M.S.SHAH, J. - (1.) M.S.SHAH, J. This petition was initially heard by a learned Single Judge, but by order dated 5.3.2003, the learned Single Judge expressed the opinion that in view of various decisions of the Apex Court on the question of permitting or not permitting the students to appear at the public examination when the institution (where the students have been imparted instructions) is unregistered or unrecognized by the public examination body like University or Secondary Education board, the matter was required to be heard by a Larger Bench. Since the entire petition has been placed before us alongwith the interlocutory applications, after having heard the learned counsel for the parties, we proceed to decide the petition and the interlocutory applications.
(2.) The facts leading to institution of these proceedings, briefly stated, are as under :- 2.1 Petitioner No.1-Shishu Jyot Kalyan and Kelavani Trust and its Managing Trustee (hereinafter referred to as "the petitioners"), have filed the present petition. The petitioner-trust runs the following institutions :- Medium Standard Since (i) Rachna Primary Gujarati I to VIII June 1991 School (ii) Rachna Secondary Gujarati VIII to X June 1995 School (iii) Rachna Primary Hindi I to VIII June 1992 School (iv) Rachna Secondary Hindi VII June 1997 School IX June 1998 X June 2004 There is no dispute about the first three schools run by the petitioners; as they are registered by the respective regulatory bodies being the Administrative Officer, Primary Education Committee of the Ahmedabad Municipal Corporation for the two primary schools and Gujarat Secondary Education Board for the Gujarati medium secondary school. The controversy in the present petition only centers around the fourth institution i.e. Rachna Secondary School (Hindi Medium). It is, however, necessary to refer to the relevant facts about the establishment of the other three institutions also in view of the contentions raised in the petition. 2.2 In June 1995, the petitioner-trust was granted permission by the Gujarat Secondary Education Board to establish Rachna Secondary School (Gujarati Medium). One of the conditions of the said permission was that the petitioner-trust was to deposit Rs.2 lakhs as security deposit for showing the financial stability of the trust. The trust deposited the said amount of Rs.2 lakhs on 6.12.1996. The trust which was already running Rachna Primary School (Hindi Medium) with students in Stds. I to VII found that there was a need for establishing a Hindi medium secondary school for students passing out from its Hindi medium primary school. Accordingly, the trust applied for permission for establishing a Hindi medium secondary school. By communication dated 23.4.1997 (Annexure "A"), the petitioner-trust was granted permission by the Gujarat State Education Board to establish a Hindi medium secondary school from June 1997 subject to the condition that the trust files an undertaking and a deed of declaration on a permanent basis not to take grant. It also appears that subsequently by letter dated 28.4.1997 the Board also required the petitioners to deposit a sum of Rs.2 lakhs with a bank in the joint names of the District Education Officer and the trust. 2.3 In response to the above communication, by letters dated 15.9.1997 and 21.12.1997 (Annexure "B" and "D"), the Managing Trustee informed the Board that the trustees had already finalized the deed of declaration, but some time would be required for making the deposit in the joint account and, therefore, time may be granted; the delay may be excused considering the fact that it was an educational institution managed by a trust run by persons of scheduled castes. By letter dated 15.10.1999 (Annexure "D"), the Managing Trustee again informed the DEO that the deed of declaration was ready, but some time was still required for collecting the funds to the tune of Rs.2 lakhs. Since the aforesaid assurance was not acted upon, by letter dated 29.10.1999, an officer in the office of the DEO called upon the petitioners to deposit the amount of Rs.2 lakhs in the joint account and to obtain registration from the Board, failing which necessary procedure will be followed as per the Rules. 2.4 It appears that thereafter, however, the petitioners requested the Board to transfer the deposit of Rs.2 lakhs made by the petitioners for the Gujarati medium secondary school on 6.12.1996, as the deposit for the Hindi medium secondary school. This request was made through the letters dated 28.9.2000, 2.12.2000 and 20.10.2002 (Annexure "G" colly.). It appears that the said letters were based on a Government circular. There was no response to the said letters, but ultimately by letters dated 4.8.2003 and 10.8.2003 (Annexures "H" and "I" respectively), the school management informed the DEO that the management was forwarding the deed of declaration and that for depositing the amount of Rs.2 lakhs in the joint account, necessary endorsement may be made on the bank form. The said request was acceded to and on 11.8.2003 the petitioner trust deposited an amount of Rs.2,25,299/= in a fixed deposit receipt with Dena Bank in the joint name of Rachna Hindi Vidhyalaya (Ganpatbhai J Parmar) and the DEO for a period of 24 months. The petitioners have produced a photostat copy of the fixed deposit receipt at Annexure "J" alongwith the bank certificate of even date to that effect. The amount deposited in the fixed deposit receipt could be withdrawn only with the joint signatures of the President of the trust and the DEO. 2.5 However, in the meantime the DEO required the petitioners to submit any letter showing whether the registration of the school was continued or renewed. In view of such query, the petitioners requested the Secretary of the Board by letter dated 30.7.2003 (Annexure "H") to continue/renew the permission so that the future of the students does not suffer. The petitioners also requested the Board to consider performance of the school which had started the classes in the Hindi medium from June 1997 after getting permission. The petitioners also requested the DEO on 7.10.2003 (Annexure "K") to do the needful and to submit a report to the Board. Necessary documents such as the proposals for additional classes of Stds. VIII and IX and school progress report were also submitted. Details as under were given about the number of classes and divisions. Standard No. of Divn. Started in VIII 1 June 1997 VIII 1 1998-99 VIII 1 1999-2000 IX 1 1999-2000 The position continued in the next academic year 2000-01 in which the proposal was also made for a second division of Std. VIII. The same position continued in the next two academic years 2001-02 and 2002-03 in which fresh proposal was also made for a second division of Std.IX. In the year 2003-04, the school had two divisions in Std. VIII and one division in Std. IX. The petitioners specifically mentioned in the aforesaid communication that the school was in a very backward area of poor labour class and backward classes of people speaking Hindi and mixed groups required such a secondary school in the area. The number of students in the school was increasing. Rachana Primary School in Hindi medium (Rachna Hindi Vidhyalaya) having students of Stds. I to VII with 18 divisions was running from June 1992 which fact was also required to be taken into consideration. 2.6 It was only on 17.12.2003 (Annexure "L") that the DEO informed the petitioners that the request for transfer of deposit (from Gujarati medium to Hindi medium) cannot be granted. Thereafter by letter dated 22.12.2003 (Annexure "M") the Secretary of the Board informed the Managing Trustee of the petitioner trust that the trust was granted permission to establish a secondary school in Hindi medium from June 1997 as non-grantable school, but the deed of declaration and the certificate of having opened a joint account as required by the Rules were not submitted inspite of reminders and, therefore, by the Board letter dated 17.8.1998, the permission letter dated 23.4.1997 was cancelled. The Secretary, therefore, rejected the request for continuation/renewal of permission as made in the petitioners' letter dated 30.7.2003 (Annexure "H") and also informed that legal action will be taken for starting an unregistered school.
(3.) Thereupon the petitioners filed the present petition challenging the aforesaid communications dated 22.12.2003 and 17.8.1998 referred to therein, with a specific averment made in the petition that the aforesaid communication dated 17.8.1998 was not received by the petitioners or its trustees. Contentions were also raised in the petition about absence of opportunity of hearing and reliance was also placed on the Government Resolutions dated 1.10.1997 and 28.8.1998 (Annexures "E" and "F") of the State Government in the Education Department as applicable to the non-grantable schools. It was contended on the basis thereof that a non-grantable school in urban area was required to make a deposit of Rs.2 lakhs, but such deposit was to be made only initially and was required to be continued only for a period of two years and if the school was run and managed properly, the deposit may be permitted to be withdrawn after two years (clause 1 of the Govt. Resolution dated 28.8.1998). Reliance was also placed on clause 11 of the said resolution stating that once a non-grantable school is granted permission, no prior permission was required for additional divisions of the same standard or for having further progressive classes, but the concerned DEO and the Joint Director of Education, Gandhinagar shall be informed within 30 days from the date of commencement of new class. Similarly for commencing Std. X class, the Secondary Education Board would have to be informed in accordance with the Rules. The petitioners, therefore, contended that the petitioners were justified in contending that the deposit of Rs.2 lakhs made for the Gujarati medium school in December 1996 was required to be treated as deposit for the Hindi medium school from December 1998 onwards.;