SANT DNYANESHWAR SHIKSHAN SANSTHA AND ANR.versusSTATE OF MAHARASHTRA AND ORS.

                        [2019] 2 S.C.R. 905                              905


  SANT DNYANESHWAR SHIKSHAN SANSTHA AND ANR.                             A
                                  v.
             STATE OF MAHARASHTRA AND ORS.
                   (Civil Appeal No. 9384 of 2014)
                         MARCH 05, 2019                                  B
 [UDAY UMESH LALIT AND DINESH MAHESHWARI, JJ.]
      Education/Educational Institutions:
       Primary Ashram School/ Ashram Shala – Derecognition of –
Employees thereof absorbed in other primary schools – Thereafter,        C
by Resolution dated 2.1.2012, State accepted the proposal of
handing over said Ashram School to another entity (appellant) –
As per the resolution, entire Ashram Shala was to be transferred to
a place at a distance of 400 kms. – Employees of the Ashram Shala
filed writ petition challenging the resolution dated 2.1.2012 – High     D
Court, in view of Government Resolution dated 1.8.2007 and relying
on judgment in *Jeevanjyoti case, allowed the petition – On appeal,
held: In terms of the Resolution dated 1.8.2007 an application for
transfer normally could be considered within a distance of 10 kms.
– High Court rightly set aside the resolution dated 2.1.2012 –
                                                                         E
However, in view of the fact that closure of school of the appellant
will put the students of the school to great prejudice, the school is
permitted to continue till academic session 2019-2020 – State is
directed to invite proposals in terms of directions issued in
*Jeevanjyoti case to set up a new school or to conduct the very
same school which was closed down – Employees who are transferred        F
to the school of appellant shall always be treated to be in continuous
service.
      Dismissing the appeals, the Court
       HELD: 1. The permission to an Ashram Shala was taken as           G
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
                                                                         H
                                 905
906               SUPREME COURT REPORTS                   [2019] 2 S.C.R.


A     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. The High Court was right in rejecting the
B     submissions advanced on behalf of the appellant as well as the
      State Government. [Para 12][914-C-E]
            2. However, 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
C     closed as a result of dismissal of these appeals, it is directed that
      said school may continue till the academic 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.
D     [Para 13][914-F-G]
             3. The State authorities are directed to invite proposals
      strictly in terms of the directions issued by the High Court in
      *Jeevanjyoti case to set up a new school or conduct the very
      same school which was closed down. Preference shall be given
E     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 *Jeevanjyoti case and for exceptional
      reasons to be recorded, permission may be given to start a new
      Ashram Shala at a location beyond the limits prescribed
F
      under the Resolution dated 01.08.2007. In either case, there shall
      be adequate publicity and steps will be undertaken in
      conformity with the decision in *Jeevanjyoti case. [Para 13]
      [914-H; 915-A, B]
            4. The employees who are presently transferred to the
G
      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. [Para 13][915-C]

H
       SANT DNYANESHWAR SHIKSHAN SANSTHA v.                            907
              STATE OF MAHARASHTRA

      5. All those employees, till the conclusion of academic          A
session 2019-2020 shall be part of the school presently being
run by the appellant. Contemporaneous with the closure of said
school 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      B
be re-started or newly set up. [Para 13][915-D]
      6. 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. [Para 13][915-E]               C
      *Jeevanjyoti Krida and Shikshan Prasarak Mandal vs.
      State of Maharashtra and ors. 2012(6) Maharashtra
      Law Journal 836 – approved.
                      Case Law Reference
                                                                       D
2012 (6) Mh.L.J. 836           approved               Para 6

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9384
of 2014.
      From the Judgment and Order dated 22.10.2013 of the High Court   E
of Judicature of Bombay, Bench at Aurangabad in Writ Petition
No. 6537 of 2012.
                              WITH
      Civil Appeal Nos. 9385, 9673-9674 of 2014.
                                                                       F
      Arun R. Pedneker, Nishant Ramakantrao Katneshwarkar,
Sudhanshu S. Choudhari, Surabhi Guleria, Yogesh Kolte, Ms. Nandini
Singla, Ms. Pushpa Devi Sikri, Advs. for the Appellants.
     Vinay Navre, Ms. Manju Jetley, Vivek C. Solshe, Amol B.
Karande, Sudhanshu S. Choudhari, Rutwik Panda, Ms. Anshu Malik,        G
Ms. Nikhar Berry, Praveen Chaturvedi, Somanatha Padhan, Ashok
Anand, Advs. for the Respondents.


                                                                       H
908                SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A           The Judgment of the Court was delivered by
            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 at Bombay, Bench at Aurangabad in Writ Petition Nos.6537
B     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
C     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
D     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
E     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 to be undertaken. In partial
F     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
G     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:-

H
      SANT DNYANESHWAR SHIKSHAN SANSTHA v.                                 909
    STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

      “Govt. Resolution :- The proposal of handing over closed down        A
      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
                                                                           B
      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      C
      be shifted in new society.
      3. The Orders, Terms and Conditions time to time issued by the
      Government shall be binding upon the society.”
       5. The employees of erstwhile Ashram Shala which was closed
down and who were absorbed in various posts as stated above challenged     D
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     E
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        F
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      G
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 any circulation about intention to transfer, which would have enabled
                                                                           H
910                     SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A     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
B     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.

C            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.
D     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 Resolution dated 02.01.2012
      was perfectly within the competence of the State and was a proper
      exercise of power.
E            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
F     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
G               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

      1
H         2012(6) Mahrashtra Law Journal (Mh.L.J) page no. 836
      SANT DNYANESHWAR SHIKSHAN SANSTHA v.                                     911
    STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

      3. If the population of the place where the Sanstha is located is by     A
      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      B
      tension frequently, within the area of 10 k.m., the Director of that
      Division of the government can 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    C
      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      D
      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.                                  E
      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     F
      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
                                                                               G
      Sanstha to some other Sanstha/Organization.”
      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
                                                                               H
912                SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A     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
B           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
C           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
D           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
E           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 permissible. However, the Court cannot
            now be unmindful of the factual position on the ground which is
F
            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
G           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
H
  SANT DNYANESHWAR SHIKSHAN SANSTHA v.                                  913
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

 the aforesaid circumstances. We are, however, of the view that         A
 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
                                                                        B
 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           C
 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   D
 the teaching and non-teaching staff who may be affected by the
 transfer of a management;
    (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            E
 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;
                                                                        F
    (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           G
 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.”

                                                                        H
914                SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A            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
B
      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.
      12. In any case, we have gone through the record and considered rival
C     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
D     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
E     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
F           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 session 2019-2020. However, the school
            of the appellant which is presently functioning by virtue of
G           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
H           the very same school which was closed down. Preference shall
       SANT DNYANESHWAR SHIKSHAN SANSTHA v.                                     915
     STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

       be given to those who wish to re-start or set up a new Ashram            A
       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
                                                                                B
       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.
       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       C
       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           D
       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           E
       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.                                                                   F
      14. With the aforesaid directions these appeals stand dismissed
without any order as to costs.

Kalpana K. Tripathy                                        Appeals dismissed.
                                                                                G




                                                                                H