were made that once a writ petition was already pending consideration at Allahabad, filing of writ petition at Lucknow was not justified. In any case, once the

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previously filed writ petition has been withdrawn, the order impugned deserves to be quashed and set aside.

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Based on the submissions, it was prayed that that the order impugned deserves to be quashed and set aside.

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Counsel for the respondent made vehement submissions that various pleas sought to be raised by the appellants, are baseless and contrary to the record. Submissions have also been made that undisputedly the respondent-institution had applied pursuant to 2006 policy and the same was not granted on account of a wrong determination regarding the institution being upgraded (mPphd`r) which aspect is apparent from the document annexed as Annexure-A-3 with the reply to the supplementary affidavit. The fact that the said mistake was committed at the relevant time, was specifically admitted by the appellants in the communication dated 20.04.2011 when recommendation was made to bring the institution under grant-in-aid, despite the institution being eligible, for apparently incorrect reasons/no reasons, the grant-in-aid was not granted, despite repeatedly recommendations made in this regard and when after filing two writ petitions, order impugned has been passed, same is based on an incorrect assertion pertaining to permanent recognition certificate being suspicious and that the documents as required were not produced during course of inspection. With reference to report dated 02.05.2022, it is submitted that the original report is Annexure-18, which has been manipulated by the appellants by getting two more paragraph nos. 11 and 12 to the same only with a view to reject the application.

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It was emphasized that as the institution was eligible from day one, the denial of grant-in-aid for all the years for the wrongs committed by the appellants, the benefit cannot be denied to the respondent. Submissions have also been made that merely because policy of 2020 has come into force, the entitlement of the respondent-institution under the

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2006 policy cannot be made subject to the policy of 2020 which has no retrospective application and therefore, appeal deserves dismissal. Submissions have also been made that filing of the writ petition at Allahabad, did not pertain to any of the orders which are under consideration in the present petition. The same pertained to the general orders which were passed and once the present petition stood disposed of, the petition filed earlier in fact has been rendered infructuous and therefore, its withdrawal cannot affect the maintainability of the present petition. It was prayed that the petition be dismissed. Reliance was placed on C/M Hanuman Prasad Poddar Purva Madhyamik Vidyalaya (supra), and it was submitted that against the Division Bench judgement, special leave petition has been dismissed by Hon’ble Supreme Court, as has been done in several other cases where the directions have been issued for bringing the institutions in grant-in-aid which were wrongly denied and therefore, the appeal deserves to be dismissed.

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We have considered the submissions made by counsel for the parties and have perused the material available on record. 19. The preliminary aspect which requires consideration pertains to the fact that the respondent-institution had filed Writ-C No. 2563 of 2018 at Allahabad and the same was got dismissed as withdrawn on 21.11.2024 after the present writ petition was allowed on 24.07.2024. From the material which has been produced by the respondent, it is revealed that the relief in the writ petition at Allahabad was founded on questioning the government orders dated 27.10.2016, 13.07.2017 and 24.08.2017 (Annexures 8, 9 and 10 to the said writ petition). The said orders did not specifically pertain to the respondent-institution and were based on the decision pursuant to the directions issued in other cases. The present writ petition, arose out of the order dated 13.06.2022 which pertains to the respondent-institution after directions given by this Court for decision on the entitlement after providing an opportunity of hearing to the institution.

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As the order impugned in the present writ petition, was not in question in the matter pending at Allahabad, and the grounds raised in the petition at Allahabad were general in nature pertaining to grant-in-aid, the subject matter of both the petitions being different though the ultimate relief claimed was for taking the institution in grant-in-aid, the fact that the pending writ petition which was though filed prior in time, was withdrawn subsequent to the decision in the present writ petition, cannot and does not affect the maintainability of the present writ petition.

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As noticed hereinbefore, the facts are not in dispute that the respondent-institution based on its claim of permanent recognition in the year 1986, has applied pursuant to the policy of 2006 and the same was turned down by indicating the institution having been upgraded which aspect is fortified from the document Annexure A-3 filed with the reply to the supplementary affidavit filed in the present appeal.

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The said aspect was factually incorrect which aspect has been specifically noticed in the communication dated 20.04.2011 (Annexure-8 to the writ petition) specifically indicating that on account of mistake of the department by showing the institution as upgraded was not included in the grant-in-aid list of 2006 and was deprived of the same and a specific recommendation was made to include the institution in the list. Recommendations were repeatedly made on 03.6.2016 and 09.12.2016, however, the same were neither acted upon nor rejected forcing the institution to file writ petition wherein orders were passed to decide the representation, which was rejected on 03.03.2020 and again on filing of the writ petition, directions were given to afford opportunity of hearing which led to passing of the order impugned dated 13.06.2022 relying on report dated 02.05.2022 on the two aspects regarding permanent recognition certificate being prima facie suspicious and the documents having not made available.

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So far as the reliance placed on report dated 02.05.2022 relied on by the appellants is concerned, the same was not produced before the learned Single Judge, however same has been produced along with supplementary affidavit filed in the present appeal as SA-11. A comparison of the documents produced by the appellants and Annexure18 filed with the writ petition would reveal that while Annexure-18 contains only 10 points, in the document produced by the appellants, same contains 12 points and while point 1 to 10 are all in favour of the respondent-institution, last 2 points are against it. It is interesting that in point no.2, the fact of production of permanent recognition certificate dated 30.05.1986 has been indicated, no observation pertaining to its suspicious character has been mentioned therein and in point no.11 independent of point no.2, the fact of same being suspicious has been indicated. Interestingly, while Annexure-18 after the 10^th point indicates that the report is being sent for further proceedings and makes a mention of annexures along with the said report, the document produced by the appellants, after the 12^th point does not make any such mention and does not indicate any annexures.

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The manner of sending the communication dated 02.05.2022 produced alongwith the supplementary affidavit, does not invoke confidence, the same apparently has been got prepared after the original report dated 02.05.2022 (Annexure-18) was prepared and therefore, the order impugned dated 13.06.2022 has been passed relying on the said report on the said two aspects which cannot be sustained.

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Further, it is interesting that since 2006, the respondent-institution was seeking grant-in-aid and for 16 long years till passing of the order dated 13.06.2022 though repeated recommendations were made for providing grant-in-aid to the respondent, at no stage, the fact of the institution being permanent recognized was ever questioned. As to what prompted the said aspect that also by way of alteration in the report dated 02.05.2022, cannot be countenanced under any circumstance.

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The repeated submission made pertaining to the coming into force of policy 2020, cannot be recognized as the entitlement of the respondentinstitution has to be seen as on the date the application was filed and was essentially wrongly rejected. Things would have been different in case, the application remained pending and in a new scheme, specific provisions were made and orders were passed rejecting all pending applications, which is not the case in the present circumstance. Only on account of promulgation of new policy, those who were entitled under the policy of 2006 and were wrongly denied the benefit and were agitating their cases, cannot be deprived of the same based on the new policy.

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Further submissions made pertaining to the direction of the learned Single Judge to provide grant-in-aid from the date of application also cannot be faulted as the respondent-institution has been agitating its right since the same was wrongly rejected by the appellants.

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The appellants cannot seek premium on their wrongful conduct by claiming that once the rejection under the scheme of 2006 has taken place and for over 14 years, they chose not to pass any order, based on the new policy, institution cannot be denied the benefit to which it was otherwise entitled.

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The directions pertaining to grant of benefits have repeatedly been given by Single Judges and upheld by the Division Benches. In C/M Ram Daun Ram Raj Pre-Secondary School and another vs. State of U.P. and others : Writ-C No. 4735 of 2017, decided on 27.02.2019, upheld in Special Appeal Defective No. 975 of 2020, decided on 21.10.2020 and C/M Shri Dravi Nath Purva Madhyamik Vidyalaya & another : Writ-C No. 9722 of 2012, decided on 24.08.2018, upheld in Special Appeal Defective No. 932 of 2018, dismissed on 24.02.2020, against which judgements, Special Leave Petitions were dismissed by Hon’ble Supreme Court and relying on the determination made in the said two judgements, the Division Bench in the case of C/M Hanuman

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Prasad Poddar Purva Madhyamik Vidyalaya (supra), dismissed the appeal on 15.05.2024 against which also special leave petition(s) has been dismissed by the Hon’ble Supreme Court on 13.09.2024.

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In the overall facts and circumstances of the present case, we do not find any reason to interfere with the order impugned passed by the learned Single Judge.

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The special appeal has no substance, the same is, therefore, dismissed.

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Order Date :- 15.05.2025 RK

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(Jaspreet Singh, J) (Arun Bhansali, CJ)

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Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. Thru. Addl. Chief Secy. Basic Edu. U.P. Lko. and 3 Others v. Committee of Management Malti Devi Girls Junior High School Thru. Manager Umesh Kumar and Another

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State of U.P. Thru. Addl. Chief Secy. Basic Edu. U.P. Lko. and 3 Others v. Committee of Management Malti Devi Girls Junior High School Thru. Manager Umesh Kumar and Another

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