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2007 DIGILAW 45 (GUJ)

SAMI KALAVNI MANDAL v. STATE OF GUJARAT

2007-01-24

ABHILASHA KUMARI

body2007
( 1 ) THIS petition under Article 226 of the Constitution of India has been filed by the petitioner with a prayer to issue a writ of mandamus or any other appropriate writ or order declaring that the communication dated 7-11-1998 of the respondent No. 2 whereby the application of the petitioner dated 18-8-1999 was rejected, as well as the communication dated 13-10-1999 of the respondents No. 1 and 3 whereby the representation of the petitioner has been rejected, is illegal, ultra vires and bad in law. It is further prayed that the respondents No. 1 and 2 be directed to consider the application of the petitioner dated 18-8-1999 as an exceptional case and grant the prayer for revival and change of the Uttar Buniyadi School from village Ved to Sami village, as prayed for by the petitioner. ( 2 ) RULE was issued by this Court on 5. 7. 2000. With the consent of the learned counsel for the parties, the matter is being heard and finally decided today. ( 3 ) BRIEFLY stated, the facts emerging from the averments made in the writ petition are that the petitioner Trust i. e. Shri Sami Kelvani Mandal is a Registered Public Trust, which was established in the year 1956. A Secondary School was started by the petitioner at village Sami for the purpose of imparting education to Girls and for the development of the backward people of the area. It is averred that for reasons beyond the control of the petitioner-Trust and due to the communally sensitive conditions prevailing in the area at that point of time, the Secondary School started by the petitioner Trust had to be closed down with effect from 20. 7. 1995. After closure of the said School, the Government handed it over to another Trust, to be run and managed. ( 4 ) IT is the case of the petitioner that thereafter the petitioner Trust received a donation from one Dipchand S. Gardi Charity Trust with a condition of giving its name to the School and, therefore, being in a position to run the School, the petitioner made an application to the respondents for permission to revive the School at village Ved and relocate it to village Sami where the building was lying vacant with effect from 20-7-1995. It is averred by the petitioner that one Arya Bharti Seva Parivar, Vansa was having an educational institute, namely, Arya Bharti Uttar Gujarat Vidhyalaya at village Ved, which was started in June 1982 but was closed in June 1991. The petitioner Trust, which claims that it has the facilities of School building, financial resources, furniture and surplus staff at Sami, therefore, made an application to the respondents that the School at village Ved should be revived and transferred to village Sami, under the earlier registration of the petitioner-Trust, to be managed by it, since there is no Uttar Buniyadi School for Boys at Sami. A Resolution dated 10-5-1998, which is annexed as Annexure "a" to the petition, was passed by the petitioner Trust, whereby it was decided to request the Government and concerned authorities to transfer the place of Uttar Buniyadi School from village Ved to village Sami alongwith financial resources, existing surplus staff etc. It was also resolved to request for permission to revive the closed Uttar Buniyadi School run by the Arya Bharti Seva Parivar, Vansa at village Ved and to change its place from village Ved to village Sami. An application dated 11. 5. 1998 in this regard was made by the petitioner to the Principal Secretary, Education, which was forwarded to the Gujarat Secondary Education Board. By communication dated 7-11-1998 the Secretary, Gujarat Education Board communicated to the petitioner Trust that a closed School cannot be revived as per the Government Resolution dated 28-4-1994 and nor can its location be changed. It is stated in the petition that the petitioner Trust has made various applications to the concerned authorities for revival of the School and change of place from Ved to Sami. It is further averred by the petitioner that in the case of closed Uttar Buniyadi School at Nana Chandur managed by a Trust by the name of Gandhi Ashram Zilia, permission was granted to revive the same and to change the location from Nana Chandur to Matarvadi in Patan as an exceptional case and,therefore, the respondents should also give similar treatment and make a similar exception in the case of the petitioner, since the change of place in the case of the petitioner does not entail change of Taluka. It is averred in the petition that the petitioner has made various applications/ representations to the respondents which are annexed as Annexure "b", Annexure "i" and Annexure "l" to the petition. Finally, the State Government has rejected the application of the petitioner vide order dated 13-10-1999, annexed as Annexure "m" to the petition, which has led to the filing of this petition. ( 5 ) A reply-affidavit has been filed by respondents No. 1 and 3 and respondent No. 2. In the reply affidavit filed on behalf of respondents No. 1 and 3 by Mr. B. K. Bhatt, Under Secretary, Education Department on 1-5-2000 it is stated that the permission to revive a closed School and its change of place is contrary to Government Resolution dated 28-4-1994. In the case of the school run by Gandhi Ashram Zilia, permission was granted as a special case. Alleged breach of Article 14 of the Constitution of India is denied and it is contended that this ground cannot be pressed into service by the petitioner to perpetuate an illegality if any. It is further stated that if the petitioner is desirous of running the School, it is at liberty to apply for permission afresh, in accordance with Rules. ( 6 ) ON behalf of respondent No. 2 Mr. Gangaram, Under Secretary, Gujarat Secondary Education Board has filed a reply-affidavit dated 2-8-2001 wherein the averments made in the petition are denied. It is averred that the Arya Bharti Uttar Buniyadi Vidyalay was being run by a different Trust at village Ved and that pursuant to the application by that Trust the said School came to be closed and its registration number was also cancelled by the respondent No. 2. Thereafter, the petitioner has made an application to revive the said School which was already closed down, and to permit the location of the School to be changed from Ved to Sami, after a lapse of more than seven years. It is stated that the intention of the petitioner is clearly to start a new School on the registration of the old school and as per the provisions of Section 31 of the Gujarat Secondary Education Act, 1972 ("the Act" for short) as well as Regulations it is not permissible to grant such permission where the School has already been de-registered and closed down. Referring to the Resolution of the State Government dated 28-4-1994, it is stated that the petitioner cannot be permitted to revive the School or change the location of the same in view of the provisions of the said Resolution. The allegation of discrimination has been denied and it is stated that similar treatment has been given by the respondent Board to all Schools. ( 7 ) THE petitioner has filed a rejoinder, re-asserting the averments made in the petition. ( 8 ) THIS Court has heard Ms. Ketty A. Mehta, learned counsel for the petitioner, Mr. A. D. Oza, learned counsel for the respondent No. 2 and Ms. Mini Nair, learned AGP for the respondents No. 1 and 3 at length and in great detail and has gone through the material on record. Ms. Ketty A. Mehta,learned counsel for the petitioner, has forcefully submitted that the petitioner has got the facility of building and other equipment and infrastructure to run the School at village Sami and since there is no Uttar Buniyadi School for Boys at that place, the case of the petitioner deserves to be considered favourably by the respondents and permission to revive the School and change its location deserves to be granted. It is further submitted that the Resolution dated 28-4-1994 of the Government is being implemented in the case of the petitioner whereas an exception has been made in another similarly situated case i. e. in the case of Uttar Buniyadi School managed by Gandhi Ashram Zilia, which was permitted to be revived and the location permitted to be changed from Nana Chandur to Matarvadi, in another Taluka. It is contended by the learned counsel for the petitioner that if an exception can be made in the case of a similarly situated School then the same exception can be made in the case of the petitioner as well, since the petitioner is more deserving than the other School and that, by not treating the petitioner in a similar manner, the petitioner has been discriminated against. It is contended that equals have not been treated equally and, therefore, there is a violation of Article 14 of the Constitution of India in the case of the petitioner, therefore, the prayers made in the petition deserve to be granted. It is contended that equals have not been treated equally and, therefore, there is a violation of Article 14 of the Constitution of India in the case of the petitioner, therefore, the prayers made in the petition deserve to be granted. The second ground canvassed by the learned counsel for the petitioner is that the respondents have exercised the power or discretion by making an exception to the decision contained in the Government Resolution dated 28. 4. 1994 in the case of the other similarly situated School. There are no guidelines as to how and in what manner such discretion should be exercised in order to make such an exception. It is submitted that if the power to make an exception can be exercised by the respondents, the same should be exercised by framing proper guidelines. Since that is not done, the action of the respondents in not granting permission to the petitioner is arbitrary. Thirdly, it is contended that the exception to the provisions contained in the Government Resolution dated 28-4-1994 has been made in favour of the other similarly situated School, without giving any cogent reasons. Therefore, the case of the petitioner should be dealt with similarly and the petitioner should also be permitted to revive the School and change its location from village Ved to village Sami. ( 9 ) THE attention of the Court was drawn to Section 48 of the Act and it was submitted by the learned counsel for the petitioner that as per the provisions of this Section, the State Government has the power to issue directions to the Board as it may consider necessary in regard to all or any of the matters specified in Section 17 of the Act, and since Section 17 deals with the powers and duties of the Board, the matter pertaining to revival of a School and changing its location can also be considered by giving suitable directions. Referring to the provisions contained in Para 9. Referring to the provisions contained in Para 9. 4 of the Grant-in-aid-Code, the learned counsel for the petitioner has submitted that the School Management can shift the School from one place to another in the same city or village only with the prior approval of the District Education Officer concerned and from one village to another village with the prior approval of the Director of Education and if permission to the other similarly situated school has been granted, the same treatment can be meted out to the petitioner as well. ( 10 ) MR. A. D. OZA, learned counsel for the respondent No. 2, has submitted that the School managed by Arya Bharti Seva Parivar at village Ved was closed down in the year 1991. After about seven years of the closure of the said School petitioner has made an application dated 11-5-98 for the revival of the school and for changing its place from village Ved to village Sami, where it was earlier running a school, which is not permissible as per Government rules and policy. The petitioner should apply for permission afresh, if it wants to run a School, as revival of a closed School and its change of location is contrary to the Government Resolution dated 28-4-1994. It is also submitted that the School run by the petitioner at village Sami was closed down by it in the year 1995 since the petitioner was not in a position to run it. Subsequent thereto, the State Government transferred this School to another Trust. The petitioner challenged this transfer by way of filing Special Civil Application No. 4280 of 1998, which was dismissed by this Court (Coram: K. S. Jhaveri,j) vide judgment dated 22-12-2004, a photostat copy of which is produced by Mr. Oza and taken on the record of the case. It is submitted by Mr. A. D. Oza that now it does not lie in the mouth of the petitioner to claim that it has a right to revive the School at village Ved and change its location to village Sami. Moreover, he has further submitted that the petitioner wants to revive a School run by another trust, change its location from village Ved to village Sami and run it under its own name and registration, which is not permissible. Moreover, he has further submitted that the petitioner wants to revive a School run by another trust, change its location from village Ved to village Sami and run it under its own name and registration, which is not permissible. Further he has submitted that this Court has also observed in judgment dated 22-12-2004 rendered in Special Civil Application No. 4280 of 1998 that the petitioner can apply to the Respondent Board if it is desirous of re-starting the School. ( 11 ) IT is submitted by Mr. Oza that if the petitioner is desirous of starting the school afresh, it should make an application to the respondent " Board which will be dealt with in accordance with law, since as per the Resolution dated 28-4-1994, it is not permissible to grant permission to revive a School which is closed and de-registered. It is emphasised by the learned counsel for the respondent Board that the petitioner is seeking to revive a School which is run by another Trust i. e. Arya Bharti Seva Parivar, Vansa and to change its location from village Ved to Sami, which is not permissible since the said School has been closed down in 1991 and its registration has since been cancelled by the respondent " Board. Regarding the allegation of violation of Article 14 of the Constitution, Mr. A. D. Oza has submitted that no discriminatory treatment has been meted out to the petitioner, since in the case of the School run by Gandhi Ashram Zilia the same Trust was seeking revival and change of location of its School, whereas in the case of the petitioner the School being sought to be revived was being run by a different Trust, and therefore, the case of the petitioner is not similarly situated at all. ( 12 ) MR. OZA has placed reliance on the reported judgment of this Court in N. M. Patel and others v. State of Gujarat and another 2003 (1) G. L. H. 582, wherein the provisions of Sections 17 and 48 (1) of the Act have been dealt with and it has been observed that the power of the State Government to issue directions to the Board under Section 48 (1) of the Act in regard to all or any of the matters specified in Section 17 is not to be exercised in a particular manner. In this case, the State Government had issued directions under Section 48 (1) of the Act to the Board to exercise its power of nominating a representative of the Board on the School staff selection committee in a particular manner, which was struck down by the Court. ( 13 ) MR. A. D. OZA, learned counsel, has also relied upon (2006) 9 SCC 82 (U. P. State Sugar Corporation Ltd. and another v. Sant Raj Singh and others) wherein it has been held that the concept of equality under Article 14 of the Constitution of India is a positive concept and nobody can claim equality in illegality, and that relief claimed on parity on a wrong basis does not confer a legal right to claim the same relief. In the light of the above submissions, Mr. A. D. Oza, learned counsel for respondent No. 2 has prayed that the writ petition be dismissed. ( 14 ) MS. MINI Nair, learned AGP, has reiterated the averments made in the reply affidavit filed by the respondents No. 1 and 3 and has prayed for the dismissal of the writ petition. ( 15 ) AFTER having considered the arguments advanced by the learned counsel for the parties, it is evident to this Court that the petitioner Trust had voluntarily closed down the Secondary School being run and managed by it at village Sami with effect from 20-7-1995 and, thereafter, the Government had handed over the said School to another Trust. This action was challenged by filing Special Civil Application No. 4280 of 1998, which was dismissed by this Court vide judgment dated 22-12-2004. The argument advanced by the learned counsel for the petitioner that the petitioner should be permitted to revive the School run by Gandhi Ashram Zilia trust and change its place from village Ved to village Sami is not sustainable, since the intention of the petitioner is apparently to run it under its own name and registration at village Sami, where the School run by it earlier has already been closed down and transferred to another trust. If the petitioner is desirous of running a school once again, it should apply for fresh permission in accordance with rules. If the petitioner is desirous of running a school once again, it should apply for fresh permission in accordance with rules. ( 16 ) A perusal of the Government Resolution dated 28-4-1994 makes it clear that the Government has taken a decision not to revive the Schools which have been closed down or to permit their locations to be changed. By the impugned communication dated 13-10-1999 this decision of the Government has been reiterated, while rejecting the application of the petitioner for revival of the closed down School and the change of its location. The main premise on which the learned counsel for the petitioner has challenged the rejection of permission as above is that it has been discriminated against by the respondents, as another similarly situated School i. e. Uttar Buniyadi School managed by Gandhi Ashram Zilia has been granted permission of revival and change of location from Nana Chandur to Matarvadi in another Taluka. ( 17 ) ANOTHER ground on which emphasis has been laid by the learned counsel for the petitioner is that if an exception has been made in favour of a similarly situated School, then a similar exception should have been made in favour of the petitioner also, since no reasons have been given for granting permission to the other School. ( 18 ) THE above submissions of the learned counsel for the petitioner, though outwardly attractive are, on a deeper consideration,not sustainable in law. The facts and circumstances under which permission of revival and change of location was given to the School managed by the Trust named Gandhi Ashram Zilia are not on the record of the case and neither is that institution a party in this petition. Therefore, to express any opinion whether such permission was either rightly or wrongly given, would not be appropriate. What is clearly evident from the facts of this case is that the Government Resolution dated 28-4-1994 contains a policy decision of the Government to the effect that a School which has been closed down cannot be revived and nor can its location be changed. Even assuming that any permission contrary to the above resolution is granted to any other institution, that in itself cannot be a ground for invoking the equality clause under Article 14 of the Constitution of India. Even assuming that any permission contrary to the above resolution is granted to any other institution, that in itself cannot be a ground for invoking the equality clause under Article 14 of the Constitution of India. The law is now well settled that a party cannot claim that if a wrong order has been passed in one case, the Court should give a direction to pass another wrong order, thereby perpetuating the same. Such a direction would amount to granting a leave and licence to commit an infraction of rules and would result in the erosion of the very basis of the rule of law. Equality under Article 14 of the Constitution of India cannot be claimed in such matters. The Supreme Court in Union of India and another v. International Trading Co. and another, (2003)5 SCC 437 - has observed in paragraph 13 as under: "a party cannot claim that since something wrong has been done in another case; direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality. " ( 19 ) THE same view was expressed by the Supreme Court in Chandigarh Administration and another v. Jagjit Singh and another, AIR 1995 SC 705 . The argument advanced by the learned counsel for the petitioner that the fundamental right of the petitioner as enshrined in Article 14 of the Constitution of India has been violated is,therefore, negatived. ( 20 ) THE argument of Mr. The argument advanced by the learned counsel for the petitioner that the fundamental right of the petitioner as enshrined in Article 14 of the Constitution of India has been violated is,therefore, negatived. ( 20 ) THE argument of Mr. A. D. Oza that the case of the petitioner is not at all similar to the case of the Trust named as Gandhi Ashram Zilia since, in that case, the School which was permitted to be revived was being run by the same trust, whereas in the case in hand the petitioner is seeking to revive the School run by another trust is worthy of acceptance. There is no material on record to controvert this aspect of the matter, nor has it been repelled by any argument advanced on behalf of the petitioner. ( 21 ) REGARDING the ground of making an exception in the case of the petitioner, this court is of the considered view that, the discretion whether an exception to the rule or decision of the Government can, or should be made, in any particular case, and under what circumstances, vests exclusively with the authority empowered to exercise such discretion or make such an exception. The Court cannot dictate to the authority concerned to exercise discretion or make an exception in any particular case or the manner in which such discretion ought to be exercised or an exception to the general rule be made. Similarly, the Court cannot give directions to frame guidelines as to how such exceptions are to be made. Such matters are purely in the realm of the executive. What the Court can do is to strike down an action which is illegal, arbitrary and unreasonable or where power has been exercised malafide or in a colourable manner, in violation of fundamental rights. The petitioner has not been able to make out such a case, so as to warrant the interference of this Court. ( 22 ) IT has not been established before this Court that the case of the petitioner stands on a similar footing with that of the School run by Gandhi Ashram Zilia to which permission for revival and re-location was given. In that view of the matter and since the said institution is not a party before this Court, no reasons are required to be given by the respondents as to why permission was granted in that particular case. In that view of the matter and since the said institution is not a party before this Court, no reasons are required to be given by the respondents as to why permission was granted in that particular case. ( 23 ) AS regards the submission of the learned counsel for the petitioner that under the provisions of Section 48 of the Act, power is available to issue directions to the Board and by using that power directions could have been issued to grant permission of revival and re-location of the School of the petitioner, this Court finds no merit in the same. Section 48 of the Act has been dealt with in the case of N. M. Patel and others v. State of Gujarat and another (Supra) by this Court. Although power is available under this provision to issue directions to the Board, this Court has held therein that the Court cannot direct that the power available under Section 48 (1) of the Act be used in a particular manner. Therefore, no directions can be given that power be exercised in favour of the petitioner by making an exception to the rule or in contravention to the Government Resolution dated 28-4-1994. As far as the Paragraph 9. 4 of the Grant-in-aid Code is concerned, the same does not advance the case of the petitioner at all since, admittedly, in the present case the permission for change of place has not been granted by the concerned authorities. ( 24 ) FOR the reasons stated herein-above, this Court is of the considered view that the petition is devoid of any merit and deserves to be rejected. ( 25 ) FOR the foregoing reasons, the petition is dismissed. Rule is discharged. There shall be no orders as to costs.