State of U.P. and 5 Others v. C/M Baba Hanuman Das Kanya Poorva Madhymic Vidyalaya

Court No. - 39 Case :- SPECIAL APPEAL No. - 406 of 2020 Appellant :- State Of U.P. And 5 Others Respondent :- C/M Baba Hanuman Das Kanya Poorva Madhymic Vidyalaya Counsel for Appellant :- Sanjay Kumar Singh Counsel for Respondent :- Prabhakar Dwivedi Hon'ble Saumitra Dayal Singh,J. Hon'ble Shiv Shanker Prasad,J.

¶1Heard Mr. Arimardan Singh Rajpoot, learned Additional Chief Standing Counsel for the respondent-appellant/State and Mr. Vikram Bahadur Yadav, Advocate holding brief of Mr. Prabhakar Dwivedi, learned counsel for the petitioner-respondent.

¶2The present intra court appeal is directed against the order of the learned single judge dated 22nd November, 2019 passed in Committee of Management Baba Hanuman Das Kanya Poorva Madhyamik Vidyalaya Vs. State of U.P. & % Others, 2019:AHC:198335. By that order, the learned single judge has quashed the order dated 27th September, 2017/27th December, 2017 passed by the Deputy Secretary, Shiksha Anubhag-VI, Government of U.P. at Lucknow, rejecting the claim of the petitioner for Grant-in-Aid (Financial Aid) to the petitioner institution.

¶3The petitioner-committee of management has established a junior high school. It was given recognition by the Additional Director of Education (Basic), VII Region, Gorakhpur on 2nd March, 1989. On 7th September, 2006, the Government of U.P. introduced Grant-in-Aid scheme (hereafter referred to as the "scheme") to support private educational institutions, described as aided institutions. The petitioner-committee of management applied for Grant-in-Aid. That was first rejected by the order dated 4th January, 2007 passed by the Assistant Director, Education (Basic), Gorakhpur. Again the claim of the petitioner was rejected on 28th July, 2011 by the State Government. That was challenged in writ petition. The same came to be dismissed. The special appeal filed there-from being Special Appeal No. 351 of 2013 was allowed on 29th October, 2014. The order dated 28th July, 2011 passed by the State Government was set aside and the matter was remitted to the proper authority i.e. Secretary, Education (Basic), Government of U.P. at Lucknow to pass a fresh order after giving opportunity of hearing to the petitioner-respondent.

¶4While making compliance of that order, the Additional Chief Secretary, Shiksha Anubhag-6, Government of U.P. passed the order dated 27th December, 2017 and rejected the claim of the petitioner-committee of management. Reason to reject the claim of the petitioner-committee of management has been recorded in paragraph-8 of the order. It reads as below: "उप቟኎्ሹ सम्ቇ तथ्቟኎ों के परि्ቚेቌኚ቟኎ में रिट ቟኎ाचिका सं० 62182/2015 ्ቇाम वि कास से ा सविमचित अन्቟኎ बनाम ቟኎ूविन቟኎न आॅफ इቄኌ'(቟኎ा अन्቟኎ में मा० उ्ሴ न्቟኎ा቟኎ाल቟኎ ्ቛाा पारित आदेश विदनांक 05.11.2015 के अनपालन में ्ቚाथविमक शिश्ቌा के मान्቟኎ता ्ቚा्቎ असहाचि቟኎क वि ्ቕाल቟኎ों के संबंध में वि गत ቧኘ7 की स्थाविपत नीचित का पना लोकन विक቟኎ा ग቟኎ा। सम቟኎क वि ाोपान्त पा቟኎ा ग቟኎ा विक सम््ቚचित ्ቚाथविमक शिश्ቌा की गण ्ቈा में सधा विक቟኎े जाने ए ं जो वि ्ቕाल቟኎ स्थाविपत है, उन्हे आधाभूत सवि धाएं उपलब्ध काते हए वि कसिसत विक቟኎ा जाना आ श्቟኎क है। वि ्ቕाल቟኎ों में शैचि्ቌक गण ्ቈा के सधा हेत ाज्቟኎ सका ्ቛाा बहत गम्भीता से वि ा विक቟኎ा जा हा है। इसके अन्तगत छा्ቔ संख्቟኎ा के आधा प अध्቟኎ापकों की तैनाती (समा቟኎ोजन), छा्ቔों ए ं अध्቟኎ापकों की विन቟኎विमत उपቄኌस्थचित, पठन – पाठन का विन቟኎विमत अन्ቦ ण ए ं छा्ቔ – छा्ቔाओं के अचिधगम स्त में ृचिQ हेत ्ቚ቟኎ास विक቟኎ा जा हा है। इसके दृविSगत तमान में्ቚ ाथविमक शिश्ቌा में न ीन वि ्ቕाल቟኎ स्थाविपत विक቟኎ा जाना / अनदाविनत विक቟኎ा जाना समीीन नही पा቟኎ा ग቟኎ा है। आगामी 05 ቧኘT के बाद ቄኌस्थचित का पना लोकन विक቟኎ा जा቟኎ेगा औ ቟኎विद आ श्቟኎कता पाई जाती है, तो तदनसा वि ा विक቟኎ा जा቟኎ेगा। तदनसा मा० उ्ሴ न्቟኎ा቟኎ाल቟኎ में ቟኎ोसिजत वि शेቧኘ अपील सं० – 351/2013 ्ቚबन्ध सविमचित, बाबा हनमान दास कन्቟኎ा पू  माध्቟኎विमक वि ्ቕाल቟኎ बनाम उ०्ቚ० ाज्቟኎ अन्቟኎ में पारित मा० उ्ሴ न्቟኎ा቟኎ाल቟኎ के आदेश विदनांक

29.10.2014 के समाद में उ्ሹ ्ቚस्त – 7 में ्ቚावि धाविनत नीचित के अनसा ቟኎ाी ्ቚबन्धक का ्ቚत्቟኎ा ेदन विदनांक 21.04.2017, 10.08.2017 ए ं

03.11.2017 को एतद््ቛाा विनस्त क विनस्तारित विक቟኎ा जाता है।"

¶5In allowing the writ petition, the learned single judge has observed as, below: "Having heard the learned counsel for the parties, I am of the view that at the time when the petitioner had applied everything was in order. The petitioner was having a permanent recognition. The vacancies were proper and the teachers and the non-teaching staff were given proper appointment in accordance with law and what is more there were students studying in the institution who required free education as per ' The Right of Children to Free and Compulsory Education Act, 2009. Under such circumstances, the impugned order dated

27.9.2017 cannot be sustained in the eyes of law and the same is, accordingly, quashed. The respondents no. 1, 2, 3 and 5 are directed to give the grant-in-aid to the petitioner's institution from the day the petitioner Institution had applied through its management. With these observations, the writ petition is allowed."

¶6Having heard the learned counsel for the parties and perused the record, the Additional Chief Standing Counsel for the respondent-appellant is right in his contention that the learned single judge has not given any reason (in law), to issue a positive direction to the State-authorities to provide Grant-in-Aid to the petitioner-respondent and he is further right in his contention that such administrative decision may not have been made under the jurisdiction of judicial review of administrative orders.

¶7A writ proceeding instituted under Article 226 of the Constitution of India remains a proceeding of judicial review. Thus, the order impugned in such proceeding remains open to judicial scrutiny of the procedure adopted to reach the decision. At the same time, it is not a proceeding in continuation to the administrative decision making. That is the fundamental difference that must be maintained, while exercising writ jurisdiction arising from administrative orders.

¶8At the same time, the above error in principle committed by the learned single judge may not be enough to allow the appeal filed by the State in its entirety. Perusal of the order dated 27th December, 2017 passed by the Additional Chief Secretary, Shiksha Anubhag-6, Government of U.P. at Lucknow is imaginative and unreasoned in equal measure. On specific query, learned Additional Chief Standing Counsel fairly states that at present the State Government has neither withdrawn its scheme nor the scheme has been placed in abeyance.

¶9In view of the above fair statement, we find it wholly unacceptable that the State Government has chosen to reject the claim made by the petitioner-respondent for wholly ambiguous narration of facts. Unless the scheme had been withdrawn or had been placed in abeyance, the State Government remained obligated to consider the claim arising there-from, on the strength of the merits of the claim.

¶10To begin with, the State Government is presumed to act fairly and reasonably. It is presumed not to engage in an exercise of pick and choose. Therefore, an objective consideration of the petitioner's claim to be admitted to the benefit of the scheme and to be allowed Grant-in-Aid, was mandatory.

¶11Perusal of the impugned order (as has been extracted above) reveals that in the name of reasoning, imagined facts have been stated. Though, there is some discussion preceding the concluding paragraph no.8, the narration in that paragraph does not bring out any reason to hold that the petitioner-respondent was not entitled to Grant-in-Aid. Even if the scheme has been revisited and certain new parameters have been recognized or identified or prescribed to admit an institution under the scheme and even if the State Government were to apply such new standards to the case of the petitioner-respondent, due consideration of the particular facts of the petitioner's claim should have been made.

¶12We may hasten to add that we have not recorded any conclusion as to the merits of the case and at present, we also find that the present case is distinguishable from that of State of U.P. Vs. The C/M Sri Dravi Nath Purva Madhyamik Vidyalaya & Another, 2020: AHC:34966-DB. In that case, institution had been admitted to the scheme and aid was being provided. Later, it was discontinued for reason of some defect noted in the initial appointment granted by the institution. Also, the discontinuance of grant was occasioned by the reasoning that another institution was found established within the radius of 300 metres. In the present case, neither the petitioner has earlier been admitted to the scheme nor objections of the nature considered in C/M Sri Dravi Nath Purva Madhyamik Vidyalaya (Supra), have been raised, at this stage.

¶13In view of the above discussions and deliberation, the present intra court appeal is allowed and the order passed by the learned single judge dated 22nd November, 2019 is set aside. Also, for the reasons recorded above, the order passed by the Additional Chief Secretary, Shiksha Anubhag-6, Government of U.P. dated 27th December, 2017 is also set aside. The matter is remitted to that authority to pass a fresh reasoned and speaking order, as expeditiously, as possible preferably within three months from today, after giving due opportunity of hearing to the petitioner-respondent, keeping in mind the observations made above.

¶14The writ petition is disposed of subject to the observations made above. (Shiv Shanker Prasad, J.) (Saumitra Dayal Singh, J.) Order Date :- 13.12.2023 Sushil/- High Court of Judicature at Allahabad