Decided on April 26,1983



A.S.QURESHI, J. - (1.) The petitioner herein is the Managing Trustee of Shri Saraswati Education Trust Mendarda District Junagadh. The said Trust had applied in the prescribed form for permission to establish a Secondary School at village Mendarda before the Secondary Education Board (hereafter `Board) on 25 October 1982 Respondent No. 3 is the Managing Trustee of Amrabhai Trust of Mendarda which had also applied for a similar permission to establish a Secondary school in the same village. The Board respondent No. 2 herein rejected the applications of both these Trusts on the ground that if the permission was granted to either of them there would be unhealthy competition. Against the said decision of the Board the petitioner as well as the respondent No. 3 filed their respective appeals to the Government of Gujarat. The said appeals came to be heard by the Deputy Secretary Education Department who allowed the appeal of respondent No. 3 and directed that he may be permitted to establish a Secondary School in village Mendarda. The appeal of the present petitioner was however dismissed on the ground that the permission was already granted to the present respondent No. 3 and there-fore permission could not be granted to the petitioner. Against the said decision of the Deputy Secretary the present petition is filed.
(2.) Mr. A. D. Padival for Mr. P. M. Thakkar the learned Advocate for the petitioner has submitted that the impugned order of the Deputy Secretary is illegal void and untenable in law as there is no proper application of mind and the appeal has not been disposed of on merits. Mr. Padival has urged that the only ground for rejection of the appeal by the Deputy Secretary was that the appeal of respondent No. 3 was allowed and that he was granted permission to establish a secondary school and therefore the petitioners appeal was dismissed. Mr. Padival has further urged that the Deputy Secretary has not considered the relative merits of the two applicants and has not given his decision on the question as to who of the two applicant Trusts is more suiable for granting permission to open a secondary school in village Mendarda. Mr. Padival has also urged that there was non-application of mind by the Secondary Education Board as well because the ground on which the two applications were rejected by the Board was that there may be unhealthy competition between the two rival institutions which would not be conducive to the cause of education in the village. According to Ma Padival there is no reason whatsoever to believe that there would be an unhealthy competition. In fact according to him there is a crying need for another school in village Mendarda. He relies on the facts set out by the District Education Officer in his report dated 4-1-983 (Annexure C) therein it is stated that there is quite a large number of students who seek admission to the VIIIth Standard of the secondary schooL In 1981 the population of Mendarda was 10679 persons. There was a categorical statement made in the report of the District Education Office that if a new secondary school was started in Mendarda the exiting school is not likely to suffer any loss or no unhealthy competition is likely to arise. The District Education Officer had in his report also stated that the applicant-Trust had produced sufficient proof regarding the financial viability and provision of the necessary amenities and facilities on the basis of which he recommended that the permission to open a new school may be granted. In spite of this very clear report and a positive recommendation by the District Education Officer the Secondary Education Board thought it fit to reject the application apparently without applying its mind giving the most unsatisfactory and untenable reason that there may be unhealthy competition if the permission was granted to open a new secondary school. It is indeed grange that the Secondary Education Board came to the conclusion it did because the facts very clearly show that there is a pressing need for opening another secondary school in village Mendarda. Even on the existing number of students the Secondary Education and has not given any reason whatsoever for coming to the conclusion that there will be an unhealthy competition. Competition if at all any may not necessarily be un-healthy. It may well be a very healthy competition where the two institutions may compete with each other trying to attract more students by providing better education and obtaining good result in the examinations. Even the number of existing students justices having another school and if the future increase is to be taken into account there may be room for more than one school to be established. But the Secondary Education Board has not taken any of these factors into consideration. It has dealt with the question before it in a per-functory manner. It is very sad indeed to see that a body which is established for the advancement of the cause of education by its unintelligent and almost insensible attitude hampered the cause of advancement of education. Mr. J. A. Shelat the learned counsel for the Secondary Education Board was asked to explain how did the Secondary Education Nard come to this conclusion. He was unable to justify it on the basis of facts on the record of this case. All he tried to do was to put forward the rule which purports to lay down that if the number of students is reduced by 20 per cent there would be an unhealthy competition. This rule can have no application to the facts of this case because it is nobodys case that there is any reduction in the number of students. On the contrary the facts show that there is a considerable increase in the number of students. There is already overcrowding in the existing school. Therefore the afore-said rule can have no application. Mr. Shelat was asked to file an affidavit-in-reply on behalf of the Secondary Education Board explaining as to how did it come to the conclusion that there will be unhealthy competition if permission is granted to open another school. He was granted more than one weeks time to file the affidavit but no affidavit is filed till this day. We have therefore no alternative but to presume that the Secondary Education Board has no factual data with it to justify the strange reasoning it gave while rejecting the applications of both the applicant-trusts for opening secondary schools.
(3.) The Government has also not thought it fit to file any affidavit-in-reply but at the direction of the Court the Deputy Secretary who passed the impugned order is present in the court. On instructions from him Mr. B. D. Desai the learned Asstt. Government Pleader states that both the appeals were heard together but as the present petitioner was not present the appeal of the respondent No. 3 was disposed of allowing his appeal and granting him permission to establish a secondary school. Subsequently the petitioners appeal was rejected because the appeal of the respondent No. 3 having been allowed there was no alternative but to dismiss the appeal of the present petitioner. This is not the correct way of disposing of these two appeals. The Deputy Secretary while exercising his quasi-judicial powers in disposing of the appeals should have decided the appeals on merits and should have disposed them of by giving reasons why one appeal was allowed and the other rejected. It should have been only on the ground of relative merits of the two applicants and it should not be on the fortuitous ground that since one has succeeded the other must fail. The impugned order therefore is unsustainable and deserves to be quashed and set aside.;

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