Allowed

Shree Durga English School Parse Thr. Its President Shri Paris v. Kambali of the Gomantak and Anr. v State of Goa, Thr. Its Chief Secretary and Anr.

Bombay HC7 May 2014WP/195/2014

Case brief

AI extract

What is this about?

The High Court allowed a writ petition mandating the State of Goa to hand over the management of Shree Durga English School to the petitioners. The Court held that withholding management beyond the statutory five-year limit under the Goa School Education Act was illegal and unsustainable, as the Administrator failed to serve the mandatory notice required by Section 20(9) for continued retention.

What did the court decide?

Rule made absolute; respondents to hand over management of the School to petitioners forthwith.

Shree Durga English School Parse Thr. Its President… — Education and Admissions | Bombay HC (2014)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 195/2014

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Shree Durga English School, Parse, Pernem, Goa through its President Shri Paris V. Kambli of the Gomantak Education Society, having Office at Parse, Pernem, Goa.

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Gomantak Education Society, represented through its Secretary, Shri Ramnath M. Sawant, aged 61 years, Indian National, resident of House No.680, Parse, Pernem, Goa.

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….. Petitioners.

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V E R S US

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State of Goa, through its Chief Secretary, having Office at Secretariat, Porvorim, Goa.

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The Director of Education, Government of Goa, having Office at Directorate of Education, Porvorim, Bardez, Goa.

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…... Respondents.

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Mr. D. Pangam, Advocate for the petitioners.

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Mr. Manish Salkar, Government Advocate for the respondents.

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CORAM :- F.M. REIS & Z.A. HAQ, JJ. Date : - 7^th May, 2014.

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ORAL JUDGMENT : (PER Z.A. HAQ, J.)

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petitioners and Shri Manish Salkar, learned Government Advocate for the respondents.

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2. Rule. Rule made returnable forthwith.

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The grievance of the petitioners is that the respondents are illegally withholding the management of Shree Durga English School, Parse, Pernem, Goa which was taken over by the respondents under the provisions of Section 20 of the Goa, Daman and Diu School Education Act, 1984 (hereinafter referred to as “the Act”). The order of taking over the management is dated 25^th February, 2009 and it was for three years. Subsequently, by an order dated 14^th February, 2012, the management of the School was continued with the Authorised Officer for one year upto 25^th February, 2013 and by a subsequent order dated 11^th March, 2013, the management of the School was continued with the Authorised Officer for period of one year upto 25^th February, 2014. The submission on behalf of the petitioners is that the management of the School cannot be continued with the Authorised

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Officer beyond the period of 5 years and the period of 5 years having lapsed on 25^th February, 2014, the respondents are under obligation to hand over the management of the School back to the Managing Committee of the School.

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The Director of Education, Government of Goa has filed

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an affidavit in response to the notice issued by this Court. In paragraph No.17 of the affidavit, the respondent No.2 has stated that an order dated 4^th January, 2014 is issued to extend the period of keeping the management of the School with the Authorised Officer for a further period of one year till 25^th February, 2015. At the time of hearing of the petition, the petitioners raised a dispute and submitted that the copy of the order is not served on the petitioners. Considering the submissions made by the respective parties, we had asked the learned Government Advocate to produce the original file of the matter and hearing of the petition was kept back. At a subsequent call of the petition, the original file has been produced. On perusal of the file, we found that there is no reference about any order dated 4^th January, 2014 and the notings from 17^th January, 2014 onwards show that the OSD (Legal) had submitted that as per Section 20(1)(vii) of the Act, the total period for which the management is taken over cannot, in any

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case, exceed 5 years. On being confronted with this factual aspect, the learned Government Advocate has made a submission that the order dated 4^th January, 2014 has to be treated as an order dated 4^th February, 2014. Even if we grant this to the respondents, we do not find any reference in the file about issuance of the order dated 4^th February, 2014. Moreover, the respondent No.2 has stated in the affidavit that a copy of the order has been sent to the petitioners by 'regular post'. The respondent has not justified the sending of the alleged order dated 4^th January, 2014 by 'regular post' which is not as per the established practice and working of the Office of the respondent.

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According to the respondent, the petitioner No.2 is not an authorised management or the Managing Committee and the management of the School cannot be handed over to the petitioner No.2-Society. In this background, Shri Salkar, the learned Government Advocate has submitted that a copy of the order dated 4^th January, 2014 has been sent to the petitioner No.1-School and not to the petitioner No.2-Society.

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Without going into all these aspects, as observed by us earlier, we find that the action of the respondents is illegal,

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unsustainable in law and contrary to the mandate of the provisions of proviso below Section 20(1)(vii) of the Act of 1984.

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Further the respondents have not been able to point out anything from the record that the Administrator has taken any action as required by Section 20(9) of the Act of 1984. The provisions of Section 20(9) of the Act of 1984 lays down that if the Managing Committee does not take over the management of the School after the period of 5 years, the Administrator shall continue to remain incharge of the management of the School, but simultaneously an obligation is cast on the Administrator to issue a notice requiring the Managing Committee to take over the management of the School and the Administrator can continue with the management of the school only if, even after the service of the notice, the managing committee of the school does not take back the management of the school.

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In the present case, the Secretary of the petitioner No.2Society had made a representation dated 3^rd March, 2014 to the respondent No.2-the Director of Education requesting to hand over the management of the School. Undiputedly, the Administrator has neither taken any action, nor has given reply to the said representation. It is only before this Court that a submission is being made that the

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person/persons making the representation dated 3^rd March, 2014 has no authority and the management cannot be handed to them. The notings in the original file also do not show that the management of the School is not handed over to the petitioners on the ground that the person who has made the representation is not authorised to ask for the management of the School. It is settled the law that the actions of the Government and its Authorities have to be supported by the files and notings on the files and they cannot be justified by submissions made on affidavits before the Court. This view is supported by the judgment of the Honorable Supreme Court in the case of Mohinder

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Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, reported in AIR 1978 SC 851 and Hindustan Petroleum Corpn. Ltd. Vs. Darius Shapur Chenai and others reported in AIR 2005 SC 3520.

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In view of the above, we find that the action of the respondents in withholding the management of the School is not only

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illegal, but is also tainted with malice in law. We are giving these observations in view of the averments made by the respondent No.2 in the affidavit and which give us the impression that there is an attempt on his part to mislead this Court. We could have taken serious view of

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the matter, however, we do not want to pursue the matter further.

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Therefore, the writ petition has to be allowed. The rule is made absolute in terms of prayer clause (A). The respondents shall hand over the management of the School to the petitioners, forthwith. We intended to impose costs on the respondent No.2.

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However, on persuasion of Shri Salkar, learned Government Advocate, we order that in the circumstances, the parties to bear their own costs.

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ssm.

Shree Durga English School Parse Thr. Its President Shri Paris v. Kambali of the Gomantak and Anr. v State of Goa, Thr. Its Chief Secretary and Anr.

Case brief

What is this about?

What did the court decide?

Shree Durga English School Parse Thr. Its President Shri Paris v. Kambali of the Gomantak and Anr. v State of Goa, Thr. Its Chief Secretary and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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Coram

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