CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR.  VS.  THE STATE OF MAHARASHTRA AND ORS.

                                      1 Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9384 OF 2014

SANT DNYANESHWAR SHIKSHAN SANSTHA AND ANR.     …Appellants

VERSUS

STATE OF MAHARASHTRA AND ORS. …Respondents

WITH

CIVIL APPEAL NO. 9385 OF 2014

SANT DNYANESHWAR SHIKSHAN SANSTHA AND ANR.     …Appellants

VERSUS

STATE OF MAHARASHTRA AND ORS. …Respondents

WITH

CIVIL APPEAL NOS. 9673-9674 OF 2014

STATE OF MAHARASHTRA AND ORS. ETC.              …Appellants

VERSUS  

MANISHA BHIMRAJ PATIL & ORS. ETC.          …Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1. These  appeals  by  special  leave  challenge  the  correctness  of  the

judgment and order dated 22.10.2013 passed by the High Court of Judicature

CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR.  VS.  THE STATE OF MAHARASHTRA AND ORS.

                                      2 at Bombay, Bench at Aurangabad in Writ Petition Nos.6537 of 2012 and 3728

of 2012 respectively.

2. A Primary Ashram School was being run by Banjara Magasvargiya

Shikshan Prasarak Mandal in the name of Prabodhankar Thakare Prathmik

Ashram Shala,  Talegaon Tanda,  Taluka-Chasligaon,  Distt-Jalgaon.   Around

2009 certain irregularities and deficiencies having been found, a report was

submitted to the Director of VJNT, OBC, Social Welfare of Special Backward

Class,  Pune.   Consequently,  the recognition granted to  said Ashram Shala

came to be  withdrawn on 23.08.2010 for  not  taking corrective  steps  with

regard to deficient infrastructural facilities.  By the same order the students of

said Ashram Shala were directed to be absorbed in nearby Ashram Schools.

3. By  subsequent  order  dated  15.12.2010  passed  by  the  Director,

permission/no objection was given to absorb the employees of said Ashram

Shala in other Primary Ashram Schools recognized by the Government.  In a

tabulated chart, the order noted the names of Primary Ashram Schools where

each of those employees was to be absorbed and directed the employees to

report  within  seven  days.   The  employees  at  Sl.Nos.10,11  and  12  were

temporarily adjusted in the office of Special District Welfare Officer and after

review of vacant posts in the division, the adjustment of said employees was

CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR.  VS.  THE STATE OF MAHARASHTRA AND ORS.

                                      3 to be undertaken.  In partial modification of the aforesaid order, an order was

passed on 18.06.2011 making revised postings of the employees.  

4. Thereafter, on 02.01.2012 a Resolution was passed by Government of

Maharashtra, Department of Social Justice and Special Assistance accepting

proposal of handing over said Ashram Shala to another entity named Sant

Dnyaneshwar  Shikshan  Sanstha,  Islampur,  Taluka  Walava,  District  Sangli

(appellant in Civil Appeal No.9384 and 9385 of 2014).  Under the Resolution

the entire Ashram Shala which had been closed down was to be transferred to

a place at a distance of 400 kms.  The relevant portion of the Resolution was

as under:- “Govt. Resolution :- The proposal of handing over closed down Ashram School named as the Prabodhankar Thakare Primary  Ashram  School  run  and  govern  by  the  Banjara Backward  Education  Society,  At  Talegaon  Tanda,  Taluka Chalisgaon  to  the  Dnyaneshwar  Education  Society, Islampur, Taluka Walava, District Sangli and transfer at the Punyashlok  Ahilyadevi  Holkar  Primary  Ashram  School, Choundi,  Taluka  Jamkhed,  District  Ahmed  Nagar  is approved subject to following terms and conditions:

1. The currently serving approved Teaching/Non-Teaching employees  of  closed  down  Ashram  School  shall  be absorbed.

2. The  Resident  Students  of  the  closed  down  Ashram School shall be shifted in new society.

3. The Orders, Terms and Conditions time to time issued by the Government shall be binding upon the society.”

CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR.  VS.  THE STATE OF MAHARASHTRA AND ORS.

                                      4

5. The employees of erstwhile Ashram Shala which was closed down and

who were absorbed in various posts as stated above challenged the Resolution

dated 02.01.2012 and communication issued to each of those employees on

06.04.2012 to report at  the new place, by filing Writ Petition No. 3728 of

2012 before the High Court.   On 24.04.2012 the effect  of  communication

dated 06.04.2012 was stayed by the High Court.  Despite the order of stay, a

communication was issued by the Assistant  Commissioner,  Social  Welfare

Department to various schools where the employees were actually absorbed to

relieve them.  It is a matter of record that since April, 2012 the employees

have not received any payment towards salary or emoluments.

6. The challenge raised by the employees was accepted by the High Court.

The High Court considered Government Resolution dated 01.08.2007 dealing

with  the  subject  “The  conditions  for  transfer  of  Primary  and  Secondary

Residential Schools” and found that said Resolution dated 01.08.2007 did not

make any reference to transfer of a derecognized or closed school.  It further

found that none of the terms and conditions as stipulated in said Resolution

dated 01.08.2007 were satisfied in the present case.  It was observed that the

recognition accorded to an Ashram School was being considered as if it was a

business licence.  The High Court held that the transfer was not preceded by

CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR.  VS.  THE STATE OF MAHARASHTRA AND ORS.

                                      5 any circulation about intention to transfer, which would have enabled other

institutions to explore possibility of putting in their claims.  The High Court

also relied upon the decision of the Division Bench of the same High Court

rendered in Jeevanjyoti Krida and Shikshan Prasarak Mandal  vs.  State of

Maharashtra and ors.1 .   

Allowing  the  Writ  Petition  the  High  Court  quashed  Government

Resolution dated 02.01.2012 and directed the State authorities to release the

salaries  of  the  employees  regularly  with  further  direction  to  issue  to  said

employees proper absorption orders in the schools nearer to the derecognized

Ashram Shala or allow them to continue at the places of absorption according

to the position prior to 02.01.2012.

7. The aforesaid decision of the High Court is presently under challenge by

appellant in C.A. Nos.9384 and 9385 of 2014 (‘appellant’ for short). While

issuing notice on 17.12.2013, this Court had directed that the school run by

the appellant in terms of Resolution dated 02.01.2012 would continue to run

and would not be directed to be closed down till further orders.  Consequently,

the school is still being run by the appellant.  Challenge has also been raised

by State of Mahrashtra by filing Civil Appeal Nos. 9673-9674 of 2014 against

the  very  same  judgment  of  the  High  Court.   According  to  the  State,  the

1 2012(6) Maharashtra Law Journal (Mh.L.J) page no. 836

CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR.  VS.  THE STATE OF MAHARASHTRA AND ORS.

                                      6 Resolution dated 02.01.2012 was perfectly within the competence of the State

and was a proper exercise of power.

8. We have heard Mr. Sudhanshu S. Choudhari, learned Advocate for the

appellant in Civil Appeal Nos.9384 and 9385 of 2014, Mr. Arun R. Pednekar,

learned Advocate for the State in Civil Appeal Nos. 9673-9674 of 2014 and

Mr. Vinay Navre, learned Advocate for the employees.

9. The  Government  Resolution  dated  01.08.2007  dealt  with  certain

conditions  under  which  transfer  of  employees  of  primary  and  secondary

residential schools could be permitted.  Those conditions were as under:- “1. The government may permit or consider another option to grant other place to the Ashram run by the institute if the population is enough and the plan has been granted by the government,  and  considering  all  the  facilities  of  that Ashram.

2. The location from where the Ashram is functioning and its undertakings and if there is a necessity to requisite that land  or  there  is  any  danger  of  earthquake  flood  natural calamity or

3. If  the  population  of  the  place  where  the  Sanstha  is located is by any reason lessened or moved to some other place/village and if the population becomes less than 50% or

4. If  there  is  any  scarcity  of  basic  needs  such  as availability of land, water,  electricity or any other tension such as communal tension and or if that place is not safe for there is occurrence of tension frequently, within the area of 10 k.m., the Director of that Division of the government can

CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR.  VS.  THE STATE OF MAHARASHTRA AND ORS.

                                      7 permit to start the functioning of the Sanstha if there is all the required facilities.

5. The  permission  can  be  sought  by  the  director  of  the public welfare (local) authority to shift the location of the Sanstha within the area of 10 km.  if the basic facilities such as water,  electricity, ground, building are available at that place.

6. If there is an application from the Sanstha or if it faces the problems as mentioned in para 1 such as lack of basic necessities, or the population of children is reduced or the place has gone into Government requisition plan etc. then in that case the govt. authority can consider the permission to shift the place of the Sanshtha.   

7. The  authority  will  have  the  power  to  grant  the permission under extraordinary conditions or situations.   

8. If the grant has not been given to any Sanstha once it has  shifted  its  base,  the  responsibility  of  the  payment  of salaries  of  the  teachers  and  staff  shall  be  wholly  on  the Sanstha itself.   

9. If the location of the Sanstha (Organisation) is changed without seeking the permission of the authority then in that case it will be held illegal and for that the Govt. authority will not be responsible for any query which may be raised on issues such as staff, immovable property population of the children.  And the permission given to that organization will stand cancelled.  The govt. authority will have the right and power to hand over the functions of the Sanstha to some other Sanstha/Organization.”

CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR.  VS.  THE STATE OF MAHARASHTRA AND ORS.

                                      8 10. In  Jeevanjyoti1 almost similar fact situation came up for consideration

before the High Court where transfer of recognition, after derecognition of an

existing Ashram School, was effected and the distance between two places

was about 600 kms.  After considering the issues involved, the High Court

held that once an existing Ashram School was derecognized there would be

no occasion to handover that  recognition to  another Ashram School.   The

relevant portion of the decision of the High Court was as under:-

“………Evidently since a policy decision has been taken by the Government in 2006 not to allow new Ashram Schools, this was an attempt to get around that decision ostensibly by handing over the recognition of  a  derecognized school  to another  NGO.   Once  an  existing  Ashram  School  was derecognized, there would be no occasion to handover that recognition to another Ashram School.  If as a result of the derecognition of an Ashram School the Government is in a position  to  fund  some  other  institution  elsewhere  in  the State  of  Maharashtra,  that  is  a  completely  separate  and independent  decision,  in  arriving  at  which  a  transparent decision making process must be followed.  Recognition is not  like  a  licence  to  enter  on  a  business  which  can  be transferred.   Once  recognition  granted  to  a  school  is withdrawn, that original recognition ceases to exist in law and in fact.    There is  no occasion then to  ‘transfer’ the erstwhile recognition to another institution.

… … …   

12. Ordinarily, we would have been inclined to set aside the Government Resolution dated 30 August,  2011 at this stage,  having  regard  to  the  illegality  in  purportedly transferring  the  recognition  of  a  derecognized  primary Ashram School to the Fourth Respondent and the absence of a  transparent  procedure,  even  assuming  that  this  was

CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR.  VS.  THE STATE OF MAHARASHTRA AND ORS.

                                      9 permissible.  However, the Court cannot now be unmindful of  the  factual  position  on  the  ground  which  is  that  120 students  have  been  admitted  during the  current  academic year to the Fourth Respondent which is a residential primary Ashram School.  These students who belong to the reserved category would now be left in a state of uncertainty if the Government Resolution dated 30 August, 2011 is set aide and their education would be liable to suffer.  In this view of the  matter,  we  are  now  taking  recourse  to  the  step  of quashing and setting aside the Government Resolution dated 30  August,  2011,  particularly  having  regard  to  the  fair attitude  shown  by  Counsel  appearing  on  behalf  of  the Petitioner that even the Petitioner would not seek such an extreme direction at this stage having regard to the aforesaid circumstances.   We  are,  however,  of  the  view  that henceforth  the  State  Government  must  frame  appropriate guidelines,  procedures  or,  as  the  case  may  be,  rules  and regulations  laying  down  the  procedure  for  considering requests for transfers of managements of Ashram Schools falling within the jurisdiction both of Tribal Development Department and the Social Justice Department.   Until  the State Government does so, we are of the view that direction should  be  issued  by  the  Court  to  obviate  an  arbitrary exercise of power.  The directions which we issue would be as follows:

(i) When a change in the management  of  an aided Ashram School is contemplated, the State Government shall issue and publish a notice in two prominent newspapers in the concerned area and on the website of the Department inviting applications from interested organisations including NGOs for conducting the Ashram School.  The Government shall  simultaneously  invite  suggestions  from  all stakeholders in including parents, citizens and the teaching and non-teaching staff who may be affected by the transfer of a management;

CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR.  VS.  THE STATE OF MAHARASHTRA AND ORS.

                                      10 (ii) The Director (VJNT) or, as the case may be, the

Director  (Tribal  Development)  shall  hold  an  enquiry  in regard to the reasons for a proposed change in management. The concerned District Social Welfare Officer shall submit a report to the Director (VJNT) or, as the case may be, the Director  (Tribal  Development)  before  a  final  decision  is taken.   The  track  record  and  credentials  of  the  proposed transferee management(s) shall be duly considered;

(iii) After  objections are  heard,  the Director  (VJNT) or, as the case may be, the Director (Tribal Development) shall pass a reasoned order.  The actual transfer or change in management  shall  be given effect  to  thirty  days after  the publication of the passing of the order in the same mode of publication as indicated earlier and it should preferably be from  the  commencement  of  the  new  academic  session, unless  for  exceptional  reasons  it  becomes  necessary  to exercise the power during the academic year to prevent a disruption of the education of the children.”

11.  The decision in Jeevanjyoti1 was rendered on 11.09.2012 i.e. after the

Government Resolution dated 02.01.2012.  However, said decision was never

challenged by the State.  On the other hand, a Government Resolution was

issued on 19.12.2016 laying down policy for  transfer  of  recognition of  an

Ashram Shala in a fair and transparent manner, in terms of said decision in

Jeevanjyoti1.   In the face of such stand by the Government, the submission

raised by Mr. Navre, learned advocate that the appeal preferred by the State

Government  against  the  decision  which  had  followed  the  decision  in

Jeevanjyoti1 may not be entertained, has some force.

CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR.  VS.  THE STATE OF MAHARASHTRA AND ORS.

                                      11 12. In  any  case,  we  have  gone  through  the  record  and  considered  rival

submissions.   The  way  the  issue  of  transfer  was  dealt  with  by  the  State

Government, the criticism levelled by the High Court was fully justified.  The

permission to an Ashram Shala was taken as if it was a business licence which

could be utilized at  any place.   In  terms of  Government Resolution dated

01.08.2007, the applications for transfer would normally be considered within

a distance of 10 kms.  In the present case, the distance itself is 400 kms. and

for a Primary Ashram Shala it  would not be proper to expect the children

enrolled in the Ashram Shala to be transferred to a new place.  Further, there

was no school in existence at the place where the transfer was effected and an

entity that was based in a completely different district was allowed to set up a

new Ashram Shala.  In our view, the High Court was right in rejecting the

submissions  advanced  on  behalf  of  the  appellant  as  well  as  the  State

Government.  We, therefore, affirm the view and dismiss these appeals.   

13. However, we deem it appropriate to pass following directions:-

a) Considering  the  facts  and  circumstances  that  the

students presently enrolled in the Ashram school run by the

appellant would be put to great prejudice if the school is to

be  closed  as  a  result  of  dismissal  of  these  appeals,  it  is

directed  that  said  school  may  continue  till  the  academic

CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR.  VS.  THE STATE OF MAHARASHTRA AND ORS.

                                      12 session 2019-2020.  However,  the school of the appellant

which is presently functioning by virtue of Resolution dated

02.01.2012  shall  not  be  allowed  to  function  from  the

academic session 2020-2021.

b) The  State  authorities  are  directed  to  invite  proposals

strictly in terms of the directions issued by the High Court

in  Jeevanjyoti1 from interested parties/societies to set up a

new school  or  conduct  the  very  same school  which  was

closed down.  Preference shall be given to those who wish

to re-start or set up a new Ashram School at a location in

conformity with Resolution dated 01.08.2007.  If  no such

proposal is received or is not found viable, then in terms of

the decision in  Jeevanjyoti1 and for exceptional reasons to

be recorded, permission may be given to start a new Ashram

Shala at a location beyond the limits prescribed under said

Resolution dated 01.08.2007.  In either case, there shall be

adequate  publicity  and  steps  will  be  undertaken  in

conformity with the decision in Jeevanjyoti1.  

CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR.  VS.  THE STATE OF MAHARASHTRA AND ORS.

                                      13 c) The  employees  who  are  presently  transferred  to  the

school  of  the  appellant  shall  always  be  treated  to  be  in

continuous service and the entire period from 02.01.2012,

right upto the date of this judgment, shall be taken to be part

of continuous service.

d) All  those  employees,  till  the  conclusion  of  academic

session  2019-2020  shall  be  part  of  the  school  presently

being  run  by  the  appellant.   Contemporaneous  with  the

closure of said school in terms of direction (a), the services

of the employees shall  be directed to be absorbed in any

school wherever there are vacancies, or to the school which,

as  a  result  of  the  aforesaid  direction  would  either  be  re-

started or newly set up.

e) The  employees  shall  be  entitled  to  salary  and

emoluments for the period that they had rendered service.

For  the  period they  could  not/did  not  render  service,  the

employees shall be entitled to 25% of back-wages.  

(f)  All  the  arrears  of  salary  and  emoluments  shall  be

released by the State Government to the employees within

six weeks from today.

CIVIL APPEAL NO. 9384 OF 2014 ETC. SANT DNYANESHWAR SHIKSHAN SANSTHAN AND ANR.  VS.  THE STATE OF MAHARASHTRA AND ORS.

                                      14

14. With the aforesaid directions these appeals stand dismissed without any

order as to costs.

………..…..……..……J.                                                                                        (Uday Umesh Lalit)

.………….……………J.                                       (Dinesh Maheshwari)

New Delhi, March 05, 2019.