Writ Petition No. 6727 of 2010 with 6846, 3061, 3150 of 2011 etc. etc.. Case: Shikshan Mandal through the Secretary Dr. R. G. Prabhune and Ors Vs State of Maharashtra and Ors. Bombay High Court

Case NumberWrit Petition No. 6727 of 2010 with 6846, 3061, 3150 of 2011 etc. etc.
Party NameShikshan Mandal through the Secretary Dr. R. G. Prabhune and Ors Vs State of Maharashtra and Ors
CounselFor Petitioner: A. V. Anturkar i/b Sugandh B. Deshmukh, Adv. and For State: S. R. Nargolkar, Add. G. P.
JudgesD. K. Deshmukh, J. and Anoop V. Mohta , J. and K. K. Tated , J.
IssueMaharashtra Secondary and Higher Secondary Education Boards Act (41 of 1965) - Sections 34, 37; Maharashtra Secondary Education Boards Regulations (1966) - Regulation 19; Constitution of India - Articles 14, 19, 21; Right of Children to Free and Compulsory Education Act (35 of 2009) - Sections 3, 18
CitationAIR 2012 Bom 115
Judgement DateMarch 16, 2012
CourtBombay High Court

Judgment:

D.K.Deshmukh, J.

  1. This Bench has been constituted by the Hon'ble the Chief Justice, because a Division Bench of this Court by order dated 26th October, 2010 referred following questions to a Larger Bench:

    (i) Do the provisions of Secondary Schools Code acquire statutory force because of reference made to those provisions in the Regulations framed under the Maharashtra Secondary and Higher Secondary Education Boards Regulations, the M.E.P.S. Act and the judgment of the Supreme Court in the case of M.G. Pandke v. Municipal Council, Hinganghat, 1993 Supp(1) SCC 708: (AIR 1993 SC 142)?

    (ii) From the point of view of making application for starting a school do the Marathi medium school constitute a different class which can be treated differently by the State Government?

    (iii) Does the Applicant have to indicate whether he wants grant-in-aid from the State Government or not at the time when he makes an application for permission to start a school and if 'Yes', then can schools be classified on the touch- stone whether they are seeking grant-in-aid or not?

    (iv) If the Bombay Primary Education Act does not apply to the entire State of Maharashtra, which is the law governing establishment of primary schools in the area to which the Bombay Primary Education Act does not apply?

    (v) Are all the provisions of the 2009 Act enforceable in the absence of any Rules being framed by the State Government under that Act?

    (vi) Can an application be made under the Secondary Schools Code for recognition of a school without first seeking permission of the Department to start a school?

  2. Before the Division Bench, that made the Reference, there were petitions challenging the order passed by the State Government rejecting applications filed by the Petitioners for establishing either Primary or Secondary School. One reason which was common to all the petitions before the Division Bench given by the State Government for rejecting the applications was that the Government has taken a policy decision to cancel or reject all applications which have been received by the Government for establishing Marathi Medium Primary or Secondary Schools. At the hearing of these Petitions, the learned Addl.Government Pleader placed before the Division Bench a judgment of the Division Bench of this Court dated 8th April, 2010 in Writ Petition No.345 of 2010 and submitted that in view of the directions issued by the Division Bench now it is not necessary for any person who wishes to establish Primary or Secondary School on no grant-in-aid basis to seek any permission to establish a school from the State Government. On this being pointed out to the Petitioners before the Division Bench, it was submitted on behalf of the Petitioners that the finding recorded by the Division Bench, in its judgment in Writ Petition No.345 of 2010 that no permission is required to be obtained from the State Government for establishing a school, cannot be said to be a correct finding. It was submitted that even according to the Division Bench which passed the order in Writ Petition No.345 of 2010, it is necessary for every school to obtain recognition from the department. It was submitted that recognition to a school can be given according to the provisions of the Schools Code and according to the provisions of the Schools Code it is only a school which has been permitted by the State Government to be established can apply for such recognition. In other words, a school which has not been permitted by the State Government to be established cannot apply for recognition. It appears that the submission was made that the Division Bench which issued the directions did not consider the provisions of the School Code. When the Division Bench issued the aforesaid directions and when the Reference to a Larger Bench was made, though the Rights of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as "Rights to Education Act" for the sake of brevity) had come into force, Rules under that Act were not yet framed. Ultimately, during the pendency of this Reference Rules called "Maharashtra Right to Children to Free and Compulsory Education Rules, 2011" came into force. The Rights to Education Act and the Rules framed thereunder apply to a child of the age of 6 to 14 years. Therefore, it can be said that so far as the subject of establishment and recognition of Primary Schools are concerned, it is now governed by the provisions of the Rights to Education Act and the Rules framed thereunder and so far as establishment of Secondary School are concerned, it is governed by the provisions of the Secondary Schools Code. It is an admitted position before us that the Right to Education and the Rules framed thereunder and...

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